licence by recovery c. N. Vaux the surviving Feoffee died having issue W. Lord Vaux the purchasor died seised his Son and Heir 14 Eliz. levied a Fine Sur Conusans de droit c. and that Fine was levied to the use of the Conusee c. and that without licence The Lord Vaux within five years after the Fine levied entred for the condition broken and now issued forth a Scire facias against the Conusee for that alienation without licence who made default whereupon issued process to seize the Lands whereupon came Sir Tho. Tresham Fine for Alienation without Licence and shewed the whole matter aforesaid and prayed to be discharged It was said that this Prerogative to have a Fine for alienation without licence had lately beginning upon the original creation of Seignories so as this prerogative is as it were paramount the Seignory and shall go paramount the Condition as well as the Condition is paramount the Alienation but if the disseisor of the Tenant of the King maketh a Feoffment in Fee now upon the entry of the disseisee the person of the Feoffee shall be charged with a Fine but the Land by the re-entry of the disseisee is discharged and such is the opinion of the Lord Frowick in his Reading upon the Statute of Prerogativa Regis and the reason is because the disseisor is not Tenant to the King and so when he aliens it cannot be said an Alienation by the Kings Tenant See 45 E. 3. 6. If the Tenant of the King in chief seaseth for life with licence and afterwards grants the Reversion over without licence Entry for Condition what acts it shall defeat the Tenant for life is not bound to atturn in a Quid juris clamat wherfore it seems that if such Tenant doth attorn the King shall seize presently This Entry for the Condition broken is not to have so violent a retrospect to the first livery to which the Condition was annexed that it shall defeat all things mean between the Creation and the breach of the Condition but it shall defeat all mean things which rise upon the act of the party as Rent Dower c. But charges which accrue by reason of Tenure do remain notwithstanding the Entry for the Condition broken As if such a Tenant of the King maketh a Feoffment in Fee upon condition which is broken the Feoffee dieth seised his Heir of full age the Feoffor re-entereth this re-entry by force of the condition broken hath not so avoided the descent but the King shall have Relief upon the said descent for the Relief is paramount the Livery and the condition So if a Feoffee upon condition disclaim in Avowry Condition shall not avoid an Interest vested by which the Lord brings a Writ of Right Sur Disclaimer and hath Iudgment the Feoffee entreth for the condition broken the said re-entry shall not avoid the interest of the Lord by the Iudgment on the Writ of Disclaimer but he may enter at his pleasure and it was moved by Plowden who argued for Tresham that if the Tenant of the King being Non Compos mentis makes a Feoffment in Fee and dieth his Heir entring upon the Feoffee shall not pay a Fine for the Alienation of his Father but the person of the Father shall be charged with it And at the end of this Term after many Arguments and Motions Iudgment was given for the Queen that she should seize the Land and hold the same for the Fine and that she should not be driven to sue the person of the Feoffee or Conusee And by Manwood chief Baron at the Commom Law in many Manors Tenant in soccage upon every alienation shall pay a Fine nomine relevii a fortiori in the Kings case and therefore he was of opinion That this Prerogative to have a Fine for alienation without licence is by the common Law and not by any Statute XII Caters Case Mich. 25 and 26 Eliz. in the Exchequer Chamber A Bill of Intrusion was in the Exchequer against Cater Intrusion 7 Co. 12. 1 Anders 95. who pleaded the Grant of the Queen the Plaintiff replicando said that before the Queen had any thing c. Sir Francis Englefield was seised of the Manor of which c. and he being beyond the Seas the Queen sent her Letters under the Privy Seal Quod ipse in fide legeantiâ quâ dictae Reginae tenebatur indirecte rediret in Angliam praedict tamen Franciscus spretis mandatis dict Reginae venire recusavit for which a Certificate was by the said Queen into the Chancery Quod dictus Franciscus in portibus transmarinis sine licentia dict Reginae remansit And thereupon a Commission was awarded to seize the Lands of the said Sir Francis which was entred in the Replication in haec verba reciting also the Queens Privy Seal and that the said Sir Francis did stay there spretis mandatis c. for which the Queen seised and granted to the Plaintiff And afterwards the Statutes of 13 and 14. Eliz. were made after which the said grant was made to the Defendant upon which matter there was a Demurrer and Iudgment given for the Plaintiff Error And now Cater brought a Writ of Error in the Exchequer Chamber and it was first assigned for Error because that the Record is entred Inter Johannem Cater present hic in Curia by I.S. Attornatum suum and that cannot be for it is oppositum in objecto that one can be present in Court and also by Attorney simul semel for the Attorney is to supply the default of the personal presence To which it was said by Wray Anderson and Periam that the matter assigned was no Error for there are many Presidents in the Exchequer of such Entries which were openly shewed in Court. 48 E 3. 10. R 2. 20 H 7. 20 H 8. And by Manwood chief Baron it is not so absurd an Entry as it hath been objected for if one hath an Attorney of Record in the Kings Bench and he himself is in the Marshalsey there is an Action against him he is present as Prisoner and also by Attorney and by them notwithstanding that here appeareth a contrariety for such Entry properly is presentem hic in Curia in propriâ persona sua yet because many proceedings are according it is the more safe course to follow them for if this Iudgment be reversed for this cause many Records should be also reversed which should be very perillous An other Error was assigned because it is not alledged in the Replication of what date the Privy Seal was nor that any notice of the said Privy Seal was given to Sir Francis to which it was said that the Privy Seal need not any date especially in this case for the matters which are under the Privy Seal are not issuable See 2 Eliz. Dyer 177. Privy Seal nor any traverse can be taken to it and this Privy Seal is not
by it self and the Declaration only enrolled Godfrey It was resolved in the Case betwixt Pendleton and Hunt Prohibition for tythes that an Agreement betwixt the Parson and any of his Parishioners is a good cause to grant a Prohibition if he libel in the Spiritual Court against such Agreement because the Spiritual Court cannot try it and they will not allow such Plea. Curia The Surmise is as a Writ for which if variance be betwixt the same and the Declaration all his naught CLXXVI Colebourn and Mixstones Case Intrat Hill. 31. Eliz. Rot. 146. Trin. 30. Eliz. In the Kings Bench. COlebourn was sued in the Spiritual Court for that being Executor to one Alice Leigh he had not brought in a true Inventory of all the goods of the said Alice but had omitted and left out a lease of two houses and this suit was at the pursuit of two Daughters of the Testator Colebourn sueth for a Prohibition and surmises and declares how this Lease is extinct and the matter was this H. Leigh was seised of a house called the Marigold and two other houses in London and leased the said two houses to one Alice Cheap for 21 years if she should live so long and afterwards made a Lease in Reversion of the said two houses to the said Alice Leigh for 21 years and afterwards he devised these two houses Devises and also the house called the Marigold to the said Alice Leigh for her life for to bring up his children and died after whose death the said Alice Leigh entred into the said house called the Marigold and took the rents and profits of the said two houses for the space of 7 years virtute testament praedict upon which Declaration the Defendants do demurr in Law. Coke the Declaration is not good and for the matter of it it is clear that by this devise unto Alice her Term in futuro is not extinct without her agreement to it And also in this Case the Devise is not for the benefit of the said Alice Leigh but of her children and she hath liberty to accept or refuse the said estate by devise and to make her election Extinguishment And the Plaintiff hath declared that she hath accepted the Rent reserved upon the Lease of the said two houses for 7 years And therein the Declaration naught in divers respects 1. He hath declared that the said Alice Leigh hath accepted the Rents of the said two houses by reason of the reversion virtue testament praedict by 7 years which is double and treble for acceptance of a Rent at one day scil one rent day is a sufficient election As if the Issue in tail after the death of his Ancestor who hath made a Lease not warranted by the Statute once accepts the Rent the Lease is affirmed but if in plea pleading the acceptance of the said Rent for 3 years be pleaded the same clearly is not good for no good Issue can be taken thereupon 2. This acceptance is not pleaded as the Law wills and in the phrase of the Law viz. to which devise she agreed but pleads the acceptance of the Rent which is matter of evidence the which is not good pleading As 5 H. 7. 1. One sweareth another to enter into his Land and the same to occupy for a certain time Estate executed the same is a Lease in Law and if in pleading the party is to make his title to the same Land he ought to plead it as an expres Lease and not as a Licence and if the Lease be traversed he may give the Licence in evidence Tanfield presently by the devise the estate for life is in the Devisee and the Term extinct by it and that is sufficient for the Plaintiff And if there was any disagreement the same is to be shewed on the other side But if Alice had not notice of the Devise but dieth before notice the same amounteth unto a disagreement And as to the pleading of the Agreement I conceive it s well enough pleaded for if the Lease had not been she might have entred and then if such Entry had been pleaded it had been good enough and then because she could not enter by reason of the said Lease she hath taken the rents and profits which is an actual agreement and as strong as an Entry Also we have shewed that she had entred into the house called the Marigold Assent not to be apportioned of which the Devisor died seised in possession and that is a sufficient agreement for the whole for it is an entire Legacy As 18 E. 3. Variance 63. If the Reversion of three acres be granted and the Tenant for life attorneth for one acre it is a good attornment for the whole for he cannot apportion his assent and 2 E. 4. 13. If the Executor deliver unto the Devisee goods to him devised to redeliver them to him again at such a day the same is a good assent and execution of the Devise and the words of the re-delivery are void Gawdy The devise doth not vest the estate in the Wife until agreement where a man takes in a second degree as in a Remainder the same vests presently before agreement but where he taketh immediatly it is otherwise and he held the agreement was well enough pleaded Wray Presently upon the death of the Testator the Free-hold rested in the Devisee and it was not an Agreement ut supra by taking of the Rents yet the entry into the Marigold was a consent and an Execution of the whole Legacy and as to the rest he agreed with Gawdy Clench The Free-hold rested presently in Alice Leigh before agreement also the entry into the Marigold is an execution of the whole Legacy to the Devisee for her entry shall be adjudged most beneficial for her and that is for all the three houses CLXXVII Stransham and Medcalfes Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 178. STransham libelled in the Court of the Bishop of Norwich against Medcalfe for a portion of Tithes as Farmor of the Rectory of Dunham the Parson of Stonham came in and said that the Land whereof the Tithes are demanded is in his Parish of Stonham and not in the Parish of Dunham and afterwards sentence passed against Stransham who brought an Appeal and notwithstanding that by the Statute of 32 H. 8. cap. 7. the spiritual Iudges may proceed to make process against the Appellant for costs for the principal matter scil parcel or within such a Parish or not is tryable at the Common Law. Cook now prayed a Consultation and he confessed ut supra that the matter was tryable at the Common Law but yet the costs were not given for the matter but for the unjust vexation No Prohibition for costs in the spiritual Court. and it was his suit and own act to prosecute the same in the Spiritual Court. Note that Stransham had a Prohibition to stay the proceedings for the costs for
and it shall be intended the Rent mentioned before See 21 H. 7. 30. b. Where Villa West shall be intended Villa praedict 19 E. 4. 1. In a Quare Impedit the Plaintiff doth entitle himself by grant of the next Avoydance cum acciderit and doth not shew in his Count that the same was the next Avoydance and yet the Count was holden to be good for so it shall be intended so here And he said It is not necessary that a Declaration be exactly certain in every point but if one part of it expound the other it is well enough And although the Identity of the Rent doth not appear by the word praedict yet it appeareth by other circumstances as by the days of payment c. and no other Rent can be intended And now this Exception is after Verdict and therefore favourably to be taken And afterwards Iudgment was given for the Plaintiff CCXLI. Musted and Hoppers Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumsit p 1 Cro. 149. That where he and one Atkinsal were joyntly and severally bounden by Obligation in fifty pounds to a stranger for the only Debt of the said Atkinsal which Atkinsal died and the Defendant married afterwards his Wife and so the Goods of Atkinsal came to his hands yet the Plaintiff the first day of May after which was the day of payment of the money paid five and twenty pounds for avoiding the Forfeiture of the penalty The Defendant as well in consideration of the Premisses as in consideration that he might peaceably enjoy the Goods of the Testator promised to pay the said sum cum inde requisitus fuer And upon Non Assumpsit the Iury found the payment of the said sum and all the precedent matter And that the Defendant in consideration praemissiorum promised to pay the said sum if he might peaceably enjoy the Goods of the said Testator It was moved in arrest of Iudgment that although here the Iury have found sufficient cause of Action yet if the Declaration be not accordingly the Plaintiff shall not have Iudgment Verdict And here the Plaintiff hath declared upon two Considerations and the Iury hath found but one scil if he peaceably enjoy the Goods of the Testator Also the Plaintiff declared of a simple promise and the Iury have found a Conditional Si gaudere potest c. And so the promise set forth in the Declaration is not found in the Verdict Gawdy was of opinion That the first consideration is good Consideration for the Plaintiff entred into Bond at the request of the Defendant and then the promise following is good But the second consideration is void scil That the Defendant shall enjoy the goods of the Testator c. as if it had been that he should enjoy his own goods And all the Iustices were clear of opinion That the Promise found by the Iury is not the promise alledged in the Declaration and so the issue is not found for the Plaintiff and so the judgment was stayed CCXLII. Creckmere and Pattersons Case Trin. 30 Eliz. In the Kings Bench. Rot. 568. Devise conditional 1 Cro. 146. 1 Roll. 410. 1 Inst 236. b. UPon a special Verdict the Case was this Robert Dookin was seised of certain Lands in Fee and having issue two Daughters devised the same to Alice his Eldest Daughter that she should pay forty pound to Ann her Sister at such a Day the money is not paid whereupon Ann entreth into the moiety of the Land And it was holden by the whole Court that the same is a good Condition and that the Entry of Ann was lawful It hath been adjudged That where a man devised his Land to his wife Proviso My will is That she shall keep my house in good Reparations that the same is a good Condition Wray A man deviseth his Lands to B. paying 40 l. to C. it is a good condition for C. hath no other remedy and a Will ought to be expounded according to the intent of the Devisor CCXLIII Dove and Williots and others Case .. Hill. 31 Eliz. In the Kings Bench. 1 Cro. 160. IN an Ejectione firmae upon a special Verdict the case was That W. was seised of the Land where c. and held the same by Copy c. and surrendred the same unto the use of E. for life the Remainder to Robert and A. in Fee Robert made a Lease to the Defendant E. Robert A. surrendred the said Land scil a third part to the use of Robert for the life of E. the Remainder to the Right heirs of Robert and of another third part to the use of Robert for life the Remainder to E. the Remainder to Richard c. and of another third part to the use of A. and his Heirs After which Partition was made betwixt them and the Land where c. was allotted to Richard who afterwards surrendred to the use of the Plaintiff It was holden That Iudgment upon this verdict ought not to be given for the Plaintiff For the Lessee of Robert had the first possession and that Lease is to begin after the death of E. who was Tenant for life and when E. and he in the Reversion joyn in a surrender thereby the estate for life in that third part is extinct in Robert who hath the Inheritance and then his Lease took effect for a third Part. So that the Parties here are Tenants in Common 1 Inst 200. betwixt whom Trespass doth not lye CCXLIV Bulleyn and Graunts Case Hill. 31 Eliz. In the Kings Bench. Copyhold UPon Evidence to a Iury the Case was That Henry Bulleyn the Father was seised of the Land being Copyhold and had Issue three Sons Gregory Henry andy Thomas and afterwards surrendred to the use of the last Will Devise 1 Cro. 148. and thereby devised the said Land to Joan his Wife for life the remainder to the said Henry and the Heirs of his body begotten Joan died after admittance Henry died without Issue and afterwards the Lord granted it to Thomas and his Heirs who surrendred to the use of the Defendant then his Wife for life and afterwards died without Issue Gregory eldest Son of Henry Bulleyn entred c. Coke When the Father surrendreth to the use of his last Will thereby all passeth out of him so as nothing accrueth to the Heir nor can he have and demand any thing before admittance Wray The entry of Gregory is lawful and admittance for him is not necessary for if a Copyholder surrendereth to the use of one for life who is admitted and dieth he in the Reversion may enter without a new Admittance It was moved by Coke if this Estate limited to Henry be an Estate tail or a Fee conditional For if it be a Fee-simple conditional then there cannot be another Estate over but yet in case of a Devise an Estate may depend upon a Fee-simple precedent but not
Godfrey in arrest of Iudgment That it is apparent upon the Declaration That the Trespass was done in the time of their Predecessors of which the Successor cannot have action and actio personalis moritur cum persona See 19 H. 6. 66. But the old Church-wardens shall have the action Cook contrary and that the present Church-wardens shall have the action and that in respect of their office which the Court granted And by Gawdy Church-wardens are a Corporation by the Common Law. See 12 H. 7. 28. by Frowick That the New Church-wardens shall not have an action upon such a Trespass done to their Predecessors contrary by Yaxley See by Newton and Paston That the Executors of the Guardian in whose time the Trespass was done shall have Trespass CCXLIX Hauxwood and Husbands Case Pasch 31 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared for disturbing of him to use his common c. and shewed that A. was seised of certain Lands to which this Common was appendant Prescription 1 Cro. 153. for the term of his Life the Remainder to B. in tail and that the said A. and B. did demise unto him the said Lands for years c. Pepper The Declaration is not good for it is not shewed how these particular estates did commence See 20 E. 4. 10. By Piggot Lessee for life and he in the Remainder cannot prescribe together and he in the Remainder cannot have common Also he declares That Tenant for life and he in Remainder demised to him whereas in truth it is the demise of Tenant for life and the Confirmation of him in the Remainder also he doth not aver the life of Tenant for life Popham He needs not to shew the commencement of the particular estates for we are a stranger to them the Prescription in them both is well enough for all is but one estate and the Lease of both See 27 H. 8. 13. The Lessee for life and he in the Reversion made a Lease for life and joyned in an action of wast and there needs no averment of the life of the Tenant for life for he in the Reversion hath joyned which Gawdy granted as to all And said the particular estates are but as conveyance unto the action Wray conceived the first Exception to be material c. CCL Sweeper and Randals Case Rot. 770. Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass for breaking of his Close and carrying away his goods by Sweeper against Randal upon Not guilty pleaded i Cro. 156. The Iury found That one John Gilbert was seised of the Land where c. and leased the same to the Plaintiff at Will who sowed the Land and afterwards the Plaintiff agreed with the said Gilbert to surrender to him the said Land and his interest in the same and the said Gilbert entred and leased to the Defendant who took the Corn. It was moved if these words I agree to surrender my Lands be a present and express surrender Gawdy It is not any surrender for Tenant at will cannot surrender but it is but a relinquishing of the estate if it be any thing Surrender but in truth it is not any thing in present but an act to be done in future Wray I agree A. demiseth the Manor of D. at will it is no Lease no more shall it be here any Surrender or any relinquishing of the estate Clench conceived That the intent of the Party was to leave his estate at the time of the speaking otherwise those words were void for he might leave it at any time without those words Gawdy If such was his intent the Iury ought to find it expressly and afterwards Iudgment was given for the Plaintiff CCLI Ward and Blunts Case Trin. 31. Eliz. In the Kings Bench. Trover and Conversion 1 Cro. 146. IN an Action upon the Case of Trover of certain Loads of Corn at Henden in Middlesex and the conversion of them The Defendant pleaded That before the conversion he was seised of certain Lands called Harminglow in the County of Stafford and that the Corn whereof c. was there growing and that he did sever it by force of which he was possessed and the same casually lost and that the same came to the hands of the Plaintiff and the Plaintiff casually lost the same and the same came to the hands of the Defendant at Henden aforesaid and he did convert the same to his own use as it was lawful for him to do upon which the Plaintiff did demur in Law. Atkinson The Plea is good for the conversion is the point of the action and the effect of it For if a man take the same and do not convert he is not guilty And here the Defendant doth justifie the conversion wherefore he cannot plead Not guilty The general issue is to be taken where a man hath not any colour but here the Defendant hath colour because the Corn whereof c. was growing upon his Land which might enveigle the Lay people and therefore it is safest to plead the special matter But admit that it doth amount but to the general issue yet there is not any cause of Demurrer but the Plaintiff ought to shew the same to the Court and pray that the general issue be entred and the Court ex officio ought to do it Egerton the Queens Solicitor contrary The Plea in Bar is not good The Plaintiff declares of a Trover of his goods ut de bonis suis propriis and the Defendant pleads That he took his own goods which is not any answer to the Plaintiff See 22 E. 3. 18. In Trespass of taking and carrying away his Trees The Defendant pleads That they were our Trees growing in our own soil and we cut them and carryed them away and the plea was challenged wherefore the Defendant pleaded over without that that he took the Trees of the Plaintiff So 26 Ass 22. and 30 E. 3. 22. Another matter was The Plea in Bar is That before the time of the Conversion the Defendant was seised of the Land and sowed it and that after the Corn was severed but he doth not say that he was seised at the time of the severance and then it might be that he had severed the Corn of the Plaintiff c. and that was holden by the Court to be a material exception wherefore Iudgment was given for the Plaintiff But as to the first Exception the same was disallowed For the Court ex Officio in such case ought to cause the general issue to be entred but the Plaintiff ought not to demur upon it CCLIV Cheiny and Langleys Case Hill. 31. Eliz. Rott 638. Trin. 31 Eliz. In the Kings Bench. THe case was That Tenant for life of certain Lands leased the same for years by Indenture with these words I give grant 1 Cro. 157. Leases bargain and sell my interest in such Lands for twenty years To have and to hold
over the Feoffees do not pay the said mony within the said 15 days afterwards Curties attorns to the Feoffees It was moved if the Reversion of the Lands passed to Curties passeth by the Feoffment of the Manor without attornment which see Littleton 133 134. 2. Attornment If by the attornment of Curties after the 15 days the uses can rise to Bracebridge and his wife c. and it was said That the Case 20 H. 6. Avowry 11 12. If a Manor be granted for life the remainder over in Fee Tenant for life dieth if the Tenants attorn to him in the Remainder the same is good and if a Reversion be granted to two and one of them dieth attornment to the survivor is good and if a Reversion be granted to Husband and Wife in special tail the Wife dieth afterwards without issue Attornment to the Husband is good and if a Reversion be given in Frank-marriage and afterwards the Husband and Wife are divorced and afterwards the particular Tenant attorns to the Wife the same is good and by Manwood If a Man seised of a Manor the demesns of which extends into two Counties and hath issue a Son and a Daughter by one woman and a Son by another woman and dieth the eldest Son enters into the Demesns in one County only and takes the profit in one County only and dieth without issue the Daughter shall have and inherit the Demesns or Services whereof her Brother was seised and the Son of the half-blood the rest And by Manwood the attornment of Curties who was the first Lessee shall bind Moore the second Lessee for he ought to attorn against whom lieth the Quid juris clamat And if a Lease for years be made of a Manor and the Reversion of it be granted to another in fee if the Lessee for years attorneth it shall bind the Tenants of the Manor 18 E. 2. A man seised of a Manor in the right of his Wife leased parcel of it for years without his wife the Reversion thereof is not parcel of the Manor contrary if the Lease had been made by Husband and Wife And by Dyer if Tenant in tail of a Manor leaseth parcel for years and afterwards makes a Feoffment of the whole Manor and makes Livery in the Demesns not leased the Reversion of the Land leased doth not pass for by the Feoffment a wrong is done to the Lessor which the Law shall not further enlarge than appeareth by the Deed contrary in case of Tenant in fee of a Manor and that without Deed with Attornment And it was the Case of one Kellet 25 H. 8. Kellet was Cestuy que use before the Statute of 27 H. 8. of divers Lands by several Conveyances the use of some being raised upon Recovery of some upon Fine and of some upon Feoffment and he made a Feoffment of all these Lands by Deed with a Letter of Attorney to make Livery the Attorney entred into part of the Land and made Livery in the name of the whole and it was agreed by all the Iustices that the Lands passed notwithstanding in others possession i.e. other Feoffees And by Dyer If the Tenants of a Manor pay their Rents to the Disseisor they may refuse again to pay them and if a Lease be made for years the Remainder for life if the Lessor will grant over his Reversion the Lessee for years shall Attorn and his attornment shall bind him in the remainder for life and if a Lease be made to one for years the remainder over for life the remainder to the Lessee for years in Fee. Now if the Lessee for years grant all his interest c. there needs no attornment and if Grantee of a Rent in fee leaseth for life and afterwards grants the Reversion to another the Attornment of the Ter-tenant is not requisite but only of the Grantee for life It was also holden Relation That this Attornment by Curties two years after the Livery was sufficient for it shall have relation to the Livery to make it parcel of the Manor but not to punish the Lessee for waste done mean between the Livery and the Attornment but betwixt the Feoffor and the Feoffee it shall pass ab initio It was holden also That although the uses for it limited are determined by the default of payment within the 15 days yet the Feoffees shall take the Reversion by this Attornment to the second uses 2 Len. 222. and if I enfeoff one upon condition to enfeoff J.S. who refuseth now the Feoffee shall be seised to my use but if the condition were to give in tail contrary So here is a Limitation beyond the first use which shall not be defeated for want of Attornment to the first uses and here it was not the meaning of Bracebridge to have the Lands again upon breach of the condition in his former estate but according to the second use and Iudgment was given in the principal case according to the resolutions of the Iudges as aforesaid And it was said by Harper Iustice That if a Feoffment in Fee be made to J. S. upon condition that he shall grant to A. a Rent-charge who refuseth it J.S. shall be seised to his own use Antea 199. CCCLVI. 20 Eliz. In the Common Pleas. THe Case was this Lord and Tenant by service to pay every year such a quantity of Salt but since 10 H. 7. the Tenant hath always paid the money for Salt. The question was If the Lord might resort to the first service Seisin and if the money be Seisin of the Salt. And Manwood took this difference i.e. where the Lord takes a certain sum of money for the Salt the same is not any Seisin for the service is altered as at the first Socage Tenure was a work done by labor i.e. Plowing but now it is changed into certain Rent and the Lord cannot resort to have his Plowing and in Kent divers Tenants in ancient time have paid Barley for their Rent but the same afterward was paid in a certain sum of money so as now the Lord of Canterbury who is Lord of such Tenements cannot now demand his Barly c. but if the sum which hath been used to be paid be incertain one year so much according to the price of Salt then such a payment of money is a sufficient Seisin of the Salt. Quod fuit concessum per Curiam CCCLVII 20 Eliz. In the Common Pleas. IN Accompt brought by an Heir Copyholder for the profits of his Copyhold Lands taken during his Nonage the Defendant pleaded That by the Custom of the said Manor Accompt by the Heir of a Copyholder the Lord of the Manor might assign one to take the profits of a Copyhold descended to an Infant during his Nonage to the use of the Assignee without rendring an accompt and the same was holden to be a good Custom as a Rent granted to one and his Heirs Custom to cease during the
