the Court the exception si pro eisdem duabus partibus made the Plea evill without question and therefore gave judgement for Windham that he should have Attornment but they said nothing to the other points 10. SHuttelworth came to the Bar Verdict and shewed how an Ejection firm was brought of an entry into certain Lands the Defendant pleaded not guilty and thereupon the Jury found that he entred into one moity and not into the other and this he alleged in Arrest of Judgement Anderson It seemeth that Judgement shall not be given for this is an Action personall and is not like to a Praecipe quod reddat Rodes It seemeth the contrary by 21 Edw. 4. fol. 16. b. fol. 22. see there the case intended Anderson The cases are not alike 11. IN the Exchequor Chamber before all the Justices c. the case was such John Capell gave the Mannor of How-Capell and Kings-Capell in the County of Hereford to Hugh Capell in tayl the remainder to Rich. Capell in tayl with divers remainders over the Donor dieth Hugh hath issue William and dieth Richard grants a rent charge of fifty pound to Antony his son William selleth the Land to Hunt by fine and recovery with Voucher and dieth without issue Antony distreineth for Arrearages and the Tenant of Hunt brings a Replevin and A. avows the taking whereupon the Plaintif demurs in Law Fenner It seemeth that the Avowant shall have Return and first I will not speak much to that which hath been agreed here before you that a Remainder may be charged well enough for by the Statute the Remainder is lawfully invested in Richard and I agree well that no Formdone in a Remainder was at the Common Law and so are our Bookes in 8 Ed. 2. and Fitzh in his Nat. brev saith that it is given by the equity of the Statute At the Common Law there was no Formdone in discender now it is given by the Statute of Westminster 2 cap. 1. For in novo casu erit novum remedium apponendum And I have taken it for Law that when a thing is once lawfully vested in a man Lawful vesture it shall never be devested without a lawfull Recovery and here the Recovery doth not touch the Rent and I think that allthough the Remainder was never executed in possession yet the Grantee of the Rent shall confess and avoyd it well enough The Fine is not pleaded here with proclamation and therefore it is but a bare discontinuance in proof whereof is the case in 4 of Ed. 3. Tenant in tayl makes a discontinuance Distress per grantee before entrie of the grantor yet he in Reversion may distrein for his service And if there be Tenant for life the Reversion to a stranger and he in Reversion grant a Rent charge Tenant for life is disseised and dye the Grantee of the Rent shall distrein allthough that he in Reversion will never enter And so if Tenant in tayl the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue Droit heir de I. S. the right heir of I. S. shall enter well enough And he put Plesingtons case in 6 R. 2. Fitzh quod juris clamat 20. 8 R. 2. Fitzh Annuity 53. And the case in Littleton Dyer fol. 69. a. pl. 2. 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir within age Rent ch sur cond that the Rent shall cease during the minority yet his Wife shall recover her Dower when the heir cometh to full age Dower Perk. 327 Which cases prove that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect yet the grant shall take effect well enough and if Tenant in tayl and he in remainder had joyned this had been good clearly And 8 Ed. 3. 43 Ed. 3. Tenant in tayl to hold without service the remainder to another to hold by service if Tenant in tayl in this case had suffered a Recovery and dyed without issue I think the Lord in this case shall distrein for the service then I suppose that the fine in the principall case shall not exclude the Grantee from his rent for there is a difference between jus in terra Jus in terra Prox. advoc and jus ad terram for I think that no fine shall defeat jus in terra and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem and after suffer the Advowson to be recovered the Grantee shall falsifie in a Quare impedit Then whether this recovery shall avoyd the rent or no and I think no for this case differs and now the recovery is had against Tenant in tayl for the remainder here is out of him by the fine and in the Coniâ—ee and the recovery doth not disprove the interest before for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued And 44 Ed. 3. recovery of the rent is not a recovery of the homage Rent homage unless it be by title And here there is not any recompense to him in the remainder and therefore there will be a difference in this case and where there is a recompense Annuity for Tithes fol. 7. Hen. 6. if a person grant an Annnity for Tithes Nomine paenae it is good but if there be a nomine paenae it is not good and 7 lib. Ass an Annuity granted untill he be promoted to a benefice Promotion to a benefice it ought to be of as great value as the Annnity and 26 Edw. 3. the Church ought not to be ligitious and 22 Ed. 3. two men seised in Fee-simple exchange for their lives c. and 14 Hen. 4. the King may grant a thing which may charge his people without Rent for a release c. And 44 Ed. 3. rent granted for a release by Tenant in tayl is good and shall bind and charge his issue And so he seemeth that the Avowant shall have return Walmisley to the contrary For first it hath been held that the charge at the beginning is good and so I hold the Law bnt how Charge contingent or in what manner that is the question 38 Ed. 3. If Tenant for life be and he in reversion grant a rent charge it is good but it shall be quando acciderit 33 lib. Ass 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred for there the remainder nunquam accidit and therefore shall never be charged for as I hold when he in remainder chargeth he chargeth his future possession and not his present interest Sci fa. de rem View for if a Sci. fa. should issue to execute this remainder he shall demand the Land and before the remainder falleth he hath but quasi jus Attornment al rent ch
Priority which is not corporall neither ought it to be put in view in Assise and 21 Hen. 6. a. Tenant of the Land shall Attorn upon the grant of a rent charge and 33 Ed. 3. Priority shall hold place when the remainder falleth and not when it is granted 17 Ed. 2. and Dyer Tr. 23 Eliz. pl. 1. Then Sir when the foundation out of which the rent is issuing is gone the rent is allso gone and therefore let us see what authority Tenant in tayl hath in the remainder At the Common Law there was no Formdone in descender or remainder and the Statute of W. 2. cap. 1. provides but for two persons viz. he in reversion and the issues but Formdone in remainder is taken by the equity 50 Ed. 3. If Tenant for life be the remainder in tayl to another the remainder in fee to the Tenant for life and he makes wast Wast Bargain de remain Tenant in remainder shall punish him and Fitzh nat br fol. 193. a. Cui in vita by a wife which was Tenant in tayl upon the alienation of her husband And I think that if he in remainder bargain his remainder that it is voyd and he cannot grant to another that he shall dig in the soyl for by 2 Hen. 7. he in reversion cannot doe so 12 Ed. 4. Recovery suffered shall bind the issue 7 Ed. 3. no attaint lieth for him in remainder of a verdict given against Tenant for life Nul attaint pur tenant in rem then in this case he in remainder cannot enter and the Grantee shall not be in a better estate than his Grantor and then if he shall never enter frustra est illa potentia qua nunquam reducitur in actum The reason for the grant is good for when Tenant in tayl dyeth without issue he in remainder shall be in by the first gift in proof whereof is 33 Hen. 6. he in remainder shall be in ward Ward and in 11 Hen. 4. in Formdone in descender Formdone he shall say that the possession was given to his father Prebendary And a Prebendary cannot charge before induction Ioyntenants But if two Jointenants be and the one charge all and the other disclaimeth the charge is good from the beginning And the Recoverer here is not under the charge for allthough he hath that estate which he in remainder should have if Tenant in tayl had not aliened yet is he a meer stranger and in by another title 10 Ed. 3. If two Jointenants be Charge per Ioyntenant and the one charge this is good conditionally that he which chargeth shall survive And if Tenant pur auter vie charge and die occupans shall hold it discharged So in this case for he is not in of this possession Moreover there is a mischief if this charge be good for then the Land may be charged by two severall persons at once which shall not be suffered but yet if cestui que use charge and the Feoffees charge both are good for the one is by the Common Law Charge per cest que use Feoffees 28 Ed. 3. 10. b. and the other by the Statute Law So if Lessee for years charge and he in reversion charge and after Lessee for years surrender but this is in severall respects and I put this case for Law Ch. per lessee per enreversion that if he in the remainder bind himself in a Statute Merchant Stat. Merch. per test en rem ne charge le poss this shall not charge the possession And if in this case he will grant the rent over none ought to Attorn and therefore voyd and Littleton saith that he in remainder shall not falsifie No attornment Falsifying and 26 Hen. 8. the Grantee of lessee for years shall not falsifie for the nature of falsifying is properly to find a fault wherefore it should not be good and what fault can he find in this case surely none Successor lie per confession 4 Hen. 7. 1. a. 20 Hen. 6. Abbot confesseth an Action the Successor is bound And further it is within the Statute of 27 El. for fraudulent deeds and we need not to plead the covin for the Statute is generall Fraudulent faits and vouched Wimbish case in the Comentaries and so the Replevin is maintainable And after at the motion of the Justices the Defendant agreed that the Plaintif should amend his Plea and allege the Covin Et adjornatur untill Michaelmas Term following because there were so many Demurrers hanging to be argued in Trinity Term next But afterwards judgement was given against the Rent charge 12. KIng Hen. 8. gave certain lands to Sir Edward Bainton Trespass Knight and to the heirs males of his body engendred who had issue Andrew and Edward and dyed Andrew afterwards convenanted with the Lord Admirall Thomas Seymer that he would convey an Estate of those Lands to himself for life the remainder to the Lord Seymer in Fee and in like manner the Lord Seymer convenanted to convey an Estate of other Lands to himself for life the remainder to Andrew Bainton in Fee Afterwards Andrew Bainton levyed a Fine and executed the estate according to the covenant on his part Afterwards the Lord Seymer before performance of the covenant on his part was attainted of High Treason and all his Lands forfeited to King Edward the sixth who dyed without issue and the Lands descended to Queen Mary to whom Andrew Bainton sued by Petition and shewed how she had those Lands to the disinherison of him and his heirs and Queen Mary by her Letters Patents ex certa scientia ex merâ— motu c. granted to Bainton all those Lands and Tenements which he had covenanted to convey to the Lord Seymer and all reversions thereof in as ample manner as she had them Et ulterius ex uberiori gratia sua she granted all reversions claims and demands qua ad manus suas devenerunt ratione c. aut in manibus suis existunt aut existere deberent Afterwards Andrew Bainton levyed a Fine of those Lands to one Segar in Fee and dyed without issue then Edward Bainton entred and Segar brought his Action of Trepass Puckering It seemeth that the entry of Edward Bainton is congeable and so the Action not maintainable First let us see what passeth by this Grant of Queen Mary to Andrew Bainton and then whether a Fine levyed by Tenant in tayl the reversion being in the Queen be a bar to the tayl by the Statute of 4 Hen. 7. The first Fine as it is pleaded is not pleaded with proclamations and therefore but a discontinuance and remains but as at the Common Law At the Common Law before the Statute of Dâ—nis conditionalibus a Fine levyed was a bar to all men for all Inheritances were Fee simples then by that Statute it was ordained Quod neque per factum neque feofamentum of the Tenant
possession of the land 11. BRet Plaintif against Shepheard Apparaâ—ce the Condition of the Obligation was to appear at his Suit in the Kings-bench and upon Condition performed pleaded Triall by the Record the issue was found for the Plaintif And now he spake in arrest of judgement for that the triall ought to have been by the Record and not by the Country And so was the opinion of the Court But Radford Pregnotary said that the triall was good enough for it may be that he appeared there and yet there is no Record made thereof to whom it was answered that then it is no appearance if it be not recorded and Radford replied suppose that there is not any such suit there how then can it be recorded but the rule of the Court was ut supra for then the Obligation seemeth to be single 13. THe case of Calgate against Blyth was now again argued by Fletewood for the Plaintif And first he said that the limitation by the Wife is not good for which he took this ground that alwaies when a man shall gain a fee simple by matter of conclusion of Record that he shall be seised to his own use And here the Husband had a fee by conclusion by the fine and therefore his limitation good only Carill And there upon he put a case reported by Carill who was a grave man Fine levied and very learned in the law That if Husband and Wife levy a fine to B. who rendereth to them again for life the reversion shall remain in the Conisor to his own use Also he put another case put by Baldwin in the time of H. 8. Grant of all Estate that a man seised in right of his Wife grants totum statum suum to another the grantee shall have it no longer than during the life of the Husband if his Wife overlive him but if she have issue by him then he shall have it during the life of the Husband absolutely Fine And if two tenants in common inâ—eoff B. Feâ—ffâ—â—ent in see to their use they are then tenants in common of this use Diffâ—â—â—nâ—â— per Tenants â—n common but if they levy a fine to B. to their use then they are Joyntenants And in Queen Maries time a parson of a Church by licence of his patron and ordinary levied fi Parson levies a Fâ—e a fine of a portion of his Rectory and it was adjudged that it shall be to his own use in his naturall capacity Bishops the same law is if a Bishop levy a fine and he cited 1â— H. 4. 