Southcotes case Southcotes case So a Title of Cessavit in the Feoffees shall be executed by the Statute So if the King grants to the Feoffees in use a Fair Market or Warren these things shall be executed by the Statute Clerentius case as it was holden in the Case of Clarentius As to the Condition they conceived That it is broken for where the Devisor had allowed to the Devisee to discontinue for life to make a Ioynture to his Wife now he hath exceeded his allowance for he might have made a Ioynture to his wife indefeisable by Fine upon a Grant upon a Render for life c. But this Fine with the Proclamations is a Bar to the former entail which was created by the Devise and hath created a new entail and the former tail was barred by the Fine against the intent of the Devisor Also by this Fine he hath created a new Remainder so as his Issue inheritable to his new entail might alien and be unpunished which was against the meaning of the Devisor And as to the Lease for lives to the Defendants the same is not any breach of the Condition for that is warranted by the Statute of 32 H. 8. which enables Tenant in tail to make such a Lease so as it cannot be said Discontinuance which Anderson and Periam granted But the Fine levied after is a breach of the Condition and then the Re-entry upon the Lessees who have their estates under the Condition is lawful As where the wife of the Feoffee upon Condition is endowed and afterwards the Condition is broken now by the Re-entry of the Feoffor the Dower is defeated And Shutleworth put this case A Feoffment is made upon Condition that the Feoffee shall lease the Lands to A. for life and afterwards grant the Reversion to B. in Fee the Feoffor may re-enter for by this Conveyance he in the Reversion is immediate Tenant to the Lord where by the intended assurance the particular Tenant ought to be Puckering Fenner and Walmesley contrary And by Walmesley By this devise the use only passeth and not the Land it self for the Statute of 1 R. 3. extends only to Acts executed in the life of Cestuy que use and not to devises which are not executed till after the death of the Devisor which see 4 Ma. Dyer 143. Trivilians case See also 6 E. 6. Dyer 74. The Lord Bourchiers case but 10 H. 7. Cestuy que use deviseth That his Executors shall sell the Land now by the sale of the Land in possession for the same is in a manner an Act in his life for the Vendee is in by Cestuy que use and here is a Condition and not a Limitation for the nature of a Condition is to draw back the estate to the Feoffor Donor or Lessor but a Limitation carrieth the estate further And he conceived That the Condition is not broken by this Act for the intent of the Devisor is pursued for his meaning was That the wife should have a Ioynture indefeisable against the issue in tail and that the inheritance should be preserved that both should be observed And he said that this Fine being levied by him in the Reversion upon an estate for life is not any discontinuance but yet shall bar the estate Tail. And the Iustices were clear of opinion that the Condition is broken and also that the intent of the Condition is broken for it might be that Charles had issue by a former wife which by this Fine should be disinherited and a new Entail set on foot against the meaning of the Devisor c. and afterwards Iudgment was given for the Plaintiff CCCCX Simmes and Wescots Case Hill. 31 Eliz. Rot. 355. In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 147. That in consideration that he would marry the Defendants Daughter the Defendant promised to give him 20 l. and also to procure him all the Corn growing upon such Lands and to provide necessaries for the wedding dinner the Defendant did confess the communication betwixt them and that he promised to give the Plaintiff 20 l. so as he would procure a Lease of certain Lands to his Daughter for her life absque hoc that he promised modo forma The Iury found the promise of the 20 l. but not any other thing it was moved in arrest of Iudgment that the Assumpsit whereof the Plaintiff hath declared although it consist of divers things yet it is entire and if the whole is not found nothing is found and the Case of 21 E. 4. 22. was cited touching variance of Contract as where an Action of Debt is brought upon a Contract of a Horse and the Iury found a Contract for two Horses the Plaintiff shall never have Iudgment On the other side it was said That the Plaintiff shall recouer damages for the whole that is found i. for the 20 l. See 32 H. 8. Br. Issue 90. In an Action upon the Case the Plaintiff declared that the Defendant did promise to deliver four Woollen-cloaths the Defendant pleaded That he did promise to deliver four Linnen-cloaths absque hoc that he promised c. the Iury found That the Defendant did promise to deliver two Woollen-cloaths and the Plaintiff did recover damages for the two So in Wast the Wast is assigned in succidendo 20 Oaks upon which they are at Issue the Iury find but ten Oaks the Plaintiff shall have Iudgment for so much and shall be amerced for the residue Gawdy Iustice Here are several Assumpstis in Law as Br. 5. Ma. Action sur le Case 108. a man in consideration of a Marriage assumes to pay 20 l. per Annum for four years two years incur the party brings an Action upon the Case for the arrearages of the two years Wray In an Action upon the Case the Plaintiff ought not to vary from his Case as if a promise be grounded upon two considerations Ragula and in an action upon it the Plaintiff declares upon one only he shall never have Iudgment and here the Iury have not found the same promise Clench If promise be made to deliver a Horse and a Cow and the Horse is delivered but not the Cow the party shall have an Action for the Cow but he shall declare upon the whole matter and afterwards Iudgment was given quod querens nihil capiat per billam CCCCXI Stile and Millers Case Trin. 31 Eliz. In the Kings Bench. Tithes 1 Cro. 161 578. 11 Co 13. A Parson Leased all his Glebe Lands for years with all the profits and commodities rendring 13 s. 4 d. pro omnibus exaction ibus demandis and afterwards libelled in the Spiritual Court against his Lessees for the Tithes thereof the Lessee obtained a Prohibition See 32 H. 8. Br. Dis 17. 8 E. 2. Avowry 212. Wray Tithes are not things issuing out of Lands nor any secular duty but spiritual and if the Parson doth release to
yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by
197 p VVright and the Bishop of Norwiches case 218 p VVhisker and Cleytons Case 219 p VVard and Blunts case 251 p VVeston and Grendons case 255 p VVoodshaw and Fulmerstons case 262 p VVindham and Sir Edward Cleeres case 263 p VVickes and Dennis case 271 p VValgrave and Ogdens case 305 p VVard and Knights case 315 p VViseman and VVaringers case 339 p VVeston and Garnons case 343 p VVillis and Crosbies case 373 p VVilliams and Blowers case 402 p VValpoole and Kings case 407 p VViggot and Clarks case 419 p VVangford and Sectons case 423 p VVilmer and Oldfeilds case 424 p VVolman and Fies case 449 p VVillis and VVhitewoods case 454 p VVade and Presthalls case 466 p VVharton and Morleys case 467 p VValgrave and Agars case 469 p Z. ZOuch and Bamfeilds case 102 p REPORTS AND Cases of Law Argued and Adjudged in the Time of Queen Elizabeth From the twenty fourth to the three and thirtieth year of Her Reign I. Borneford and Packingtons Case Hill. 25. Eliz. in the Kings Bench. IN Trespas It was found by special verdict Custom of Free-Bench That the Defendant was seised of the Manor of B. whereof the place where is parcel demised and demiseable by Copy c. And that B. the Granfather of the Plaintiff was seised of the place where c. according to the custom of the said Manor in Fee-simple and that within the said Manor there is this Custom That if any Copy-holder dieth seised his Wife over-living him shall hold all the Land during her Widowhood as Free-bench and shall be admitted Tenant to the Lord 2 Brownl 21. and that the Heir shall not be admitted to it during the life of his Mother And found also another Custom within the said Manor That if any Copy-holder be convicted of Felony and the same be presented by the Homage that then the Lord might seize c. And it was further found that the Grandfather of the Plaintiff took a Wife and died seised having issue A. Father of the Plaintiff The Wife is admitted to her Free-bench A. is convicted of Felony and that is presented by the Homage and afterwards A. died after which the Wife died c. It was argued by Atkinson that A. is not within the danger of this Custom for during the life of his Mother who by a Claimer is Tenant to the Lord and admitted to it she is Copy-holder and it is not like to the Case lately adjudged of possessio fratris without admittance for there the party was admittable and so he was not here And also it appeareth by the Custom as it is found That the Lord upon such matter shall seize and therefore we ought to make construction that this Custom doth not extend to Cases where the Lord cannot seize but in the Case at Bar the Lord cannot seize by reason of this Free-bench And we ought not by any construction to extend a Custom beyond the words in which it is conceived but it shall be taken strictly and not be supplyed by Equity with a Custom in the place of a Seisure But notwithstanding all this afterwards Iudgment was given against the Plaintiff II. Hill. 25 Eliz. in the Kings Bench. A Copy-holder doth surrender to the use of one A. upon trust that he shall hold the said Land until he hath levyed certain monies and that afterwards he shall surrender to the use of B the monies are levyed A. is required to make surrender to the use of B. he refuseth B. exhibits a Bill to the Lord of the Mannor against the said A. who upon hearing of the Cause decrees against A. that he shall surrender he refuseth now the Lord may seize and admit B. to the Copy-hold for he in such Cases is Chancellor in his own Court per totam Curiam III. Wade and Bemboes Case Hill. 25. Eliz. in the Kings Bench. IN a Writ of Error by Wade against Bembo upon a Iudgment given in the Court of the City of Bristol the Case was That Bembo was Plaintiff in the said Court against Wade in an Action of Covenant and declared of a Covenant made by word by the Testator of Wade with Bembo and declared also that within the said City there is a Custom That Conventio ore tenus facta shall bind the Covenantor as strongly as if it were made by writing And it was holden by the Court that that Custom doth not warrant this Action for the Covenant binds by the Custom the Covenantor but doth not extend to his Executors and a Custom shall be taken strictly and therefore the Iudgment was reversed IV. The Lord Paget and Sir Walter Ashtons Case 25 Pasch 25. Eliz. in the Kings Bench THe Lord Paget brought an Action of Trespass against Sir Walter Ashton who justified because he is seised of three Messuages to him and his Heirs and that he and all those whose estate he hath c. have had the Woodwardship of the Forrest of C. within which the place where c. and also have had within the said Forrest Estovers without number And that one Rowland Bishop of Coventry and Lichfield was seised of the Forrest aforesaid in the right of his Church and by Indenture betwixt him and Sir Edw. Ashton his Ancestor whose Heir he is setting forth that divers debates had been betwixt the said parties concerning some profits within the said Forrest It was agreed betwixt them that the said Sir Ed. Ashton should release unto the said Rowland all his right in the said Office and Estovers and that the said Rowland shoud grant de novo unto the said Edw. and his Heirs the said Office and one hundred loads of Estovers per annum out of the said Forrest After which the said Ed. according to the said agreement did release to the said Bishop ut supra after which the said Bishop by Indenture reciting the said former Convenants in compl Indenturae praedict Convent did grant to the said Sir Ed. the said Office and Estovers pro easiamento dicti Edwardi haered suorum by assignment of the Officers of the said Forrest and if the assignment he not made within ten days after request that then the said Ed. and his Heirs should cut dow wood where they pleased and averred the things released were of as great value as the things granted And upon this matter the Plaintiff did demurr in Law and it was adjuded for the Plaintiff for here no Inheritance in the things granted passed to the said Sir Ed. but only an Interest for his own life 1. Inst 148. a. 398. b. ib. Dy. 253. 1 Cro. 644. for the grant was to Sir Ed. only without the word Heirs and the reference to the Indentures by which the Bishop hath covenanted to grant the Inheritance nor the words in the grant imply an estate in Fee s. pro easimento dict Ed. haered suorum and that in default of Assignment it should be lawful for Sir Ed. and his Heirs
shall not supply the defect of the words in the grant V. Gilbert and Sir George Harts Case Mich. 25 and 26 Eliz. in the Kings Bench. GIlbert brought Debt upon Escape against Sir George Hart Sheriff of Kent and declared Escape 1. Cro. 188. 271. That he recovered a certain debt against A. who was taken in Execution c. And the Case was That the said A. was taken in Execution in the time of the old Sheriff and escaped also then and afterwards the Defendant being Sheriff the Plaintiff again sued a Scire facias against the said A. upon the Iudgment aforesaid upon which Execution was awarded by default and thereupon issued a Capias ad satisfaciendum by which A. was taken and escaped And by the opinion of all the Iustices the Defendant in this Case shall be charged for notwithstanding that A. was once in Execution which was determined by escape in the time of the old Sheriff yet when Execution was now awarded against him upon his default in the Scire facias the same shall bind the Sheriff out of whose custody he escaped VI. Moor and Farrands Case Mich. 25 and 26 Eliz. in the Common Pleas. MOore leased Lands to Farrand upon condition that he 1. Cro. 26. Condition where shall not bind Administrators 1. Anders 123. Dy. 6. 1 Cro. 26. 757 3. Len. 67. his Executors or Assigns should not alien without the leave of the lessor Farrand died intestate his Wife took Letters of Administration and aliened without leave and by Periam Iustice she is not within the penalty of the Condition for the Administrator is not meerly in by the party but by the Ordinary And by Meade and Periam If a Lease for years upon such a Condition be extended upon a Recognisance the same is not an alienation against the Condition But if feme lessee for years upon such Condition taketh a Husband and dieth the Husband is within the danger of the Condition for he is Assignee If the King grant to a Subject bona catalla felonum and the lessor for years upon such a Condition be out-lawed upon which the Patentee enters Now by Periam the Patentee is not bound by the Condition Meade contrary for the Condition shall go with the Land. VII Maynyes Case Mich. 25 and 26 Eliz. in the Exechequer MAyney seised of Lands in Fee took a Wife Co. 1. Inst 41. â— made a Feoffment to a stranger committeth Treason and thereof is attainted and hath a Charter of Pardon and dieth It was moved by Plowden in the Exchequer if the Wife of Mayney shall have Dower against the Feoffee Dower Manwood Chief Baron by reason of this Attainder Dower cannot accrue to the Wife for her title begins by the Enter-marriage and ought to continue and be consummated by the death of the Husband which cannot be in this Case for the Attainder of the Husband hath interrupted it as in the Case of Elopement Attainder where an Estoppel And this Attainder is an universal Estoppel and doth not run in privity only betwixt the Wife and him to whom the Escheat belongs but every stranger may bar her of her Dower by reason thereof for by the Attainder of her Husband the Wife is disabled to demand Dower as well as to demand his Inheritance and he cited the Resolution of all the Iustices of England in the Case of the Lady Gates 4. Ma. Dyer 140. and the Pardon doth not help the matter for the same extends but to the life of the Offender but doth not take away the Attainder by which she is barred to demand Dower during the said Attainder in force See the Statute of 5. E 6. cap. 11. Vid. Fitz. Dower 82. 13. E 3. 8 E 3. Dower 106 Fitz. Utlag 49. 8 Mich. 25 and 26 Eliz. in the Exchequer 4. Len. 117. Leases for three lives of Copy-hold estate are not within Stat. 41. Eliz. IN the Exchequer it was found by special verdict That the Guardians and Chanons Regular of Otlery were seised of the Mannor of O c. and that 22 H 7. at a Court holden there granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Mannor and that afterwards 30 H 8. They leased the Lands by Indenture to H. rendering the ancient and accustomed Rent and afterward surrendred their Colledge c. and afterward W. and W. dyed And if that Lease so made during the customary estate for life notwithstanding the Statute of 31 H 8. be good or not was the Question being within a year before the surrender c. It was argued by Egerton Sollicitor that the said Lease is void by the Statute the words of which are whereof or in the which any estate or interest for term of life year or years at the time of the making of any such Lease had his being or continuance and was not then determined finished or expired and therefore we are to see if that right or possession which W. had at the time of the making of the Lease were an interest or an estate for life And as to this word estate it is nothing else than measure of time for an estate in Fee-simple is as much as to say an interest in the Lands for ever and the like of other estates and therefore here W. and W. had at the time of the making of this Lease an estate for life in the thing demised And although such customary Tenants are termed in Law Tenants at will yet they are not simply so nor meerly Tenants at will but only Tenants at will secundum Consuetudinem Manerii Copy-holdeâ—â— Interest which Custom warrants his possession here for his life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord so cannot a Tenant at will whose estate is determined at the will and pleasure of his Lessor And although this estate is but by Custom and by no Conveyance the estate is raised it is as material so as it be an estate and this estate being supported by Custom is known in Law an estate and so accounted in Law and the Law hath notably distinguished Copy-hold Tenancies by Custom and Tenancies at will by the Common Law for a Copy-holder shall do Fealty shall have aid of his Lord in an Action of Trespass shall have and maintain an Action of Trespass against his Lord his Wife shall be indowed the Husband shall be Tenant by the Curtesie without new admittance and it was adjudged in the Common Pleas 8. Eliz. That if a Copy-holder surrender to the use of another for years the Lessee dieth his Executors shall have the residue of the Term without any admittance M 14. and 15. Eliz. a Copy-holder made a Lease for years by Indenture warranted by the Custom it was adjudged that the Lessees should maintain Ejectione firm although it was objected that if it were so then if
one L. Rearsbie Father of the Plaintiff and of the Avowants and Jane his Wife and to the Heirs of Lyonel who by his Will devised unto A. Rearsbie a Rent of four pounds out of the said Manor with clause of distress for his childs part to be yearly paid Lyonel the Father died 3 Eliz. and afterwards 22 Eliz. Jane died and for the arrearages of the said Rent encurred mean between the death of Loynel and Jane his Wife c. upon which Avowry the Plaintiff did demurr in Law for the Rent doth not begin in effect but after the death of the Wife of the Devisor Construction of Devise for such construction ought be made of the Devise as not to charge the Inheritance with the whole arrearages c. and it was argued to the contrary that the Defendant might well avow the distress for these arrearages for if he in the Reversion upon a Lease for life grant a Rent charge after the death of the Grantor the Grantee shall distrein for all the arrearages encurred after the grant etiam during the life of the Grantor Distress quod Curia concessit and it was said by the Council of the Avowant that the Case at Bar is a stronger Case for this Rent as it appeareth by the words of the Devise was devised to the Avowant for his livelihood and for his childs part which words imply a present advancement and these words yearly to be paid are strong pregnant to that intent It was adjourned XVII Hill. 25 Eliz. in the Kings Bench. THe Earl of Northumberland brought debt upon arrearages of Accompt the Defendant shewed that before the Accompt Account the Plaintiff of his own wrong did imprison the Defendant and assigned Auditors to him being in prison and so the Accompt was made by duress of imprisonment And the same was holden a good Plea by all the Iustices of both the Benches And Iudgment was given accordingly XVIII Pasch 26 Eliz. in the Kings Bench. Pasch 26. Eliz. Forman and Bohans Case REplevin by Forman against Bohan Replevin the Defendant avowed for a Rent charge and shewed that one Wingfield was seised of the Manor of Wesham whereof the place where was parcel And 33 H 6. made a Feoffment in Fee of the place where c. to one Orlow rendring Rent and Sute at the Court of the said Manor and that the said Wingfield was seised of the said Rent and Sute accordingly and died thereof seised and that the same descended to Anthony Wingfield as Son and Heir 1 Cro. 39. c. who was seised of the said Rent as parcel of the said Manor and that the said Anthony so seised of the said Manor and Rent bargained and sold the said Manor and Rent 26 H 8. to Nicholas Bohan Father of the Avowant by these words Manerium de Wesham omnes omnimodos redditus reputed deemed or adjudged part or parcel of the said Manor who entred and died seised and the same descended to the now Avowant as Son and Heir c. and averred that the said Rent at the time of the bargain and sale aforesaid diu ante was reputed parcel of the Manor aforesaid Vpon which Avowry the Plaintiff did demur in Law and it was argued by Gawdy Serjeant for the Plaintiff and he took an Exception to the Avowry because the Avowant sheweth that Anthony Wingfield 26. H 8. bargained and sold the said Manor to Bohan Virtute Quar. bargaine venditionis vigor cujusdam Actus Parliamenti 27 H 8. de usibus c. the said Bohan was seised c. where he ought to have said by force of which bargain and sale the said Anthony Wingfield was seised of the said Manor aforesaid to the use of the said Bohan and that afterwards by reason of the said Statute of 27 H 8. the said Anthony then seised to the use aforesaid the said Bohan was seised in his Demesne as of Fee For it might be for any thing appearing in the Avowry that before the said Statute of 27 H 8. Anthony Wingfield had made a conveyance upon consideration to him who had not notice of the use so as the use being suspended when the Statute came it could not be executed for there was not any seisin to the use and to that purpose he cited the Case of 7 H 7. 3. where a gift of Trees by Cestuy que use is pleaded without alledging that the Feoffors were seised to the use of the Donor at the time of the gift To that Exception it was answered by Popham Attorney General Averment That there is a difference betwixt the Case at Bar and the Case of 7 H 7. for where a man entitles himself by Cestuy que use he ought to maintain such title by every necessary Circumstance which the Law without expressing will not intend but where a man alledgeth a matter which is but a conveyance there needs no especial recital as if a man will pretend the grant of a Reversion and that the lessee for years did attorn he needs not to shew that at the time of the Attornment the Grantor was seised 1 Cro. 746. â—4â— c. and he cited the Case of 10 E. 4. 18. In Trespass the Plaintiff by way of Replication made to him a title that A. was seised and leased to him at Will by force of which the Plaintiff was possessed until the Defendant did the Trespass and Exception was taken to it that the Plaintiff in his Replication had not averred that A. was alive at the time of Trespass and it was not allowed for the subsequent words by force of which the Plaintiff was possessed until the Defendant did the Trespass do amount unto so much for the Plaintiff could not be possessed by force of the said Lease at Will if A. were not alive So here Bohan could not be here seised by force of the said Statute if the seisin of the use which was raised by the bargain and sale had not continued until the coming of the said Statute As to the matter in Law Gawdy conceived that the averment in the perclose of the Avowry is contrary to the matter of the Avowry for the creation of the Rent set forth in the Avowry proves that the Rent is not parcel of the Manor but a Rent in gross and then the general averment that the Rent is parcel of the Manor without shewing how against the special matter of the Avowry is not receivable Reputation And also nothing can be by reputation parcel of a Manor which in rei veritate cannot be parcel of a Mannor but a Rent charge cannot be in rei veritate parcel of a Manor ergo nor by reputation Popham contrary That the averment is not contrary to the matter of the Avowry for the matter disclosed in the Avowry proves that it is not rei veriate parcel of the Manor but it doth not exclude Reputation and the Averment doth not
extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Mannoâ— And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 â— for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should
did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland Error shall be brought in the Kings Bench in England 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how and in what manner the Record shall be remanded to the Iustices of Assize so as the Archbishop might have execution To which the Court said that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by Mittimus to the Iustices of Assize But Fenner made a difficulty of it to take such course for the remanding of it for doubt they would not allow it to be a Record where it is not a Record for upon the matter the Record is not removed but remains with the Iustices of Assize Then Anderson said Sue Excution out of the said Record but because the Record came before us by Writ of Error it shall be also removed and remanded by Writ and so it was LXX Kempe and Carters Case Pasch 29 Eliz. In the Common Pleas. THomas Kempe brought Trespass Copyhold for breaking of his Close against Carter and upon pleading they were at issue if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict secundum consuetudinem manerii praedict and it was given in Evidence that within the said Manor were divers customary Lands and that the Lord now of late at his Court of the said Manor granted the Land c. per copiam rotulorum curiae where it was never granted by copy before It was now holden by the whole Court that the Iury are bound to find Dominus non concessit for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae yet non concessit secundum consuetudinem manerii praedict for the said Land was not customary nor was it demisable for the custom had not taken hold of it In the same Case it was also shewed that within the said Manor some customary Lands are demiseable for life only Evidence of customs and some in Fee and it was said by the Lord Anderson that he who will give in Evidence these several customs ought to shew the several limits in which the several customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for lives only and the Lands in the other in Fee and he ought not to shew the several customs promiscuè valere through the whole Manor And he remembred a Case of his own experience scil The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold scil Sook-land and Bond-land and by several customs disseverable in several manners As if a man be first admitted to Sook-land and afterwards to Bond-land and dieth seised of both his Heir shall inherit both but if he be first admitted to Bond-land and afterward to Sook-land and of them dieth seised his youngest Son shall inherit and if of both simul semel his eldest Son shall inherit But if he dieth seised of Bond-land only it shall descend to the youngest and if customary Land hath been of ancient time grantable in Fee and now of late time for the space of forty years hath granted the same for life only yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case If customary Land within a Manor hath been grantable in Fee if now the same Escheat to the Lord and he grant the same to another for life the same was holden a good grant and warrantable by the custom and should bind the Lord for the custom which enables him to grant in Fee shall enable him to grant for life and after the death of the Tenant for life the Lord may grant the same again in Fee for the grant for life was not any interruption of the custom c. which was granted by the whole Court. LXXI Walker and Nevils Case Pasch 29. Eliz. In the Common Pleas. Dower WAlker and his Wife brought a Writ of Dower against Jervice Nevil and judgment was given upon Nihil dicit and because the first Husband of the Wife died seised a Writ of Enquiry of Damages was awarded by which it was found that the Land which she ought to have in Dower the third part was of the value of eight pound per annum and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem assident damna to eight pounds and it appeared upon the Record that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam Damages so as it appeareth upon the whole Record put together that damages are assessed for eight years where the Demandants have been seised for part of the said eight years upon which the Tenant brought a Writ of Error and assigned for Error because damages are assessed untill the time of the Inquisition where they ought to be but to to the time of the Iudgment but the Exception was not allowed Another Error was assigned because that where it is found that the Land was of the value of eight pounds per annum they have assessed damages for eight years to eighty pounds beyond the Revenue for according to the rate and value found by verdict it did amount but to sixty four pounds but that Error was not also allowed for it may be that by the long detaining of the Dower the Demandants have sustained more damages than the bare Revenue c. Another Error was assigned because Damages are assessed for the whole eight years after the death of the Husband where it appeareth that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower and upon that matter the writ of Error was allowed LXXII Archpool against the Inhabitants of Everingham Pasch 29 Eliz. In the Common Pleas. IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham the Iury found that the Plaintiff was robbed 2 Januarii post occasum solis sed per lucem diurnam and that after the Robbery committed the Plaintiff went to the Town of Andover and advertised the Baylies of the said Town of the said Robbery and further found that the said Town of Andover is not within the said Hundred of Everingham and that there is another Town nearer to the place where c. the Robbery was done than the said Town of Andover within the said Hundred but the said Town of Andover was the nearest place where c. by the Kings high-way It was moved that upon this matter the Plaintiff should not have judgment
one of them dieth her Heir within age and in Ward to the King The Church voideth and the King is disturbed in his presentment he shall have a Scire facias upon such composition notwithstanding that he be a stranger to it See F.N.B. 34 H. And by all the Iustices if one recover in Debt upon a simple contract and before execution the Plaintiff is out-lawed in an Action personal the King shall sue execution And see 37 H. 6. 26. Where in Debt upon an Obligation it was surmised to the Court that the Plaintiff was out-lawed And the Kings Attorney prayed delivery of the Obligation c. LXXXV Moile and the Earl of Warwicks Case Mich. 29 30 Eliz. In Communi Banco Quare Impedit A Quare Impedit was brought by Walter Moile against Ambrose Earl of Warwick and the Archbishop of Canterbury And now came the Serjeanes of the Queen and shewed an Office to entitle the Queen to have a Writ to the Bishop containing such matter viz. That one Guilford was seised of the Manor of D. to which the Advowson of the Church was appendant and that Manor was holden in chief by Knights service and that Guilford and his Wife levied a Fine thereof to the use of themselves for their lives the remainder over in tail to their eldest Son and that Guilford is dead but who is his next Heir ignorant And it was shewed by the Council of the other side that the truth of the Case was that the said Guilford was seised of the said Manor in the right of his Wife and so levied the Fine in which Case the said coveyance is not within the Statute of 32 H. 8. for it was for the advancement of the Husband not of the Wife which Anderson granted Vide Dyer 19 Eliz. 354. Caverlies Case but that is not in the Office And it was moved at the Bar that the Office is imperfect because no Heir is found But Anderson the Office is sufficient for the King to seise although it be insufficient for the Heir c. And it was agreed by the whole Court Office trove that the Court ought not to receive the Office although one would affirm upon oath that it is the very Office but it ought to be brought in under the Great Seal of England and also the Court shall not receive it without a Writ and yet Nelson Prothonotary said that the Statute of Huy and Cry of Winchester was brought into the Court without a Writ under the great Seal A Record not to be brought into Court without a Writ 63. and that was out of the Tower And in that Case also the Iustices held that if a Record be pleaded in the same Court where it abides the other party against whom it is pleaded may plead Nul tiel Record as if the said Record had bin remaining in another Court which all the Prothonotaries denied that always it had been used to the contrary At another day the Case was moved again The Plaintiff in the Quare Impedit counted that Richard Guilford was seised of the said Manor c. in the right of Bennet his Wife and so seised they both levied a Fine thereof to a stranger Sur Conusans de droit come ceo who rendred it to the Husband and Wife for their lives the remainder to the Heirs of the body of the Husband the remainder to the right Heirs of the Husband and they so being seised the Husband alone levied a Fine to a stranger Sur Conusans de droit come ceo c. and by the same Fine the Conusee rendred to the Husband and Wife in tail the remainder to the Heirs of the body of the Husband the remainder to the right Heirs of the Husband the Husband died seised the Wife entred and leased the said Manor to the Plaintiff and then the Church did become void And now the Queens Serjeants came and shewed unto the Court an Office which came in by Mittimus In which Writ the perclose is Mandamus vobis quod inspectis c. pro nobis fieri faciatis quod secundum leges consuetudinem Regni nostri Angliae faciend Statuetis And the Office did purport that the said Richard was seised of the said Manor and held the same of the Queen as of her Castle of Dover by Knights service in chief and levied the Fine ut supra and that the said Richard died sed quis sit propinquior haeres dict Ric. penitus ignorant and upon that Office prayed a Writ to the Bishop for the Queen And two Exceptions were taken to the Office First because it is not found by the said Office that the said Richard died seised 1 Cro. 895. in which Case it may be for any thing that appeareth in the Office that the said Richard after the said Fine had conveyed his estate in the said Lands unto others or that he was disseised c. See 3 H. 6. 5. If it be not found of what estate the Tenant of the King died seised the Office is insufficient But see there by Martin that such an Office is good enough for the King but not for the Heir to sue his Livery upon it And by Anderson Periam and Rhodes that defect in the Office is supplyed by the Count for there it is expressly alledged that the said Richard died seised Secondly because no Heir is found by the said Office. To which it was said by the Lord Anderson that peradventure at the Common Law the same had been a material Exception But we ought to respect the Statutes of 32 and 34 H. 8. of Wills. And therefore as to the Wife the Queen is entitled to Primer seisin because the conveyance was made for her advancement And by Windham the Queen in this Cale shall not have Primer seisin for by the Statute the Queen shall not have Primer seisin but in such Case where if no conveyance had been made the Queen should have had Primer seisin but in this Case for any thing that appears before us if this conveyance had not been made the Queen should not have had Primer seisin forasmuch as no Heir is found and if he died without Heir there is no Primer seisin because there is not any in rerum natura to sue livery Rhodes Periam and Anderson contrary Admitting that Richard died withou Heir the Queen shall have Primer seisin against the Wife of Richard notwithstanding the escheat Walmesley Serjeant If the Tenant of the King by Knights service in chief dieth seised of other Lands holden of a common person by Knights service without Heirs the King shall not have Primer seisin of such Lands holden of a Subject which Windham granted But by Anderson the Lord is put to sue an Ouster le mayne of the Land holden of him And afterward Exception was taken to the Count because the Plaintiff hath not averred the life of the Tenant in tail that is of Bennet the Wife of Richard to whom