1. the first case and so he prayed judgment for the plaintif Anderson chief justice rehearsed the case and first he said that the Wife without her Husband cannot limit the use without doubt And here the case is no more but whether the husband may limit the use without the privity of his Wife and I think it a strong case that he cannot Notice of a use If Husband and Wife have an use and they grant it over to one who hath notice of the Use this shall be to the use of the Wife again What a use is and he defined an Use to be an intent and trust to convey lands and cited 6. H. 7. and that when the interest of the inheritance is in the Wife Fine if Husband and Wife levy a fine this shall be to to the use of the Wife for the use ariseth out of them which give the land and not by the Conises or Feoffees for they neither grant nor give the use Feoffment by he Husband alone and then it shal be to the use of the Wife again But if the Husband alone make a Feoffment this shall be to his own use and the Wife after his death shall be driven to her action And if the wife had been privy or assenting to the limitation Assent without naming although she had not been named yet it should be a good limitation but the Jury have found that she was not privy And a case was here adjudged Indenture after a fine levied that where a fine was levied and the limitation made after by Indenture that this shall be to the use of the Indenture if there be no other against it but in this case it is found expresly by the Jury that shee never agreed which doth impugn that which otherwise should be intended then now the case is no otherwise but that a fine is levyed and no use is limited but if the fine had been levied Silence is an agreemâ—ni the Husband only limited the use and nothing els had been done against it then it should have been to the use limited by the Husband because it should have been intended that the Wife had consented thereunto and so I think judgment shal be given against the Plaintif Windham I am of the same opinion and it seemeth that their difference and disagreement in the limitation is the cause that both the limitations are void First let us see who hath auctority to limit the use surely the principall owner of the land hath the principall auctority to limit the use and here the Wife is the principall owner What a use is and therefore hath chief power to dispose of the use And Sr. the use is the chief profit and commodity of the land and cannot be severed from the land no more than the shadow from the body and this was the reason of the Statute of 27. H. 8. which draweth the possession to the use and not the use to the possession for the use is the principall for by the common law by bargain sale enrolled the land shall pass without livery Bargain and sale for this was a contract for the use and then the law shall make the land to pass The Law erects the use and whithersoever the use is now carried the land and possession shall follow but when the Law carrieth the use it is to the owner and proprietary of the Land The mothers heir For if a man seised of Lands on the part of his Mother levy a fine thereof the use shall pass according as the land shall because the law carrieth the use And here the Wife cannot limit the use without her Husband and therefore that is void but yet it is good to this intent to shew her disagreement Silence Consent And if the Husband limit the use and she doth not disagree the law intendeth that she consenteth thereunto because she hath joined in the fine Sale in London by Husband and Wife And therefore in London sale of the lands of the Wife by deed enrolled by the Husband only is good if she assent or if she do not disagree And although that she shall not be examined concerning the use yet the Law will not have her defrauded of her land by joyning in the fine without her consent to the use for by that meanes
Will shall be good Rodes If a man make his Will and after do become non compos mentis and then live three or four years after Long life maketh difference it is no reason that such a Will shall be good and he cited 3 Edw. 3. it in Northt for this case Gawdy If the Proviso in the Statute of Wills had not been then every Will made by a Feme-Covert should have been good Tota Curia That is nothing so for allthough the Proviso had not been Reasonable construction yet the Statute should have had a reasonable construction But for the principall case the Court was not yet resolved After at another day Gawdy moved the case again and held strongly that by taking of a Husband this is not Countermanded and cited 2 R. 2. and then during the Coverture she hath sâ—bmitted her Will to her Huâ—band For by 3 Ed. 3. it in Roteland she cannot devise to her Husband whereby he concluded that the VVill is good Shuttleworth to the contrary because she hath no ability at the time when it should take perfection and every Will ought to have three things Inception Progression and Consummation And he cited Bret. and Rigdens case Anderson I am of my first opinion that this VVill is not good for I think this Countermand by the Wife is sufficient â—â—uâ—termand by one not of found mind and if non compos mentis say that he doth revoke his Will this is a sufficient Countermand And whereas it hath been said that a Feme-Covert hath no VVill Sir that is not so for she hath a Will in many cases Wills of feâ—e 〈◊〉 as if she be Executrix she may make a gift c. So if I be bound to do such an Act if such a Feme-Covert will consent in this case if the Husband onely consent it is not sufficient but the Wife ought to assent allso And if this Will shall be good then this mischief will ensue that after a Will is once made the partie shall have no power to controll it Controlement therefore I think the Will is not good Wyndham I am of the same opinion For a Will is not perfect untill after the death of the Devisor No countermand and when she is disabled at the time of her death the Law saith that such a Will is void But I think that a Feme-Covert cannot Countermand her Will for the same reason which doth disable her to make a Will doth allso disable her to Countermand that which is made before for by 3 Edw. 3. Consummation which was cited before she cannot devise to her Husband and by the same reason she cannot Countermand that which is devised to her Husband but because the Wife was not a person able at the time of the Consummation thereof therefore it is not good Marâ—iage no countermand Peryam to the same intent First the Mariage is not any Countermand and for the case in 2 R. 2 I think it good Law And I have allwaies taken this diversity that if a woman grant the Reversion after Tenant for years Reversion and before Attornment had she take a Husband that this is a Countermand but if that it be a Reversion after Tenant for life then it is no Countermand For in the first case his Title of Tenant by the Curtesie begun by the intermariage Allthough that it was not consummate before issue had And it seemeth a clear case that a Feme-Covert cannot Countermand a Will for she cannot make a Will And whereas it hath been said by my Lord that a woman hath a will Will by customâ— or by some by-matter true it is but that is either by custom or by reason of some by-matter as in the cases put But VVills ought to take effect at the time of the death and if then she be disabled it is not good for it is not consummate before as if there be Husband and VVife and the Husband be seised of Lands in Fee and levy a Fine thereof and then dye and after the levying of the Fine five yeares pass yet she shall not be Barred but if after the death of the Husband five yeares pass she is barred by a Fine because her title was not conmsumate untill after the death of the Husband whereby c. Rodes to the same intent for if I devise the Mannor of Dale as it is iu the Com. for c. and then have nothing in it but afterwards purchase it Perfection now it shall pass which proveth that the perfection of a Will is at the time of the death and in 39 H. 6. a man devised lands and before his death was disseised Disseisin after Will nothing passed by the Will because it was no Will untill death and here in our case because she was disabled at the time of her death it is void Anderson Then let judgement be entred accordingly 17. A Proclamation was directed to the Sherif of Cheshire against John Hockenhall Proclamation and the Writ was retorned Tale die ad comitat meum tent in le Shirehall c. Dyer fol. 206. proclamationem feci ac eodem die ad generalem Sessionem c. proclamationem feci c. And now this matter was pleaded in avoidance of the Utlary to reverse it because those proclamations were made one day whereas the Writ was tribus seperalibus diebus c. And the Sherif was amerced to forty shillings for his evill retorn And at another day he was amerced to other forty shillings because he had retorned divers Writs in Secretary hand Secretary hand And commandment was then given to the Custos brevium to receive no Writs retorned in Secretary hand for the Court said that writing in Secretary hand would be so worn in a dozen yeares that no man can read it 18. HOcker brought debt upon an Obligation against Gomersale and his Wife Executrix of the last will of Henry Gooderd â—â—perdict Common intendment Hen. Gooderd de London Tayler Trin. 30. Eliz. And they pleaded in bar a recoverie had against them in the Kings bench as Executor testamenti H. G. nuper dicti H. G de Lond. Rot. 2â—03 Barber Chirurgeon whereupon the Plaintif demurred And the Defendant did not aver that the said G. Tayler G. Barber Chirurgeon was allone person and they also omitted this word praedictum And whether this were good or no was the doubt And it seemed to the Justices that it was not good although it was alleged that it shall be intended all one person and then if a plea in bar be good to common intent it is good enough And therupon John Pastons case was cited in 21 H. 7. Where it was Westmonasteriuâ— doth not say praedictum Common intent what it is yet it shall be intended the same VVestm mentioned before Whereunto the Court answered that here by common intent he shall not be intended the same person but
in tayl the issue should be barred After which Statute as I intend the Law was such that when Tenant in tayl levied a Fine of such a thing as he might discontinue and the Fine executed in possession allthough the words of the Statute were Ipso jure sit nullus yet the issue was put to his Formdone but if it were a Fine Executory then by the death of the Tenant in tayl the issue was remitted and the Fine voyd But now by the Statute of 4 Hen. 7. the Law is made otherwise and for that here it is to be granted that he cannot discontinue the estate tayl because the reversion is in the King as it was now lately adjudged in the Exchequer in the case of Gillebrand ergo here the estate doth not pass to the Feoffees by the first Fine when he took an estate again to himself for life the remainder to the Lord Seymer in Fee but a Fee simple determinable then when the Lord Seymer was attainted Queen Mary had such an estate as the Lord Seymer had which was a Fee determinable and she had another Fee absolute in jure Coronae After when he sued by Petition he did not shew to the Queen what estate he had nor what estate the Queen had but that it was to the disinherision of him and his heirs then the Queen grants reversionem inde adeo plene libere integre as she had it or as it came to her by the Act of Parliament And I think when the Queen gives by generall words she doth not give any special Prerogative And for that 8 Hen. 4. fol. 2. A grant to the Bishop of London to have catalla c. and 9 Eliz. 268. in Dyer the case of the Dutchy of Cornwall 8 Hen. 6. the King pardons all Felonies this is no pardon of the Outlawry and especially when the Queen hath two interests it shall be construed beneficially for the Queen as 9 Edw. 4. Grant of an Office where the Grantee was no denison see there Baggots Assise and 38 Hen. 6. the King grants Land to J. S. for the life of himself and J. D. and after grants the reversion upon the life of one of them And further the case in Dyer where Queen Mary grants in Manerium de Bedminster in Com. Somerset 5. 13 El. fol. 306. a. Then Sir the Patent is that the Queen intendens dare congruum remedium in praemissis c. and when he iueth to the Queen by Petition Petition certain all titles ought to be in the Petition 3 Hen. 7. 1 H. 7. a Latin case the case of the corody and this is in nature of a Petition therfore ought to be certain then the Patent is Et ulterius ex uberiori gratia sua concessit omnes reversiones quae ad manus suas devenerunt ratione actus Parliamenti c. aut in manibus suis existunt vel existere deberent c. and they are not to be expounded so largely as to make the reversion to pass for if those words ratione c. were before admanus suas c. or after in manibus suis existunt then it cannot be intended but the reversion shall not pass to Bainton Now when in manibus suis existunt come after these words References ratione c. for references are to be intended according to the meaning of the parties Devise 29 lib. Ass 14 Eliz. Dyer Devise of all Acres except a Lease for 30 years And those words aut existere deberent ought to have some relation ergo it ought to be intended quae in manibus suis existunt ratione attincturae c. and this will not make any grant of the reversion For the meaning of the Queen was because Bainton had no recompense of the other Lands No use to give him these for no use was in him by the covenant of Seymer as it is agreed 1 Maria fol. 96. so nothing passed but that which was in the Queen by reason of the atteynder of Seymer For the other matters I think that A. Baynton is not Tenant in tayl by the grant again but admit him so yet he cannot discontinue neither is he bound by the Statute of 4 Hen. 7. for the Statute doth not extend but to such things which are touched by the Fine things which are not touched doe not pass as Commons Rents Wayes Claim per lessee purâ—ans alit postea si soit en post c. Br. Fines 123. 30 Hen. 8. fol. 32. And it hath been adjudged in Sanders case 21 Eliz. that Lessee for yeares need not to make claim within five years and vouched the opinion of Br. tit Fines 121. accordingly that the issue shall not be barred And as the King is privileged so are his possessions allthough that afterwards they come into a subjects hands Generall restraint And where one hath a special Grant allthough a general Restraint come after if he doe not speak specially of this the Grant shall be good in many cases as 19 Hen. 6. fol. 62. the Parson of Edingtons case Br. Patents 16. and the case of the Abbot of Waltham 21 Ed. 4. fol. 44. Br. tit Exemption 9. in 19 Hen. 8. it was doubted if the issue of a common person should be barred ergo the issue in tayl the reversion being in the King is not barred And the Statute of 32 Hen. 8. is generall as well for those which were of the gift of the King as others and therefore afterwards there was another Statute made which excepted those which were of the gift of the King as it was before the Statute of 32 H. 8. and it was a vain thing to make this Statute of Exception if it were a bar before by the Statute of 4 H. 7. And for authority I have a report delivered me by a Sage antient in the Law that in 16 17 El. in Jacksons case where Lands were given in tayl the remainder to the King in fee the Tenâ—nt in tayl levyed a fine after the Statute of 32 H. 8. by the opinion of the Court Difference per enter rem reversion in le Roy. this was a bar but the Court then sayd that otherwise it should be if the reversion were in the King as our case is wherefore seeing there is neither discontinuance nor bar in the case his entry is congeable and the Action not maintainable Walmisley to the contrary I will agree that it is not any discontinuance yet he may admit him out of possession if he will as in 18 Edw. 3. Where Tenant in tail the Reversion in the King makes a Lease for life and hath two Daughters and died and Lessee for life was impleaded and upon his default the two daughters prayed to be received and so they were and as me seemeth the Petition made by him to the Queen shall not prejudice or hinder the Grant ex mero motuâ— and vouched 3 H. 7. fol.
that he was robbed and made hue and cry according to the Statute of Winchester the. Defendant pleaded that he was not robbed and a full Jury appeared at this day and upon the giving of the evidence Shuttleworth moved for the Defendant that it appeared by the Plantifs own evidence that the money was my Lady Riches and that the Plantif was but her receiver and then as he thought the Action should have been brought by the Lady and not by Tirrell Anderson in my opinion without question the Action is well brought for when he had the money and was robbed the money was taken from him Receiver and he was her receiver and Vouched a case in 3 Ed. 3. where a man takes my Corn from me and after c. the King shall have it and so of money for it cannot be known from other money Rodes to the same intent for if my servant be possessed of my goods and be thereof robbed Appeal he shall have an appeal Windham I have seen that a man sent his servant to London with money and he was robbed coming from thence and the opinion of the Court was that the servant should have an Action against the Hundred Peryam So I think clearly whereby the Jury found for the Plantif 4. THe Quare impedit by Moor was moved again and the opinion of the Court was Quare impedit that the Bishop as well for his contempt in not retournig the first VVrit as for his evill retourn made upon the second Writ for it appeared that he which he said was inducted of the presentation of the Queen was Defendant in this Action should be amerced and so he was amerced at x. l. and a new Writ awarded to admit the Clerk of Moor. 5. AN Action upon the case was brought in the King Benchs for saying that the Plantif was a forging knave Slander and a Verdict given for Plaintif And it was spoken in arrest of Judgement Gawdy Justice inchit capiat per billam for the Action is not maintenable 6. WAlmysley came to the Bar shewed how Lennard Custâ—s bâ—evium had brought an Action of Trespass against another the Defendant justified by reason that Sir Christo Heydon was seised in Fee and infeoffed him Feoffment gave a colour to the Plaintif The Plaintif replied that Sir Christofer Heydon died seised and it descended to his Son who enfeoffed the Plaintif Absque hoc that C. H. enfeoffed the Defendant And the Iury found a speciall Verdict viz. That C. H. was seised and made a lease for years to the Defendant and afterwards by his Deed conteyning dedi concessi confirmavi gave it to the Defendant and his Heirs with Letters of Attorny to make livery if this were a Feoffment or but a confimation was the doubt Feoffment Walmysley It is but a confirmation when it is by deed and hath words of confimation Anderson Then by your reason he in Reversion cannot enfeoffee his Lessee for years by deed as he may without deed but I think the Lessee is at liberty to take it as a Feoffment or as a confirmation Walmysley Sir I think that when the Lessee takes the deed immediately this is a declaration of his meaning to have it as a confirmation by your favour Anderson And by your favour when the Lessor sheweth his meaning to make livery and the Lessee his meaning to accept livery and livery is made accordingly is not this an express declaration that he will take it by the livery and shall this livery be idle no Sir and see Bracebridges case in the Commentaries where Tenant in tail makes a bargain and sale and makes livery and within six months Enrolls it this is adjudged a discontinuance and yet the bargain and sale is not any discontinuance and if you well mark the cases you shall find but little difference Disseisin Walmysley If Tenant in tail bee disseised and it is agreed between the disseisor and the disseisie that the disseisee shall make a Feoffment to the disseisor and make such a deed as this the disseisor shall not have election to take it as a Feoffment Anderson tota Curia the cases differ for thedisseisee hath not any power to make a Feoffment Walmysley Well will you give us a day to argue this matter and the other Feryam For the other if you will Walmysley No Sir if this point be no hotter than the other Peryam The other is cold enough And so the Court held the Feoffment good clearly And they laughed upon Lennard because he had profited so well by his action 7. LAnds were given by fine to one Jones and his Wife and to the Heirs of Jones upon his Wife ingendred the Remainder to one Owen in Fee Scire facias Afterwards Jones only without his Wife suffers a Common Recovery with Voucher Recovery the Wife dies Jones dies without Issue and Owen brought a Scire facias to execute this fine and the Tenant pleaded the Recovery in Bar. Snagg the Recovery is good to Bar Owen For if there be a sufficient Tenant against whom the Praecipe is brought then is it good And as I think here the Husband is a sufficient Tenant The case in 16 Hen. 6. in a purchase to the Husband and Wife during the Coverture there are no Moities and the case in 23 Hen. 8. Meuies Recovery against Husband and Wife where the Wife is Tenant in tail and they Vouch over it shall be a Bar to the intail vide Bro. titulo Recoverie in value 27. and yet the Husband had nothing but in right of his Wife so in this case Walmysley to the contrary For if the recompence here doth not go to the Estate of him which brought the Scire facias then it shall be no Bar in 9 Edw. 4. an Action was brought against two Executors when there were four and a Recovery had against them two the other shall falsifie for that they had equall Authority Falsifying of recovery per executors and here the Husband and Wife have equall Authority 10 Ed. 4. the Wife shall have an Assise if a Recovery be had only against the Husband 2 Ed. 4. he in Reversion prayed to be received Resceit per def de un Joynt he shall plead that the Tenant held joyntly with another and the reason is if he should be received only upon the default of one of them then he cannot have his recompence over Paramount Grant de reversion de un Joynt 18 Hen. 6. 1. 13 Edw. 3. Husband and Wife Ioyntenants for life and he in Reversion will grant the Reversion of the Husband only this is void for he hath not any such Reversion And here the Estate of Husband and Wife and he in Remainder is all but one and then the Estate of the Husband only is not the same Estate and the case in 23 Hen 8. vouched by Snagg seemeth to make for
every Wife may be defrauded of her land by joyning in a fine which were a great inconvenience and contrary to this ground in Law that the Husband cannot dispose of the Wifes lands without her consent And although that if the Wife had not shewed her agreement or disagreement then it should have been to the use limitted by the Husband yet here she hath shewed an express disassent and so by their variance both their declarations are void Quare impedit as in a Quare impedit by two if both make severall titles both shall be barred and so judgment shall be given against the Plaintif No Vse limited Peryam to the same intent First it is a plain case that if a Husband and Wife levie a fine and limit no use then the use is to them as the land was before Vse what it is for the use is the profit of the land and the Wife alone cannot limit the use for during the coverture she hath submitted her will to the will of her Husband Silence And if they both levie a fine and he onely by Indenture limits uses Limitation after fine if she do nothing then his limitation is good and the case of Vavisour adjudged here that a limitation after the fine is good And here the Husband hath limited the use to himself for life Who shall limit uses and afterwards they both agree in the limitation now if the residue in which they agree shall be good I will shew my opinion therein likewise because that also may come in question hereafter And I think that this shall not bind the inheritance for it is a ground in Law that limiters of uses shall be such as have power interest and auctority of the land and no further As if Tenant for life and he in reversion joyn in a fine Fine Tenant for life shall limit but for his life but here by the death of the Wife the ability of the Husband is gone for he had no issue by her and therefore his use shall bee gone allso for otherwise it should be a great inconvenience but if they had joyned in the limitation then the inheritance of the Wife had been bound Inheritance shall be bound by agreement and so it is if the Law can intend that she had agreed And to say that the Conisees shall take it from the Husband and Wife and therefore the Wife to be concluded is but small reason for she may confesse the Record well enough as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land and here the limitation for the inheritance after the death of the wife cannot be good and for their variance both are void And so I think judgment shall be given against the Plaintif Rodes to the same intent for the Jury hath found that the Wife did not agree and this speciall finding shall avoid all other common intendments Intendment And the intendment of the party shall overthrow the intendment of the Law and he cited Eare and Snowes case where it was found that the wife had nothing And he cannot limit uses farther than he hath estate in the land and therefore judgment shall be given against the Plaintif Anderson then enter judgment accordingly 14. AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex Robbery in the night and the Jury found a speciall verdict that the Plaintif was robbed about three a clock in morning before day light and thereupon prayed the advise of the Court And now all the Judges were agreed that for because the Robbery was done in the night and not in the day therefore the Hundred shall not be charged and they commanded to enter iudgment accordingly 15 BEtween Cogan and Cogan the case was Copulative that the Defendant had sold certain land sowen with oad to the Plaintif and that if any restraint shall be by proclamation or otherwise that it should not be lawfull to the Plaintif to sow and make oad then he should have certain mony back again and after proclamation came that no man should sow oad within four miles of any market Town or clothing Town or City or within eight miles of any Mansion House of the Queen and the Plaintif shewed the Land was within foure miles of a Market Town and because he did not averr that it was a Cloathing Town also the Defendant demurred in law And all the Judges held that he had shewed sufficient cause of his Demurrer for the meaning was to restrain by the proclamation aswell all manner of market Townes as those market Townes which were clothing Townes And after Puckering shewed that the restraint was onely from sowing oad and not from making and their Contract was that if any restraint should be from sowing and making in the copulative whereby he thought the Plaintif should be barred quod Curia concessit 16. BEtween Cock and Baldwin the case was Pas 29. Eliz. that a lease was made for 21 yeares to one Trâ—w penny and Elizabeth his wife Rot. 1410. if he and shee Copulative or any child or children between them lawfully begotten should live so long And after they were married the wife died without issue if the lease be thereby determined or no was the question because it is in the conjunctive he and she and now one of them is dead without issue and this case is not like Chapmans case in the Commentaries where one covenants to infeoff B. and his heires for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life if one dye the other shall have all by survivour because they took it by way of interest Difference but if I let land to two to have and to hold for the lives of two other if one of them dye the lease is gone quod fuit concessum and here the lease shall be determined by the death of one because so was the intent Rodes the meaning seemeth to be conrrary for by the or which commeth afterward it appeareth that they should have their lives in it Peryam Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward that the intent was that the lease shall not be determined by the death of one of them and the reason which moved the Lord Anderson to think so was because the state was made before the marriage and so it is as a joynture to the wife and therefore not determined by the death of the one And after they all gave judgment accordingly 17. WAlgrave brought trespass quare vi armis against Somersetbeing Tenant at will Trespass vi armis against Tenant at Will
shall have the corn for if Lessee for life leaseth for years and this Lessee for yeers sowe the land and the Lessee for life dye now the Lessee for yeers shall have the corn by reason of his right to the land at the time of his sowing and never lawfully devested by any Act done by himself and he denyed the cases put by Mr. Tanfield and so concluded Gawdie The lessee for yeers of the Tenant for life shall have the corn and he denyed some of the cases put by Mr. Tanfield for in the case where Tenant for life sowes the land and after assigns over his esttae now if Tenant for life dye the Assigne shall have the corn as well as the Executors of the Tenant for life if he had not assigned over his estate But I agree the case of the devise for life of land sowed with the remainder for life for there he in remainder shall have them and the laches of the not entry of the Lessee for yeers shall not prejudice him Lessee for years ousted for it appeareth by 19. H. 6. if Lessee for yeers of Tenant for life be ousted and after the Tenant for life dye yet the Lessee for yeers shall have trespasse with a continuando for all the mean profits The which proves that they belong to him so is it in 38. H. 6. Lessee at wil ousted If Lessee at will be ousted and after the Lessor dye now the Lessee shall have a trespasse with a continuando without regress for when he may not enter Regress the law supplyeth it and the mean profits do belong to him And by consequence in this case the corn belongeth to the Lessee for yeers Ground let for life after sowing of the Tenant for life Popham Sir Henry Knevit shall not have the Corn for if a man lease for life ground which is sown and the Lessee dye now the Lessor shall have the Corn and not the Executors of the Lessee for life And he agreed with Mr. Tanfeild in the case of the Assignee of Tenant for life of ground sowed and the Tenant for life dye that he in Reversion shall have the Corn Disseisor sow the land of tenant for life And if a Disseisor sow the land of Tenant for life and the Tenant for life dye now the Executors of the Tenant for life shall have the Corn and not the Disseisor nor he in Reversion and by consequence the Lessee for years of the first Lessee for life in this case Fenner was of the same opinion and after it was adjudged that Knevit should have the land and that Poole should have the Corn because of his possession 61. RAme sued a Prohibition against Patteson Prohibition for Dotards and the question was if Trees which are above the age of twenty years become rotten and are cut down for fuell shall pay Tyths or not and the opinion of the Court was that they shall not for Tythes are payable for an increase and not for a decrease and being once privileged in regard of hie nature this privilege shall not be lost in regard of his decrepitage 62. PArtridge brought an Action of Debt against Naylor upon the Statute of 1 2 P. M. 12. Empounding For taking of a Distress in one County and driving it into another and the case was that three men distreined a flock of Sheep and them impounded in severall places and if every of them shall forfeit a hundred shillings severally or but all together a hundred shillings Common place The Court was divided for the words of the Statute is that every person so offending shall forfeit to the party grieved for every such offence a hundred shillings and treble damages but Walmisley thought that every one should forfeit a hundred shillings and he put a difference between person and party for many persons may make but one party 63. BY Popham chief Justice of England