the Land was entailed by the second Fine But that Exception was disallowed by the whole Court and a difference put by Anderson Where a man pleads the grant of an Advowson in gross by Tenant in tail in such case the life of the Tenant in tail ought to be averred for by his death the grant ceaseth But where a man pleads the Lease of Tenant in tail of a Manor with an Advowson appendant in such case such averment is not necessary So accordingly Smith Stapletons Case 15 Eliz. 431. And here it was moved if in as much as by the first Fine an estate for life was rendred to the Wife and by the second Fine in which she did not joyn an estate tail was limited unto her and now when the Husband dieth if he shall be remitted to her estate for life Co. 1 Inst 357. 2 Cro. 489. which Windham granted for that was her lawful estate and the second estate tortious But by Rhodes Periam and Anderson the Wife is at liberty to make her election which of the two estates she will have And as to the Writ to the Bishop for the Queen the Court was clear of opinion that it ought not to be granted upon this matter But all the question was if Regina inconsulta the Court would or ought to proceed And it was holden clearly by the whole Court that the tenure alledged modo forma could not be a tenure in chief for it is said that the Land was holden of the King as of the Castle of Dover in Capite LXXXVI Mich. 29 30 Eliz. In Communi Banco Intr. Pasc 28 Eliz. Rot. 602. Wast â— Cro. 40. 4â— WAst was brought by F. and his Wife agaist Pepy and counted that the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded that the said Feoffment was unto the use of himself and his Heirs in Fee c. without that that it was to the uses in the Count Vpon which they were at issue And it was found by verdict that the said Feoffment was unto the uses contained in the Count But the Iury further found that the estate of the Defendant by the limitation of the use was priviledged with the impunity for Wast that is to say without impeachment of Wast And it was moved if upon this verdict the Plaintiff shall have Iudgment And Anderson and Rhodes Iustices he shall for the matter in issue is found for the Plaintiff and that is the Feoffment to the uses contained in the Count and this impunity of Wast is a forrein matter not within the charge of the Iury and therefore the traverse of it but matter of surplusage As if I plead the Feoffment of I. S. To which the other pleads that he did not enfeoff and the Iury find a conditional Feoffment the Court shall not respect the finding of the condition for it was not in issue and no advantage shall ever be had of such a liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unques seisi que Dower the Tenant pleaded that before the coverture of the Demandant one A. was seised of the Lands of which Dower is demanded in tail who made a Feoffment to a stranger and took the Demandant to Wife and took back an estate in Fee and died seised having issue inheritable Now although upon the truth of the matter she is not dowable de jure yet when the parties are at issue upon a point certain Hob. 53. Owen 91. no foreign or strange matter not in question betwixt the parties shall be respected in the point of the Iudgment But if the Defendant had pleaded it in bar he might have foreclosed the Demandant of her Dower Vide 38 H. 6. 27. 47 E. 3. 19. In a Praecipe quod reddat in the default of the Tenant one cause and shewed how the Tenant who made default was but Tenant for life of the Lands in demand the reversion in Fee to himself and prayed to be received The Demandant did counter-plead the receit saying the Defendant had fee upon which issue was joyned And it was found that neither the tenant nor he which prayed to be received had any thing in the Land In that case the Court did not regard the matter which was superfluous in the verdict for they were at issue upon a point certain that is whether the Tenant was seised in Fee for it was confessed of both sides that he had an estate for life and with that matter the Iury was not charged and they are not to enquire of it and so it was found against the Demandant for which cause the Receit was granted 7 H 6. 20. The parties were at issue upon a dying seised which is found by verdict but the Iury further find that the other party made continual claim this continual claim shall not be regarded in the point of Iudgment because it was pleaded in avoidance of the descent Windh Iustice contrary Forasmuch as it appeareth unto us upon the verdict that the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue No advantage of impunity for Wast shall be taken where the same is not pleaded though found by verdict Judgment Hob. 53. Owen 91. The Plaintiff counteth of a bailment by his own hand the Defendant pleadeth that he doth not detain c. the Iury find the Detinue but upon a bailment by another hand In this case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Rhodes Periam and Anderson in the principal case were of opinion Iudgment should be given for the Plaintiff for in no case the party shall have advantage of such a Liberty of impunity of Wast if he do not plead it And the Iurors are not to meddle with any matter which is not in issue And if it be but matter of surplusage it is to no purpose And afterwards Iudgment was given for the Plaintiff LXXXVII Bracebridge and Baskerviles Case Mich. 29 30 Eliz. In Communi Banco AN Action of Debt is brought against three Executors Debt against Executors one of them pleads in Bar a Recovery against himself in the Kings Bench The other two plead plene administr Against the first plea the Plaintiff did aver covin and upon the second plea they are at issue The first issue is found for the Plaintiff and as to the other plea it was found that the Defendants have in their hands thirty pounds of the goods of their Testator not administred Note the debt in demand was one hundred pounds upon which the Plaintiff had Iudgment to recover the goods of the Testator and thereupon had execution Now the Plaintiff brought a Scire facias against the said Executors supposing that many other goods of the Testator have come unto their
Kings Bench. PRowse brought an Action upon the Case against Cary for words That the Plaintiff did subborn procure and bring in false Witnesses in such a Court at Westminster c. The Defendant pladed Not guilty And it was found that he did procure and brought in false Witnesses but was acquitted of the suborning It was objected 1 Cr. 296. 554. 607. That the Action doth not lie for it may be that the Defendant did not know that he would depose falsly Thou art a forger of false Writings are not actionable and so it was adjudged for it may be understood of Letters of small importance but that Exception was not allowed for it shall be taken in malam partem and cannot be spoken of any honest man. CXXXII Pasch 30 Eliz. In the Kings Bench. A. Was bounden in an Obligation to B. upon condition that if A deliver to B. twenty Quarters of Corn the nine and twentieth of February next following datum presentium that then c. and the next February had but eight and twenty days And it was holden that A. is not bounden to deliver the Corn until such a year as is Leap-year for then February hath nine and twenty days and at such nine and twentieth day he is to deliver the Corn and the Obligation was holden good CXXXII Allen and Palmers Case Pasch 30 Eliz. In the Kings Bench. THe Case was a Copy-holder did surrender his Lands to the use of a stranger for life Copy-holder surrenders where his heir shall be in by purchase 2 Roll. 416. Co. 1 Inst 226. and afterwards to the use of the right Heirs of the Copy-holder who afterwards surrendred his Reversion to the use of a stranger in Fee died and the Tenant for life died and the right Heir of Palmer the Copy-holder entred And by Cook nothing remained in the Copy-holder upon the said surrender but the Fee is reserved to his right Heirs for if he had not made any such second surrender his Heir should be in not by descent but by purchase And the common difference is where a surrender is to the use of himself for life and afterwards to another in tail the remainder to the right Heirs of him who surrendreth there his Heirs shall have it by descent contrary where the surrender hath not an estate for life or in tail limited to him for there his Heir shall enter as a purchasor as if such use had been limitted to the right Heirs of a stranger And by him if a Copy-holder surrender to the use of his right Heirs the Land shall remain in the Lord until the death of the Copy-holder for then his Heir is known c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life and afterwards to the use of the right Heirs of the body of the Husband and Wife begotten they have issue the Wife dieth the issue cannot enter in the life of his Father for then he is not his Heir See Dyer 7 Eliz. 237. The Husband is sole seised in Fee and levieth a Fine of the Land to the use of himself and his Wife and the Heirs of the Husband and they render the Land to the Conusor for the life of the Husband the remainder to B. for life the remainder to the right Heirs of the Husband The Husband dieth B. dieth Now the Wife shall have the Land for the life of the Wife for she shall not lose her estate by that render and this remainder to the right Heirs of the Husband is void and the Land and estate in it is in him as a Reversion and not as a Remainder And a man cannot tail a Remainder to his right Heirs whilest he is living unless it begin first in himself See Br. 32 H. 8. Gard. 93. CXXXIV Pearle and Edwards Case Pasch 30 Eliz. In the Kings Bench. THe Case was that the Defendant had leased Lands to the Plaintiff rendring Rent for certain years Assumpsit Consideration 1 Cro. 94. and after some years of the Term expired the Lessor in consideration that the Lessee had occupied the Land and had paid his Rent promised the Plaintiff to save him harmless against all persons for the occupation of the Land past and also to come And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands upon which he brought his Action Golding Here is not a sufficient consideration for the payment of the Rent is not any consideration for the Lessee hath the ocupation of the Land for it and hath the profits thereof and also the consideration is past Cook The occupation which is the consideration continues therefore it is a good Assumpsit as 4 E. 3. A Gift in Frank-marriage after the espousals and yet the marriage is past but the blood continues so here and here the payment of the Rent is executory every year and if the Lessee be saved for his occupation he will pay his Rent the better Godfrey If a man marrieth my Daughter against my will and afterwards in consideration of that marriage I promise him one hundred pounds the same is no good consideration 2 Len. 111. which Clench Iustice denied And afterwards the Plaintiff had Iudgment to recover his damages CXXXV Wakefords Case Pasch 30 Eliz. In the Kings Bench. Extinguishment of Copy-hold by Release THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Interest of a Copy-holder of Inheritance unto another so as it is now no part but divided from the Manor and afterwards the Copy-holder doth release to the purchasor It was holden by the Court that by this Release the Copy-hold Interest is extinguished and utterly gone but if was holden that if a Copy-holder be ousted so as the Lord of the Manor is disseised and the Copy-holder releaseth to the Disseisor nihil operatur CXXXVI Docton and Priests Case Pasch 30 Eliz. In the Kings Bench. IN Trespass for breaking of his Close 1 Cro. 95. it was found by special verdict that two were Tenants in common of a house and of a close â—djoyning to the house and they being in the house make partition without deed of the house and the close see 3 E. 4. 9. 10. Partition without deed upon the Land is good enough Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery Vide 2 Eliz. Dyer 179. Partition by word out the County void 19 H. 6. 25. Betwixt Tenants in common not good without deed 2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed Two Ioynt-tenants make partition by word make partition in another County the same is no partition for as to that matter the common Law is not altered by the Statute but as to compel such persons to make partition Wray Iustice conceived that the partition here being without deed was not good although made upon the Lands Vide 18 Eliz. Dyer 35.
in the Case which gives cause of suit in Chancery for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound c. and the Obligee bring her into the Chancery and if a man threaten me that if I will not pay to him ten pounds he will sue me in Chancery upon which I promise to pay it him no Action will lye And an Infant is not chargeable upon any contract but for his meat drink and necessary Apparel 19 Z. 4. 2. And in Debt upon such necessary Contract the Plaintiff ought to declare specially so as the whole certainty may appear upon which the Court may judge if the expense were necessary and convenient or not and upon the reasonableness of the price for otherwise if the necessity of the thing and reasonableness of the price doth not appear the Chancellor himself would not give any remedy or recompence to the party Wray Justice conceived that the Action would not lye for the contract was void and the Infant in an Action against him upon it may plead Nihil debet And if an Infant sell goods for money and doth not deliver them but the Vendee takes them he is a Trespassor but if the Infant had been bounden in an Obligation with a surety and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless upon that promise an Action lyeth for the Infant cannot plead non est factum which see Mich. 28 29 Eliz. in the Case of one Edmunds And afterwards it was adjudged against the Plaintiff CLVII Charnock and Worsleys Case Trin. 30 Eliz. Rot 833. In the Kings Bench. Owen 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley the Case was that the Husband and Wife the Wife being within age levyed a Fine and the Wife upon inspection was adjudged within age it was moved if the Fine should be utterly reversed or as to the Wife only should stand against the Husband by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish that where such a Fine is reversed the Plaintiff shall not have execution till after the death of the Husband and by Coke and Atkinson a Fine acknowledged by the Husband and Wife is not like to a Feoffment made by them for in case of Feoffment something passeth from the Husband but in case of a Fine all passeth out of the Wife and the Conusee is in by her only And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole and also another Precedent P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff and N. Ford. and Jane his Wife Deforceants the Wife being within age and Iudgment was given quod finis praedict adnulletur pro nullo penitus habeatur and that the Husband and Wife should be restored and thereupon a Writ issued to the Custos Brevium to bring into Court the Foot of the Fine and it was presently cancelled in Court. Wray this is a strong Precedent and we will not varse from it if other Precedents are not contrary Gawdy who was the same day made Iustice the Fine cannot be reversed as to one and stand as to the other and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture and the Husband aliens and takes back an estate to him and his Wife for their lives they both are remitted for the Wife cannot be remitted if the Husband be not remitted And a Precedent was cited to the contrary 7 Eliz. where the Case was that the Husband and Wife levyed a Fine the Husband died the Wife being within age the Wife took another Husband and they brought a Writ of Error and the Wife by inspection adjudged within age Fine reversed as to one to stand good against another and the Fine was reversed as to the Wife and her Heirs And it was argued by Golding that here the Writ of Error ought to abate for the Writ is too general whereas it ought to be special Ex querela A.B. nobis humillime supplicantis accepimus c. See the Book of Entries 278. Also the purclose of the Writ is ad damnum impsorum the Husband and the Wife whereas the Wife only hath loss by it and as to the Fine it self he conceived that it should be reversed but as to the Wife as if a man of full age and a man within age levy a Fine in a Writ of Error brought the Fine shall be reversed as to the Infant only and shall stand against the other and he cited the Case of the Lord Mountjoy 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute and afterwards he and his Wife levyed a Fine and he said that during the life of the Husband the Conusee of the Fine should hold the Land charged with the Statute Also in the Precedent of 2 H. 4. the Iudgment is that propter hunc alios errores the Fine should be reversed and I conceive that another Error was in the said Writ for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend And see that where two parts are demanded in a Writ 3 Co. 58 59. Modern Rep. 182. the Writ shall say so Brief 244 Coke contrary and as to the last matter I confess the Law is so in a Writ but not in a Fine for the same is but a Conveyance for it I be seised of a Manor and I grant to you two parts of the said Manor it is clear it shall be intended in three parts to be divided And as to the principal matter I conceive when the Fine is levyed by the Husband and Wife it shall be intended that the Land whereof c. is the Inheritance of the Wife if the contrary be not shewed and therefore if the party will have an especial Reversal he ought to shew the special matter as in Englishes Case A Fine was levyed by Tenant for life and he in the reversion being within age bringeth a Writ of Error now the Fine shall be reversed as to him in the Reversion but not as to the Tenant for life but here it shall be intended the Inheritance of the Wife and that the Husband hath nothing but in the right of his Wife and therefore she shall be restored to the whole for nothing passeth from the Husband but he is named with his Wife only for conformity 11 H. 7. 19. A. takes to Wife an Inheretrir who is attainted of Felony the King shall not have the Land presently by which it appeareth that all is in the Wife and she shall be restored to the whole and the Iudgment shall be according to the Presidents cited
parties as if the condition were to go to Rome And as to the Request he conceived that it ought to be shewed specially and certainly for it is for the benefit of the Covenantee for without request the Action doth not lie which Clench granted And it was holden by the whole Court that the bar shall not help the insufficient Declaration No more if the Defendant plead Non Assumpsit yet the defect in the Declaration of a Request not duly shewed remaineth Gawdy The bringing of the Action is a Request Clench A Writ of Debt is a Praecipe for which there licet saepius requisitus is sufficient but a Writ of Covenant is not so CLXXI. Piers and Hoes Case Trin. 30 Eliz. In the Kings Bench. IN an Action of Trespass it was found by special verdict Trespass 1 Cro. 131. 1 Roll. 854. that A. seised of Land in the right of his Wife being her Ioynture by a former Husband he and his Wife made a Feoffment to a stranger and his Heirs Habend to the use of the stranger and his Heirs during the life of the Wife only Shutleworth The same is a forfeiture for if the same Feoffment had been without any use expressed Forfeiture then it should be to the use of the Feoffor and his Heirs and by consequence a forfeiture and as the case is here it is also a forfeiture for during the life of the Wife the use is expresly to the use of the Feoffee and his Heirs and the remainder of the Fee-simple is to the use of the Feoffor scil the Husband and his Heirs Popham I conceive that here is a forfeiture Owen 64. 2 Cr. 200 201. 3 Cr. 167. Hob. 373. for here are several limitations limitation of the estate unto one and of the use unto another And the words for the life of the Wife do not refer to the estate but to the use with proximum antecedens And he resembled the same to the case of Leonard Sturton in which he was of Councel A man granted Lands Habend unto the Grantee to the use of the Grantee and the Heirs of his body the same is no estate tail in the Grantee but only an estate for life for the Limitation of the use cannot extend the estate Cook contrary The case is that A. Wife of one Piers being Tenant for life of the Ioynture of the said Piers took to Husband Hoe they both by Deed grant totum suum Messuagium to one Clarke Habendum to him and his Heirs for the life of the Wife only I conceive that here is not any forfeiture for it is but one intire sentence And if there be a double construction of a deed that which is most reasonable shall be taken so as wrong be not done Construction of Deeds and therefore these words for the life of the Wife shall refer unto both scil the estate and the use and their intent was not to commit a forfeiture as appeareth by the words of the Deed for they grant solum messuagium and that was not but for the life of the wife ad solum usum of the Feoffee and his Heirs during the life of the Wife and violence should be offered to this word solum if the Feoffee or his Heirs should have ultra the life of the Wife and the word tantum cannot otherwise be expounded but that the estate for life only shall pass from them And he cited the Case of 34 E. 3. Avowry 258. A. gives Lands unto B. in tail and for default of such issue to the use of C. in tail rendring Rent the same render shall go to both the estates So a Lease for life to A. the remainder to B. to the use of C. the same use goeth out of both the estates and not only out of the Remainder so here upon the same reason Regula these words for the life of the wife shall refer to the first estate as well as to the use And in such Cases the rule of Bracton ought to be observed viz. Benignae faciendae sunt interpretationes verborum ut res magis valeat quam pereat As the Case in 6 H. 7. 7. in a Cessavit the Plaintiff counted that the Tenant held by Homage Fealty Sute at Court and certain Rent and in the doing of the services aforesaid the Defendant had cessed and in not doing of Homage and Fealty a man cannot cesse by two years But it was holden that the said Cessavit should be referred to such services only in which one might cease and that is Sute of Court and Rent And if pleadings shall have such favourable construction a multo fortiori shall a Deed 4 E. 3. Wast 11. A man leased for life and by the same deed granted power unto the Lessee to take and make his profit of the said Lands in the best manner should seem good to him without contradiction of the Lessor or his Heirs yet by those words it is not lawful for him to do wast for there it is said that in construction of Deeds we ought to judge according to that intent which is according to Law and Reason and not to that which is against reason See 17 E. 3. 7. accordingly so in the principal Case the words in the Deed of Feoffment shall be so expounded that the estate be saved and not destroyed Popham contrary The Cases put by Coke are not like to the Case in question For where the Rent is out of both estates the same is but reason for the Rent is in respect of the Land and because he departs with both estates it is reason the Rent issue out of both and the like reason is of the Case of an use for if a man makes a Lease for life to A. the Remainder over to B. the same shall be to their use respectively and if he do express the use the same shall be accordingly and shall bind both estates but there Clark hath two estates one by the common Law and the other by the Statute 3 Cro. 167. But the words subsequent for the life of the wife only cannot refer to both estates A. gives Lands to one his Heirs for forty years the same is but a plain Term for years But if a Feoffment in Fee be made to one his Heirs to the use of another for forty years there the Fee passeth to the Feoffee and the Term to Cestuy que use Gawdy conceived that it is not any forfeiture for these words during the life of the wife only were put in the Deed to express the intent of the parties and therefore the same shall not be void and he conceived that they were put in to exclude the forfeiture and therefore they shall serve for that purpose And afterwards it was resolved by all the Iustices except Gawdy that it was a forfeiture for by the Feoffment the Fee-simple passeth and that to the use of the Feoffor the estate and the use are several things and
Entry holden lawful But Error was brought upon it And also Calthrops case was cited to the same purpose 16 Eliz. Dyer 336. This estate limited to Ambrose doth refer to the estate limited to Muriel and Ann and not to the time for ever the first estate is to be respected as 23 Eliz. Dyer 371. He in the Remainder in Fee upon an estate for life deviseth it to his Wife yielding and paying during her natural life yearly 20 shillings and dieth living Tenant for life the Rent shall not begin until the Remainder falleth So as the general words refer to the beginning of the estate although the words imply that the Rent shall be paid presently And see also such construction 9 Eliz. 261. A Lease was made for thirty years and four years after the Lessor makes another Lease by these words Nos dictis 30 annis finitis dedisse concessisse c. Habend tenend a die confectionis praesentium termino praedict finito usque terminum c. And although prima facie the beginning of this Term seems incertain yet the Iustices did respect the former estate and so the Lessee hath the Interest of the Term from the making of the Deed but no estate until the first Term expire Then Ambrose before his age of 21 years levying a Fine the Fine shall not bind the Feoffee for it enures only by way of conclusion and so binds parties and privies but not a stranger And the party needs not to plead against this Fine quod partes to the Fine Nihil habuerunt for that appeareth upon their own shewing Wiat contrary The state of Ambr. accrues and rises when any of the said times come first full age return death for the words are And after the return of Ambrose from beyond the Seas and the age of 21 years or death c. This word or before death disjoyns all and makes the sentence in the Disjunctive and he cited a case lately judged in the Common Pleas A Lease was made to Trewpeny and his Wife for one hundred years if he and his Wife or any Child or Children betwixt them begotten should so long live the Wife died without Issue the Husband held the Land c. for the Disjunctive before Child made the sentence Disjunctive Gawdy Iustice That had been Law if no such word had been in the Case And Wiat said That although the return be incertain yet it is certain enough that he shall come to the age of 21 years or dye And also this is by way of use which needs not to depend upon any estate and if the Remainder shall vest presently upon his return then it would be doubtful what Remainder it is if it be a Remainder depending upon the estate for the life of Ann and Muriel or for years i.e. until Ambrose shall come of the age of 21 years But be it incertain yet the Fine is good for here is a Remainder in Ambrose and both are but particular estates and there is not any doubt but that one may convey by Fine or bar by Fine such contingent uses for which see the Statute of 32 H. 8. All Fines to be levied of any Lands intailed in any wise to him that levieth the Fine or to any his Ancestors in possession reversion c. which word use goes to contingent uses for at the time of the making of that Statute there was no other use Fenner Iustice remembred the Case adjudged M. 30 31 Eliz. betwixt Johnson and Bellamy 2 Len. 36. which ruled this Case Gawdy Iustice Here is a certainty upon which the Remainder doth depend i. e. the death of Ambrose but the Case had been the more doubtful if no certainty at all had been in the Case Atkinson contrary Here the Lord Vaux is Tenant for life the Remainder to George in tail now when the Lord Vaux levies a Fine this is a forfeiture and then the Entry of George is lawful It hath been objected on the other side that this Remainder was future and contingent and not vested therefore nothing passed to George by Ambrose The words are quousque Ambrose shall return This word quousque is a word of Limitation and not of Condition and then the Remainder may well rise when the Limitation hapneth It hath been said that this Remainder is contingent and then the Remainder which is to vest upon a contingency cannot be granted or forfeited before that the contingent hapneth And he cited the Case of 14 Eliz. 314. Dyer A Fine is levied to A. to the use of B. for life the Remainder to E. in Tail the Remainder to B. in fee. Proviso That if B. shall have Issue of his Body that then after such Issue and 500 l. paid to c. within six months after the birth of such issue the use of the said Lands after the death of the said B. and the said six months expired shall be to the said B. and the heirs of his body And it was holden that before the said contingent hapneth B. had not any estate tail for there it was incertain if the said contingent would happen but in our case the contingents or some of them will happen or run out by effluxion of time and that makes the Remainder certain in Ambrose And he also argued that the Limitations are several by reason of the Disjunctive and the last part of the sentence and that the said sentence is in the Disjunctive appeareth by the subsequent words which of the said days or times shall first happen And then the return of Ambrose for that first hapned vests the Remainder in him and therefore the Plaintiff ought to be barred Buckley contrary The estate of the Daughters doth depend upon a Copulative i.e. the return of Ambrose and his full age and both is but one Limitation it is clear that the first Limitation is upon a contingent and the remainder cannot vest until both are performed And as to that which hath been said that there is a certain Limitation i. e. the return of Ambrose 18 Eliz. the Case was Lands were given to Husband and Wife the Remainder to such of them as should survive the other for years the Husband makes a Lease for years and dieth it was holden that although the Limitation was upon a certain estate yet because it is not known in which of the parties the estate secondly limited shall begin the Lease is void So here it is not certainly appointed when the estate limited to Ambrose shall begin upon the return full age or death of Ambrose and he said that here are but two times of Limitation first return and full age second death return and full age determines the estate of the Daughters and also the death if it shall first happen and if these three times shall be construed in the Disjunctive 2 Len. 2â— the same would overthrow the estate of the Daughters which is an estate for years determinable upon the death of themselves or Ambrose
the Right of the Complainants come ceo c. with warranty of the said Husband and Wife for which the Complainants did render a Rent of fifty pounds per annum with clause of distress in dictis Manerijs to the said John Amy the Heirs of Amy and also rendred the Tenements aforesaid with the Appurtenances to the said John and Amy for their lives the Remainder to the said Francis their Son in tail the Remainder to the said Amy and her Heirs and that John and Amy dyed by force whereof the said Rent descendeth to the said Plaintiff as Son and Heir of the said Amy and that the said Francis entred into the said Mannors as in his Remainder and was seised in tail and was seised of the said Rent by the Hands of the said Francis and afterwards thereof did enfeoff the said Garmons the Defendant c. The Tenant pleaded That the Plaintiff was never seised so as he could be disseised and if c. Nul tor nul disseisin which was found for the Plaintiff who had Iudgment and Execution upon which the Tenant brought a Writ of Error Stephens assigned Error First the Fine is levyed of two Manors inter alia so as no other Lands passed by the Fine besides the Manors and so the Rent is granted out of the said Lands and Manors and no other Lands which passed by the Fine and then upon the Plaintiffs own shewing it appears that all the Tenants of the Lands charged with the Rent in demand are not named in the Assize Second Error This Rent is granted only out of the Estate tail for Amy hath Fee in both as well the Rent as the Land and then when the Estate tail is determined the Rent is also determined and he hath not averred the life of the Tenant in tail or any of his Issue wherefore it shall be intended that he is dead without issue and then the Rent is gone and then he hath not any cause to have Assise Bourchier As to the first conceived and argued that it is not Error for although these words inter alia c. yet it shall not be intended that the Conusor had any other Lands or that the Rent is issuing out of other Lands than those two Manors which are expressed not inter alia As to the second the continuance of the tail needs not to be averred for the Tenant in tail hath enfeoffed the Tenant of the Land by which the estate tail is discontinued And although the Tenant in tail be dead without issue yet the Rent doth remain until Recovery of the Land by Formedon in the Remainder Fenner Iustice was of opinion Vaugh. Reâ— 175. That the Per nomen should go unto the Mannors only and should not extend to the inter alia For if a man in pleading saith that J.S. was seised of twenty acres of Land and thereof inter alia did enfeoff him per nomen of Green-wead the same shall not have reference to the inter alia but only to the twenty acres And the averment of the continuance of the Tail needs not for the Estate-tail is discontinued Gawdy Iustice was of opinion That the per nomen should go as well to the inter alia as to the two Manors and then all the Ter-tenants are not named in the Assise and the same not to be pleaded for it appears of the Plaintiffs own shewing and there needs no averment of the continuance of the Tail for the cause aforesaid Clench Iustice The per nomen doth refer to all which see by the Fine which shews that other Lands passed by the Fine than the said two Manors And as to the second point he said There needed no averment Gawdy As to the first Error the same cannot be saved by any way but to say That the Conusor was not seised of any other Lands than the said two Manors and then the Fine doth not extend unto it and then no Rent is granted out of it Fenner In the Common Pleas in the great case of Fines it was holden that in pleading of a Fine it needs not to say That the Conusor was seised for if the Conusor or Conusee were seised it is sufficient for such pleading is contrary in it self for a Fine sur conusance de droit come ceo c. doth suppose a precedent Gift It was also objected That here is a confusion in this Fine for the Rent is rendred to the Husband and Wife and to the Heirs of the Wife and the Land is rendred to the Husband and Wife for their lives the Remainder to Francis in Tail the remainder to the Wife and her Heirs And these matters cannot stand together in a Fine but the one will confound the other But as to that it was said that the Law shall Marshall these two renders so as they both shall stand And it is not like unto a Rent-service for a Rent-service issueth out of the whole Estate And therefore if a Remainder upon an Estate for life Eschears the Seigniory is gone even during the life of the Tenant for life which see 3 H. 6. 1. contrary of a Rent-charge For if the Grantee of a Rent in Fee purchaseth the remainder of the Land out of which it is depending out of an Estate for life he shall have the Rent during the life of the Tenant for life And of that opinion were all the three Iustices for the Conusors took by several Acts and the Estate is charged for it cometh under the Grant. Fenner Iustice There is a difference betwixt a Rent service and a Rent-charge or Common for that shall charge only the Possession but a Rent-charge shall charge the whole Estate And therefore if he who hath a Rent-service releaseth to him in the Remainder upon an Estate-tail or for life the Rent is extinct which Gawdy denied And this Case was put The Disseisee doth release to the Lessee for years of his Disseisor nihil operatur But if the Disseisor and Disseisee joyn in a Release to such Lessee the same is good for first it shall enure as the Release of the Disseisor and then of the Disseisee c. CCCXLIV Tedcastle and Hallywels Case Mich. 32 33 Eliz. In the Kings Bench. Debt 2 Roll. 594. 1 Cro. 234 235. IN Debt upon a Bond the Defendant pleaded That the Condition was That whereas John Hallywel had put himself to be an Apprentice to the Plaintiff if the Defendant John Hallywel during his Apprenticeship or any other for him by his consent or agreement take or riotously spend any of the Goods of his said Master the Plaintiff If then the Defendant within one month after notice thereof given to him do pay and satisfie the Plaintiff for all such sums of Monies Wares c. so taken or riotously spent by the Defendant or by any other by his procurement or consent the same being sufficiently proved that then c. The Defendant by protestation Quod nec
barred but if the Wife enter after the death of her Husband and before the Proclamations pass the issue is not bound by the Fine And if Tenant in Tail granteth totum statum and after levieth a Fine thereof with Proclamations come ceo c. The Issue is barred contrary where the Fine is upon a Release c. CCCXLVI Henningham and Windhams Case 18 Eliz. In the Kings Bench. ARthur Henningham brought a Writ of Error against Francis Windham upon a common Recovery had against Henry his Brother Error Owen Rep. 68. and the Case was That Land was given in special tail to Thomas Henningham Father of the said Henry and the said Arthur the Remainder in general tail the estate tail in possession was to him and the Heirs Mairs of his body Thomas had issue the said Henry and three Daughters by one woman and the said Arthur and two other Sons by another woman and dyed seised Henry entred and made a Feoffnent a common Recovery is had against the Feoffee in which Henry is vouched who vouched over the common Vouchee according to the usual course of common Recoveries Henry dyed without issue Error and Attaint by him to whom the Land is to descend and Arthur brought a Writ of Error being but of the half blood to Henry And it was resolved by the whole Court That Error and Attaint always descends to such person to whom the Land should descend If such Recovery or false oath had not been As if Lands be given to one and the Heirs Females of his body c. and suffers an erronious Recovery and dyeth the Heir female shall have the Writ of Error So upon Recovery of Lands in Borough English for such Action descends according to the Land quod fuit concessum per totam Curiam But it was objected on the Defendants part That because that the Feoffee being Tenant to the Praecipe is to recover in value a Fee-simple and so Henry is to yield a Fee-simple which should descend to the heir at the Common Law if this Recovery had not been therefore he to whom the same should descend should have the Writ of Error for he hath the loss But the said Exception was not allowed And it was said That Tenant in tail upon such a Recovery shall recover but an estate in tail scil such estate which he had at the time of the warranty made c. And afterwards Iudgment was given that the Action was maintainable So if a man hath Lands of the part of his mother and loseth it by erronious Iudgment and dyeth That the Heir of the part of the Mother shall have the Writ of Error CCCXLVII Foster and Pitfalls Case 18 Eliz. In the Kings Bench. IN Ejectione firmae the Case was 1 Cro. â— Brook devised Lands to his Wife in general Tail the Remainder over to a stranger in Fee and dyed he took another Husband and had issue a Daughter The Husband and Wife levyed a Fine to a stranger The Daughter as next Heir by 11 H. 7. entred It was agreed by the whole Court That an estate devised to the wife is within the words but not within the meaning of the Statute Secondly It was resolved That no estate is within the meaning of the Statute unless it be for the Ioynture of the Wife Thirdly Resolved That the meaning of the Statute was That the wife so preferred by the Husband should not prejudice the issues or heirs of her Husband and here nothing is left in the Issues or heirs of the Husband so as the Wife could not prejudice them for the Remainder is limited over CCCLXVIII Greenes Case 18 Eliz. In the Kings Bench. Acceptance of Rent 1 Cro. 3. 3 Co. 64. b. GReene made a Lease for years rendring Rent with clause of Re-entry and the Rent due at the Feast of the Annunciation was behind being demanded at the day which Rent the Lessor afterwards accepted and afterwards entred for the condition broken and his Entry holden lawful Entry Plow Com. in Browning and Bestons Case for the Rent was due before the condition broken but if the Lessor accepts the next Quarters Rent then he hath lost the benefit of Re-entry for thereby he admits the Lessee to be his Tenant And if the Lessor distrain for Rent due at the said Feast of the Annunciation after the forfeiture he cannot afterwards re-enter for the said forfeiture for by his Distress he hath affirmed the possession of the Lessee So if he make an Acquittance for the Rent as a Rent contrary if the Acquittance be but for a sum of mony and not expresly for the Rent all which tota Curia concessit CCCXLIX 20 Eliz. In the Common Pleas. THe Case was Lessee for life the Remainder for life the Remainder in tail the Remainder in fee The two Tenants for life make a Feoffment in fee. Dyer A woman Tenant for life in Ioynture the Remainder for life the Remainder in fee the Tenants for life joyn in a Feoffment Entry for Forfeiture the Entry of him in the Remainder in fee is lawful by 11 H. 7. And if Tenant for life be impleaded and he in the Remainder for life will not pray to be received he in the last Remainder may and so in our case inasmuch as he in the Remainder for life was party to the wrong he in the Remainder in tail shall enter Which Harper and Munson granted Dyer 339. a. i. e. Manwood Although that this Feoffment be not a Disseisin to him in the Remainder in tail yet it is a wrong in a high degree as by Littleton A Disseisor leaseth for life to A. who aliens in fee the Disseisee releaseth to the Alienee it is a good Release and the Disseisor shall not enter although the Alienation was to his disinheritance Lit. 111. which Dyer granted And if Tenant for life alieneth in fee and the Alienee enfeoffeth his Father and dieth the same descent shall not avail him no more than in case of Disseisin Livery of Seism It hath been objected that this is the Livery of the first Tenant for life and the confirmation of him in the Remainder for life Dyer was of opinion That by this Livery the Remainder for life passeth and this Livery shall be as well the Livery of him in the Remainder as of the Tenant in possession and although where an estate is made lawfully by many it shall be said the Livery of him only who lawfully may make Livery Yet where an estate is wrongfully made it shall be accounted in Law the Livery of all who joyn in it And in this the Remainder for life is extinguished by the Livery in the Feoffee and the Livery of him in the Remainder for life shall be holden a void Livery especially when he joyns with such a person who hath not authority to make Livery As if the Lord and a Stranger Disseise the Tenant and make a Feoffment over the whole Seigniory is
extinct as if he solely had been seised so if he in the Reversion and a Stranger disseise for life and make a Feoffment over the Seigniory is gone and yet it is the Livery of the Lessee only And although it be but the confirmation of him in the Remainder for life yet thereby the Remainder is gone and extinct And afterwards Iudgment was given that the Entry of him in the Remainder in tail was lawful And it was said by the L. Dyer That if Tenant for life be the Remainder for life the Remainder in fee Tenant for life in possession alieneth in fee that he in the Remainder in fee cannot enter for it was not to his disinheriâ—in CCCL 20 Eliz. In the Kings Bench. THe Case was That a Capias ad Satisfaciend was delivered to the Sheriff 5 Co. 88 89. and after the Sheriff did arrest the party against whom the Capias issued by force of a Capias Utlagatum and then the party in the Capias came to the Sheriff and prayed that the party remain in Execution for his debt also and notwithstanding that the Sheriff let the Prisoner go at large and upon both Writs returned Non est inventus It was the opinion of all the Iustices That the Sheriff was not bound in point of Escape to detain the Prisoner for the Debt of the Plaintiff and it is not like where one is in the Fleet in Execution there if other condemnations in other Courts be notified to the Warden of the Fleet he shall be chargeable with them all It was holden also per Curiam That if the Body had been returned by Capias Utlagatum that the Court at the prayer of the party would grant that the Prisoner might remain in Execution for the debt as in case of a Capias pro fine CCCLI The Lord Saint John and the Countess of Kents Case 19 Eliz. In the Common Pleas. IN Evidence given to the Iury in an Action of Debt brought by the Plaintiff against the Defendant Grants of Executors of omnia bona sua 1 Cro. 6. It was said by Dyer and Manwood Iustices That if Executors grant omnia bona sua that the goods which they have as Executors do not pass which see 10 E. 4. 1. b. by Danby but the contrary was holden by Wray chief Iustice of the Kings Bench and by Plowden in Bracebridges case P. 18 Eliz. and they denied the opinion of 10 E. 4. to be Law for by such Grant made by Executors the goods of the Testator do pass CCCLII. 19 Eliz. In the Common Pleas. NOte It was said by Dyer and Manwood Iustices That if one be condemned in an Action upon the Case Abatement of Writ 3 Len. 68. or Trespass upon Nihil dicit or demurrer c. And a Writ issueth forth to enquire of the Damages and before the return of it the Defendant dieth that the Writ shall not abate for the awarding of the said Writ is a Iudgment And it was said by Manwood Account In a Writ of Account the Defendant is awarded to account if the Defendant account and be found in Arrearages and dieth the Writ shall not abate but Iudgment shall be given that the Plaintiff shall recover and the Executor shall be charged with the Arrearages and yet account doth not lye against them CCCLIII 19 Eliz. In the Kings Bench. A. Did recover in Debt against B. whereupon a Fieri facias issued to the Sheriff of Devon and the Defendant seeing the Writ of Execution in the Sheriffs hands Attachment of Goods after the Money is in the Sheriffs hand is void said to him that he would pay the Debt recovered at Exeter such a day to satisfie the Execution at which day the Defendant paid the mony accordingly and presently came an Officer of the City of Exeter and attached the mony in the Sheriffs hand supposing the said A. to be indebted so much to one C. in whose name he made the Attachment Antea 29. 1 Cro. 6â— and now on the behalf of the said A. a Certiorare was prayed to remove the Attachment hither and it was therefore holden by the whole Court that the Attachment was void and a Certiorare granted And Wray said If it can be proved by Oath that if the Defendant did procure or was assenting to the said Attachment that Process of Contempt should issue against him and the Sheriff demanded of the Court what return he should make because the monies were attached in his hands and taken from him by force to which Wray answered That the Sheriff ought to answer the monies to the Plaintiff which were once in his hands by force of the Execution and that it was his folly to suffer the mony to be taken from him by colour of the said Attachment and if the mony was taken by force the Sheriff had his remedy by an Action of Trespass for the Attachment was void but the Sheriff at the return of the Writ ought to answer for the Mony. CCCLIV. 19 Eliz. In the Common Pleas. TEnant for life bargained and sold his Lands to A. and his Heirs and afterwards levied a Fine to the Bargainee Forfeiture 4 Len. 124. â— Len. 60 65. Sur conusans de droit come ceo c. It was holden by the Court that it was a forfeiture committed by the Bargainee not by the Bargainor who at the time of the Fine had nothing to forfeit and it was said by Manwood Iustice That if Tenant for life be disseised and takes a Fine ut supra of a Stranger it is a forfeiture and yet he in the Reversion hath but a right in Reversion so that if Tenant for life be disseised and the Disseisor commits Wast he in the Reversion shall have an Action of Wast against Tenant for life and if two Tenants for life be disseised by two A. and B. and one of the Tenants for life doth release unto A. and the other Tenant for life doth re-enter he hath the Moiety in common with the other to whom the Release was made and he hath revested the intire Reversion in him in whom the Reversion was before c. CCCLV. 20 Eliz. In the Common Pleas. Bracebridges Case THe Case was Thomas Bracebridge seised of a Manor in Fee leased a Messuage parcel of it to one Curtes for 21 years and afterwards 35 H. 8. leased the same to one Moore for 26 years to begin after the expiration of the former Lease and afterwards 5 E. 6. he enfeoffed Griffith and others to the use of the Feoffees themselves and their Heirs upon condition That if the Feoffees did not pay to the said Thomas Bracebridge 2000 l. within 15 days after that then immediately after the said 15 days the Feoffees should stand seised of the said Manor to the use of the said Thomas Bracebridge and Joyce his wife for their lives without impeachment of Wast and afterwards to the use of T. B. their second Son in tail with divers Remainders
be taken or comprehended under the name of a Benefice having Cure of Souls in any Article above specified CCCCXLIII Pasch 30 Eliz. In the Kings Bench. Aâ—iâ—d ONe was bounden to stand to the award of two Arbitrators who award that the party shall pay unto a stranger or his assigns 200 l. before such a day the stranger before the day dieth and B. takes Letters of Administration and if the Obligor shall pay the mony to the Administrator or that the Obligor should be discharged was the Question and it was the opinion of the whole Court that the mony should be paid to the Administrator for he is Assignee and by Gawdy Iustice If the word Assignee had been left out yet the payment ought to be made to the Administrator quod Coke affirmavit CCCCXLIV Pasch 30 Eliz. In the Kings Bench. ONe sued in the Kings Bench for Costs given upon a Suit depending in the Hundred Court and the sum of the Costs was under 40 s. and the Plaintiff declared Steward That at the Court holden before the Steward secundum consuetudinem Manerii praedict It was objected that the Steward is not Iudge in such Court but the Suitors to which it was answered by the Iustices That by a Custom in a Hundred Court a Steward may be Iudge and so it hath been holden and here the Plaintiff hath declared upon the Custom for the Declaration is secund consuetudinem Manerii also the Subject may sue here in the Kings Bench for a lesser sum than 40 s. as if 10 s. Costs be given in any Suit here Suit to such costs lieth here in this Court. CCCCXLV Pigot and Harringtons Case Mich. 30 31. Eliz. In the Kings Bench. PIgot brought a Writ of Error upon a Fine levied by him within age Error 1 Cro. 11. the Case was That the Husband and Wife were Tenants for life the Remainder to the Infant in Fee and they three levied a Fine and the Infant only brought the Writ of Error It was objected by Tanfield that they all three ought to joyn in this Writ and the Husband and Wife ought to be summoned and severed Atkinson contrary for here the Husband and Wife have not any cause of action but the Infant only is grieved by the Fine 35 H. 6. 19 20 21 c. In conspiracy against many it was found for the Plaintiff and one of the Defendants brought Attaint and assigned the false oath in omnibus quae dixerunt but afterwards abridged the assignment of the false oath as to the damages and so the attaint well lies Two women are Ioynt-tenants they take Husbands the Husbands and their Wives make a Feoffment in Fee Attaint the Husbands dye the Wives shall have several Cui in vita's for the coverture of the one was not the coverture of the other 7 H. 4. 112. In Appeal against four they were outlawed and two of them brought Error upon it and good 29 E. 3. 14. In Assize against three Coparceners they plead by Bailiff nul tenent de Franktenement c. and found that two of them were disseisors and Tenants and that the third had nothing and afterwards the three Coparceners brought attaint and after appearance the third Sister who was acquit was nonsuit and afterwards by Award the Writ did abate Tanfield Although that the cause be several yet the erronious act was joynt and the receiving of the Fine and that Record being entire ought to be pursued accordingly and then the Husband and Wife shall be summoned and severed and it is not like to the case of 29 E. 3. cited before for there the third coparcener had not any cause of attaint for no verdict passed against her Wray As the Error is here assigned the Writ is well brought for the Error is not assigned in the Record but without it in the person of the Infant Fine upon an Infant reversed and that is the cause of the Action by him and for no other Two Infants levy a Fine although they joyn in Error yet they ought to assign Errors severally and they may sue several Writs of Error and afterwards it was holden by the Court that the Writ was good and the Fine reversed as to the Infant only CCCCXLVI Scovell and Cavels Case Mich. 30 31. Eliz. In the Kings Bench. IN Ejectione firmae by Scovell against Cavel Leases 1 Cro. 89 the Declaration was general upon a Lease made by William Pain and it was found by special verdict That William Leversedge was seised of the Lands c. and leased the same to Stephen Cavel John Cavel and William Pain habend to them for their lives and for the life of the survivor of them Provided always and it was covenanted granted and agreed betwixt the parties that the said John Cavel and William Pain should not take any benefit profit or commodity of the Land during the life of Stephen Cavel and further that the said William Pain should not take any benefit c. during the life of John Cavel c. Stephen Cavel died John Cavel entred and afterwards William Pain entred and made the Lease to the Plaintiff upon whom the Defendant entred and if the Entry of William Pain were lawful was the Question Gawdy Serjant his Entry is not lawful It will be agreed That if a man lease to three for their lives they are joynt-Ioynt-tenants but if by the habendum the estate be limited to them by way of Remainder the joynt estate in the Premises is gone and the Land demised shall go in Remainder and I agree that in deeds Poll the words shall be taken strong against the grantor contrary in the Case of Indentures the words there shall be taken according to the intent of the parties for there the words are the words of both See Browning and Beestons Case 2. and 3. Ma. Plowd 132. where by Indenture the Lessee covenanted to render and pay for the Land Leased such a Rent the same is a good reservation although it be not by apt words and here in our Case this Proviso and Covenant Grant and Agreement doth amount to such a limitation by way of Remainder especially when such a clause followeth immediately after the Habendum Coke contrary The Office of the Habendum is to limit and explain the estate contained in the premises and here the Habendum hath done its Office and made it a joynt estate and therefore the Clause afterward comes too late and in truth is repugnant and utterly void as to such purpose but perhaps an action of Covenant lies upon it Wray It hath been by me adjudged if a Lease be made to three Habendum successive the same is a void word and the Lessees are joynt-tenants contrary of Copyhold by reason of Custom and here the proviso and the clause following is contrary to the Habendum and repugnant and so void as to the dividing of the estate by way of Remainder which Gawdy Iustice granted Heale
hold the Land discharged of the Copy-hold for her life and he put this case If the Lord of such a Manor taketh a Wife a Copy-holder for life dieth the Lord grants a Rent-charge out of the customary land and afterwards grants the said land by copy for life dieth the wife shall hold the land discharged of the Rent but the Copy-holder shall be charged and he put a difference where the Lord grants such Copy-hold in possession and where in Reversion for in the first case the Wife shall hold charged but contrary in the last And he cited the Case of one Slowman who being Lord of a Manor ut supra by his Will devised that his Executors should grant estates by Copy 2. Len 109. and died having a Wife the Executors make estates accordingly Dower discharged of a grant of Copy-hold the Wife in case of Dower shall avoid them Plowden contr the Lord of such a Mannor is bound by recognisance and afterwards a Copy-holder for life of the said Mannor dieth the Lord grants his Copy-hold de novo the said new Grantee shall hold his Copy-hold discharged of the Recognisance which Gawdy Iustice granted and by Wray if the Lord of such a Manor grants a Copy-hold for three lives takes a Wife the three lives end the Lord enters and keeps the lands for a time and afterwards grants them over again by copy and dieth the copy-holder shall hold the Land discharged of the Dower and this is a clear case for the copy-holder is in by the custom which is paramount the title of Dower and the Seisin of the Husband and by him in the case of the Earl of Northumberland 17 Eliz. Dyer 344. That the grant of a copy-hold in Reversion by the Earl of Northumberland doth not make such an impediment as was intended in the condition there for it is by the custom and not by the act of the party And afterwards the same Term Iudgment was given for the Plaintiff that he and his Lessor should hold the lands discharged of the Dower XX. Fringe and Lewes Case Pasch 26 Eliz. In the Kings Bench. DEbt by Fringe against Lewes upon a Bond who pleaded Debt that the condition was that whereas the Defendant was Executor to one Morris Degle that if the Defendant should perform observe fulfil and keep the Will of the said Morris Degle in all points and Articles according to the true intent and meaning thereof that then c. and pleaded further that the said Morris by the said Will bequeathed to the Poor of such a Town ten pounds to be distributed amongst them and also to the Church-wardens of the Parish ten pounds and to I S. three pounds and that he had distributed the said ten pounds to the Poor and that he had paid the ten pounds to the Church-wardens and as to three pounds Uncore priâ—â— a good Plea. he said that he is and always was ready to pay the same to the said I. S. if he had demanded it upon which there was a demurrer And as to the ten pounds to be distributed amongst the Poor the same was holden good enough without shewing the names of the Poor amongst whom the mony was distributed so the pleading of the first payment to the Church-wardens was sufficient without nameing of them See 42 E 3. brief 539. Scire facias out of a Recovery against Executors and the Writ was challenged because it was Scire facias Executors not naming their proper names It was holden to be no exception for Executors are as a corporation known in that they are Executors and as to the third part of the Plea scil always ready and yet is the plea is well enough for this Obligation the Condition of which being general to perform the Will c. Poph. 10â— hath not altered the nature of the payment of the Legacy but the same remains payable in such manner as before upon request and not at the peril of the Defendant See 22 H 6. 57 58. 11 E 4 10. 6 E 6. Br. Tender 60. And afterwards the same Term the Court was clear of opinion and so delivered the Law to the Counsel on both sides that in this case the Legacies are to be paid upon request and not at the peril of the Executors in such manner as they were before the Obligation and afterwards Iudgment was given against the Plaintiff XXI Sir John Smith and Peazes Case Pasch 26 Eliz. In the Kings Bench. SIr John Smith brought Debt upon an Obligation against Peaze who pleaded that the Bond was upon condition to perform covenants contained in an Indenture and shewed what and that he had performed them the Plantiff assigned the breach of one covenant that where the Plaintiff had leased to the Defendant for years certain messuages by the same Indenture the Defendant by the same Indenture did covenant to repair all the said Messuages Covenant alia quam quae appunctuatae forent divelli per script dicti Johannis Smith and shewed further that the Defendant had not repaired the said Messuages to him demised as aforesaid and averred that the said house in which the breach of the covenant is assigned non fuit durante termino praedicto appunctuata divelli and upon that matter of reparation they were at Issue and found for the Plaintiff It was moved in Arrest of Iudgment that the Averment in the Replication was not sufficient for the Lease was made in November to begin the Michael after Averment and it might be that the Messuage in the not repairing of which the breach of the covenant is assigned was appointed to be pulled down scil divelli before the Term for years began and then the Defendant is not bound to repair it and then the breach of the covenant is not well assigned and so the Averment doth not answer the exception and because this clause alia quam is in the body of the Covenant it ought to be satisfied by him who pleads it scil by him who assigns the breach in the Covenant in which the exception is contained As by the Lord Dyer in his argument in the argument of Stowels Case reported by Plowden 376. Where a man pleaded the Feoffment of Cestuy que use he ought to plead that Cestuy que use at the time of the Feoffment was of full age sanae memoriae c. for that is within the purview contr upon the Statute of 4 H. 7. in pleading of a Fine for that is in a clause by it self which conceit of Plowden the Lord Wray denyed to be Law for he said he that pleads the Feoffment of Cestuy que use or a Fine according to the Statute of 4 H. 7. shall not be driven to shew that the Feoffor or Conusor at the time of the Feoffment or Fine levyed was of full age c. but he who comes in by such Fine 〈◊〉 21 or Feoffment shall shew the same for his own advantage And
upon the Evidence Notwithstanding that the number set down in the plaint be by the plea of the Defendant quodam modo admitted and the lesser number surmised and the contrary not proved shall go in mitigation of the damages and the Iury shall conform their verdict in the right of damages according to the proof of the number notwithstanding that the number set forth in the plaint be not by the Plea denied by the Defendant and so it was put in ure in this Case for the Plaint was of the taking of one thousand Cattle but the proof extended but to eight hundred sixty five Note also in the same Plea it was holden that whereas one Chock was returned upon several Iuries in two several Courts at Westminster and both the Iuries are adjourned to one day now in which of the said two Courts the said Chock was sworn he shall be discharged of his attendance at the other Court the same day LV. Carters Case Mich. 28 29 Eliz. In the Common Pleas. CArter brought an Action upon the Case against I.S. and declared Assumpsit that A. was possessed of certain Lands for years the Inheritance thereof being in the Wife of the Plaintiff upon which Lease a Rent was reserved The Defendant in consideration that the Plaintiff would procure the said A. to assign the said Lease to the Defendant promised to pay the said Rent to the Plaintiff for all the residue of the Term It was objected that upon this matter the Action doth not lie because that the Plaintiff hath a higher remedy scil an Action of Debt or Distress but the opinion of the whole Court was that the Action did lie for here upon the promise an Action is given to the Husband alone in his own right whereas the Rent is due to the Husband in the right of his Wife in its nature and the Rent is also to be paid for the Land. But upon this Assumpsit it is payable to the person of the Husband And afterwards Iudgment was given for the Plaintiff LVI Kimpton and Bellamyes Case Mich. 28 29 Eliz. In the Common Pleas. GEorge Kimpton brought a Replevin against Wood and Bellamy Replevin who make Conusance as Baylies to George Burgain for Damage Feasance The Plaintiff in Bar of the Conusance sheweth That he himself and all those whose estate he hath in one hundred and forty Acres of Land time out of mind c. have had common for all manner of Cattle in six Acres of Lands whereof the place where c. is parcel and so put in his Cattle c. against which the Defendants say that the Plaintiff c. had common in forty Acres of Land whereof the said six Acres are parcel all lying in Communi campo and that the Plaintiff a long time before the taking had purchased two Acres parcel of the said forty Acres c. upon which there was a demurrer in Law It was argued by Serjeant Shuttleworth that the Replication to the Bar to the avowry is not good for in the Bar to the Avowry the Plaintiff hath shewed that he hath common in six Acres and the same shall be intended common in six acres only for common in forty acres cannot be the common in six acres as 35 H. 6. 38. In Debt for Rent reserved upon a Lease for years the Plaintiff declared that he leased to the Defendant ten acres of Land rendring the Rent in demand the Defendant pleaded that the Plaintiff leased to him the said ten acres and also such a Rectory rendring the same Rent the same is no plea without traverse absque hoc that he leased the ten acres only See Dyer 29 H. 8. 32. And the whole Court was clear of opinion that for want of such traverse Traverse the plea is not good for by Periam the Common supposed in the bar to the Conusans out of the six acres cannot be intended the Common supposed in the Replication scil out of the forty acres And by him if in Trespass the Defendant justifie by reason of Common in six acres of Land upon which the parties are at issue and the Defendant in Evidence shews that he hath common in forty acres whereof the said six acres are parcel the same doth not maintain his title but the issue shall be found against him Post 80 81. But by the Lord Anderson because that this Demurrer is general the other party shall not take advantage of that defect of pleading for the want of the Traverse and that by reason of the Statute of 27 Eliz. For Traverse is but matter of form and the want of the same shall not prejudice the other party in point of Iudgment but the Iudges ought to judge upon the substance and not upon the manner and form of the pleading And as to the matter of the Common Extinguishment the Court was clear of opinion that by the purchase of the said two acres the whole Common was gone LVII Knights Case Mich. 28 29 Eliz. In the Common Pleas. KNight brought Debt against three Executors and now surmised by his Counsel that one of the Executors is dead pendant the Writ Debt and prayed the opinion of the Court if the Writ should thereby abate or not for by some it is not like where a Writ is brought against two Executors Abatement of Writ for there if any of them dieth pendant the Writ it shall abate for now the plural number is gone for there is but one Executor but in our Case the plural number continues But notwithstanding that the Court was clear of opinion that the Writ should abate Wherefore the Plaintiff seeing the opinion of the Court prayed that upon his surmise aforesaid he might have a new Writ by Iourneys Accounts which was granted to him The Queen and Middletons Case Mich. 28 29 Eliz. In the Common Pleas. Quare Imped THe Queen brought a Quare Impedit against Middleton and counted that W. Lord Say was seised of the Manor of Bedington in the County of Hertford to which Manor the advowson of the Church was appendant ad Ecclesiam praedict praesentavit Coo Clericum suum and afterwards died seised having issue two Daughters Mary married to the Earl of Essex and Ann to the Lord Mountjoy who make partition and the said Manor of Bedington inter alia was allotted to the said Mary for her part and afterwards the said Earl and Mary died having issue Ann who took to Husband the Marquess of Northampton and afterwards 33 H. 8. a Fine was levyed of the said Manor inter c. Querent and the said Marquess and Ann Deforceants by which Fine the said Manor was granted and rendred to the said Marquess for term of his life the remainder to the said Ann his Wife in tail the remainder over to Hen. the eighth in Fee the Marquess is attainted of High Treason by which the King seised and afterwards Ann died without issue after which