by the Statute of 28 Ed. 3. cap. 10. Fine for Error in inferior Courts Erroneous Judgement in London was a forfeiture of their Liberties but after that by the Statute of 1 Hen 4. cap. 15. this was mitigated and was made finable as in Chester if they give an erroneous Judgement they shall forfeit an hundred pound for these inferior Courts which have peculiar Jurisdictions ought to do justly for if these Courts shall not be restrained with penalties Justice will be neglected and before the Statute of 28 Ed. 3. those of London might not reform Errors in London 64. NOta per Doctor Amias in the Lord Souch his case Caveat if a Church become voyd and a stranger enters a Caveat with the Register of the Bishop that none be instituted to that Church untill he be made privy thereunto and the Bishop before that he have notice of the Caveat institutes an Incumbent the Institution is meerly voyd in the Spiritual Law for the Register ought to notifie the Caveat to the Bishop and his negligence in that shall not prejudice him that entered the Caveat and if the Bishop have notice of the Caveat and gives day to him that puts that in and before that day he institutes an Ineumbent this is meerly voyd for the entering of the Caveat is as a Supersedeas in our Law 65. THornton brought an Action upon an Assumpsit against Kemp Day of payment and declared that the Testator was indebted to him in ten pound and in consideration that the Plaintif would give day to the Defendant being Executor to pay that until Michaelmas he assumed to pay that in facto dicit that he hath given day and yet the Defendant hath not that payd The Defendant pleaded in bar that post praedictam assumptionem factam and before Michaelmas the Plaintif did arrest him for the same Debt and demands Judgement and upon that the Plaintif demurred Gawdy When he hath given to him day of payment usque ad Michaelmas allbeit he arrest him before that time yet if he do not receive the money before Michaelmas the consideration is performed Fenner I deny that for to what purpose is the giving of day of payment untill Michaelmas if in the mean time he may sue him Popham I agree with my brother Gawdy for insomuch that he onely forbears the payment untill Michaelmas and doth not promise to forbear to sue him the payment is forborn if the money be not received 66. SHerington â—ued a Prohibition against Fleetwood Parson de Orrell Prohibition in Com. Linc. for that that the sayd Parson libelled in the Spiritual Court for Tyths of Agistments and the now Plaintif being Defendant in the Spirituall Court pleaded that he had allwayes payd twelve pence by the year for every Milch Cow going in such a Pasture and for this payment he had been discharged of payment of Tythes for all Agistments in that land Payment for one thing shall not discharge another Popham This payment of money for Milch
dyed and if the estate of Tho. was determined by the death of Nich. was the question Johnson There are two points in the case the first if by this word Assignee an Occupant shall have the land and I think he shall not And the second point is when a lease is made to one and his Assignees for his own life and the lives of two others if now his own life confound the other two lives for that that it is greater to the Lessee than the other two lives and he said the Lessee hath no estate but for his own life and when he dyed the state is determined and to prove that he cited the opinion of Knightley in 28 Hen. 8. 10. Where he saith if a lease be made to one pur auter vie without impeachment of Wast the remainder to him for his own life that now he is punishable of Wast for that that when the remainder is limited unto him for his own life Wast against the surviving Joyntenant this drowneth the estate pur auter vie which was in him before And by 3 Edw. 3. If a lease be made to two for their lives without impeachment of Wast and one of them purchase the Fee simple and dye now his heir shall have Wast against the Survivor And I have heard that this was the case of the Lord Aburgaveney for a house in Warwick lane Cook è contra And the case is no more but that a lease is made to one and his Assignes for his own life Remainder for years to the tenant for life and for the lives of two others and I think that all may stand together for a man may have an estate for his own life the remainder for yeares and both may stand together in him simul semel for that that albeit that the Lessee may not have that during his own life yet he may dispose of that and by that means shall have the benefit and so in this case and allso an estate pur auter vie shall be in esse in the Lessee for the benefit of the Occupant and the inconveniencies shall be exceeding many in this case if the estate doth not endure for all their lifes for the Statute of 32 H. 8. inableth Tenant in tayl to make leases for 3 lives or 21 years and usually Tenants in tayl make such leases as these be and for that the generality of the case ought greatly to be regarded and there was a case adjudged in the Common place between Chambers and Gostock Chambers against Gostock where a lease was made to two for their lives and the life of a stranger and one of the Lessees dyed and the Survivor granted the land for his life and the life of the stranger Burdels case and it was no forfeiture and allso it was Burdels case in the Common-place 32 Eliz. where a lease was to him for his own life and the lives of two others and a good lease for all their lives Occupant And for the point of the Occupant there is no question but that the state of him that first enters is better than the state of him that enters under the state of the Lessor Gawdy The cases put by Mr. Johnson are not like to the case in question The greater estate preceding the less both may stand and I will agree them for here the greater estate precedeth the lesser I hold that a lease made to one for his life the remainder to him for anothers life is good for he may it grant over and so I think in this case that so long as any of the lives remain living that the estate remains Fenner I am of the same opinion for I think that the state pur auter vies is in the party to dispose at his pleasure so Judgment was given for the Defendant 87. HArding brought an Action of Trover of goods against Shâ—rman Visne and declared of a Trover at D. in the County of Hunt The Defendant pleaded that he bought the goods of one I. S. at Roiston in the County of Hertford in open Market and demanded Judgement The Plaintif replied that the Defendant bought the same goods of the said I. S. at D. aforesaid in the County of Huntington by fraud and Covin And after bought them again at Roiston as the Defendant supposeth the Defendant rejoines that he bought the same goods bona fide at Roiston Absque hoc that he bought them by fraud apud D. in Com. Hunt Glanvile pleaded in arrest of Judgement that the Visne ought to be of both Counties Gawdy seemeth to agree but for that that Clinch and Fenner held strongly that the Visne was well awarded in one of the Counties therefore Gawdy gave Judgement for the Plaintif for by this speciall Traverse the buying at Roiston shall not come in question 88. PAyton being High-Sherif Keep harmless brought Debt upon an Obligation against his under-Sherif and the Condition was to perform all Covenants in a pair of Indentures conteined and one Covenant was that the under-sherif shall keep all the Prisoners committed to him untill they be delivered by the Law and allso to save Mr. Payton harmless of all escapes made by the said Prisoners And the Defendant pleaded performance of all Covenants Godfry The Plea is not good for one part is in the Affirmative and the other in the Negative By which the Defendant ought to plead that the Plaintif non fuit damnifieatus and so was the opinion of the Court by which day was given to the Deâ—endant to amend his plea. 89. A Man brought an Action of Trespass for entring into an house and breaking of his close in Dale Variance between the declaration and the new assignment or the title of the Plaintif The Defendant said that the said house and close in which the Trespass is supposed to be done conteins twenty Acres and is at the time of the Trespass supposed was his Freehold And the Plaintif replyed quod locus clausa in quo supponitur transgressio est anum messuagium and makes him a Title to it To which the Defendant pleaded non Cul. And it was found for the Plaintif and for that that the Plaintif by his Replication made to him Title but to a messuage and doth not maintain his Declaration which was for the messuage and the close therefore it was awarded quod querens nihil capiat per Billam sed quare if this do not amount to a discontinuance of the close onely and so helped by the Verdict 90. THomas Allen brought a Writ of Debt against William Abraham upon an Obligation bearing date in October Counterbond for an Obligation allready forfeited The Condition was that whereas the sayd Thomas Allen at the request of the above bounden William Abraham standeth bound together with the sayd William unto one J. S. in an Obligation for the true payment of 11. l. the 15. day of May the which May was before the
Plaintif wherefore if we shall not allow this Plea we shall take the Defendant from his remedy to plead which God forbid And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in London where the Action was brought in Midlesex Tota Curia Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded wherefore the Plea is good 6. NElson Trespass Prothonotary brought a Writ of Trespass against another in effect the case was thus The Abbot of Westminster was seised of Lands Vnity of possession of Common to which he had common in the Lands of a Prior afterwards by the Statute of Dissolutions as well the Lands of the Abbot as of the Prior were given to King Hen. 8. And after that the Dean of Westminster had a grant of the Mannor which the Abbot had and Nelson had the other Mannor which the Prior had into which a Tenant of the Deans put his beasts 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass pl. 20. claiming Common as once it was in the hands of the Prior and Nelson brought his Action of Trespass Walmisley moved that the Tenant should have his Common Peryam Is this a new case It hath been adjudged heretofore that by the union of possession the Common is gone Anderson to Walmisley Have you any reason why the Common shall not be gone Walmisley No my Lord if the Statute will not help us for the Statute is that the King shall have it in the same plight as the Abbot had it and the Abbot had Common ergo c. Windam So is the Statute but the Statute doth not say that it shall continue so in the hands of the King and it is impossible that it shall continue in the hands of the King as it was in the hands of the Abbot therefore the Common is gone Rodes assented 7. MOor brought a Quare impedit Quare impedit after Judgment had a Writ to the Bishop of Norwich and at the alias the Bishop returned that after the awarding of the first Writ and before the receipt of the second the Queen had presented the same Defendant by her Letters Patents who is admitted instituted and inducted so that c. Shuttleworth moved that the Ordinary might be amerced for his evill Return for when he had Judgement to Recover he ought to have the effect of his Judgement for else it shall be in vain to sue a Quare impedit and thereupon he avouched the case in 21 Hen. 7. 8. 21 Eliz. 364. Dyer that the other Clerk shall be removed Anderson the Return is not good for me seemeth in a Quare impedit when one which hath title Paramount presents Title Paramount en qu. imp hanging the Writ then allthough the Plaintif hath Judgement to Recover yet his Clerk shall not be removed but if it be under or after the title of the Plaintif or Defendant then his Clerk shall be removed and here he hath returned that the Queen hath presented the same man which is Defendant and therefore he shall be amerced Windham to the same intent and cited the case of Long 5 Edw. 4. fol. 115. b. Rodes cited the case in Fitzherbert Quare non admisit fol. 47. k. and Bassets case in 9 Eliz. Dyer Alit en pr. quod reddat fol. 260. Anderson In a Praecipe quod reddat if the Sherif return upon the habere facias seisinam that another hath recovered by title Paramount against the Defendant and hath execution he shall be amerced Peryam How doth it appear to us that he which the Queen hath presented is the same Defendant Shuttleworth By the Return Peryam No Sir and therefore it is good to be advised And after Windham doubted for the same cause Et adjornatur 8. TRistram Ayscough Dower and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband the Defendant pleaded in bar that an Annuitie was granted to her first Husband and her self in recompense of her Dower which she after his death accepted and the Plaintif replyed quod recusavit praedict annuitatem after the death of her husband Gawdy The Plea is nor good Anderson Your intent is Disagreement in pais for that she disagreed in the Country and not in a Court of Record that the disagreement shall not be good but I think not so for if she say in the Country that she will not have the sayd Annuity this is a good refusall and if she once disagree she can never agree afterwards quod tota Curia concessit but peradventure recusavit is no good pleading 9. FRancis Windham Quid juris clamat one of the Justices of the Common Pleas brought a Quid juris elamat against the Lady Gresham to have Attornment of certain lands comprised within the note of a Fine levied to him by one R. Read The Lady pleaded that certain persons were seised of those Lands and held them of King Hen. 8. by Knights service and enfeoffed W. Read and the Lady then his Wie to have and to hold to them and the heirs of the husband who devised the reversion after the death of the Lady to the sayd R. Read in tayl the remainder c. and that the said R. Read levyed the Fine c. whereupon Windham demurred in Law Gawdy The Plea is not good for divers causes the one is for the pretence of the Tenant for that the Lands were held by Knights service the Devise is voyd for the third part so that therein the Conisor hath nothing but she doth not shew who had the reversion of the third part which she ought to shew and thereupon he vouched 30 Ed. 3. fol. 7. 34 Ed. 3. quid juris clamat 14 E. 3. Fitzh Quid juris cl The Defendant said that he held not of the Conisor he ought to shew who had the inheritance and 30 Hen. 6. fol. 8. in Wast brought by Radford Another cause is for that in the end of her Plea she demandeth Judgement Eisdem si pro eisdem duabus partibus she ought to Attorn and she doth not speak of any two parts before and therefore it is not good and vouched 7 Ed. 6. in the Comentaries Parliament held praedict 28 Ap. 9 Edw. 4. bona praedict J. S. and doth not speak of any J. S. before Then for the matter in Law for that the Conisor was but Tenant in tayl this notwithstanding it seemeth she ought to Attorn and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine the Tenant for life ought to Attorn And 3 Ed. 3. quid juris c. It is there ruled that Tenant for life shall Attorn upon a Fine levied by Tenant in tayl and therefore she c. And by the opinion of