most valuable part of the services of the Copy-holder The Statute of 1 E. 6. of Chantries doth extend to Copy-hold by the general words Lands Tenements and Hereditaments for otherwise the Proviso which excepts Copy-holds were not necessary And in our Statute the words are Lands Tenements and Hereditaments which are forceable words which proves that our exposition to extend it to Copy-holds is proper and agreeable to the Statute and this in the first branch of it for Copy-hold is some Land Tenement or Hereditament the clause in this branch of the Statute is and also all other the Lands Tenements and Hereditaments liable to such seisure c. the same is to be meant of such Lands which are bound with clause of revocation of which is spoken in the former part of this Statute He who departs out of the Realm against the Statute of 5 R. 2. shall forfeit his goods and thereby his debts also The King grants omnia bona catalla felonum Debts of Felons shall pass Ergo Copy-holds also 2 Lâ—n 56. Post 201. 202. by the name of Lands Tenements c. as well as debts by the name of goods In our Case the meaning of the Statute was that the Queen should have two parts of the whole estate of the Recusant be it Copy-hold Ancient demesne c. If upon the Statute of Bankrupts a Copy-hold estate be sold to the King the King shall pay the Rent but shall not do any of the services and in so much the Lord shall be prejudiced patiatur etiam hic rather than Recusants should not be punished and it is not a strange thing in Law that the Lord of a Copy-holder should be prejudiced for the offence of his Tenant as where a Copy-holder is outlawed the King shall have the profits of his Copy-hold Lands and the Lord hath not any remedy for his Rent CXXVII Stebbs and Goodlacks Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Stebbs Goodlack the Case was the Parson of Letcome in the County of Berks libelled in the Spiritual Court for Tithes Fraud shall not avoid payment of Tithes the Defendant shewed that the custome of the Town of Letcome is that the Parson shall have for his Tithes the tenth Land sowed with any manner of corn and he shall begin his reckoning always at the first Land which is next to the Church c. The Parson shewed that the Defendant by fraud and covin sowed every tenth Land which belonged to the Parson ut supra very ill and with small quantity of corn and did not dunge or manure it as he did the other nine parts by means whereof whereas the other nine every of them yielded eight Cocks the tenth yeilded but three Cocks and for this matter the Parson libelled in the Spiritual Court and confessed the custome but for abusing of the custom prayed to have his Tythes in kind the Defendant prayed a prohibition and the Parson afterwards a consultation And the opinion of Wray Iustice was that the custom was against common reason and so void but if it be a good custom then the Parson shall have the Action upon the case CXXVIII Rumney and Eves Case Pasch 30 Eliz. In the Kings Bench. Copy-holder IN Ejectione firmae by Jane Rumney against Lucie Eve it was holden that if customary Land do descend to the younger Son by custom and he enters and leaseth it to another who takes the profits and after is ejected Poph. 39. 4 Co. 22. That he shall have an Ejectione firmae without any admittance of his lessor or presentment that he is heir For which the Defendant shewed that there were thirty years incurred betwixt the death of the Father and the making of the Lease so that here is supina negligentia which shall disable his person to make any demise quod fuit concessum In answer of which it was said that the Lessor at the time of the death of his Ancestor was but of the age of two years and that after his full age no Court had been holden for a long time and that at the first Court that was holden which was of late he prayed to be admitted but the Steward refused to admit him and the same was holden a good excuse of his negligence And it was holden that the Plaintiff ought not to shew that the Lease is warranted by the custom 1 Cro. 469. 483. 717. 728. Ante 16. but that shall come of the other side and so it had been lately adjudged which Wray granted And by him if a Copy-holder surrender in extremis to the use of himself for life c. If he shall be well again the surrender shall stand 4 Len. 30. 31. 8 Co. 100. for he hath reserved an estate to himself It was further holden in this Case that if a Copy-holder dieth his Heir within age he is not bound to come at any Court during his non-age to pray admittance or to tender his Fine Also if the death of the Ancestor be not presented nor proclamations made he is not at any mischeif although he be of full age CXXIX Saint-John and Petits Case Pasch 30 Eliz. In the Kings Bench. IT was covenanted betwixt Saint-John and Petit that Saint-John should present Petit to the Church of A. and that afterwards Petit should lease the Parsonage to Saint-John or to any other person named by him and that the said Petit should not be absent by eighty days and that he should not resign and Petit was bound to perform these Covenants Petit is presented to the Benefice Saint-John brought an Action upon the Obligation pretending that he could not enjoy his lease by reason of the absence of the said Parson c. And the Lease was made to the Curate at the nomination of Soint-John The Parson said that the Obligation is void by the Statute of 14 Eliz. cap. 11. See the Statute All Leases c. made by any Curate shall be of no better force than if it had been made by the beneficed Parson himself Tanfeild by 13 Eliz. 20. When a Parson leaseth to his Curate who leaseth over The Statute doth not make the Lease void by any absence of the Parson but of the Curate by forty days Quaere For that it seemeth that by the Statute of 14 Eliz. the Curate cannot lease c. CXXX Gates and Halliwels Case Pasch 30 Eliz. In the Kings Bench. BEtwixt Gates and Halliwel the Case was one having two Sons 3 Len. 55. devised that his eldest Son with his Executors should take the profits of his Lands until his youngest Son should come to the age of two and twenty years and that then the said youngest Son should have the Land to him and the Heirs of his body It was holden clearly by the whole Court that the eldest Son should have Fee in the interim until the youngest Son came to the said age CXXXI Prowse and Carys Case Pasc 30 Eliz. In the
amount to a Re-entry And afterwards to prove a Re-entry it was given in Evidence on the Plaintiffs part that the Defendant put in his Cattel in the Field where the Brick-kill was and that the Cattel did estray into the place where the Defendant had supposed that the Plaintiff had entred And by Anderson Iustice the same is not any Re-entry to revive the Rent because they were not put into the same place by the Lessee himself but went there of their own accord And such also was the opinion of Iustice Periam CL. Pasch 30 Eliz. In the Common Pleas. TEnant in tail covenanted with his Son to stand seised to the use of himself for life and afterwards to the use of his Son in tail the Remainder to the right Heirs of the Father The Father levyed a Fine with proclamation and died It was moved by Fenner if any estate passed to the Son by the Covenant for it is not a discontinuance and so nothing passed but during his life and all the estates which are to begin after his death are void Anderson The estate passeth until c. and he cited the case of one Pitts where it was adjudged that if Tenant in tail of an Advowson in gross grant the same in Fee and an Ancestor collateral releaseth with warranty and dieth That the same is a good Bar for ever CLI Staffords Case Pasch 30 Eliz. In the Common Pleas. THe case was Attachment upon a Prohibition More 599. that the Parson of the Church of B. did libel in the Ecclesiastical Court for Ttithe-milk of eight Kine depasturing within such a Field within his Parish The Defendant said that he and all those c. had used time out of mind c. to pay every year a certain sum of mony to the Parson c. for the Tithes of the same Field which plea the Iudges of the Ecclesiastical Court would not allow and therefore the party had now a Prohibition and an Injunction against the Iudges Doctors Proctors c. And afterwards the same Parson libelled again for the same Tithes against the same Parishioner and in both libels there was no difference but that in the later libel it was for a less number of Kine and now the Parishioner upon this matter prayed an Attachment upon the Prohibition which was granted unto him by the Court for otherwise a Prohibition should be granted to no purpose CLII. Samford and Wards Case Pasch 30 Eliz. In the Common Pleas. SAmford brought a Ravishment of Ward against Ward Ravishment of Ward and counted hat one A. Ancestor of the Infant whose Heir he is was seised of certain Lands in Fee and held the same of the Bishop of Winchester in Socage and died his Heir within the age of 14 years and that the custody of the Infant did belong unto him as his prochein Amy by force of which he seised him and was possessed c. The Defendant saith that the Land was holden of him by Knights service absque hoc that it is holden of the Bishop of Winchester as the Plaintiff hath counted And upon the Issue was joyned And it was moved by Serjant Puckering on the Plaintiffs part that the truth of the Case was that all the Land descended is holden in Socage and no part in Knights service but that part of it is holden of another in Socage And prayed the opinion of the Court if that matter shall trench to the Issue as the same is joyned And the Court was of opinion that it did not for if all be holden in Socage it is not material if part of it be holden of another so as it be holden in Socage CLIII Stamp and Hutchins Case Pasch 30 Eliz. In the Common Pleas. THe Case was the Obligor makes his Executors and dieth 1 Cro. 120. the Executors become bounden to the Obligee for the payment of the said Debt and the Obligee doth deliver back the Obligation of the Testator to them and afterwards another Creditor of the Testator sues the Executors who pleaded that they have fully administred upon which they are at issue and the said especial matter was found by verdict And by Shuttleworth and Walmesley The Iury have found for the Plaintiff and that the Defendants have not fully administred And yet they agreed the case of 20 H. 7. 2. The Executors paying to the Creditors of the Testator a Debt with their own goods they may retain so much of the goods of the Testator but that case is not like to this for here the Executors have not made any payment or satisfaction of the Debt nor disbursed any mony c. nor other things but only have made an Obligation to pay a sum of mony at a day to come before which day it may happen that the Obligation be cancelled or released but it may more fitly be compared to the case of 27 H. 8. 6. where an Executor had compounded with a Creditor of the Testator for the payment of 20 l. for a debt of 40 l. and had an Acquitance testifying the payment of the 40 l. where it was holden that the other 20 l. is Assets And by Rhodes this making of an Obligation by Executors Administration Assets although the Obligation in which the Testator was bounden be delivered to the Executors and cancelled is not any administration nor payment of the said debt due So if the Executors pledge the goods for the payment of such a debt yet they shall be accounted Assets until payment be made which Periam denied And Periam and all the other Iustices held clearly Retainer by administrations that if in such case the Executors make a sufficient Obligation to the Creditor of the Testator and sufficiently discharge the Testator without fraud or covin that they may retain the goods of the Testator for so much and the goods retained shall not be said Assets And this case is all one with the case of 20 H. 7. for here they have discharged the Testator and the Executors do remain charged with the same to the Creditor and it is so fully administred as if the Executors had expresly paid the debt And it is not like to the case of 27 H. 8. cited before for there although they have discharged the Testator yet they have not charged themselves otherwise it is in the principal case and although they have appointed ulteriorem diem for the payment of the said debt yet the same is not material But the Lord Anderson conceived that if the Creditor doth deliver unto the Executors the Obligation as an Accquittance or discharge and in consideration thereof they promise to pay the debt the same is not any administration as to the said debt And by some of the Serjants If the plea stand good to prove fully administred then Executors in such case may make an Obligation to pay the debt 40 years after and so defraud the other Creditors which is not reasonable If a Feoffment in Fee
the limitation for the life of the Wife cannot extend to both And as to the Book of 24 H. 8. Br. Forfeiture 87. 3 Cro. 167 168. Tenant for life aliens in Fee to B. Habendum sibi haeredibus suis for Term of the life of the Tenant for life the same is not a forfeiture for the whole is but the limitation of the estate And afterwards it was adjudged that it was a forfeiture Gawdy continuing in his former opinion And VVray said that he had conferred with the other Iudges of their House and they all held clearly that it is a forfeiture CLXXII Toft and Tompkins Case Trin. 30 Eliz. In the Kings Bench. Rot. 528. UPon a special Verdict the case was that the Grand-father Tenant for life the Remainder to the Father in tail Discontinuance 1 Cro. 135. that the Grand-father made a Feoffment in fee to the use of himself for life the Remainder to the Father in Fee And afterwards they both came upon the Land and made a Feoffment to Tompkins the Defendant Coke There is not any discontinuance upon this matter for the Father might well wave the advantage of the forfeiture committed by the Grand-father then when the Father joyns with the Grand-father in a Feoffment the same declares that he came upon the Land without intent to enter for a forfeiture It was one Waynmans Case adjudged in the common Pleas where the Disseissee cometh upon the Land to deliver a Release to the Disseissor that the same is no Entry to revest the Land in the Disseissee Then here it is the Livery of the Tenant for life and the grant of him in the Remainder and he in the Remainder here was never seised by force of the tail and so no discontinuance Godfrey Here is a Remitter by the Entry and afterwards a discontinuance for by the Entry of both the Law shall adjudge the possession in him who hath right c. Gawdy This is a discontinuance for when the Father entreth ut supra he shall be adjudged in by the forfeiture and then he hath gained a possession and so a discontinuance for both cannot have the possession Clench The intent of him in the Remainder when he entred was to joyn with the Grand-father and when his intent appeareth that the estate of the Grand-father and his own also shall passe that doth declare that he would not enter for the forfeiture Shute agreed with Gawdy CLXXIII Broake and Doughties Case Hill. 31 Eliz. Rot. 798. Trin. 30. Eliz. In the Kings Bench. AN Action upon the Case for words Action upon the Case for words 1 Cro. 135. viz. Thou wast forsworn in the Court of Requests and I will make thee stand upon a Stage for it It was found for the Plaintiff It was moved in arrest of Iudgment that the Action will not lye for these words for he doth not say that he was there forsworn as Defendant or witness And Trin. 28 Eliz. betwixt Hern and Hex thou wast forsworn in the Court of Whitchurch And Iudgment given against the Plaintiff for the words are not Actionable and as to the residue of the words I will make thee stand upon the Stage for it they are not Actionable as it was adjudged between Rylie and Trowgood If thou hadst Iustice thou hadst stood on the Pillory and Iudgment was given against the Plaintiff Daniel contrary thou wast forsworn before my Lord chief Iustice in an Evidence these words are Actionable for that is perjury upon the matter and between Foster and Thorne T. 23 Eliz. Rot. 882. Thou wast falsly forsworn in the Star-Chamber the Plaintiff had Iudgment for it shall be intended that the Plaintiff was Defendant or a Deponent there And yet the words in the Declaration are not in the Court of Star-Chamber Wray Thou art worthy to stand upon the Pillory are not Actionable for it is but an implication but in the words in the Case at the Bar there is a vehement intendment that his Oath was in the quality of a Defendant or Deponent which Gawdy granted In the Case 28 Eliz. Thou wast forsworn in Whit-Church Court there the words are not actionable for that Court is not known to you as Iudges And it may be it is but a great House or Mansion house called Whit-church Court But here in the principal case it cannot be meant but a Court of Iustice and before the Iudges there juridice and the subsequent words sound so much I will make thee stand upon a Stage for it And afterwards Iudgment was given for the Plaintiff CLXXIV Gatefould and Penns Case Trin. 30 Eliz. In the Kings Bench. Prescription for tythes 1 Cro. 136. 3 Len. 203 265. Antea 94. GAtefould Parson of North-linne libelled against Penne in the spiritual Court for tythes in Kind of certain pastures The Defendant to have prohibition doth surmise that he is Inhabitant of South-linne and that time out of mind c. every Inhabitant of South-linne having pastures in North-linne hath paid tythes in Kind for them unto the Vicars of South-linne where he is not resident and the Vicar hath also time out of mind payed to the Parson of North-linne for the time being two pence for every acre Lewis This surmise is not sufficient to have a prohibition for upon that matter Modus Decimandi shall never come in question but only the right of tythes if they belong to the Parson of North-linne or to the Vicar of South-linne and he might have pleaded this matter in the spiritual Court because it toucheth the right of tythes as it was certified in the Case of Bashly by the Doctors of the Civil Law. Gawdy This prescription doth stand with reason for such benefit hath the Parson of North-linne if any Inhabitant there hath any Pastures in South-linne And afterwards the whole Court was against the prohibition for Modus Decimandi shall never come in debate upon this matter but who shall have the tythes the Vicar of South-linne or the Parson of North-linne and also the prescription is not reasonable CLXXV Gomersal and Bishops Case Hill. 31 Eliz. Rot. 175. Trin. 30 Eliz. In the Kings Bench. 1 Cro. 136. BIshop libelled in the Spiritual Court for tythe Hay the Plaintiff Gomersal made a surmise that there was an agreement betwixt the said parties and for the yearly sum of seven shillings to be paid by Gomersal unto Bishop Bishop faithfully promised to Gomersal that Gomersal should have the tythes of the said Land during his life And upon an Attachment upon a Prohibition Gomersal declared that for the said annual sum Bishop leased to the Plaintiff the said tythes for his life And upon the Declaration Bishop did demur in Law for the variance between the Surmise and the Declaration for in the Surmise a promise is supposed for which Gomersal might have an Action upon the Case and in the Declaration a Lease But note that the Surmise was not entred in the Roll but was recorded
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
be a strange construction that the King should be within one part of the Statute and out of the other And 34 H. 6. 3. The Kings Attorney could not have damages which is a great proof and authority that the Iudgment for damages in such case is Error The experience and usage of Law is sufficient to interpret the same to us and from the time of E. 3. until now no damages have been given in such case Thrice this matter hath been in question 1. 3 H. 9. and the Iustices there would not give damages 34 H. 6. there the Councel learned of the King could not have damages for the King. And 7 Eliz. there was no damages And whereas it hath been said that a man shall not have a Writ of Error where Iudgment is given for his benefit that if Iudgment be entred that the Defendant be in Misericordia where it ought to be Capiatur yet the Defendant shall have a Writ of Error And he conceived also that here is but one Iudgment Clench The first President after the making of that Statute was that damages were given for the King in such case but afterwards the practice was always otherwise that the said Statute could not be construed to give in such case damages the reason was because the Iustices took the Law to be otherwise And the King is not within the Statute of 32 H. 8. of buying of Tythes nor any Subjects who buy any title of him And here in our case the Queen is not verus Patronus but hath this presentment by Prerogative And if title do accrue to the Bishop to present for Lapse yet the Patron is verus Patronus At another day the case was moved and it was said by VVray that he had conferred with Anderson Manwood and Periam who held that the Queen could not have damages in this case but Periam somewhat doubted of it Gawdy In 22 E. 4. 46. In Dower the Demandant recovered her Dower and damages by verdict and afterwards for the damages the Iudgment was reversed and stood for the Lands Clench It shall be reversed for all for there is but one Iudgment And afterwards Iudgment was given and that the Queen should have a Writ to the Bishop and damages Popham The Court ought not to proceed to the examination of the Errors without a Petition to the Queen and that was the case of one Mordant where an Infant levyed a Fine to the Queen and thereupon brought a Writ of Error and afterwards by the Resolution of all the Iudges the proceedings thereupon were stayed See 10 H. 4. 148. a good case CCVIII Chapman and Hursts Case Trin. 31 Eliz. In the Kings Bench. BEtwixt Chapman and Hurst Tythes the Defendant did libel in the spiritual Court for Tythes against the Plaintiff who came and surmised that whereas he held certain Lands by the Lease of Sir Ralph Sadler for term of years within such a Parish that the now Defendant being Farmor of the Rectory there The Defendant in consideration that the Plaintiff promised and agreed to pay to the Defendant ten pounds per annum during the Term for his Tythes he promised that the Plaintiff should hold his said Land without Tythes and without any sute for the same and thereupon prayed a Prohibition And by Gawdy the same is a good discharge of the Tythes for the time and a good Composition to have a Prohibition upon and it is not like unto a Covenant See 8 E. 4. 14. by Danby CCIX. Kirdler and Leversages Case Trin. 31 Eliz. In the Common Pleas. IN Avowry the case was Avowry 1 Cro. 241. that A. seised of Lands leased the same at Will rendring rent ten pounds per annum and afterwards granted eundem redditum by another deed to a stranger for life and afterwards the lease at will is determined Periam was of opinion that the Rent did continue and although that the words be eundem redditum yet it is not to be intended eundem numero sed eundem specie so as he shall have such a Rent scil ten pounds per annum As where the King grants to such a Town easdem libertates quas Civitas Chester habet it shall be intended such Liberties and not the same Liberties so in the principal case Also he held that a Rent at will cannot be granted for life and therefore it shall not be meant the same Rent But it was afterwards adjudged that the Rent was well granted for the life of the Grantee CCX Heayes and Alleyns Case Trin. 31 Eliz. In the Common Pleas. Cui in vita 1 Cro. 234. Poph. 13. HEayes brought a sur cui in vita against Alleyn And the case was this The Discontinuee of a Messuage had other Lands of good and indefesible title adjoining to it and demolisht and abated the said house and built another which was larger so as part of it extended upon his own Land to which he had good title And afterwards the heir brought a sur cui in vita and demanded the house by the Name of a Messuage whereas part of the house did extend into the Land to which he had no right And by Periam The Writ ought to be of a Messuage with an Exception of so much of the house which was erected upon the soil of the Tenant Demand and the manner of it in a writ as demand of a Messuage except a Chamber And it was argued by Yelverton That the Writ ought to abate for if the Demandant shall have Iudgment according to his Writ then it shall be entred quod petens recuperet Messuagium which should be Erronious for it appeareth by the verdict it self that the demandant hath not title to part of it and therefore he ought to have demanded it specially 5 H. 7. 9. parcel of Land containing 10 Feet 16 E. 3. Br. Mortdanc of a piece of Land containing so much in breadth and so much in length And the moyetie of two parts of a Messuage and 33 E. 3. br Entrie 8. a Disseisor of a Marsh ground made Meadow of it Now in a Writ of Entry it shall be demanded for Meadow Drue Serjeant contrary and he confessed the Cases put before and that every thing shall be demanded by Writ in such sort as it is at the time of the action brought as a Writ of Dower is brought of two Mills whereas during the Coverture they were but 2 Tofts but at the day of the Writ brought Mills and therefore shall be demanded by the name of Mills 14 H. 4. 33. Dower 21. 13 H. 4. 33. 175. 1 H. 5. 11. Walmesly part of a Msseuage may be demanded by the Name of a Messuage and if a House descend to two Coparceners if they make partition that one of them shall have the upper Chamber and the other the lower here if they be disseised they shall have several Assisses and each of them shall make his plaint of a Messuage and by him a Chamber may be
in such manner and form as I my self did hold the same and no otherwise Tenant for life died within the Term and he in the Reversion entred and the Lessee brought an action of Covenant Godfrey The action doth not ly for here is not any warranty for the Plaintiff is not Lessee but Assignee to whom this Warranty in Law cannot extend but admit that the Warranty doth extend to the Plaintiff yet it is now determined with the estate of the Tenant for life and so the Covenant ended with the estate See 32 H. 6. 32. by Littleton 9. Eliz. Dyer 257. Covenant And if Tenant in tail make a Lease for years ut supra and afterwards dieth without issue the Covenant is gone and after Iudgment was given against the Plaintiff CCLV. Fish Brown and Sadlers Case Intrat Mich. 29 Eliz. Rot. 606. Trin. 31. Eliz. In the Kings Bench. AN action upon the Case was brought by Fish and Brown against Sadler Hill. 29 Eliz. rot 606. and they declared Action upon the Case That they were proprietaries of certain goods which were in the possession of one A. against which A. Sadler one of the Defendants had commenced a feigned and covenous suit in the Ecclesiastical Court in the Name of one Collison to the intent to get the said goods into his possession of which the Plaintiffs having notice and to the intent that the said Plaintiffs should suffer the Defendant to recover and obtain the said goods by the said suit the Defendant did promise to the Plaintiffs to render to them a true accompt of the said goods and shewed further That by the said suit the Defend did obtain the said goods by sufferance of the Plaintiff Tanfeild It is a good consideration the Plaintiffs were not parties or Privies at the beginning of the suit it is not like Onlies Case in 19 Eliz. Dyer 355. Where in an action upon the Case Onlie declared Assumpsit and consideration That the Defendant Countess c. being a Widow had divers suits and businesses and that the Plaintiff at her request had bestowed great labour and travail and had expended circa the affairs of the said Countess 1500 l. Whereupon she promised to the Plaintiff to pay all the said expences and such a sum above for that matter which is the ground of the action is maintenance and malum prohibitum but such matter is not here for it is lawful for a man to use means to get his goods Gawdy All covins are abhorred in Law and here the Plaintiffs are privies to the wrong and therefore it cannot be any consideration Wray Although that the suit at the beginning was wrongful and covenous yet when the Plaintiffs who were owners of the said goods do assent to such proceedings now the suit is become just and lawful ab initio Corin. and so no wrong in the consideration but all the wrong is purged by the agreement If any covin be the same is between Sadler and him who is sued to whom the Plaintiffs are not privies Clench If this privity betwixt the Plaintiffs and Sadler had been before the said suit then the consideration is without any fraud Cooper Serjeant conceived here is not any good consideration upon which the Promise of the Defendant may be grounded for the Defendant hath not any benefit by it and he cited the case between Smith and Smith 25 Eliz. Egerton Here the consideration is good enough for the Plaintiffs forbear their own suit which was a hinderance unto them Clench was of opinion that the Plaintiff should not have Iudgment for that suit was begun by Sadler in the Name of Collison without his privity and therefor it was unlawful and the same was for the goods of another man which is unlawful also and then when the unlawful act is begun the illegal agreement afterwards that they shall proceed is unlawful also and therefore there cannot be any consideration and as to the covin it is not material for without that the matter is illegal enough Also the Declaration is not good in this because it is not shewed in what Court the suit did depend so as it might appear unto us that they had power to hold plea of it Gawdy agreed with Clench in the first point and also in the last and by him in the assumpsit the Plaintiff declares that a suit was depending betwixt the Defendant and another and where the Plaintiffs if they were produced might have given strong witness against the Defendant the said Defendant in consideration that the Plaintiffs would not give Testimony against him promised to give to the Plaintiff 20 l. the same consideration will not maintain this action because it is unlawful for any man to suppress testimony in any cause 1 Cro. 337. Wray Here is a consideration good enough For where Sadler should lose costs upon the first suit now upon this promise upon his account he shall be allowed the same the which is a benefit unto him and as to the shewing in what Court the suit doth depend that needs not by way of Declaration but the same shall be shewed by way of Evidence and it is not traversable and it is but inducement to the action And as to the covin that is not here for covin is always to the prejudice of a third person but so it is not here But in truth this suit was unlawful for Sadler so to sue in the Name of another and therefore it cannot be a good consideration And for that cause it was awarded Quod querens nihil capiat per billam CCLIV How and Conneys Case Trin. 31 Eliz. In the Kings Bench. Trespass 1 Cro. 159. IN an action of Trespass by How against Conney the case was That one Smith was seised of two houses and leased one of them to his Brother for life and afterwards by his Will devised viz. I give to my Executors All my Lands and Tenements free and copy to hold to them and they to take the profits of them for ten years and afterwards to sell the said Lands and Tenements and afterwards died his Brother died before the quarter of a year after and it was found That the Executors entred into the house undemised and took the profits but not into the other and that at the end of the said ten years they sold the whole Godfrey The house only which was in possession shall pass by the Will. To hold unto them doth imply matter of possession so as nothing passeth but that whereof they may take the profits the which cannot be of a bare Reversion also by this devise the Executors have not interest in the thing devised but for ten years Plow 66. Shop 437. whereas the Brother of the Testator had an estate for life which by possibility might continue above twenty years and to prove that the meaning of the devisor to be collected upon the words of the Will ought to direct the construction of the
that they had several Estates-tail 17 E. 3. 51. 78. Land given to a man and his Sister and to the Heirs of their two Bodies issuing they have several Estates tail and yet one Formedon And see 7 H. 4. 85. Land given to a man and his Mother or to her Daughter in Tail here are several Entails And here in the principal Case Sir Thomas Cotton hath one Moyety in Tail expectant upon his Estate for life and therefore as to the Moyety of Sir Thomas Cotton he is bound by the Fine And the other Moyety is left in the Son who may enter for a Forfeiture upon the alienation made by his Father as well in the life of the Father as afterwards Now after this Fine levied the entry of VVilliam the Son by virtue of his Remainder is lawful after the death of Sir Thomas although that VVilliam the Father was beyond the Sea at the time of the Fine levied and there afterwards died VVilliam the Son being within age The words of the Statute of 4 H. 7. are Other than Women Covert or out of this Realm c. so that they or their Heirs make their Entry c. within five years after they return into this Land c. So that by the bare letter of the Act VVill. the Son hath not remedy nor relief by this Act against the Fine because that William the Father died beyond the Sea without any return into England yet by the Equity of the Statute he shall have five years to make his Claim although his Father never return for if such literal construction should be allowed it should be a great mischief and it should be a hard Exposition for this Statute ought to be taken by Equity as it appeareth by diverse Cases 19 H. 8. 6. My Vncle doth disseise my Father and afterwards levies a Fine with Proclamations my Father dieth and after within five years my Vncle dies that Fine is no Bar to me yet the Exception doth not help me for I am Heir to him that levied the Fine and so privy to it but my Title to the Land is not as Heir to my Vncle but to my Father So if an Infant after such a Fine levied dieth before his full age his Heir may enter within five years after and yet that Case is out of the Letter of the Statute And by Brown and Sanders If the Disseisee dieth his Wife enseint with a Son the Disseisor levieth a Fine the Son is born although this Son is not excepted expressly by the words because not in rerum natura at the time of the Fine levied c. yet such an Infant is within the equity and meaning of the said Statute See the Case betwixt Stowel and Zouch Plow Com. 366. And by him It was holden 6. Eliz. that an Infant brought a Formdon within age and adjudged maintainable although the words of the Statute be That they shall take their Actions or lawful Entries within five years after they come of full age And he also argued that here when Sir Thomas being Tenant for life levyed a Fine which is a Forfeiture he in the Remainder is to have five years after the Fine levyed in respect of the present forfeiture and also five years after the death of the Tenant for life And that was the case of one Some adjudged accordingly in the Common Pleas It hath been objected on the other side That the Defendant entring by color of the Lease at Will made to him by William who was an Infant that he was a Disseisor as well to the Infant as to the Lessor of the Plaintiff who had the Moyety as Tenant in common with the Infant and then when the Lessor of the Plaintiff entred upon the Defendant and leased to the Plaintiff and the Defendant enentred and ejected the Plaintiff he is a Disseisor to which he answered That the Defendant when he entred by the Lease at Will he was no Disseisor for such a Lease of an Infant is not void but only voidable c. and then a sufficient Lease against the Plaintiff although not against the Infant Beaumont Serjeant to the contrary By this manner of gift William the Son took nothing but the estate setled only in William the Father but not an estate tail by the words haeredi masculo c. And voluntas Donatoris without sufficient words cannot create an estate tail but where the intent of the Donor is not according to the Law the Law shall not be construed according to his intent But this intent shall be taken according to the Law. And he held that Sir Thomas and VVilliam had several estates in tail and several Moyeties and not one entire estate and here upon all the matter Sir Thomas is Tenant for life of the whole the Remainder of one moyety to him in tail the Remainder of the other moyety unto VVilliam in tail and rebus sic stantibus Sir Thomas levying a Fine of the whole now as to one moyety which the Conusor had in tail the Fine is clearly good and so as to that Robert the Lessor of the Plaintiff had a good Title as to the said moyety and as to the other moyety he conceived also that VVilliam is bound for this Statute shall not be construed by Equity but shall bind all who are expresly excepted and that is not VVilliam the Son for his Father never returned and then his Heir is not releived by the Statuteâ— Also VVilliam had a Right of Entry at the time of the Fine levyed scil for the Forfeiture and because he hath surceased the time for the said Right of Entry he shall not have now five years after the death of Tenant for life for he is the same person and the second saving which provides forfuture Rights extends to other persons than those who are intended in the first saving and he who may take advantage of the first saving cannot be releived by the second saving for no new title doth accrue to him in the Reversion or Remainder by the death of Tenant for life for that title accrued to him by the forfeiture so as the title which he hath by the death of the Tenant for life is not the title which first accrued unto him Also by this Forfeiture the estate for life is determined as if Tenant for life had been dead for if Tenant for life maketh a Feoffment in Fee the Lessor may have a Writ of Entry ad terminum qui praeterijt Fitz. 201. which proves that by the Forfeiture the estate is determined and then no new title doth accrue to him in the Remainder by the death of the Tenant for life but that only which he had before the alienation so that his non-claim after the five years shall bind him Then when VVilliam the Infant having a Right to a moyety and Robert the Lessor of the Plaintiff a Right to the other moyety and the Infant leaseth unto the Defendant at Will who entreth now is he a
Disseisor as well to Robert as to the Infant Then if the Defendant be Disseisor and hath no title by the Infant Robert who hath Right in a moyety may well enter into the whole for he hath the possession per my per tout by his Entry and then when the Defendant doth eject him he hath good cause of Action And after at another day the Case was moved and it was agreed That for one moyety the Infant is bound for Sir Thomas had an estate tail in a moyety for he was Issue of the body of the Comisor But for the other moyety the Fine levyed by Tenant for life William the Father being then Tenant beyond the Sea It was holden by Anderson Windham and Walmesly that the Infant was not barred notwithstanding the objection abovesaid That William the Father never returned into England and notwithstanding the words of the Statute of 4 H. 7. And by Walmesley If an infant make his claim within age it is sufficient to avoid the Fine and yet the said Statute seems to appoint to him time within five years after his full age so that according to the very words a claim made before or after should be vain yet in Equity although he be not compelsable to make his claim until the time allowed by the Statute yet if he make it before it is good enough And by Anderson Although that VVilliam the Father did not return yet if he makes not his claim within five years after the death of his Father being of full age and without any impediment c. he shall be barred If in such case a man hath many impediments he is not compellable to make his claim when one of the impediments is removed but when they are all removed So if the Ancestor hath one of the said impediments and dieth before it be removed and his Heir is within age or hath other impediment he is not bound to make is claim till five years after his impediment is removed And Somes case cited before was holden and agreed to be good Law for the Forfeiture may not be known unto him And as to the objection against the Lease at Will because it was made by an Infant and no Rent reserved upon it nor the Lease made upon the Land and therefore the Lessee should be a Disseisor To that it was answered Be the Defendant a Disseisor or not it is not material here for if the Plaintiff had not title according to his Declaration he cannot recover 1 Cro. 220. 1 Cro. 438. whether the Defendant hath title or not for it is not like unto Trespass where the very possession without other title is good contrary in Actions against all who gave not title but in Ejectione firmae if the title of the Plaintiff be not good and sufficient be the title of the Defendant good or not he shall not recover And afterwards Iudgment was given for the Defendant Hill. 33. Eliz. CCXCVIII Cheny and Smiths Case Mich. 32 33 Eliz. In Communi Banco IN an Ejectione firmae by Cheny and his Wife against Smith The Plaintiffs declared upon a Lease made by the Master of the House or Colledge of S. Thomas of Acons in London to I.S. who assigned it over to Knevit who by his Will devised the same to his Wife whom he made also his Executrix and dyed and afterwards she took to Husband one VVaters and died VVaters took Letters of Administration of the Goods and Chattells of his Wife and afterwards leased to the Plaintiffs And upon not guilty they were at Issue And it was given in Evidence That the Lease given in Evidence was not the Lease whereof the Plaintiffs have declared for the oriâ—inal Lease shewed in Court is Master of the House or Hospital where the Lease specified in the Declaration is Master of the House or Colledge 38 E. 3. 28. And some of the Iustices conceived that there is not any material Variance but if the parties would it might be found by special Verdict For by them Colledge and Hospital are all one And afterwards the Court moved the Plaintiffs to prove if the wife were in as Executrix or as Legatee for by Anderson and Periam until election be made he shall not be said to have it as Legatee especially if it be not alledged in fact that all the debts of the Testator are paid And Anderson doubted although that it be alledged that the debts be paid If the Executor shall be said to have the said Lease as a Legacy before she hath made Election vid. Weldens Case and Paramours Case in Plowd And afterwards it was given in Evidence That the wife after the death of the Husband had repaired the Banks of the Land and produced Witnesses to prove it as if the same should amount to claim it as a Legacy and the Court said that that matter should de referred to the Iury 1 Roll. 620. And it was further shewed in Evidence that the said Wife Executrix and her said Husband Waters formerly made a Lease by Deed reciting thereby that where the Husband was possessed in the right of his said Wife as Executrix of her first Husband c. And by the opinion of the whole Court the same was an express claim as Executrix and then when the Wife died if the Husband would have advantage of it he ought to take Letters of Administration of the Goods of her first Husband and not of the Wife but if she had claimed the Land and the Term in it as Legatee and had not been in possession Administration taken of the Rights and Debts of the Wife had been good as to that intent that his Wife was not actually possessed of it but only had a Right unto it and of such things in Action the Husband might be Executor or Administrator to his Wife but here they have failed of their title The Administration being taken of the goods of the Wife where it should be of the Goods of the Testator the first Husband And for this cause the Plaintiffs were non-suit and the Iury discharged And it was agreed by all the Iustices that if the Wife before Election had taken Husband that the Husband might have made the Election in the Case aforesaid CCXCIX The Lord Cobham and Browns Case Mich. 32 33 Eliz. In the Common Bench. THe Case between the Lord Cobham and Brown was that the Abbot of Grace was seised of the Mannor of Gravesend in the County of Kent which Mannor doth extend to the Parishes of Gravesend and Milton and that the said Abbot and all his Predecessors c. time out of mind c. have had a Water-Court within the said Mannor which Court had been holden at Gravesend Bridge in the end of it and that all the Inhabitants within the said Parishes which have Boats either entirely or joyntly with others and have used to transport or carry passengers from Gravesend to London e contra and have used to fasten
covenanteth and granteth to the others eorum utrique to make assurance and there it was holden that the word uterque doth amount to quilibet Wray Admit it shall be so taken in a Bond yet it shall not be so taken in an Indictment As if a man make a Lease for years rendring Rent payable at the day of St. Martin although there be two days of St. Martin in the year yet the reservation is good and the Rent shall be taken payable at the most usual day of St. Martin there in the Country But in an Indictment if an offence he laid to be done on St. Martins day without shewing which in certain it is not good Fenner The word uterque is matter of surplusage and therefore shall not hurt the Indictment CCCXXVII Blunt and Whiteacres Case Mich. 32 33 Eliz. In the Kings Bench. Error A Writ of Error was brought upon a Iudgment given in the Common Pleas in a Replevin where the Defendant did avow as Fermor of the Manor of F. in the County of Berks to St. Johns Colledge in Oxford and laid a Prescription there in him and his Fermors to distrain for all Amercements in the Court of the said Manor Amercement and shewed that the Plaintiff in the Replevin was presented by the Homage for not repairing of a House being a customary Tenant of the said Manor according to a pain imposed upon him at a former Court for which he was amerced by the Steward to ten shillings and was also presented for not ringing of his Swine for which he was amerced three shillings four pence and for these Amercements he distrained And upon Nihil dicit Iudgment was given for the Avowant to have return upon which a Writ of Error was brought And Error assigned in that there is not any Prescription laid in the Avowry for the Lord to amerce the Tenants and of common Right he cannot do it See 48 E. 3. And such Amercement is Extortion for the Lord cannot be his own Iudge and therefore he ought to enable himself to distrain by Prescription Another Error because the Fine is laid to be assessed by the Steward 1 Cro. 748. 886. whereas by the Law it ought to be by the Suitors for they are Iudges and not the Steward Another because that in the Avowry it is set down quod praesentatum fuit that he had not repaired a certain House but he doth not say in facto categorice c. that he had not repaired for that is matter traversable 4. Here is no offence for a Copy-holder is not bound to repair by the Common Law if it be not by Prescription for he cannot have House-boot upon the Land as a Termor may if it be not alledged a custom Fenner The Steward may assess Fines for a contempt but not Amercements if not by Prescription Gawdy The Lord of a Mannor cannot assess Amercements for a Trespass done to himself upon his own Lands but otherwise it is of a common Trespass or a Trespass done in the Land of another but for the Distress he ought to prescribe and the Iudgment was reversed CCCXXVIII Page and Fawcets Case Pasch 29 Eliz. Rot. 121. In the Kings Bench. Error 3 Cro. 227. ERror was brought upon a Iudgment given in Lyn where by the Record it appeareth that they prescribe to hold Plea every Wednesday and it appeared upon the said Record that the Court was holden 16 Feb. 26 Eliz. which was dies Dominicus and that was not assigned for Error in the Record but after in Nullo est erratum pleaded it was assigned at the Bar And Almanacks were shewed to the Court in proof of it and it was holden clearly to be Error but the doubt was if it should be tried by Iury or by the Almanacks and it was said that the Iustices might judicially take notice of Almanacks and be informed by them and that was the Case of one Robert in the time of the Lord Catline and by Coke so was the Case betwixt Galery and Bunbury and afterwards the Iudgment was reversed CCCXXIX Geofries and Coites Case Trin. 33 Eliz. In the Kings Bench. IT was found by special Verdict 1 Cro. 25â— that one Avice Trivilian was Tenant for life the Remainder to her Son in tail the Remainder over Tenant for life and he in the Remainder in tail make a Lease for life the Remainder for life rendring Rent Tenant for life dieth he in the Remainder dieth and his Son accepteth of the Rent of the Tenant for life in possession who dieth The Issue in tail entreth he in the Remainder for life entreth c. And it was conceived that this acceptance of the Rent of the Lessee for life doth affirm also the Remainder See Litt. Sect. 521. and such was the opinion of Gawdy and Fenner Iustices CCCXXX The Lord Mordant and Vaux Case Pasch 33 Eliz. In the Kings Bench. THe Lord Mordant brought an Action of Trespass against George Vaux and declared of a Trespass done in quodam loco 1 Inst 225. 1 Cro. 269. called N. parcel of the Manor of Hawarden The Case was William Lord Vaux was seised thereof and thereof levied a Fine to the use of the Lord Vaux which now is for life and after his decease to the use of Ann and Muriel Daughters of the Lord Vaux and their Assigns until Ambrose Vaux should return from the parts beyond the Seas and should come to the Age of 21 years or dye if they should so long live And after the return of Ambrose from beyond the Seas and the age of 21 years or death whichsoever of the said days or times should first happen to the use of the said Ambrose and the Heirs of his body begotten with divers Remainders over Ambrose returned Plow Com. 376. 2. Ante 18. 76. and 31 Eliz. before he came of full age for it is not pleaded that he was of full age levied a Fine to the use of George Vaux the Defendant in tail with divers Remainders over Afterwards the Lord Vaux being Tenant for life enfeoffed the Lord Mordant in Fee upon whom the said George Vaux entred for a forfeiture upon which Entry the Lord Mordant brought the Action Buck argued for the Plaintiff Amb. Vaux had nothing in the Lands in question until his return from beyond the Seas and his full age and the estate doth not begin until both be past and he said that no use did arise to Ambrose until the time incurred for the time of the beginning is uncertain and upon a Contingent as 13 Eliz. Dyer 301. A. makes a Feoffment in fee to the use of himself for life and after to the use of B. who he intendeth to marry until the Issue which he shall beget on her shall be of the age of 21 years and after the Issue shall come of such age then unto the use of the said B. during her Widowhood the Husband dieth without Issue the Wife entreth and her
Entry so where an use is often executed by the Statute Cestuy que use without any Entry hath an actual possession i. As to the uses contingent nothing remains in the Feoffees for the setling of them when they happen but the whole estate is setled in Cestuy que use yet subject to such use and he shall render the same upon contingency And if any estate should remain in the Feoffees it could be but an estate for life for the Fee simple is executed in Cestuy que use with an estate in possession and then the Feoffees should be seised to another use than was given them by the Livery Also if a Feoffment be made unto the use of the Feoffor and his heirs until J.S. hath paid unto the Feoffor 100 l. from thenceforth the Feoffor and his heirs shall be seised to the use of the said J.S. and his heirs if upon such Feoffment any thing should remain in the Feoffees before the payment by I.S. the same should be a Fee-simple and then there should be two Fee-simples of one and the same Lands one in the Feoffor and the other in the Feoffees which should be absurd and therefore the best way to avoid such inconveniences is to continue the Statute that it draws the whole estate of the Land and also the confidence out of the Feoffees and reposeth it upon the Lands the which by the operation of the Statute shall render the use to every person in his time according to the limitation of the parties And also if any Interest doth remain in the Feoffees Then if they convey to any person upon consideration who hath not notice of the use then the said use shall never rise which is utterly against the meaning of the said Statute and the meaning of the parties and therefore to construe the Statute to leave nothing in the Feoffees will prevent all such mischief And if a Feoffment in fee be made to the use of the Feoffor for life and afterwards to the use of his wife which shall be for life and afterwards to the use of the right Heirs of the Feoffor The Feoffor enfeoffeth a stranger taketh a wife now cannot the Feoffees enter during the life of the Feoffor and after his death they cannot enter because they could not enter when the use to the wife was to begin upon the intermarriage and then if the Entry of the Feoffees in such case should be requisite the use limited to the wife by the Act of the Feoffor should be destroyed against his own limitation which is strong against the meaning of the Act aforesaid for by the said act the Land is credited with the said use which shall never fail in the performance of it And such contingent estates in Remainder may be limited in possession a Fortiori in use which see 4. E. 6. Coithirsts case 23. And Plesingtons case 6 R. 2. And it is true at the common Law the Entry of the Feoffees was requisite because the wrong was done unto them by reason of the possession which they then had but now by the Statute all is drawn out of them and then there is no reason that they medle with the Lands wherein they have now nothing to do and the scope of the Statute is utterly to disable the Feoffees to do any thing in prejudice of the uses limited so as the Feoffees are not to any purpose but as a Pipe to convey the Lands to others So as they cannot by their Release or confirmation c. bind the uses which are to grow and arise by the limitation knit unto the Feoffment made unto them which see Br. 30. 30 H. 8. Feoffments to uses 50 A. covenants with B. That when A. shall be enfeoffed by B. of three Acres of Lands in D. that then the said A. and his Heirs shall be seised of Land of the said A. in S. to the use of B. and his Heirs and afterwards A. enfeoffeth a stranger of his Lands in S. And afterwards B. enfeoffeth A. of his Lands in D. now the Feoffee of A. shall be seised to the use of B. notwithstanding that the said Feoffee had not notice of the use for Land is bound with the use in whose hands soever it come And see the like case ibid. 1. Ma. 59. Vpon the reason of which cases many assurances have been made for it is the common manner of Mortgage i. e. If the Mortgag or pay such a sum c. that then the Mortgagee and his Heirs shall be seised after such payment to the use of the Mortgagor and his Heirs In that case although that the Mortgagee alien yet upon the payment the use shall rise well enough out of the possession of the Alienee and the Lands shall be in the Mortgagor without any Entry For the Mortgages could not enter against his own alienation to revive the use which is to rise upon the payment and therefore without any assistance of such Entry it shall arise As at the Common Law Land is given to A. in tail the Remainder to the right heirs of B. A. levies a Fine makes a Feoffment suffers a Recovery c. although the same shall bind the Issues yet if B. dyeth and afterwards A. dyeth without issue now notwithstanding this Fine c. The right Heir of B. may enter And always a use shall spring out of the Land at his due opportunity and it is a collateral charge which binds the Lands by the first Liberty and cannot be discharged vi 49. Ass 8. 49 E. 3. 16. Isabell Goodcheapes case A man deviseth that his Executors shall sell his Lands and afterwards dyeth without heir so as the Land escheats to the King yet the authority given to the Executors shall bind the Lands in whose hands soever it comes c. And so a title of Entry continues notwithstanding twenty alienations But an use is a less thing than a Title of Entry especially an use in contingency and an use as long as it is in contingency cannot be forfeited As if the Mortgagor be attainted and pardoned mean betwixt the Mortgage and the day of Redemption c. Then when Thomas levies a Fine Francis may well enter And Thomas before the Fine had an estate tail executed to his Free-hold and therefore by the Fine he gave an estate of Inheritance to the Conusee and then no right of entail remained in Francis but he took an estate for life only and that as a Purchasor by the limitation of the Will and then when Francis levied a Fine his estate was gone which was but for life and then the right of the entail and all the other estates which are especially limited are also gone and so Percival Hart to whom no estate was specially limited hath not any cause to enter c. And it was further said by Wray Husband and Wife Tenants in special tail the Husband levies a Fine with Proclamations and dieth the Wife enters the issue in tail is
Nonage of every Heir but admitting that the Custom were void yet this Action doth not lye for the Defendant hath not entred and taken the profits as Prochein amy in which Case although he was not Prochein amy c. he is chargeable Oâ—â—â—â— Rep. 36 â—3 84. as Prochein amy according to his Claim but here he claimeth by the Custom and Grant of the Lord and not in the right of the Heir and therefore it was adjudged in this time of this Quaere that if one entreth into Lands claiming by Devise where in truth the Land devised is entailed he should not be charged in accompt c. CCCLVIII 20 Eliz. In the Common Pleas. NOte It was holden by the whole Court Exposition of the Statute of 32 and 34. Of Wills. That the Statute of 32 34 H. 8. of Wills did not extend to Lands in London but that the devise of the whole is good And if Houses in London parcel of the possessions of Abbies came to the Crown by Dissolution and he grants them over to hold in chief by Knights service these Lands are devisable But it was holden That the said Statutes as Acts executed extended to Lands in London and shall be good but for two parts And if a man hath Lands in tail and in Fee-simple which are of double the value of the Lands in tail and deviseth all his Lands all the Land in Fee-simple shall pass Dyer One seised of three Manors the one in Capite in Fee and two in Socage in tail and deviseth all his Land in Capite it is good against the King for all Capite Land and he shall be tied to have the Lands in Socage but it shall not bind the Heir And a devise of the third part where all is devised is void as well against the Heir as against the King. And he said That if a man be seised of twenty Acres in Socage and ten Acres in Capite and deviseth two parts of his Lands it is reasonable to say That all the Socage Lands shall pass but if the devise was of two parts of all his Lands it is otherwise for this word All implies that the two parts shall be per my per tout as well Capite as Socage i. e. It was argued by Fenner That the Lands in London are now devisable as they were before the Statute for if the Devisee of Lands in London be disturbed he shall have Ex gravi Querela otherwise it is of Lands at the Common Law and if an Assize of Mortdancester be brought of Lands in London it is a good Plea to say That the Lands are devisable But in an Assise of Mortdancestor of Lands at the Common Law it is not any Plea And if a man gives Lands at the Common Law i. e. not devisable by the Common Law he cannot devise the Reversion for the Statute shall not do wrong to the person i.e. to the Donee who there shall lose his Acquittal But of Lands devisable by custom it is otherwise And if Land in a Burrough was devisable for life by the Custom and afterwards came the Statute of 23 H. 8. which made all Lands devisable now that Land is devisable for life by the Custom and the Reversion by the Statute CCCLIX 20 Eliz. In the Common Pleas. IN an Action of Wast of Wast assigned in a Wood Wast the Iury viewed the Wood only without entring into it And it was holden that the same was sufficient for otherwise it should be tedious for the Iury to have had the view of every stub of a Tree which had been felled Yet Meade Iustice said That if Wast be assigned in several corners of the Wood then the Iury is to have the view of every corner but contrary where Wast is assigned in the whole Wood Vieâ— And if Wast be assigned in every Room of a House the view of the House generally is sufficient And Dyer Iustice said That if Wast be assigned in several places and of some of them the Iury had not the view of that they may find no Wast done CCCLX Sir Thomas Lees Case 20 Eliz. In the Common Pleas. IT was holden per Curiam That whereas Sir Thomae Lee was seised of a Manor Election and aliened the Manor except one Close parcel of the said Manor called Newdick and there were two Closes parcel of the said Manor called Newdick the one containing nine Acres and the other containing three Acres That the Alienee should not chuse which of the said Closes he would have but the Alienor or Feoffor should have the Election which of the said Closes should pass CCCLXI. 20 Eliz. In the Common Pleas. TEnant in tail the Remainder in tail c. Tenant in tail in possession Fines levied by Tenant in tail in Remainder 3 Cro. 211. makes a Lease for three lives according to the Statute of 32 H. 8. and afterwards dieth without issue he in the Remainder before any Entry levieth a Fine the same is good for by the death of Tenant in tail without issue the Free-hold is vested in him in the Remainder in tail And of that opinion was the whole Court. CCCLXII Ferrand and Ramseys Case 20 Eliz. In the Common Pleas. IN an Ejectione firmae brought of a House in London the Defendant pleaded That long time before the Lessor of the Plaintiff had any thing c. One Ann Ramsey was seised in Fee and died seised and that the same descended to William Ramsey as Son and Heir to the said Ann who was disseised by Israel Owen who leased to the Plaintiff upon whom the said William Ramsey did re-enter The Plaintiff Replicando That the said Ann did not die seised said That before the Ejectment one Robert Owen was seised and died seised and from him descended the said House to Israel Owen as Son and Heir of the said Robert absque hoc that the said Israel did disseise the said Ann upon which they were at issue and at Nisi prius in London it was given in Evidence of the Defendants part That Crofton and Langhton were seised in Fee of the said Messuage and by Deed indented conveyed it to one John Ramsey Robert Dakins and four others and their Heirs upon condition that the said Feoffees their Heirs or Assigns should pay to the said Ann and her Heirs six pounds thirteen shillings and four pence And also should enfeoff the said Ann if to the same they were required by the said Ann in her life or within four days next following such Request in Fee unto the use of the said Ann and her Heirs cum quando ad hoc per eandem Annam requisit fuerint and if the said Ann died before such Request that then the said Feoffees or their Heirs should enfeoff such issues of the said Ann or such other persons which the said Ann should name cum quando ad hoc per eandem Annam requisit fuerint or within four days after such
commanded a Court Baron to be holden there which was holden accordingly by the sufferance of the Executors and the said Executors were also present at which time the Executors in the presence of the said Lord said these words viz. We have nothing to do with this Manor Return of the Sheriff 4 Co. 67. And upon this Verdict two things were moved If because the Liberate was not returned the Execution was good And as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And it was said that there was a difference betwixt a Liberate and a Capias ad Satisfaciendum and a Fieri facias for these Writs are conditional Ita quod Habeas Corpus c. Ita quod habeas denarios hic in Curia 3 H. 7. 3. 16 H. 7. 14. But contrary in the Writ of Liberate Habere facias seisinam for in such Writs there is not such clause and therefore if such Writs be not returned the Execution done by virtue of them is good enough And see 11 H. 4. 121. If the Sheriff by force of an Elegit delivers to the party the moiety of the Land of the Defendant and doth not return the Writ if now the Plaintiff will bring an Action of Debt de Novo the Defendant may plead in Bar the Execution aforesaid although the Writ of Execution were not returned and yet the Execution is not upon the Record And see the case there put by Hankford And it is not like to the case of Partition made by the Sheriff the same ought to be returned because that after the return thereof a new and secondary Iudgment is to be given i. Quod partitio praedicta firma stabilis maneat in perpetuum firma stabilis in perpetuum teneatur see the Book of Entries 114. And Egerton Solicitor cited a case lately adjudged betwixt the Earl of Leicester and the Widow Tanfeild Earl of Leicester and Tanfeilds Case That such Execution without return was good enough Another matter was moved Admit that here be a good Execution if now the Executors being in possession of the said Manor by force of that Execution and permitting and suffering the Conusor to hold a Court there in the Manor-house and saying in his presence the words aforesaid if the same doth amount to a Surrender by the Executors to the said Conusor Surrender or not And Wray chief Iustice said That here upon this matter is not any Surrender for here the words are not addressed to the said Conusor who is capable of a Surrender nor to any person certain And it is not like to the case of 40 E. 3. 23 24. Chamberlains Assize where Tenant for life saith to him in the Reversion That his will is that he enter the same is a good Surrender for there is a person certain who can take it but contrary in this case for here it is but a general speech It was adjorned CCCLXXIX Baskervile and the Bishop of Herefords Case Pasch 28 Eliz. In the Common Pleas. Quare Impedit IN a Quare Impedit by Walter Baskervile against the Bishop of Hereford c. The Plaintiff counted That Sir Nicholas Arnold was seised of the Advowson as in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas die the said Richard being within age of twenty three years that then the Grantees and their Heirs shall be seised to them and their Heirs until the said Richard hath accomplished the said age Nicholas dieth Richard being of the age of fourteen years by force of which the Grantees were possessed of the said Advowson and afterwards the Church became void and so it belonged to them to present And Exception was taken to the Count because the Plaintiff had not averred the life of Richard upon whose life the Interest of the Plaintiffs doth depend Averment And Gawdy Serjeant likened it to the Case of the Parson which hath been adjudged That where the Lessee of a Parson brought an Ejectione firmae and it was found for him and in arrest of Iudgment exception was taken to the Declaration because that the life of the Parson was not averred and for that cause Iudgment was stayed Anderson chief Iustice Vpon the dying of Sir Nicholas Rich being but of the age of fourteen years an absolute Interest for nine years vests determinable upon the death of Richard or rather they are seised in fee determinable upon the coming of Richard to the age of twenty three years Rhodes and Windham contrary That here is an Interest in the Grantees determinable upon the death of Richard within the Term for if Richard dieth without issue within the Term the Remainder is limited over to a stranger And as to the Exception to the Count Dyer 304. â— 2 Cro. 622 637. 10 Co. 59. it was argued by Puckering Serjeant that the Count was good enough for although the life of Richard be not expresly averred yet such averment is strongly implied and so supplied For the Count is That dictus Nicholas obiit dicto Ric. being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem sic possessionato existente the Church became void and possessed he could not be if the said Richard had not been then alive and the same is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking his Close the Defendant pleads That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon which B. did re-enter and leased to the Plaintiff at will by force of which he was possessed until the Defendant did the Trespass and the same was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is implied by the words i. Virtute cujus 1 Cro. 766. the Plaintiff was possessed until the Defendant did the Trespass And see also 10 H. 7. 12. in an Assize of Common The Plaintiff makes title that he was seised of a Messuage and of a Carve of Land to which he and all those whose estate c. have had Common appendant c. And doth not say that he is now seised of the Messuage But this Exception was disallowed by the Court for seisin shall be intended to continue until the contrary be shewed It was adjorned CCCLXXX Caries Case Pasch 28 Eliz. In the Exchequer IN an Information in the Exchequer by the Queen against Cary Tithes More Rep. 222. the Case was this A man grants situm Rectoriae cum decimis eidem pertinent Habend situm praedict cum suis pertinentiis for twenty years the first Grantee dieth within the Term.