still for in 31 Edw. 3. an advowson descended to three persons and the youngest is in ward to the King and he granted it to Queen Philip his Wife Advoson to 3 parceners and she granted it over to the Earl of Arundell who granted it to the eldest parcener the Church became voyd the King had the presentation for when the King was possessed of the wardship of the youngest he was intitled to present for all and when he granted the ward over this did not devest the title of the two eldest which was vested in him before and 37 Hen. 6. the Grant of the King upon a false suggestion is voyd False suggestion and in Littleton he shall have account against Executors and yet the Law is clear Account that an Action of Account will not lie against Executors so for all those Reasons Judgment shall be given for the Plaintif Several reserâ—ations Fenner to the contrary And first I agree that they are severall reservations and so is the case which hath been remembred in 8 Ed. 3. A Lease was made of eight Acres of land reserving eight shillings of rent viz. for every Acre 12 d. thiâ— is severall and to that which hath been sayd that the condition is a proviso I deny that for a proviso Provisio quid sit as me seemeth either is in the affirmative that a thing shall be done or in the negative that it shall not be done but here it is neither directly affirmative nor negative and therefore they have found it without commission Agreement but I confess that agreement extends to rent 22 Hen. 6. 14 Hen. 8. then the Jury which was of Mtdlesex have found the four usuall Feasts in London viz. St Johns c. and this as it seemeth they cannot doe because it is a thing in another County especially they being but an Inquest of Office Further they have found that 37 s was behind at one Feast and this is impossible for then the entire rent should amount to 7 l. And further the Lessors have purchased the reversion before the return of the Inquisition and Commission and then the Queen cannot be intitled because she hath not the Freehold for it hath been adjudged here that if a man fell his lands and afterwards makes livery thereof and after inrolls the sale this shall not have relation to the date of the deed because it takes effect by the livery which was before the inrolment And 8. Edw. 3. Feoffment puis atteynder A man attainted of Treason makes a feoffment of his land after he is restored yet he shall not have the land yet if he had not made the feoffment he should have been restored to the land with the mean profits Then if the King grants the reversion if he shall have the condition remaining and I think not for the King hath it by express words of the Statute as the Prior had it and if the Prior had granted parcell of the reversion De percell de Reversion the entire condition had been gone and the King shall be in the same case for Cessavit is given by the Statute of Westminster 2. cap. 21. eodem modo as in the Statute of Gloucester cap. 4. This doth not ly of an estate tayl no more than a Cessavit by the Statute of Glouc. 8 Ed. 2. And so I think Judgement shall be given for the Defendant De Term. Trinitat Anno xxviij Eliz. Reg. 1. ROdâ—s Justice Judgement shall be given for the Plaintif First I agree that they are severall rents and yet this question doth not goe to the overthrow of the Action in proof whereof both great reason and authority is copious For if the Lessor had entred into parcel this had not suspended the entire rent or if the reversion of parcel thereof were granted this shall carry no more than that which is granted so it was held by the Justices when it was granted to Cordall Parcel entred into And 2 Hâ—n 6. if I reserve an entire rent and the Lessee will pay but parcell c. 17 Ed. 3. fol. 52. by Sharde 11 Ed. 3. lib. Ass If I make a Lease of two Acres reserving for the one Acre x. s to me and to mine heirs and for the other Acre x. s generally And Dyer fol. 308. b. Lib. Ass pl. 23. If three Coparceners be and rent be reserved for equality of partition but one Scire fac shall be brought for it is brought but upon one record 1. Scire fac and Littleton pl. 316. but one action of debt for Tenants in common but severall Avowries so I hold that they be severall rents in this case and yet but one condition And for that let us see if by grant of parcel the entire condition be gone In the case of a common person it is all gone as it was adjudged here in Hill last where a man makes a Lease for years reserving xx l. for rent Sum in gross and rent reserved upon cond and allso a sum in gross of xxvl was to be paid to the same Lessor upon condition if the rent or sum in gross were behind then a re-entry to be made Afterwards the Lessor took an Estate back again of parcell of the term the sum in gross was not payd and it was adjudged that he shall not take advantage by the condition for when he took an estate back again the rent was suspended and then for the sum in gross he shall not re-enter because the condition was entire Cond entire but all though that the case of a common person be so yet the Princses case differs for she shall have her Prerogative and for the Preheminence which the Queen shall have I referre you to the argument of Iustice Weston in the case of the Lord Barkley Coment And that the Queen shall have her Prerogative in a condition I will remember the case of the Abesse of Sion 38 Hen. 6. 21 Hen. 7. the King may make a feoffment in fee upon condition that the Feoffee shall not alien Feoffment in fee upon cond reservation and 2 Hen. 7. 35 H. 6. he may reserve a rent to a stranger and 21 Eliz. the Queen grants her debt to another and he in reasonable time will not prosecute the Queen may take it again gain Grâ—â—t of a debt and may sue And allso Cranmers case where King Hen. 8. gave lands to the use of him for life and after to the use of his Executors for twenty yeares Rent charge after atteynder after he was attainted the Queen shall have this rent as a rent charge and yet she had the reversion before And in reason it seemeth the Queen may apportion her condition for if this condition by the grant to Cordall shall be avoyded four principles shall be overthrown for it is a principle That the King shall not be deceived in his grant 2.
Plaintif replyed that it was made upon good consideration and traversed the delivery of the Copperas which was an evill issue clearly Issue misâ—oyned and it was found for the Plaintif and this was alleged in arrest of judgement and yet for that there was an issue tryed allthough it was mis-joyned the exception was disallowed and judgement was given for the Plaintif 16. AN Action of Debt was brought upon the Statute of Purveyors Issue because he had cut down Trees against the form of the Statute of 5 Eliz. The Defendant pleaded not guilty and it was moved that this was an evill issue for he ought to have pleaded nil debet and the Court commanded him to plead nil debet 17. WAlmisley shewed how the Lord Anderson is Plaintif in an Action of Trespass against Wild Ayd prier who was Tenant for life and they were at issue and the Venire fac issued in Michaelmas Term and now this Term the Defendant prayed in ayd which he sayd he ought not to doe beâ—â—use they have furceased their time for they ought to pray it when the Venire facias is awarded or otherwise they shall not have it and he cited for that purpose 15 Edw. 3. And the Court was of the same opinion that he ought then to pray it or not at all 18. A Writ of Error was brought upon a judgement given in London â—orfeiture and this was the case Sir Wolstan Dicksey Alderman brought an Action of Debt in London against Alderman Spenser for rent behind upon a Lease for years made to Spenser by one Bacchus who afterwards granted the reversion to Dicksey and the Tenant attorned and the rent was behind c. Spenser pleaded in bar that before the grant of the reversion to Dicksey Bacchus was seised and shewed the custom of London to make inrolments of deeds indented and then shewed that before the bargain to Dicksey he bargained the reversion to him by paroll and so demanded judgement si actio c. and this plea was entered upon record and hanging this suit Dicksey entred into the Land for a forefeiture of the term because he had claimed a Fee simple and Spenser re-entered with force and his servant with him but not with force and thereupon Dicksey brought an Assisse of fresâ— force against them in London and all this matter was there pleaded adjudged that it was a forfeiture of the term the Jury gave damages and the Court increased them and the judgement trebled as wel the damages increased as the others and allso the Iudgement was quod praedicti defendentes capiantur c. Increase of damages and thereupon Spenser brought a Writ of Error and assigned Error in the point of the Judgment because it was no forfeyture And allso because the Damages increased by the Court were trebled And allso because the judgment was Capiantur where but one was a Disseisor with force therfore it should be Capiatur Shuttleworth There is no forfeyture made by this Plea before triall had thereof Wast For if in Wast the Defendant say that the Plaintif hath granted over his Estate to another this is no forfeyture so in Cleres case if he say that another is next Heir this is no forfeyture Quid juris clam And in 26 Eliz. here was a case in a quod jurâ—s clamat the Defendant pleaded an Estate tayl and after at the Assises he confessed but an Estate for Life and yet this was no forfeiture Curia None of us do rememember any such case here Walmisley Surely the case is so and I can shew you the names of the parties Anderson I will not believe you before my self and I am sure that I never heard of any such case Peryam If any such case had been here we would have made a doubt therof for ther are Authorities against it as in 8 Eliz. 6. R. 2. Plesingtons case Shuttleworth Allso theyhave said that the fresh force was brought infra quarentenam silicit quadraginta septimanas Quarentenae Scilicet a surplusage and the quarentena is but 40 dayes Curia That is no matter for the silicet is but surplusage and so no cause of Error Shuttleworth If a man disseise another without force he shall not be taken and imprisoned and therefore for this cause the Judgement is erroneous and allso the costs encreased are trebled and therefore erroneous Aydin Trespass and cited 22. Hen. 6. 57. Anderson In an Action of Trespass If the Defendant pray aid of a stranger this is a forfeiture and if it be counterpleaded yet it is a forfeiture then shall the deniall thereof make any change in the case surely no Proper acts in my opion And I say that Acts which come from himself are forfeitures Collaterall but Collaterall Acts Difference as in the case of Wast are not Walmisley In 22 Ed. 3. 13. the Tenant said that the Grantor hath released unto him the Judgement shall be but that he shall Attourn And allso he cited 3 Ed. 3. 33 Ed. 3. 18 Ed. 3. 36 Hen. 6. 34 Hen. 6. fol 24. to prove that it shall not be a forfeiture before triall Quid juris clamat Anderson If one who hath no Reversion bring a quid juris clamat against Tenant for life this is a forfeiture of his Estate and as you have said if in VVast the Tenant plead the Feoffment of the Plaintif or non dimisit true it is that these are no forfeitures for you know well enough that a Feoffment is no Plea and then it is void and to say non dimisit is no forfeiture Peryam The Judgement given in Plesingtons case is not well given for it ought to have been quod pro seisina sequatur si volunt as in the case of Saunders against Freeman and he cited 10 Edw. 3. fol. 32. to that intent Wyndam The doubt which I conceive is for that he pleads a custom in London for the inrollment of Deeds indented and he sheweth that his bargain was by parol and therefore void and then no forfeiture as if in Trespass a man prays ayd as by the Lease of I. S. and in the conclusion prayes aid of I. N. this is void Praying in ayd Anderson Allthough that it be so yet the pleading is that he bargained the Reversion and then this is good by parol in London therefore there is no doubt in that point Walmisley The Books in 15 Ed. 2. 25 Ed. 3. Importâ— that Judgement ought to be given before any forfeiture can be Forfeiture before Judgement Curia Without doubt he may take advantage thereof before Judgement as well as after if the plea be entred upon record Wyndam For the point of capiantur the Book is in 2. lib. Ass Pl. 8. Br. imprison 30. in 9. lib. Ass 12. lib. Ass Pl. 33 Br. imprison 40. Anderson Two may be Disseisors Present Disseisor absent Differance
conjunction 4. WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover Avoidance for the avoidance is by Privation and the same party is presented again and and if these shifts may be used the Queen shall never have a Lapse for then the Incumbent shall be deprived and the same Incumbent presented Fenner to the contrary and said that where her title is restrained to a time there she shall have no Prerogative to the prejudice of a third person nor to alter their Estates And for that in 1 Ed. 3. if the King have a Lordship and Rent and he grant the Lordship over and retain the Rent and after the Land escheats the Rent is gone The year day and Waâ—t as in the case of a common person and the Queen shall have the year day and Wast but if Tenant for life dy she shall not have it Dower against Guardian And in Dower against the Guardian if the Heir come to full age the Writ shall abate 5. AN Action upon the case was brought for calling the Plaintif Bankrupt Bankrupt and a Verdict passed for the Paintif And now Shutleworth shewed in arrest of Judgement that the Plaintif had not declared that he was a Merchant or of any Mystery or trade And the Court held the Declaration insufficient for the same cause and made a rule for stay of the Judgement accordingly 6. IN a Replevin brought by Mary Colthirst against Thomas Delves Discent of a third part it was agreed by three Justices Anderson being in the Starchamber that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir And therefore they overruled it upon evidence to the Jury that where one Barners was seised of the Mannor of Toby in the County of Essex and was allso seised of the Mannor of Hinton in the County of Gloucester Entire Mannor and all those were held by Knights service in chief and deviseth the Mannor of Toby to his Wife for life that his Heir at the Common Law shall have no part thereof if the Mannor of Hinton amounteth to the third part of all his Lands Allso they overruled that if a man after Mariage convey a Joynture to his Wife and dy that after the Wife may refuse the Joynture Refusall of Joynture and demand her Dower at the Common Law Allso that by refusall in the Country she may wave her Joynture and hold her to her Dower and that this is a sufficient Election Allso they held that if a man makes a Joynture to his Wife during the Coverture Devise for Joynture and after by his Testament deviseth other Lands to her in stead of her Joynture that she may refuse the Joynture and hold her to the Devise and that this shall be good by the Statute and yet Gawdy moved to the contrary because the Statute is that she may refuse the Joynture and hold her to the Dower but the three Justices overruled it clearly and said that such was the meaning of the Statute No wayving after agreement but they agreed that if she have once agreed to the Joynture that she cannot waive it afterwards Allso they agreed that if a Wife do once refuse her Joynture in her own house amongst her servants and not to the Heir that yet this is a good Refusall And Peryam said for Law that where a Joynture is conveyed to the Wife during the Coverture Refusall by bringing Dower and after the death of her Husband she say nothing but bringeth a Writ of Dower that this is a good Refusall aud so he hath seen in experience 7. AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court Slander for these words viz. John Cutts was one of those which robbed Humphrey Robbins And they were at issue and it was found for the Plaintif And it was alleged in arrest of Judgement that the words were spoken in Queen Maries time as appeareth by the Declaration And yet the opinion of the Court was that he should have his Judgement allthough peradventure robberies were pardoned by Parliament after that time 8. CArleton brought Entry sur disseisin against Carre Abatement for part who for part pleaded that he had nothing but in Right of his Wife not named c. and so demanded Judgement of the Writ and for the rest he pleaded in bar and they joyned issue for both and the Jury appeared at the bar and found both the issues for the Defendant And now the question was whether the Writ shall abate for all or no because for part it was found that the Defendant had nothing but in right of his Wife or whether it shall abate but for this part onely And Shuttleworth argued that it should abate for part onely and he resembled it to Joyntenancy in which case it shall abate but in part and he cited Dier 291. 7 R. 2. titulo joint 8. E. 1. titulo breif 860. Severall Tenancy And VValmisley said that it was more like to a severall Tenancy in which case all shall abate as in non tenure but Peryam said to him put a case where severall Tenancy shall abate all the Writ Anderson Joyntenancy and seised in right of his Wife is all one to this effect and intent Joyntenancy for in Joyntenancy he confesseth that he is sufficient enough but that another hath right as well as himself allso And so where he confesseth that he is seised in right of his Wife he confesseth that he is Tenant but that another ought to be named with him Peryam True it is that there is no difference concerning this purpose and intent and if the Recovery be had against the Husband sole he shall be bound And at length all the Iustices agreed that the Writ shall abate but in part and that Judgement shall be given for the rest and so for that residue the Judgement was nihil capiat per breve vide 3 Hen. 4. 2. 13 Eliz. fol. 301. 9. AT this day Walmisley prayed Judgement in the Quare impedit for the Queen Lapse Anderson we are all agreed that the Queen shall have Judgement for the reason of the mischief For otherwise when the Queen hath a Lapse divolved unto her one shall be Presented and afterwards deprived so that the Queen shall never have her Lapse And it differeth much from the case of that avoidance which cometh by the Act of God for this is by the Act of the party and the refore Covenous And so let Judgement be entred for the Queen 10. A Writ was ad respondendum I. S. Fidei uxori ejus and the Defendant pleaded in abatement of the Writ because the name of the Wife was Faith in English therefore they pretended that it should
without consideration and so here But the Justices held the contrary and that the consideration is good for in considerations praemissorum is in consideration of the Mariage as well as of the refusall of the Father and allso it was alleged that Garbrey was Cosen German to Brown and therefore c. Anderson If a communication be between two and the Father promise to make a Joynture and a stranger say that if the Father will not then he will doe it this is a good consideration and there is no necessity to be so curious in the consideration for that is not traversable Consideration executory traversable But Cook sayd that if it be Executory then it is traversable Another Error Cook assigned because they had not alleged a not performance in the Father for the promise of the Father was to make a Feoffment to the use c. and they averre that allthough that he did not make a gift in tayl which cannot be the same thing which the Father should doe for an estate to use in tayl and a gift in tayl is not all one But the Justices held it good for by the Statute of 27 H. 8. the use is executed and so the estate executed Also the Declaration was that he had not made a gift in tayl secundum agreamentum praedictum But Cook moved that it should not be good for if a man be bound to make an estate to another in the per and he make it in the post this is no performance and here by the Statute he is in in the post and the not performance is alleged to be because he did it not in the per and saith that he which is in by the Statute shall not vouch for he is in in the post and he cited Winters case which was not denyed but Peryam said that considerations in actions upon the Case and Conditions are not all one 9. IN the Kings bench the case was such Coppyhold John Kipping being a Copiholder devised it to his Wife for life the Remainder to VVilliam his son in Fee and made a Surrender to that use and the Wife is admitted generally Generall admittance now if this be an admittance of him in Remainder also was the question And Godfrey argued that it was not for it is not like to the case of descent where the reversion should have descended for in this case VVilliam cannot Surrender before admittance but he agreed that one which hath it by discent may surrender before admittance for in that case it shall be said possessio fratris Surrender but when it is by purchase then that cannot be surrendred whereof admittance ought to be Meseu because the Lord ought to have a fine of him therefore he likened it to the case in 18 E. 4. where the Mesne graunts the Mesnality for life the remainder in fee and the Tenant attornes to the Tenant for life if he had cause of acquittance against the Mesne this shall not be an attornment to him in remainder so here if this shall be good to him in remainder then is the Lord without remedy for his fine Vesting of a remainder But Cooke the famous Utter-Barrister argued to the contrary for the Remainder vested when the particular estate vested or els it shall never vest but it shall not be void ergo it is excuted when the particular estate c. And therefore he said clearly that an admittance of the particular Tenant is an admittance of him in Remainder and that the Lord cannot have his fine if it be agreed that the Heir may surrender before admittance Scire facias upon a fine and yet the Lord ought to have a fine of him And in 7 Ric. 2. Fitzherbert scire facias 3. where Tenant for life sueth execution this is an execution for him in Remainder Audita quaerela And in Fitzherbert Na. Br. fol. 201. where one deviseth for life the Remainder in tayl and an ex gravi querela was sued this shall serve as well for Tenant in Remainder as for Tenant for life Attornment and 18 Ed. 4. 7. and the time of Ed. 4. Fitzherbert Attorn 21. that attornment to the Tenant for life is good to him in Remainder and VVeldons case in the Commentaries Assent to the Devisee that assent to the Devisee for life is an execution of the devise to him in the Remainder 11. THe case of the Resceit was moved again Resceit and Shuttleworth said that he cannot be resceived because he is named in the Writ And said that he had searched all the books and there is not one Case where he which is named in the Writ may be resceived Anderson What of that Reason shall not we give judgement because it is notadjudged in the bookes before wee will give judgement according to reason and if there bee no reason in the bookes I will not regard them Shuttleworth Hee is at no mischief here for in 33 H. 6. the Tenant came at the grand cape and said that he had nothing Nihil habet and the Court said that it was no plea for if he hath nothing he can lose nothing And so here if he be ousted where he hath good right Reentrie he may re-enter and falsify the recoverie Peryam But he shall be put out of possession which is a mischief and remedied by the Statute Shuttleworth I hold clearly that a Termer cannot falsify at the Common Law because a term was not regarded Peryam The books doubt thereof but Anderson seemed to assent to Shuttleworth and that the Covyn shall be traversable which Peryam denyed clearly and said that he ought to averr the Covyn 12. A Man was condemned in an action of Debt and brought an Audita querela upon a release Supersedeas and had a supersedeas Peryam If the Sherif take him before that he hath notice of the Writ although it be after the Teste yet it is well done but otherwise of an Utlary But Fenner and Walmisley held to the contrary and Fenner said that he had seen a President to the contrary 13. AN Action upon the Case was brought against Mathew late Under-Sheriff of Hampshire Declaration double that where an Execution was directed to him by vertue whereof he had taken goods to the value of the execution and sold them for less and that he hath not retorned the Writ and upon this Declaration the Defendant demurred in law because it was alleged to be double But Fenner held the contrary said that an Action upon the Case is like to an Action of Covenant where a man may shew all the covenants broken Curia If the one matter be depending upon the other it shall not be double and here all is Dependance is not double for not retourning of the same Writ Wherefore Fenner said that he would not amend his Declaration let the other Demur if he would sed quaere for
he is Tenant sufficient before Office found Fenner True Sir but when the Office is found by relation thereof the Recovery is avoided Relation Anderson Truely the Office hath relation for the Possession of the Alien but it hath no such relation to say that the Alien never had it for then the Queen shall not have it but if the Alien were Tenant sufficient at the time of the Writ brought against him then the Remainder is utterly gone And all the Justices said that it is a strong case that the Queen shall have it and that the Remainder is gone And Rodes cited 27 Ass fol. 50. 8. PLympton brought an Action of Trespass against Dobynet Copyhold the Defendant pleaded that the place in which c. is Copyhold and pleaded a Grant to Southey which granted it to him c. The Plaintif replyed that long time before the Grant pleaded by the Defendant Alice Gooding was Lessee for life secundum consuetudinem manerii c. and that the Custom is that the Lord may grant Copies as well in Reversion as in Possession And that in 5 Eliz. the Lord Morley being Lord of the Mannor The Lord Morleys case granted to him a Copy in Remainder before the grant made to Southey which now came in Possession and that he entered untill c. The Defendant rejoyned that there is a custom in the Mannor that the Lord may grant Copies in reversion with the agreement and consent of the Tenant in possession and if any Copies be granted without consent of the Tenant in possession that then there is such a custom that such Grants shall be alltogether voyd absque hoc that they are devisable modo forma c. whereupon the Plaintif demurred in Law Walmisley This Plea of the Defendant is repugnant for by these words If any be granted he implyeth that there is such a custom and then when he saith absque hoc that there is such a custom this traverse is voyd and the Plaintif shall have Judgement by 9 H. 6. Allso he argued that this custom shall be voyd and cited 19 Ass the case of the command of St Johns and 2 Hen. 4. 19 Eliz. Custom what it is the Ejectione firme by Bill anu Attorney and he defined usage to be Constitutio ex diversis actionibus saepius iteratis Shuttelworth argued to the contrary and cited 37 Hen. 6. the case of Common and 26 Ed. 3. 9. GAwdy the Queens Serjeant rehearsed the case of Beverley in this manner Utlary Thomas Beverley brought a Quare impedit against the Ordinary and Gabriell Cornewell the Incumbent which was in of the presentation of the Queen and upon pleading there was a Demurrer entred up and before that was discussed Beverley was Outlawed at the suit of another The Case in an Action of Debt then Cornwell resigned his Benefice and the Queen presented him again whereupon he was instituted and inducted Then Beverley brought a Writ of Error in the Kings-bench and reversed the Outlary because that he was named of Hamby where there were two Towns of the same name and neither of them without an addition and now he brought a Scire facias to execute his first judgement against Cornwell who pleaded all the matter in bar and it seemed to him that the Plaintif shall be barred for by the Outlary of the Plaintif the presentation was forfeited to the Queen allthough that it was but a thing in action and thereupon he cited 2 Hen. 5. where a man had a Patronage with his Wife Patronage in right of his wife and was Outlawed c. then if by the reversall of the Outlary he shall be restored to the presentation and he sayd that he shall not for that it was a thing once lawfully executed and vested in the Queen and he cited 4 Hen. 7. where a man is attainted by Act of Parliament c. Allso the opinion of Brian there is a strong proof of this case And further he sayd that he was of counsell with a case in 26 Eliz. Restitution after a Scire faâ—â— where Debt was brought by Hanmer against Luddington and the Defendant was condemned and a Fieri facias issued to the Sherif who by virtue thereof sold a term of the Defendants and levyed the money thereupon and afterward the Defendant brought a Writ of Error and refused the Judgement the question was if he shall be restored to his term and it was adjudged that he shall not but onely to the money for which it was fold because the sale was once good and so he thought that the Plaintif ought to be barred VValmisley to the contrary For in our case Patronage when the Queen presenteth she hath gained a Patronage to her self untill we recover it again and this is the case of Ratcliffe in 35. For so long as the Incumbent which is presented continueth by that Induction in possession so long he which presented him is Patron Possession per Collow in 20 Ed. 4. and by 46 Edw. 3. tit Incumbent 19 Ed. 3. tit Quare impedit If the King bring a Quare impedit and hath title to recover yet the other is Patron untill his Clerk be removed a fortiore where the Writ is brought against the Incumbent of the King he is Patron untill he be removed then if nothing shall be forfeit to the Queen then it is to be considered because the Queen hath presented the same Defendant of new whether he shall be removed or no Acts done hanging the Writ and it seemeth clearly that he shall because he claimeth under this estate and this is done hanging the Writ and no act done hanging the Writ shall extort the Plaintif from his execution and surely the Writ is hanging untill execution be done and he cited 31 Hen. 6. Attorney If one make an Attorney he shall be Attorney untill execution be done and 21 Hen. 7. if the Defendant resign and a stranger is presented hanging the Writ yet the Plaintif shall remove the stranger Presentment and 20 Eliz. in Dyer accordeth with that notwithstanding that some there held the contrary If he come in by title by mony And to the like purpose is the case in 11 Hen. 4. of traverse of an Office Then for the Outlary that was avoydable by Plea Plea by the Statute by the Statute of 2 Hen. 5. per the Books in 22 Hen. 6. and 38 Hen. 6. Then if by the Outlary reversed he shall be restored and it seemeth that he shall for a man shall see a great difference between this case and the cases put For if a man in an Action deny his Deed and therefore pay a Fine to the King if after he reverse the Judgement yet he shall not be restored to the Fine because it is a by-thing and a thing collaterall and therefore he denyed the opinion of Brian Collateral thing in 4 Hen. 7. for it cannot be Law