If now because the Tithes are not expresly named in the Habendum the Grantee shall have them for life only was the Question It was moved by Popham Attorney General That the Grantee had the Tithes but for life and to that purpose he cited a Case adjudged 6 Eliz. in the Common Pleas A man grants black Acre and white Acre Habendum black Acre for life nothing of white Acre shall pass but at will and in the argument of that case Anthony Browne put this case Queen Mary granted to Rochester such several Offices and shewed them specially Habendum two of them and shewed which in certain for forty years It was adjudged that the two Offices which were not mentioned in the Habendum were to Rochester but for life and determined by his death And so he said in this Case The Tithes not mentioned in the Habendum shall be to the Grantee for life and then he dying his Executors taking the Tithes are Intrudors But as to that It was said by Manwood chief Baron That the cases are not alike for the Grants in the cases cited are several intire and distinct things which do not depend the one upon the other but are in gross by themselves But in our Cases The Tithes are parcel of the Rectory and therefore for the nearness betwixt them i. the Rectory and the Tithes the Tithes upon the matter pass together with the site of the Rectory for the term of twenty years and Iudgment was afterwards given accordingly CCCLXXXI The Lord Darcy and Sharpes Case Pasch 26 Eliz. In the Common Pleas Mich. 27 28 Rot. 2432. Debt THomas Lord Darcy Executor of John Lord Darcy brought Debt upon a Bond against Sharpe who pleaded that the Condition of the Bond was That if the said Sharpe did perform all the Covenants c. contained within a pair of Indentures c. By which Indentures the said John Lord Darcy had sold to the said Sharpe certain Trees growing c. And by the same Indentures Sharpe had covenanted to cut down the said Trees before the seventh of August 1684. and shewed further That after the sealing and delivery of the said Indenture the said Lord Darcy now Plaintiff Razure of Deeds 11 Co. 27. caused and procured I. S. to raze the Indenture quod penes praedict Querentem remanebat and of 1684. to make it 1685. and so the said Indenture become void And the opinion of the whole Court was clear against the Defendant for the razure is in a place not material and also the razure trencheth to the advantage of the Defendant himself who pleads it and if the Indenture had become void by the razure the Obligation had been single and without Defeasance CCCLXXXII Rollston and Chambers Case Pasch 28 Eliz. In the Common Pleas. Costs where Damages are given 2 Len. 52. ROllston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible Entry against Chambers and upon Issue joyned it was found for the Plaintiff and Damages assessed by the Iury and costs of suit also and costs also de incremento were adjudged And all were trebled in the Iudgment with this purclose quae quidem damna in toto se attingunt ad c. and all by the name of Damages It was objected against this Iudgment that where damages are trebled no costs shall be given as in Wast c. But it was clearly agreed by the whole Court That not only the costs assessed by the Iury but also those which were adjudged de incremento should be trebled and so were all the Presidents as was affirmed by all the Prothonotaries and so are many Books 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. And Book of Entries 334. and Iudgment was given accordingly And in this case it was agreed by all the Iustices That the party so convicted of the force at the suit of the party should be fined notwithstanding that he was fined before upon Indictment for the same force CCCLXXXIII Jennor and Hardies Case Hill. 29 Eliz. In the Common Pleas. Intrat Trin. 27 Eliz. Rot. 1606. THe Case was Lands were devised to one Edith for life upon condition that she should not marry and if she died or married Devises that then the Land should remain to A. in tail and if A. died without Issue of his body in the life of Edith that then the Land should remain to the said Edith to dispose thereof at her pleasure And if the said A. did survive the said Edith that then the Lands should be divided betwixt the Sisters of the Devisor A. died without Issue living Edith Shutleworth Serjeant Edith hath but for life and yet he granted That if Lands be devised to one to dispose at his will and pleasure without more saying That the Devisee hath a Fee-simple but otherwise it is when those words are qualified and restrained by special Limitation As 15 H. 7. 12. A man deviseth that A. Goldsb 135. Shepherds Touch-stone 439. shall have his Lands in perpetuum during his life he hath but an estate for life for the words During his life do abridge the Interest given before And 22 Eliz. one deviseth Lands to another for life to dispose at his will and pleasure he hath but an estate for life And these words If A. dieth without Issue in the life of Edith That then the Lands should remain to Edith to dispose at her pleasure shall not be construed to give to Edith a Fee-simple but to discharge the particular estate of the danger penalty and loss which after might come by her marriage so as now it is in her liberty And also he said That by the Limitation of the latter Remainder i. That the Lands should be divided betwixt the Daughters of his Sister the meaning of the Devisor was not that Edith should have a Fee-simple for the Remainder is not limited to her Heirs c. if A. dieth in the life of the said Edith for the Devisor goeth further That if A. overlives Edith and afterwards dieth without Issue that the said Land should be divided c. Walmesley contrary And he relyed much upon the words of the Limitation of the Remainder to Edith Quod integra remaneat dictae Edithae and that she might dispose thereof at her pleasure Ante 156. for the said division is limited to be upon a Contingent i. if A. survive Edith but if Edith survive A. then his intent is not that the Lands should be divided c. but that they shall wholly remain to Edith which was granted by the whole Court and the Iustices did rely much upon the same reason and they were very clear of opinion That by those words Edith had a Fee-simple And Iudgment was given accordingly Anderson conceived That it was a Condition but although that it be a Condition so as it may be doubted if a Remainder might be limited upon a Condition yet this devise is as
word Children a good name of purchase But the whole Court was against that conceit for these words in the case At the Assignment of Friendship are not void but shew what person should take if the intent of the party should take effect i. he who the Father by Assignment should enable for no Child shall take but he who the Father shall assign that is part of the contract and although by such Assignment no title accrues to the Child assigned yet without Assignment no Child is capable for by the Lease the Father hath such Liberty that he may assign what Child he will And by Wray If the words of the Lease had been at the assignment of the Father within one month and the Father surcease his month Antea 275. the Interest should not vest in any of the Children And by Ayliff Iustice If the words of the Lease had been to the Husband and wife and their Son John where his name is William nothing should vest And peradventure in this case at the Bar if the Father had assigned his Son then born and had assigned him before or at the time of the Lease i. the delivery of the Lease it had been well enough Note that this Action was brought by Cole Lessee of the Son of the Husband and VVife born at the time of the Lease made And afterwards Wray with the assent of all the rest of the Iustices gave Iudgment that the Plaintiff Nihil capiat per Billam CCCXCII Pasch 26 Eliz. In the Kings Bench. Execution where joynt where several NOte It was agreed by the whole Court and affirmed by the Clerks That if Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath judgment to recover that a joynt Execution ought to be sued against them both But if the suit were by one Original and several Praecipes execution might be sued against any of them CCCXCIII Trin. 26 Eliz. In the Kings Bench. Replevin IN a Replevin The Defendant doth avow for Damage Feasant and shewed that the Lady Jermingham was seised of such a Mannor whereof c. and leased the same to the Defendant for years c. The Plaintiff said That long befor King H. 8. was seised of the said Manor and that the place where is parcel of the said Manor demised and demisable by copy c. and the said King by his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by copy in fee c. upon which it was demurred because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in the Bar to the Avowry ought to have concluded and so was seised by the custom until the Avowant praetextu of the said Term for years entred And so it was adjudged CCCXCIV The Lord Dacres Case Trin. 26. Eliz. In the Kings Bench. Ante 227. Stewardship of a Manor Office of Trust Grants per Copy Deputy Steward IN Ejectione firmae the case was That the Lord Dacres was seised of the Manor of Eversham and that I.S. held the place where of the said Manor by copy for term of his life and the said Lord granted the Stewardship of the said Manor to the now Marquess of Winchester who appointed one Chedle to be his Deputy to keep a court ad traden dum the said Lands I.S. being now dead to one Wilkins by copy for life afterwards the said Chedle commanded one Hardy his Servant to keep the said court and grant the said Land by copy ut supra which was done accordingly the copy was entred and the Lord Dacres subsigned it confirmed it It was further found That Hardy had many times kept the said court both before and after and that the custom of the Manor was that the Steward of the said Manor for the time being or his Deputy might take Surrenders 1 Co. 48. 49. and grant estates by copy And if this estate so granted by Hardy were good or not was the question because by the Servant of the Deputy whereas the custom found did not extend further than the Deputy It was argued that the estate granted ut supra was void for a Deputy cannot transfer his authority over for it is an office of trust See 39 H. 6. 33 34. 14 E. 4. 1. and 6 Eliz. it was adjudged That the Duke of Somerset had divers Stewards of his Lands and they in the name of the said Duke made diverse Leases of the Lands of the said Duke rendring Rent and the Duke afterwards assented to the said Leases and received the Rents reserved upon them and yet after the death of the said Duke the Earl of Hertford his Son and Heir avoided them So here the assent and the subsignment of the copy by the Lord Dacres doth not give any strength to the copy which was void at the beginning against which it was said That to take a Surrender and to grant an Estate by copy is not any judicial Act but meerly an Act of service and no matter of trust is transferred to Hardy for trust is reposed in him who may deceive which can't be in our Case for here is an express commandment which if Hardy transgress it is absolute void for nothing is left to his discretion And the admitting of a Copy-holder is not any judicial Act for there need not be any of the Suitors there who are the Iudges And such a Court may be holden out of the Precinct of the Manor for no Pleas are holden which was concessum per totam Curiam And by Ayliff Iustice If the Lord of such a Manor makes a Feoffment of a parcel of his Manor which is holden by copy for life and afterwards the Copy-holder dyeth although now the Lord hath not any Court yet the Feoffee may grant over the Land by copy again And the whole Court was clear of opinion That the grant for the manner of it was good especially because the Lord Dacres agreed to it And Iudgment was given accordingly CCCXCV Burgesse and Fosters Case Trin. 26. Eliz. In the Kings Bench. IN Ejectione firmae the case was 1 Cro. 48 49. That the Dean and Chapter of Ely were seised of the Manor of Sutton whereof the place where c. is parcel demised and demisable by copy according to the custom and by their Deed granted the Stewardship of the said Manor to one Adams to execute the said office per se vel legitimum suum Deputatum eis acceptabilem Surrenders Afterwards Adams made a Letter of Deputation to one Mariot ad capiendum unum sursum redditionem of one I. W. and I. his Wife and to examine the said I. aforesaid ea intentione that the said I.W. and A. might take back an estate for their lives the Remainder over to one John Buck in Fee Note the Surrender ought be de duobus Messuagiis Mariot took two several
Recovery against Massey Error And in the said Recovery four Husbands and their VVives were vouched and now the Plaintiff brought this Writ of Error as heir to one of the Husbands and Exception was taken to his Writ because the Plaintiff doth not make himself heir to the Survivor of the four Husbands Egerton The Writ is good enough for there is a difference betwixt a Covenant personal and a Covenant real for if two be bound to warranty and the one dyeth the Survivor and the heir of the other shall be vouched and he said each of the four and their heirs are charged and then the heir of each of them being chargeable the heir of any of them may have a Writ of Error And afterwards the Writ of Error was adjudged good Ante 86. And Error was assigned because the Vouchees appeared the same day that they were vouched by Attorney which they ought not to do by Law but they might appear gratis the first day without Proces in their proper persons and so at the sequatur sub suo periculo See 13 E. 3. Attorn 74. and 8 E. 2. ib. 101. Another Error was assigned Because the Entry of the warrant of Attorney for one of the Vouchees is po lo. suo I.D. against the Tenant where it should be against the Demandant for presently when the Vouchee entreth into the warranty he is Tenant in Law to the Demandant Coke As to the first Error Although he cannot appear by Attorney yet when the Court hath admitted his appearance by Attorney the same is well enough and is not Error As to the other Error I confess it to be Error but we hope that the Court will have great consideration of this case as to that Error for there are one hundred Recoveries erronious in this point if it may be called an Error And then we hope to avoid such a general mischief that the Court will consider and dispense with the rigor of the Law As their Predecessors did 39 H. 6. 30. In the Writ of Mesne But I conceive That the Writ of Error is not well brought for the Voucher in the said Recovery is of four Husbands and their Wives and when Voucher shall be intended to be in the right of their Wives which see 20 H. 7. 1. b. 46 E. 3. 28. 29 E. 3. 49. And so by common intendment the Voucher shall be construed in respect of the Wife So also the Plaintiff here ought to entitle himself to this Writ of Error as heir to the Wife And for this cause The Plaintiff relinquished his VVrit of Error And afterwards he brought a new VVrit and entituled himself as heir to the wife CCCXCIX The Queen and the Dean of Christchurch Case Mich. 26 27 Eliz. In the Kings Bench. Praemunire 3 Len. 139. THe Queens Attorney General brought and prosecuted a Praemunire for the Queen and Parret against Doctor Matthew Dean of Christ-church in Oxford and others because they did procure the said Parret to be sued in the City of Oxford before the Commissary there in an Action of Trespass by Libel according to the Ecclesiastical Law in which suit Parret pleaded Son Franktenement and so to the Iurisdiction of the Court and yet they did proceed and Parret was condemned and imprisoned And after that suit depended The Queens Attorney withdrew the suit for the Queen And it was moved If notwithstanding that the party grieved might proceed See 7 E. 4. 2. b. The King shall have Praemuire and the party grieved his Action See Br. Praemunire 13. And by Brook none can have Praemunire but the King Coke There is a President in the Book of Entries 427. In a Praemunire the words are ad respondendum tam Domino Regi quam R.F. and that upon the Statute of 16 R. 2. and ib. 428 429. Ad respondendum tam Domino Regi de contemptu quam dict A. B. de damnis But it was holden by the whole Court That if the Kings Attorney will not further prosecute the party grieved cannot maintain this suit for the principal matter in the Praemunire is The conviction and the putting of the party out of the protection of the King and the damages are but accessary and then the principal being released the damages are gone And also it was holden by the Court That the Presidents in the Book of Entries are not to be regarded and there is not any Iudgment upon any of the pleadings there but are good directions for pleadings and not otherwise CCCC Mich. 26 27. Eliz. In the Kings Bench. Fines levied 1 Cro. 35. THe Case was A. gave Lands in tail to B. upon condition That if the Donee or any of his heirs alien or discontinue c. the Land or any part of it that then the Donor do re-enter The Donee hath issue two Daughters and dieth One of the two Daughters levieth a Fine Sur Conusans de droit come ceo Forfeiture to her Sister Heale Serjeant the Donor may enter for although the Sisters to many intents are but one Heir yet in truth they are several Heirs and each of them shall sue Livery 17 E. 3. If one of the Sisters be discharged by the Lord the Lord shall lose the Wardship of her and yet the Heir is not discharged And if every Sister be heir to diverse respects then the Fine by the one Sister is a cause of Forfeiture Harris contrary For conditions which go in defeating of estates shall be taken shortly Conditions and here both the Sisters are one Heir and therefore the discontinuance by the one is not the Act of the other Clench Iustice The words are Or any of his heirs therefore it is a forfeiture quod fuit concessum per totam Curiam And Iudgment was given accordingly CCCCI Mich. 26 27 Eliz. In the Kings Bench. THe Case was Assumpsit Hutt Rep. 34. Hob. 284. A Woman seised of a Rent-charge for life took Husband the Rent was arrear the wife died the Tenant of the Land charged promised to pay the Rent in consideration that the Rent was behind c and some were of opinion Because that this Rent is due and payable by a Deed that this Action of the Case upon Assumpsit will not lye no more than if the Obligor will promise to the Obligee to pay the mony due by the Obligation 3 Cro. 5. an Action doth not lye upon the Promise but upon the Obligation But it was holden by the whole Court That the Action did well lye for here the Husband had remedy by the Statute of 32 H. 8. And then the consideration is sufficient and so Iudgment was given for the Plaintiff CCCCII. Williams and Blowers Case Hill. 27 Eliz. In the Kings Bench. REignold Williams and John Powell brought a Writ of Error against the Bishop of Hereford and Blower Error upon a Recovery had in a Writ of Disceit by the said Bishop and Blower against the said
Williams and Powell for that the said Williams had before brought a Quare Impedit against the said Blower and the Bishop Dyer 353. b. 354. and had recovered against them by default whereupon Williams had a Writ to the Metropolitan to admit his Clerk and in the Writ of Disceit Iudgment was given for the Plaintiffs For it was found That the Summons was the Friday to appear the Tuesday after and so an insufficient Summons and in that Writ of Disceit the Defendants Williams and Powell pleaded That Blower the Incumbent was deprived of his Benefice in the Court of Audience which sentence was affirmed upon Appeal before the Delegates and notwithstanding that Plea Iudgment was given against Williams and Powell Defendants in the said Writ of Disceit And upon that Iudgment this Writ of Error is brought Beaumont assigned four Errors First 1 Cro. 65. because the Bishop and Blower joyned in the Writ of Disceit for their Rights are several 12 E. 4. 6. Two cannot joyn in an Action of Trespass upon a Battery done at one time to them So if one distrain at one and the same time the several Goods of divers persons they according to their several properties shall have several Replevins 12 H. 7. 7. By Wood. So if Lands be given to two and to the Heirs of one and they lose by default in a Praecipe brought against them they shall have several Writs the one Quod ei deforceat Joynder in Action the other a Writ of Right 46 E. 3. 21. A Fine levied to one for life the Remainder to two Husbands and their Wives in tail they have Issue and die Tenant for life dieth the Issues of the Husbands and Wives shall have several Scire facias's to execute the Fine by reason of their several Rights Lands in ancient Demesn holden severally of several Lords are conveyed by Fine the Lords cannot joyn in a Writ of Disceit but they ought to have several Writs so here the Plaintiffs in this Writ of Disceit and the Bishop claims nothing but as ordinary and he loseth nothing in the Quare Impedit and therefore by the Writ of Disceit he shall be restored to nothing The second Error was Because the Bar of the Defendants in the Writ of Disceit was good i. the deprivation c. and the Court adjudged it not good for the Clerk being deprived he could not enjoy the Benefice if the Iudgment in the Qu. Impedit had been reversed Regulâ— Post 330. and where a man cannot have the effect of his suit it is in vain to bring any Action Lessee for the life of another loseth by erronious Iudgment Cestuy que use dieth his Writ of Error is gone for if the Iudgment be reversed he cannot be restored to the Land for the estate is determined 31 E. 3. Incumbent 6. The King brought a Quare Impedit against the Incumbent and the Bishop the Bishop claimed nothing but as Ordinary The Incumbent traversed the title of the King against which it was replyed for the King That the Incumbent had resigned pendant the Writ so as now he could not plead any thing against the title of the King for he had not possession and so could not counterplead the possession of the King. And here in our Case by this deprivation the Incumbent is disabled to maintain this Action of Disceit 15 Ass 8. If the Guardian of a Chappel be impleaded in a Praecipe for the Lands of his Chappel and pendant the Writ he resign the Successor shall have a Writ of Error and not he who resigns for he is not to be restored to the Lands having resigned his Chappel So in our Case A deprivation is as strong as a Resignation The third Error because in the Writ of Disceit it is not set forth that Blower was Incumbent for the Writ of Disceit ought to contain all the special matter of the Case as an Action upon the Case 4 E. 3. Disceit 45. The fourth Error That upon suggestion made after Verdict that Blower was Incumbent and in of the presentment of the Lord Stafford Deprivation and that he was removed and Griffin in by the Recovery in the Quare Impedit by default a Writ to the Bishop was awarded without any Scire facias against Griffin for he is possessor and so the Statute of 25 E. 3. calls him and gives him authority to plead against the King 6 Co. 52. and every Release or Confirmation made to him is good 18 E. 3. Confirmation made by the King after Recovery against the Incumbent is good And 9 H. 7. If a Recovery be had in a Contra formam collationis the possessor shall not be ousted without a Scire facias so in Audita Querela upon a Statute Staple Scire facias Scire facias shall go against the Assignee of the Conusee 15 E. 3. Respon 1. See also 16 E. 3. Disceit 35. 21 Ass 13. A Fine levied of Lands in Ancient Demesn shall not be reversed without a Scire facias against the Ter-tenant Walmesley contrary The case at the Bar differs from the case put of the other side for they are cases put upon original Writs but our case is upon a judicial Writ and here nothing is demanded but the Defendant is only to answer to the disceit and falshood And in this Case the Issue is contained in the Writ which is not in any original Writ and the Iudges shall examine the issue without any plea or appearance of the Tenant and here the Defendant is not to plead any thing to excuse himself of the wrong And here the Iudgment is not to recover any thing in demand but only to restore the party to his former estate and possession and if he hath nothing he shall be restored to nothing And he put many cases where persons who have several Rights may joyn in one Action as a Recovery in an Assize against several Tenants they may joyn in one Writ of Error 18 Ass Recovery in Assize against Disseisor and Tenant they shall both joyn in Error why not also in Disceit 19 E. 3. Recovery against two Coparceners the Survivor and the heir of the other shall joyn in Error As to the second Error Williams and the Sheriff ought not to joyn in the Plea and also the Plea it self is not good for the Writ of Disceit is That Williams answer to the Disceit and the Sheriff shall certifie the proceedings and therefore he shall not plead and also the Plea it self is not good for although the interest of the Incumbent be determined in the Church yet his Action is not gone as if in a Praecipe quod reddat the Tenant alieneth pendant the Writ and afterwards the Demandant recovereth yet the Tenant although his Interest be gone by the Feoffment yet he shall have a Writ of Error and so here and as to the Scire facias there needs none here against the new Incumbent for he comes in pendant the Writ
and that appears by the Record but if it had been in before the Writ brought then a Scire facias would lye See 9 H. 6. It was adjorned CCCCIII Flemmings Case Mich. 26 27 Eliz. In the Kings Bench. FLemming was Indicted upon the Statute of 1 Eliz. because he had given the Sacrament of Baptism in other form than is prescribed in the said Statute and in the Book of Common Prayer Indictment upon the Statute of 1 Eliz. and the said Indictment was before the Iustices of Assize Wray and Anderson Of such offence done before and now he is Indicted again for which it was awarded that he suffer Imprisonment for a year and shall be adjudged ipso facto deprived of all his Spiritual promotions And upon the Indictment Flemming brought a Writ of Error and assigned Error because in the second Indictment no mention is made of the first Indictment in which case the second Indictment doth not warrant such a Iudgment Wray Iustice If the first Indictment be before us then is a second Iudgment well given contrary if it be before other Iustices Clench The second Indictment ought to recite the first conviction and if one be Indicted for a Rogue in the second degree the first conviction ought to be contained in such Indictment in an Indictment the day and time are not material as to true recovering in facto And it might be that this last Indictment was for the first offence for any thing appeareth Coke who argued to the same intent compared it to the Case of 2 R. 2. 9. and 22 E. 4. 12. 12 H. 7. 25. Indictment certified to be taken coram A.B. Justiciariis Domini Regis ad pacem c. without saying necnon ad diversas felonias c. is void and if a man hath been once convicted he shall not have his Clergy if it appeareth upon Record before the same Iustices that he had his Clergy before CCCCIV The Mayor of Lynns Case Hill. 27 Eliz. In the Kings Bench. THe Mayor of Lynn was Indicted Indictments for that he had received twenty four shillings of one A. for giving of Iudgment in an Action of Debt depending before him against one B. and he was indicted thereof as of Extortion In contemptum dictae Dominae Reginae contra formam Statuti Coke The Indictment is insufficient for there is not any Statute to punish any Iudge for such a matter For the Statute of West 1. Cap. 26. is made against Sheriffs Cap. 27. Clerks of Iustices Cap. 30. The Marshal and his Servants Statute 23 H. 6. against Sheriffs 3 Inst 145. and other Statutes against Ordinaries But no Action lies against a Iudge for that which a Iudge receives is Bribery and not Extortion Et satis poenae est judici quod Deum habeat ultorem and therefore he said the party indicted ought to be discharged Gawdy Iustice If in the Indictment there be words of Extortion or Bribery although such an offence in a Iudge be not materially Extortion if these words contra pacem c. had been in the Indictment it had been good quod Clench concessit And afterwards the party was discharged CCCCV. Crisp and Goldings Case Mich. 28 29 Eliz. In the Kings Bench. Assumpsit 1 Cro. 50. 2 Len. 71. IN an Action upon the Case by Crisp against Golding the Case was That a Feme sole was Tenant for life and made a Lease to the Plaintiff for five years to begin after the death of Tenant for life and afterwards the 18. of October made another Lease to the same Plaintiff for 21 years to begin at Michaelmass next before and declaring upon all the said matter he said Virtute cujus dimissionis i. e. the later Lease the Plaintiff entred and was possessed Crast Fest S. Mich. which was before the Lease made and further declared that in consideration that the Plaintiff had assigned to the Defendant these two Leases the Defendant promised c. and upon non Assumpsit it was found for the Plaintiff and damages taxed 600 l. Coke argued for the Plaintiff against the Solicitor General who had taken divers exceptions to the Declaration i. Where two or many considerations are put in the Declaration although that some be void yet if one be good the Action well lieth and damages shall be taxed accordingly and here the consideration that the Plaintiff should assign totum statum titulum interesse suum quod habet in terra praedict ' 2. Exception that the Lease in possession was made after Michaelmass i. 18 October and the Declaration is Virtute cujus dimissionis the Defendant entred Crastino Mich. and then he was a disseisor and could not assign his interest and right which was suspended in the tortious disseisin and so it appeared to the Iudges and he said there was not here any disseisin although that the Lessee had entred before that the Lease was made for there was an agreement and communication before of such purposed and intended Lease although it was not as yet effected and if there were any assent or agreement that the Lessee should enter it cannot be any disseisin and here it appeareth that the Lease had his commencement before the making of the Lease and before the entry But put case it be a disseisin yet he assigned all the Interest quod ipse tunc habuit according to the words of the consideration and he delivered both the Indentures of the said Demises and quacunque via data be the assignment good or void it is not material as to the Action for the consideration is good enough Egerton Solicitor contrary In every Action upon the Case upon Assumpsit there ought to be a Consideration promise and breach of promise and here in our Case the Consideration is the assignment of a Lease which is to begin after the death of the Lessor who was but Tenant for life which is meerly void and that appeareth upon the Record and as to the second part of the Consideration and the assignment of the second Lease it appeareth that the Plaintiff at the time had but a Right for by his untimely entry before the making of the Lease he was not to be said Lessee but was a wrong-doer c. in 19 Eliz. in the Kings Bench this difference was taken by the Iustices there and delivered openly by the Lord Chief Iustice i. When in an Action upon the Case upon Assumpsit two Considerations or more are laid in the Declaration but they are not collateral but pursuant as A. is indebted to B. in 100 l. and A. promiseth to B. that in consideration that he oweth him 100 l. and in consideration that B. shall give to A. 2 s. that he will pay to him the said 100 l. at such a day if B. bring an Action upon the Case upon this Assumpsit and declares upon these two promises although the consideration of the 2 s. be not performed yet the Action doth well lye
the Seisin or possession of the Tenant in Demesn who ought immediately to have paid the said Rent so behind to the Testator in his life or in the Seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by Purchase Gift or Discent in like manner as the Testator might or ought to have done in his life time And now it was moved to the Court. If A. grant a Rent-charge to B. the Rent is behind B. dyeth A. infeoffeth C. of the Lands in Fee who diverse years after infeoffeth D. who divers years after infeoffeth E. It was holden by Walmesey Periam and Windham Iustice against Anderson Lord chief Iustice that E. should be chargeable with the said arrearages to the Executors of A. But they all agreed That the Lord by Escheat Tenant in Dower or by the curtesie should not be charged for they do not claim in by the party only but also by the Law. CCCCXIX Wigot and Clarks Case Hill. 32 Eliz. In the Common Pleas. IN a Writ of Right by Wigot against Clark for the Mannor of D. in the County of Glocester the four Knights gladiis cincti did appear Writ of Right and took their corporal Oath that they would choose 12 c. ad faciendum magnam Assisam and by direction of the court they withdrew themselves into the Exchequer chamber and there did return in Parchment the names of the Recognitors and also their own names and at the day of the return of the Pannel by them made the 4 Knights and 12 others were sworn to try the issue and it was ordered by the Court That both the parties scil the Demandant and the Tenant or their Attornies attend the said 4 Knights in the Exchequer chamber and to be present at the making of the Pannel so as each of them might have their challenges for after the return of the Pannel no challenge lieth and thereupon the said 4 Knights went from the Bar and within a short time after sitting the Court they returned the Pannel written in Parchment in this form Nomina Recognitorum c. inter A. petentem B. tenentem and so set down their names six other Knights ten Esquires and four Gentlemen and the Iustices did commend them for their good and sufficient Pannel and thereupon a Venire facias was awarded against the said parties CCCCXX Pory and Allens Case Trin. 30 Eliz. Rot. 611. In the Common Pleas. THe case was That Lessee for 30 years leased for 19 years 1 Cro. 173. Owen 97. Post 322 323. Surrender 1 Cro. 302. and then the first Lessee and one B. by Articles in writing made betwixt them did conclude and agree That the Lessee for 19 years should have a Lease for three years in the said Lands and others and that the same should not be any surrender of his first Term to which Articles the said Lessee for 19 years did after agree and assent unto and it was the opinion of all the Iustices of the Court that the same was not any surrender and they also were of opinion That one Termor could not surrender to another Termor CCCCXXI Glanvil ane Mallarys Case Trin. 31 Eliz. Rot. 321. In the Common Pleas. GLanvil was Plaintiff in Audita Querela Audita Querâ—la 1 Cro. 2â—8 against Mallary upon a Statute Staple for that the conusor was within age at the time of the acknowledging of it it was moved for the Defendant that the Court ought not to hold Plea of this matter because there was no Record of the Statute remaining here and therefore by Law he was not compellable to answer it c. and a President was disallowed 5 H. 8. where such a pleading was allowed and judgment given that the Defendant eat sine die Loves Case Dudley and Skinners Case vide 16 Eliz. Dier 332. But on the other side divers presidents were shewed that divers such Writs had been shewed in the Common Pleas as 30 Eliz. Loves case and the Lord Dudley and Skinners case and thereupon it was adjudged that the Action did well lye in this Court. CCCCXXII Pet and Callys Case Mich. 32 Eliz. In the Common Pleas. Debt IN Debt upon a Bond for performance of covenants the case was I. S. by Indenture covenanted with I.D. that such a woman viz. R.S. at all times at the request and charges of I.D. should make execute and suffer such reasonable assurances of such Lands to the said I.D. or his heirs as the said I. D. or his heirs should reasonably devise or require I.D. devised a Fine to be levied by the said Woman and required her to come before the Iustices of Assise to acknowledge it and the woman came before the said Iustices to that intent and because the said woman at that time was not compos mentis the said Iustices did refuse to take the Conusans of the said Fine and this was averred in the pleading in an Action brought upon the said Bond for performance of Covenants where the breach was assigned in not acknowledging of the said Fine and upon the special matter the party did demur in Law and the opinion of the whole Court was that the condition was not broken for the words are general to make such reasonable assurances which c. but if the words had been special to acknowledge a Fine there if the Iustice doth refuse to take such acknowledgment the Bond is forfeited for the party hath taken upon him that it should be done Wangford and Sextons Case Mich. 22 Eliz. In the Common Pleas. 1 Cro. 174. Kel 87. a. THe Plaintiff had recovered against the Defendant in an Action of Debt and had execution The Defendant after the day of the Teste of the Fierifacias and before the Sheriff had medled with the execution of the Writ bona fide for money sold certain goods and chattels and delivered them to the buyers it was holden by the Court that notwithstanding the said Sale that the Sheriff might do execution of those goods in the hands of the buyers Executions for that they are liable to the execution and execution once granted or made shall have relation to the Test of the Writ CCCCXXIV Wilmer and Oldfields Case Trin. 29 Eliz. Rot. 2715. In the Common Pleas. Award IN Debt upon a Bond the Condition was to perform the Award of I. S Antea 140. c. the Arbitrators make Award That the Defendant before such a day shall pay to the Plaintiff 1000 l. or otherwise procure one A. being a stranger to the Bond to be bound to the Obligee for the payment of 12 l. per annum to the Plaintiff for his life the Defendant pleaded the performance of the Award generally the Plaintiff assigned the breach of the Award in this That the said A. had not paid the said 100 l. without speaking of the cause of the award of the 12 l. per annum upon which the
Action against the Executor of I.D. And it was agreed by the Court that if a man makes his Debtor and a stranger his Executors and the Debtor dieth the surviving Executor may have an Action of debt against the Executor of the Debtor and so it was adjudged in the principal case CCCCXLIX Wollman and Fies Case Mich. 31 32 Eliz. In the Kings Bench. Assumpsit 1 Cro. 179. IN an Action upon the Case upon Assumpsit that the Plaintiff should enjoy such Lands for so many years The Defendant pleaded the Statute of 13 14 Eliz. because the Land is the Glebe Land of such a Parsonage and in truth the Defendant did mis-recite the Statute For the Statute is No Lease after the fifteenth day of May And the pleading is hereafter to be made Secondly the Statute is of any Benefice with cure the pleading is of any Benefice Thirdly The Statute is without absence above eighty and the pleading is without absence by the space of eighty days And for these Causes the Plaintiff had Iudgment CCCCL Frond and Batts Case Trin. 31 Eliz. In the Kings Bench. Debt Payment to the wife not good IN debt upon a Bond upon condition to stand to the Award of I.S. The Defendant pleaded That the said I.S. had Arbitrated that the Defendant should pay to the Plaintiff ten pounds and he said he had paid it to the Plaintiffs wife who received it upon which the Plaintiff did demur And Iudgment was given for the Plaintiff CCCCLI Trin. 31 Eliz. In the Kings Bench. Grants of the King of the Office of Marshal of the Kings Bench. THe Queen granted to George Earl of Shrewsbury An. 15. of her reign the Office of Earl Marshal of England and now came the said Earl and prayed that I. S. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be to it because the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the said Office of Marshal of the Kings Bench by the Attainder of North. be removed And a President was shewed 14 15 Eliz. Betwixt Gawdy and Verney where it was agreed That the said office was a several office from the said great office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is the said office of Marshal of the Kings Bench was granted expresly by the Duke by express words and so he had it not as incident to his office of Marshal of England On the other side there were three Presidents shewed first in the time of E. 2. That the office of the Marshal of the Kings Bench was appendant to the said office of Marshal of England Secondly 8 R. 2. When the said great office was in the King he granted the said office of Marshal of the Kings Bench But 20 R. 2. both offices were rejoyned as they were before in ancient time and there were also shewed Latters Patents of 4 E. 4. and 19 H. 8. by which it appeared That the said inferiour office had time out of mind been part of the great office And it was moved That when the said great office is in the Kings hands and the King grants the said under office if now this office be not severed from the great office for ever Wray It is no severance for the chief office is an office of Dignity which may remain in the King but this under office is an office of necessity and the King himself cannot execute it by which of necessity he ought to grant it Another matter was moved If the Grant of the King unto the Earl of Shrewsbury were good because in it the Grant to Verney of the said under office is not recited according to the Statute of 6 H. 8. 9. As 26 E. 3. 60. The King seised of the Honor of Pickring to which a Forrest was appendant the Bayliwick of which Forrest he granted in fee rendring rent and afterwards he granted the Honor with Appurtenances and afterwards the Bailiff committed a Forfeiture and that was found in Eyre the Grantee of the Honor shall seise it yet the King shall have the Rent And here the Earl of Shrewsbury shall have this office in his power to grant And so much the rather because it was granted but for life CCCCLII Michill and Hores Case Trin. 31 Eliz. In the Kings Bench. MIchil did affirm a Plaint in the Court of the City of Exeter against Hore for twenty pounds and upon Nihil returned Attachment of goods by custom of Exeter it was surmised That Trosse had certain monies in his hands due to Hore and according to the custom of Exeter the said monies were attached in the hands of Trosse who appeared upon the Attachment and pleaded That he owed nothing to Hore upon which there was a Demurrer Error and Iudgment given against Trosse because that Trosse ought to have pleaded not only that he owed him nothing but further that he had not any goods of Hores in his hands And thereupon Trosse brought a Writ of Error and assigned the Error in the principal matter upon which it was demurred and Iudgment given against the Plaintiff because that the Plea of Trosse that he owed him nothing is good enough for if there be not a Debt it is not attachable upon such Attachment And it is a good Plea to a common intent and altogether in use in London were such custom is Another Error was assingned for that Michill had recovered Costs against Trosse where it ought not to be And also Iudgment is not given that Trosse should be discharged against Hore And afterwards the Iudgment given in Exeter was reversed CCCCLIII Dennis and Saint Johns Case Mich. 30 31 Eliz. In the Common Pleas. Debt 1 Cro. 494. IN Debt upon an Obligation against Oliver Saint John and Alice his wife as heir of her Father The Defendants pleaded Non est factum of the Father And it was found by special Verdict That the Obligation was made by the Father of the Wife to the Plaintiff and another whereas in truth The Plaintiff hath declared upon an Obligation made to himself only without speaking of any other joynt Obligee Non est factum and that the Plaintiff as Survivor hath brought the Action and if upon the matter it shall be said the Deed of the Defendant in manner as the Plaintiff hath declared the Iury refer unto the Court And the case 14 E. 4. 1. b. If three enfeoff me and I plead That two did enfeoff me and the same be traversed it shall be found against me for the Feoffment is a joynt act by them all But if a man enfeoffeth me and two others and they dye so as I have all by Survivor in pleading I may shew the Feoffment was made to me alone So 46 E. 3. 17. a. Three Joynt-tenants in Fee make a
Lease for life and afterwards two of the joynt-Ioynt-tenants release to the third who brings an Action of Wast against the Lessee and the Writ was That he held of his Lease only and the Writ was awarded good Walmesley This Plea Non est factum upon this matter is no good Plea for he hath not pleaded it Respective as to the Obligation but generally Non est factum suum which refers to the Obligor only and the Issue is not whether he made the Deed to the Plaintiff or not but generally whether he made it at all For there is a difference Nihil debet for that refers to te Plaintiff and where he pleads Non est factum Which that refers to the Plaintiff and where he pleads Non est factum Which Shutteleworth granted See 1 Eliz. Dyer 167. Tawes Case this Plea Non est factum hath not any respect to the Obligee be a Monk and there is another who bears the name of the Obligee yet in those Cases the Obligor cannot safely plead Non est factum but where one is sued who bears the name of the Obligor there Non est factum is a good Plea And see 10 Eliy Dyer 279. W.S. was bound in an Obligation to one H. by the name of I.S. and upon that Obligation an Action was brought against him by the name of W.S. and he pleaded Non est factum and the special matter was found and it was ruled that upon that Verdict the Plaintiff should not recover but the best way for the Plaintiff was to sue the Defendant by the name by which he is bound and then if he appear and plead ut supra he shall be concluded by the Obligation And the Court was clear of opinion That the Plaintiff ought to have declared upon the special matter CCCCLIV Willis and Whitewoods Case Hill. 31. Eliz. Rot. 1428 In the Common Pleas. Leases Ow. â—5 56. Hutt 105. Ant. 158. Surrenders THe case was That A. was seised of certain Lands holden in Socage and leased the same to I.S. for many years and dyed his heir within the age of fourteen years the wife of A. being Guardian in Socage leased the same Land by Indenture to the same I.S. for years if the first Lease was surrendred or determined was the Question Anderson Surrendred it cannot be for the Guardian hath not any Reversion capable of a Surrender but only an Authority given to her by the Law to take the profits to the use of the Heir But yet perhaps it is determined by consequence and operation of Law As if A. lease to B. for one hundred years and afterwards granteth the Reversion to C. for two years who leaseth to B. for two years who accepts the Lease the same is not any Surrender Ante. 303. for a term of one hundred years cannot be drowned in a Reversion for two years yet the first Lease is determined which Periam granted And by Windham If a Lease be made to begin at Michaelmas and before that time the Lessor makes a new Lease to the same Lessee to begin presently the same is not any Surrender and yet thereby the first Lease is determined and so in the principal case which Anderson granted but Periam doubted of it and he said Guardian in Socage hath such an estate in the Reversion that he may enter for a condition broken Anderson The same is not in respect of any estate that he hath but in the name and right of the heir and not by reason of any Reversion CCCCLV Norwood and Dennis Case Trin. 31 Eliz. In the common Pleas. IN a Quare Impedit by Norwood against Dennis the Issue was Quare Impedit If the Advowson was appendant to the Manor of D. or in gross and the Iury â—â—und that it was appendant and further found that the Queen had right and title to present for she had presented at the two last Avoidances Anderson and Periam Iustices If it appeareth unto the Court upon the pleading that the King hath title to present The Court shall award a Writ to the Bishop for the King but here appeareth no title for the the Queen upon the pleading but only upon the Verdict so as the one part or the other may answer to it And because the Iury have found for the Plaintiff the title found for the Queen shall not be respected but as a meer Nugation and Surplusage for the same was out of their Issue and their Charge and it is no more then if one comes into the Court and informs us of any title for the Queen there the Court ought not to regard it CCCCLVI Green and the Hundred of Buccle-churches Case Trin. 31 Eliz. In the Common Pleas. IN an Action upon the Statute of Huy and Cry the Case was Action upon the Statute of Huy and Cry. 1 Cro. 14. That Green did deliver a certain sum of money to a Carryer who put the â—ame amongst other things in his Cart and sent a boy of the age of twelve years with the Cart before and he himself stayed a short time in the Inn and afterwards went his way and before he could get to the Cart the Cart was robbed and the money carryed away The boy made Huy and Cry and came unto a Iustice of Peace and prayed he would examine him but he would not but the Carryer himself would not go to be examined wherefore Green himself wen to a Iustice of Peace to be examined and so was and afterwards brought this Action And it was holden by the Court that here the Plaintiff had failed of his Action for want of sufficient examination for the Servant who was robbed ought to be examined and the examination of the Master or Owner of the goods who was not present at the Robbery is not at any purpose to enable the Plaintiff to this Action for the party robbed ought to be examined And it was said by some That where an Action doth not lye upon the new Statute of 27 Eliz. the party may have an Action upon the old Statute but others were against it for the Statute of 27 Eliz. is in the Negative so as if the Action doth not lye upon it no Action lyeth at all And it was moved by Periam and Anderson That the Plaintiff might have an Action upon his Case framed upon the said Statute of 27 Eliz. against the Iustice of Peace who refused to examine the boy But Windham doubted of it because the Iustice of Peace is a Iudge of Record and for such thing as he doth as Iudge no Action lieth To which it was answered by Periam and Anderson That the Examination in such case is not made by him as Iudge or Iustice of Peace but as a Minister appointed for the examination by the Statute c. CCCCLVII Stevinson Case Trin. 31 Eliz. In the Common Pleas. Debt IN Debt upon a Bond the Condition was That whereas the Plaintiff had covenanted with the Defendant that
Bench. WIlliam Wade brought an Action of Debt against Presthall the Defendant pleaded That he was attainted of Treason Debt Ante 326. not restored nor pardoned and demanded Iudgment if he should be put to answer upon which the Plaintiff did demur It was argued for the Plaintiff that the Plea is not good for the Defendant shall not take benefit of his own wrong A person attainted gives his goods Plea in disability of himself not aâ—loâ—ed he shall not avoid it A Woman takes a Husband thereby she hath abated her own Writ It is true That a person attainted is a dead man it is so as to himself but not as to others 33 H. 6. a person attainted is murdered his Wife shall have an Appeal so as to all respects he is not dead and although as yet the Plaintiff cannot have any Execution against the Defendant yet here is a possibility to have Execution if the Defendant get his pardon As a man shall have Warrantia Chartae although he be not impleaded and yet cannot have Execution but there is a possibility to have Execution 22 E. 3. 19. A Rent granted to one in Fee upon condition that if the Grantee die his heir within age that the Rent shall cease during the nonage the Grantee dieth his heir within age his Wife brought Dower presently and recovered and yet she cannot have Execution but yet there is a possibility to have Execution viz. upon the full age of the heir Coke contr By his Attainder he hath lost his Goods Lands Life Degree for he is now become Terrae filius and he cannot draw blood from his Father nor afford blood to his Son or his posterity so as he hath neither Ancestor nor Heir and as to the possibility the same is very remote for the Law doth not intend that he shall be pardoned and see 6 H. 4 64. A man committed a Felony and afterwards committed another Felony and after is attainted of one of them he shall not be put to answer to the other but if he obtain his Charter of pardon he shall answer to the other See also 10 H. 4. 227. tit Coronae Popham Attorney General The Defendant ought to answer for none shall have advantage of his own wrong The Plaintiff is made a Knight pendant the Writ it shall abate because his own Act but here Treasons are so heinous that none shall have ease benefit or discharge thereby And if the Defendant shall not be put to answer until he hath his pardon then the Action is now suspended and an Action personal once suspended is gone for ever and he cited 29 E. 3. 61. in the Book of Assizes where it is said by Sharp Execution upon a Statute may be sued against a man attainted and he said Execution against a person Attainted That if the Enemy of the King comes into England and becomes bounden to a Subject in twenty pounds he shall be put to answer notwithstanding that interest that the King hath in him Harris Serjeant to the same intent he conceived by 33 H. 6. 1. That Traitors are to answer for if Traitors break the Goal the Goaler shall answer for their escape for the Goaler hath remedy against them contrary of the Kings Enemies Burchets Case and he cited the case of one Burchet who being attainted of Treason struck another in the Tower for which notwithstanding his Attainder he was put to answer Egerton Solicitor General And he said That the Action is not suspended but in as much as every Action is used to recover a thing detained or to satisfie a wrong if it can appear that the party cannot be satisfied according to his case he shall not proceed And in this case the Plaintiff if he should obtain Iudgment could not have Execution by the Common Law Ante 213. for he hath no Goods nor by the Statute of Westm 2. by Elegit for he hath no Lands nor by the Statute of 25 E. 3. by his body for it is at the Kings pleasure and then to what purpose shall the Plaintiff sue and it is a general Rule Regula That in all Actions where the thing demanded cannot be had or the person against whom the thing is demanded cannot yield the thing that the Writ shall abate As in a Writ of Annuity by Grantee of an Annuity for years the term expireth the Writ shall abate Abatement of Writ Tenant in special tail brings Wast and pendant the Writ his issue dieth the Writ shall abate c. 2 E. 4. 1. A man Outlawed of Felony pleaded in dis-affirmance of the Outlawry and yet he was not put to answer until he had his pardon and then he shall answer And as to the Case of 33 H. 6. 1. It doth not appear that the Traitors were attainted and then there is good remedy enough And Burchets Case cannot be resembled to our Case for although that by the Attainder the body of the party might be at the Kings pleasure yet his body may be punished for another offence for the example of others And as to Tressels Case who in such case was put to answer I grant it for he concluded Iudgment if Action and so admitted him a person able to answer and then it could not be a good plea in Bar. And in Ognels Case the Retorn of the Sheriff shall bind them for upon Process against a person attainted they returned Cepi where they ought to have returned the special matter without a Cepi but now this general Return shall bind them and by that he shall be concluded to say that the party was not in Execution And this Plea is not any disabling of the Defendant but he informs the Iudges that he is not a person able to answer to the Plaintiff As in a Praecipe quod reddat the party pleads Non-tenure the same is no disabling of his person but a shewing to the Court that he cannot yield to the party his demand A man shall not take advantage of his own wrong i. in the same thing in which the wrong is supposed or against him against whom the wrong is supposed to be done but in other Cases he shall take advantage of his own wrong as Littleton If a Lease for life be made the Remainder over in Fee and he in the Remainder entreth upon Tenant for life and disseiseth him the same is a good Seisin Cases where a man shall take advantage of his own wrong Marbery and Worrals Case upon which he may have a Writ of Right Littleton 112. 35 E. 3. Droit 30. And yet this Seisin was by wrong And there was a Case betwixt Marbery and Worral in the Exchequer The Lessor entred upon his Lessee for life made a Feoffment in Fee with clause of Re-entry the Lessee re-entred the Lessor at the day came upon the Land and demanded the Rent which was not paid it was holden the same is a good demand of the Rent and yet
his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall adâ— quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in
Serjeant this case hath been adjudged 16 Eliz. A Lease to three Habendum to the use of the first for life and after to the use of the second for life and after to the use of the third for life the same is good Clench Iustice this proviso follows the Habendum and is a sentence to explain the sentence Wray Shute it is another sentence although it immediately follows the Habendum Clench if the words had been provided that although it be limited ut supra in the Habendum scil the first named shall have the Lands to himself for life c. it had been good by way of Remainder Wray Our case at Bar is not that any person shall take the Remainder but that any of them shall not take the profits during the life of the other Tanfield took exception to the verdict because the life of Pain is not found in the verdict Coke this is a verdict and no pleading and the opinion of the Court was that the verdict was good notwithstanding the said Exception and afterwards Iudgment was given for the Plaintiff CCCCXLVII Hudson and Leighs Case Mich. 30 31. Eliz. In the Kings Bench. Appeal of Maheim 4 Co. 43. RObert Hudson brought an appeal of Mayhem against Robert Leigh for maiming his right hand and for cutting of his veins and sinews which by that means are become dry so as thereby he hath lost the use of his fingers To which the Defendant pleaded that heretofore the Plaintiff had brought against him an Action of Assault and Battery and wounding and therein had Iudgment to recover and Execution was sued forth by Scire facias and satisfaction acknowledged upon Record Damages of 200 Marks assisted by the Iury for the damages and 11 l. 10 s. de incremento by the Court with averment of all identities Cooper Serjeant the same is a good Bar and although that an Appeal and an Action of Trespass are diverse Actions in nature and in many circumstances yet as to the recovery of Damages the one shall bind the other See 38 E. 3. 17. a good case In Trespass for breaking of his Close and Battery the Defendant pleaded that before that the Plaintiff by Bill in the Marshalsey hath recovered his Damages for the same Trespass c. and vouched the Record and the Record was sent the which was varying from the Record pleaded for the Record vouched was only of Battery without any thing of breaking of the Close and also the Battery is taxed at another day c. and with averment yet as to the Battery it was holden good enough with averment and as to the breaking of the Close the Plaintiff had Iudgment See 41 E. 3. brev 548. 12 R. 2. Coronae 110. and the Case betwixt Rider Plaintiff and Cobham Defendant Pasch 19 Eliz. Rot. 74. it was clearly holden and adjudged that after a Recovery in Trespass an Appeal of Maheim doth not lie and the Book which deceives the Plaintiff is 22 E. 3. 82. where it is said by Thorp That notwithstanding Recovery in Appeal of Maheim yet he may after recover in Trespass but Non dicite contra Popham contrary the Plea in Bar is not good for the Averment is that the stroke and the wounding supposed in the Writ of Trespass and in his Appeal of Maheim are all one but it is not averred that any damages were given for the Maheim or that the Maheim was given in Evidence for it might be that there was not any Maheim when the Trespass was brought but that after by the drying of the wound it became a Maheim and then the Action did rise as if a man upon a Contract promiseth to pay me 10 l. at Michaelmas and other 10 l. at Christmas if he doth not pay the 10 l. at Michaelmas I may have an Action upon the promise for the not payment of that 10 l. and afterwards I may have another Action and recover damages for the not payment of the 10 l. at Christmas but if I do not begin any Action before Christmas I cannot recover damages but once for the whole promise and damages shall be given in Evidence and if I be disseised I may recover damages for the first Entry and notwithstanding that I shall have an Assise and if I do reenter I shall have Trespass and recover damages for the mean profits Ante 302. and the damages recovered for the first Entry shall be recouped and the Book cited before Fitz. Coronae 110 doth not make for the Defendant but rather for the Plaintiff for there it is averred that the Maheim was given in Evidence in the Action of Trespass which it is not in our Case Egerton Solicitor we have shewed That succisio venarum in this appeal specified is eadem succisio vulneratio mentioned in the Trespass Coke Although the identity of the wounding and cutting of the veins are averred yet it is not averred that the damages recovered in the Trespass were given for this Maheim Wray chief Iustice The Iurors are to take consideration of the wound in an action of Trespass and to give damages according to the hurt and we ought to think that they have done accordingly and if they have not so done the party may pray that the Court by inspection would adjudge upon it and so increase the damages But now when the Iury hath given great damages scil 200 Marks with which the party hath been contented it should be hard to give the Plaintiff another Action and if there be any such special matter that it was not become a Maheim at the time of the Action of Trespass brought but it is become a Maheim of later time by drying the Plaintiff ought to have shewed the same to the Court and so have helped himself for otherwise it shall not be so intended but that the averment made by the Defendant is good enough to oust the Plaintiff of this Action and the Iudgment cited 19 Eliz. before was given by me after I was constituted chief Iustice and this Bar as I conceive was drawn out of the pleading in 19 Eliz. and afterwards Iudgment was given against the Plaintiff CCCCXLVIII Crosman and Reads Case Mich. 30 31 Eliz. In the Kings Bench. Intermarriage 1 Cro. 114. THe Case was that I.S. made his wife his Excutrix and dyed I. D. being then endebted to the Testator in sixty pounds upon a simple Contract the Wife Executrix took to Husband the said I.D. I.D. made his Executor and dyed a Creditor of I.S. brought an Action of Debt against the Wife Executrix of I.S. and upon the pleading the matter in question was Debt by Executors If by the entermarriage of the wife with the Debtor of the Testator the same was a Devastavit or not And if the said Debt of sixty pounds due by I.D. should be Assets in her hands And per Curiam It is no Devastavit nor Assets as is supposed For the woman may have an