it appeareth to us that Executor or Administrator cannot be charged upon a simple contract and the Court ex officio ought to stay the Judgement and the VVrit at the first ought to have been abated and this is reason and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement accordingly 12. RObert Johnson is Plaintif against Jonathan Carlile in an Ejectione firme Fine and upon not guilty pleaded the Jury found a speciall Verdict Hil. 29 El. rot 824. that William Grant was seised in fee of the Lands now in question being held in Socage and devised them to his Wife for term of her life and when John his sonne came to the age of 25 years then he shoâ—ld have those Lands to him and to his heirs of his body ingendred and dyed afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee and after came to 25 years and had issue a Daughter and dyed and after the Wife dyed then the Daughter entered and made a Lease to the Plaintif the question was no more but whether this Fine levyed by the Father before any thing was in him shall be a bar to the Daughter Rodes The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed and so by this means Fines shall be of small force Windham and Peryam We have adjudged it lately in Zouches case that the Issue shall not have this averment Parties and privies shall have no averment Shuttelworth for the Plaintif If it were in Pleading I grant it well but here it is found by Verdict Curia This will not help you for by the Fine the Right is extinct Windham When my Lord Anderson cometh you shall have a short rule in the case Shuttelworth Too short I doubt for us After at another day Shuttelworth moved the case again Anderson May he which levyed this Fine avoyd it by this way Shuttelworth No Sir Anderson How then can he which is privy avoyd it Shuttelworth By Plea he cannot Anderson The Verdict will not amend the matter Fenner If I make a Feoffment upon condition Feoffment upon condition and after levy a Fine of the same land to a stranger and after I re-enter for the condition broken the stranger shall not have the land Curia VVe have given Judgement clearly to the contrary in the case of Zouch And your opinion is no authority 13. A Writ of Dower was brought by John Hunt and Ioan his Wife late the Wife of Austin Dower for the third part of Lands in Wolwich the Defendant pleaded that the Lands are Gavelkind Trin. 30. Eliz rot 156. And that the Custom of Gavelkind within the County of Kent is that the Wife shall have the Moity during her Widowhood according to the Custom and not any third part according to the Common Law upon which Plea the Defendant demurred in Law Negative preâ—cription And one question was whether this Prescription in the Negative be good with the Affirmative And the other doubt was if the Wife may wave her Dower by the Custom and take it according to the Common Law And the Justices held the Prescription good enough being in the Negative with the Affirmative Iâ—â—eritance Windham This Custom shall bind the Heir and his Inheritance and by the same reason it shall bind the Wife and her Dower which Peryam granted expresly Rodes was absent and Anderson spake not to that second point But all the Court agreed clearly that as this Custom is alleged she shall be barred of her Dower And so they commanded to enter Judgement accordingly but if the pleading had been in the Affirmative onely without the Negative then the second point had come in question 14. WAlmisley prayed the opinion of the Court in this case Extent The Sherif extendeth Lands upon a Statute Staple and whether the Conusee shall bâ— said to be in Possession thereof before they be delivered to him or no Anderson Allthough that they be extended Refusall yet the Conusee may refuse to receive them Walmisley True Sir Anderson Then hath he nothing in them before he have received them for he may pray that the Lands may be delivered to the Praisors according to the Statute of Acton Burnell Windham Your meaning is to know if the Rent incurres when the Land is in the Sherifs hands if you shall have it Walmisley True Sir that is our very case Anderson Then this is the matter whether you shall have the Rent or the Conusor or the Queen but how can you claim it Windham The Lands are in the Queens hands Peryam The Writ is Cape in manum nostram Rodes This is like to the case of disceit where he shall not have the mean issues So as it seemed to them Disceit the Conusee shall not have it but they did not say expressly who should have it 15. TRespass quare clausum fregit was brougâ—t ' against two the one appeared Simul cum Dyer 239. and the other was outlawed and the Plaintif declared against the one onely who by Verdict was found guilty and now Walmisley spake in arrest of Judgement that he should have declared against them both or against the one simuleum c. But the Court thought that this was helped by the Statute of Jeofailes but at this time they were not resolved 16. A Speciall Verdict was found Disability of the Devisor at the time of his death that a Woman sole was seised of certain Lands held in Socage and by her last Will devised them to I. S. in Fee and after she did take the devisee to Husband and during the Coverture she Countermanded her Will saying that her Husband should not have the Land nor any other advantage by her Will and then died Now whether this be a sufficient Countermand so that the Husband shall not have the Land was the question Shuttleworth For as much as she was Covert-Baron at the time of her death therefore the Will was void for a Feme-Covert cannot make a Will and a Will hath no perfection untill after the death of the Devisor Gawdy In Wills the time of the making is as weâ—l to be respected Taking a Husband is no Countermand of the Wife as the death of the Devisor And then she being sole at the time of the making allthough that afterwards she took a Husband yet this is no Countermand and so is Bret. and Rigdens case in the Commentaries Anderson If a man make his Will and then become non compos mentis Not of sound mind yet the Will is good for it is Common that a man a little before his death hath no good memory Shuttleworth I do not agree the Law to be so and so Rodes seemed to agree but Anderson affirmed as before Windam I doe not doubt but such a
in the Fleet Appearance was brought to the Common place bar by habâ—as corpus to the intent to have him appear to an Originall in debt brought against him And being demanded by Goldesburg Clark whether he were the same party against whom the Originall was brought confessed it but denied to appear to the Action Brâ—â—keâ— Prothonotary said the Court ought to record his appearance confessing himself to be the same person but the whole Court said this was no appearance whereby he was remanded to the Fleet And Tamworth the Plaintif proceeded to the outlary against him 2. PRice brought an Action of Trover against Sir Walter Sands Frandulent deeds Trin. xxxviii Eli. And this was for finding of Corn. And the first point of the case was That a man had a Lease in Reversion and granted it to another by fraud and his Grantee granted that over to Sir Walter Sands bona fide And if this Grant over bona fide being derived out of a Fraudulent Estate shall be void per the Statute of 27 Eliz. or not was the question Harris Serjeant It seemeth the Grant to Sir Walter Sands to be good And not within the Statute of 27 Eliz. For 33 Heâ— 6. 28. If a man make a Feoffment in Fee by Collusion to the intent to defraud the Lord of the Wardship And after this Feoffee by Collusion make a Feoffment over bona fide Now the Lord is without remedy for the Collusion is gone And in this case there is an ignorance in Sir Walter Sands the which is not willfull and for that it is not punishable Notice But if the other had taken the profits so that the purchaser might have notice there it should be otherwise The â— cause was non constat whether the Grant were before the Statute of 27 Eliz. or not For if it were before then the party shall not answer the mean profits Allso a third matter is ten yeares of the Term was granted for money But when he granted the Residue of the Term and no Consideration expressed Consideration expressed then there shall be no consideration intended And if there were no Consideration given he is not holpen by the Statute For that helpeth a Frandulent Conveyance against purchasers for Consideration given or paid Et non constat that any thing was paid by the Plaintif Allso it appeareth that Sir VValter Sands was in possession at the making of the Statute Allso here the party is charged with a speciall fraud And the other saith that it was made bona fide And this is a good course of pleading without any Traverse per 4 Ed. 4. 24. 3. HUgh Hall brought an Action upon his case for words and declared Slander that where he himself was robbed of divers parcels of Cloth per quendam ignotum and made his integrity and indeavour to apprehend the said thief praedictns tamen defendens praemissorum non ignarus dixit de praefato Hugone viz. Hugh Hall hath received three parcells of his Cloth again of the thief And if I receive any hurt henceforth I will charge him with it And by Judgement of the Court the words are not actionable 4. THe Lady VVilloughby Wife to the late Sir Francis VVilloughby Caveat sued in the Chancery as Administratrix of her said Husband against Percivall Willoughby which had maried one of the Daughters of the said Sir Francis And the Defendant pleaded that before any Administration commited to the said Plaintif he himself put in a Caveat in the Spirituall Court hanging which Caveat she hath attained these Letters of Administration Appeal whereby the Defendant hath appealed 〈◊〉 which appeal is not yet determined for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix And it seemed to Egerton then Lord Keeper of the great Seal that the Defendants plea is good to stay the suit untill the appeal be determined But not to be dismissed out of the Court Appeal Erâ—â—â— Difference no more than an excommunication And he said there is difference between an appleal in Spirituall Law and a Writ of Error in our Law For by the purchasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed But the very bringing of an appeal is a suspension of the first Judgement in the Spirituall Court for the principall matter but not for the costs and for to prove that he cited 2 R. 2. Quare impedit 143. vide 27 H. 6. Gaud. 118. 2 M. 105. Dyer 7 Eliz. 240. 5. IN the Chauncery a speciall Verdict was retorned upon an extent Execution uâ—on an exteâ—t of a Remainder And the case was this that there was Tenant for liâ—e the Remainder in Tail and the Tenant in Remainder in Tail made a Statute Staple and after granted his Remainder And after the Tenant for life died 〈◊〉 Bull 〈◊〉 and the Grantee of the Remainder entered And whether Execution shall be sued of this land upon the said Statute insomuch that the said land was never in Demeasne in the hands of the Coâ—â—so◠〈◊〉 â—ames 〈◊〉 and so not extendable in his hands was the question And Sr. Thomas Egerton Lord Keeper of the great seal said that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life For to a Remainder are no services due nor incident and for that it is termed Seck But a Reversion hath services incident and those may be extended and by consequence the Reversion when it commeth in possession Bâ—t it seemed unto him that all was one for one may charge a Remainder when it happeneth aswell as a Reversion and a Statute is in the nature of a charge Cook the Queenes Attourney said there was no question in the Case for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question for if he in the Remainder make a lease for yeares to commence at a day to come Yet if he grant over his Remainder the Grantee shall hold that charged with his lease And every Statute is a charge Executory By which the said Lord Keeper awarded that there should be a liberate made to the Conusee upon the retorn above 6. OVerton brought an action of Debt against Sydall Debt by a Successor against an Executor after assignment And the case was that Prebendary made a lease for yeares rendring rent and the Lessee died and the Executors of the Lessee assigned over the Term and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over and the opinion of three Justices was that the action would not lye But Popham the chief Justice held the contrary For the Successor is privie to the Contract of the predecessor And so the Executor to the contract of the Testator
pleaded that before the said Feast of St. Mich. the said G. did not tender to him any acquittance Gawdie The Obligation is void for in so much as the Obligee hath not tendred to him any acquittance therefore he hath tolled from him the election whereof he shall not take advantage Fenner è contra for the election is not in the Partie for the making â—o the acquittance resteth in the will of the Obligee and so the Obligor hath no election Popham was of the same opinion 56. IF a Sheriff doe execute his Writ the same day that the Writ is retornable Execution of a writ done the day of the retorn it is a good execution per Yelverton and he cited these cases A Judgement given in a quare impedit 18. Eliz. and the Writ of dammages was executed the same day that it was retornable and this matter pleaded in arrest of judgement and notwithstanding the partie had judgment and if a capias ad satisfaciendum goe forth and the Sheriff take the Partie the same day that the Writ is retornable and send him into the Court who will say that this is not a good execution 57. WOodcock brought an Action of Debt against Heru Assets Executor of I. S. The Defendant pleaded that the Testator in his life time made a Statute Staple to one I. K. in the sum of 1000 l. and above that he hath nothing And if this Plea be good or not is the question Fenner The Plea is good without question Gawdie I have heard divers learned men doubt of that for if the Testator were bound in a Statute to perform Covenants which are not yet broken and it may be they will never be broken and then he shall never be chargeable by this Statute and yet he shall never be compelled to pay any debts which will be a great inconvenience And again I think there will be a greater mischief of the other part for put the case if the Executors doe pay this debt and the Statute is broken after he shall be chargeable by a devastavit of his own proper goods the which will be a greater inconvenience 58. BRough against Dennyson brought an Action for words Slander viz. Thou hast stoln by the high-way side Popham The words are not actionable for it may be taken that he stole upon a man suddenly as the common proverb is that he stole upon me innuendo that he came to me unawares And when a man creepeth up a hedge the common phrase is he stole up the hedge Fenner When the words may have a good construction you shall never construe them to an evill sense And it may be intended he stole a stick under a hedge and these words are not so slanderous that they are actionable 59. A Copy-holder was not upon his Land to pay his rent Forfeiture of a copy-hrld when the Lord was there to demand it And whether this were a forfeiture or not was the question Fenner It is no forfeiture if there were not an express denyall for the non-payment here is but negligence the which is not so hainous an injurie as a willfull denyal for it may be that the Copy-holder being upon the Land hath no money in his purse and therefore it shall be a very hard construction to make it a forfeiture But if he make many such defaults it may be it shall be deemed a forfeiture Popham If this shall not be a forfeiture there will grow great danger to the Lord and the Copy-holders estate was of small account in ancient time and now the strength that they have obtained is but conditionally to wit pay their rent and doing their sevices and if they fail of any of these the Condition is broken and it seemeth cleer if the rent be payable at our Lady day Demand after the day and the Lord doth not come then but after the day to demand the rent there is no forfeiture 60. THe Case was that there was Lessee for life Sir Henry Knevit against Poole interest of Corn. the Remainder for life and the first Lessee for life made a lease for years and this Lessee was put out of possession by a stranger and the stranger sowed the Land and the first Lessee for life dyed and he in remainder for life entred into the Land and leased it to Sir Henry Knevit and who should have the corn was the question Tanfeild argued that Sir H. K. being Lessee of the Tenant for life in remainder shall have the corn for the reason for which a man which hath an uncertain estate shall have the corn is for that he hath manured the land and for that it is reason that he that laboureth should reap the fruit but he said that the stranger that sowed the land shall not have the corn Lease of ground sowed because his estate begun by wrong for if a man make a lease for life of ground sowed and before severance the Lessee dyed now his Executor shall not have the corn Assignment after sowing concess per Popham cont per Gawdy for that they came not of the manurance of their Testator so it is if the Lessee for life sowe the land and assign over his interest and dye now the Assigne shall not have the corn cansa qua supra and for this reason in our case neither the Executors of the first Tenant for life nor the Lessee of the first Tenant for life shall have the corn here for that it comes not by their manurance and the stranger which sowed them he shall not have them Vncertainty necessarie unnecessary difference for albeit he manured the land and howbeit his estate was defeasable upon an uncertainty yet he was a wrong doer and the incertainty of his estate came by his own wrong for which the law will never give any favour to him and for that when he in remainder for life entreth it seemeth that he shall have the corn for he hath right to the possession and the corn are growing upon the soile and by consequence are belonging to the owner of the soile but it hath been said that here there was no trespasse done to him in remainder and for that he shall never have the corn Sir as to that I say if an Abator after the death of the Ancestor enter and sowe the land Abator soweth and after the right heire enter in this case the heire shall have the corn and yet no trespasse was made to him and it hath been adjudged in this Court where a man devised land sowed to one for life and after his decease the remainder to another for life and the first Tenant entred and dyed before severance and he in remainder entred that there he in remainder shall have the corn and by consequence the same Law shall be in our case Godfrey è contra and he argued that the Lessee for yeers Devise of land sowne of the first Lessee for life
lawfull to sell such an Office 114. IN an Action of Debt upon an Escape Escape Popham Clinch and Gawdy sayd P. 36. Eliz. if a Prisoner in Execution escape and the Jaylor make fresh suit and before the re-taking the party bring his Action against the Jaylor now the Jaylor may not re-take the Prisoner as to be in execution for the Plaintif again but onely for his own indempnity but if the party doe not bring his Action then the Jaylor may re-take his Prisoner and he shall be in Execution again for the Plaintif Wast For by Popham this Case is like to Wast the which if it be repaired before the Action brought the party shall not have an Action 115. A. B. was Utlawed after Judgement Elegit after Vâ—lary and an Elegit was awarded against the Defendant Mr. Godfrey prayed a Supersedeas quia erronice emanavit for the party may not have any other manner of Execution but a Capias for a Fieri fac he may not have for the Queen is intituled to all his goods and an Elegit he may not have for by the Utlawry the Queen is intituled to all the profits of his Lands Feoffment by an outlaw Gawdy It appeares by 21 Hen. 7. 7. a. That the party Outlawed may make a Feoffment and so out the King of the Profits and so it seemeth in this Case But it is good to be advised 116. SR Henry Jones Knight Error in fine and remedy and I. his Wife the Wife being then within age levied a Fine of the lands of the Wife and a precipe quod reddat was brought against the Conusee which vouched the Husband and the Wife and they appeared in person and vouched over the common Vouchee which appeared and after made default whereby a Recovery was had and now the said Wife and her second Husband brought a Writ of Error to reverse the Fine and another Writ of Error to reverse the Recovery by reason of the nonage of the woman and the court was of opinion to reverse the Fine but they would advise upon the Recovery for that the said Henry Jones Knight and his Wife appeared in person and vouched over and so the Recovery was had against them by their appearance and not by default and so it seemeth no Error Generall warranty destroieth titles and conditions and to prove that Gawdy cited 1 and 2 Mar. Dyer 104 and 6 H. 8. 61. Saver default 50. Also as this case is it seemeth that by generall entry into warranty the Error upon the Fine is gone as where a man hath cause to have a Writ of right or title to enter for a Condition broken or any other title to land and in a praecipe quod reddat of the same land is vouched and entreth generally into warranty by that the condition or other title is gone but upon examination it was found that the Recovery was before the Fine for the Recovery was Quindena Trin. and the Fine was tres Trin. And so the Recovery doth not give away the Error in the Fine 117. IN Evidence between Tutball and Smote the case was such Condition extinguished P. 36 Eliz. that a Termor for years granted his Term to I. S. upon condition that if the Grantee did not yearly pay x l. to Q. R. that the grant should be void after the Grantor died and made the Grantee his Executor and whether the Condition be extinguished or not was the question Popham and Gawdy said the Condition is extinguished for it is impossible for the Executor to enter upon himself Clinch Fenner è contra The debtor marrieth the Executor for he hath the Term jure proprio and the Condition as Executor and so he hath them as in severall capacities Cook It hath been adjudged where a man is indebted and marryeth with the Excutor and the Executor dyes yet this is no devastavit for the Husband hath been charged 118. RIchard Thorn Administrator of an Administrator and Jane his Wife as Administratrix of one I. Gime brought Debt of xx l. against I. S. And alleged that the Testator was Administrator of one Mary Gime which Mary Gime lent the money to the now Defendant Trin. 36. Eliz. and Judgement was given in the Common place against I. S. And upon the Writ of Error Error was assigned for that that the now Plaintif as Administrator of an Administrator brought this Action where the Administration of the first Testatators goods ought newly to have been committed by the Ordinary to the next of Kin and he to whom the Administration of the goods of the first Administrator is committed hath nothing to doe with them And so the Iudgement was Reversed 119. HUmble brought Debt against Glover for arrearages of rent Privity determined of both parts and the case was this that a man made a lease for term of years and after granted the Reversion to the Plaintif and after the Lessee for yeares assigned over his whole estate and interest and after this assignment rent was behind and the Grantee of the Reversion brought Debt against the first Lessee for rent due after his estate assigned over and whether Debt will lye against the Lessee after the assignment was the question and the opinion of all the Judges was that no Debt lyeth for the Grantee of the Reversion against the first Lessee after the assignment of his term for when the privily of the estate is determined of both parts no Debt lyeth and so the Plaintif was barred 120. IN Evidence between Maidston and Hall Maintenance Popham said that it was agreed in the Star Chamber if two are at issue in any Action It is not lawfull for any stranger to labour the Jury to appear for for such an Act one Gifford was fined in the Star-Chamber Giffords case Gawdy Truly the Law is so for labouring of Juries is maintenance 121. DIckâ—ns brought an action of trespass against Marsh Estaâ—e by Devise and a speciciall Verdict was found that R. D. being seised of certain lands in Fee had issue three children to wit John Toby and Mary and by his Will devised that after his debts paid he giveth all his goods lands and moveables unto his three children equally between them Altam There are two matters to be considered in the case the first is what estate the children have by this devise whether Fee simple or but for life the second is whether Joyntenants or Tenants in commn and as to the first point I think they have but an estate for life for it appeares 22 H. 6. 16. If I devise land to one without expressing what estate he shall have Dyer 23 Eliz. 371. he is but Tenant for life but if it be expressed in the devise No estate expressed that the Devisee shall pay 20. s to John S. there as the book is 24 H. 8. R. 125. the Devisee shall have Fee simple For the
second point he said they were Joyntenants and not Tenants in common Consideration but if the wordes of the Will had been Part and part like that they shall have part and part alike there they are Tenants in common and not Joyntenants Tanfield è contra For if they were Joyntenants for life Reversion descendeth to a Joyntenant and the reversion descend to one of them that will never drown the estate for life for the benefit of the Survivor And if a man give land to two men for their lives the Remainder to the right heires of one of them yet they are Joyntenants and the Survivor shall hold place and albeit the words are equally between them yet this shall be intended equally during their estate and it hath been taken for a difference if I devise my land to two equally divided between them there they are immediately Tenants in common and not Joyntenants but if the words had been equally to be divided between them there they are Joyntenants untill division be made for that that it is referred to a future time Gawdy Justice I think they have but estates for life for consideration of blood is not so effectuall as consideration of money Blood Money Difference for if I bargain and sell my land for money without expressing any estate the Bargainee hath a Fee simple but if in consideration of naturall affection I covenant to stand seised to the use of my son and do not express any estate there my son is but Tenant for life and for the second point I think they are Tenants in common and not Joyntenants for the case is no other but as if he had said I give my land to my children by moities amongst them By moities and then there had been no question but that they had been Tenants in common Popham Clinch For the first point no estate but for life passeth if any estate pass for it is doubtfull if any estate pass or not for the Will is that after his debts paid Only Lands lyable he giveth all his lands goods and moveables c. And therefore Popham thought that such Lands which were liable to Debts should pass A Term. and no other For if the Devisor had had a Term then it seemeth no Land should pass But admit the Land do pass then if I devise Land to two equally divided between them they are Tenants in Common But if I devise Land to two equally to be divided between them by I. S. now untill Division they are Joyntenants So I think where the Devise is equally to be divided between them that they are Joyntenants quousque Division because of the reference future 142. IOhn Cole made a Lease for years to one Taunton Devise is a demise Hil. 36 â—liz rot 376. upon Condition that if the Lessee shall demise the Premises or any part of it other than for a year to any person or persons then the Lessor and his Heirs may re-enter the Lessee after devised it by his Will to his son Popham Gawdy Fenner It is a breach of the Condition and the case of 31 Hen. 8. 45. ruleth the Law in this case for a Devise is taken for a breach of the Condition v. 27 Hen. 8. 10. Quaere if he might not have suffered it to come to his son as Executor 123. A Man seised of a Wood granted to another a Hundred Cords of Wood to be taken by Assignment of the Grantor Grant before property vested and before Assignment the Grantee granted that over and whether this Grant be good or not being before Election was the question And the better opinion was that it is not grantable over for no property was Vested in him before the Assignment and if the Grantor die before Assignment the Grant is void and his Executors if he die shall not have it 124. BRewster brought Error against Bewty upon a Judgement given in the Common place in a Replevin A Jurâ—rs name in the distringing mistaken and it was Assigned for Error for that that Kidman was retorned in the Venire fac and Bidman was retorned in the Distringas habeas corpora Tanfield said it was apparent Error and to prove that he cited Parkers case where in an appeal Palus was retorned in the Venire fac and Faulus was in the Habeas corpora and Paulus was sworn and therefore Error And between Cobb and Paston a Juror was named Hantstrong in the Venire fac and Hartstrong in the Distr and adjudged ill Cook said that it might not be amended And to prove that he cited 9 Edw. 4. 14. 27 Hen. 65. where it is said no Amendment after Judgement for thereby the Attaint of the party shall be tolled and in a case between Crosby and Wilbet George Thompson was retorned in the Venire fac and Gregory Thomson was in the Distr and could not be amended after Judgement Gawdy It is hard to amend the Distr for the Book of 27. Hen. 6. is that it shall not be amended for the Distr is the Awarding of the Court and for that he cited 14 Hen. 6. 39. where a Juror was retorned by the name of Hodd and in the Habeas Corpora was named Lord and when the default was espied they awarded a new Habeas Corpora But in the Book of 22. Hen. 6. 12. the Sherifs retorn was amended but not the Writ And 34 Hen. 6. 20. The Prior of St. Bartholomews case where in the Fenire fac there were 24 retorned and in the Habeas Corpora but 23. and so a Juror omited and holden that it could not be amended But after the opinion of the Justices of England was that it should be amended insomuch that it appears by examination the same party in the Venire was sworn and so no damages to any 125. PAnnell brought Trespass against Fenn Devise to execute And the case was such that a man was Possessed of a Term and made M. his Wife and G. Fenn his Executors and devised all his Term to them and that they shall have the Term untill all his Debts and Legacies were paid and all such charges in suit of Law as they should expend the Remainder to John Fenn in tail the question was whether the Executors take as Devisees or as Executors Gawdy said if they take as Devisees then if the one of them grant all the Term no more but the Moity passeth and then the Grantee and the other Executors shall be Tenants in Common But if they take as Executors then when one Granteth the Term all passeth as 29 Hen. 8. is Clinch Fenner said they shall take as Executors for it is the proper function of an Executor to entermedle with the Will Gawdy If I make two my Executors Proper benefit and devise the profits of my Land to them untill my Debts and Legacies be paid and untill they have levyed 100. l. after that to their own use I
the Statute 134. NOta per Cook Attorney Generall Distinct grants that the Lord Keep 〈◊〉 that is was of Counsell in a case inter Harlakenden and A. where it was adjudged that if a man make a Lesse for years of Land excepting the Wood and after the Leasor grants the Trees to the Lessee and the Lessee assigned over the Land to another not making any mention of the Trees now the Trees shall not pass to the Assignee as annexed to the Land for the trees and Land are not conjoined for the Lessee had severall interests in them by severall Grants 135. THomas against King Ejectment and the Title of the Land was between Sir Hugh Portman and Morgan And the Ejectment was supposed to be of 100. Acres of Land in Dale Sale and the Jury found the Defendant guilty of 10 Acres but did not shew in what Town they lay whereupon Haris Serjeant moved in arrest of Judgement for that it doth not appear where the Sherif may put the Plaintif in Possession Et non allocatur for the party at his perill ought to shew unto the Plaintiff the right land for which Judgement was given for the Plaintif 136. O Land against Bardwick and the case was this that a woman being possessed of Coppihold land for her Widowes estate sowed the land Forfeiture of a particular tenant and after took the Plaintif to Husband and the Defendant being Lord of the Mannor entred and took the Corn and the Husband brought an action of Trespass Clinch I think the Woman shall not have the corn Lease by Tenant for life but if the Wife had Leased the Land and the Lessee had sown it and after the Wife had maried and the Lord had entred yet the Lessee shall have the Corn. But in the case at bar the Woman her self is the cause of the Determination of her estate for she committeth the Act and therefore shall not have the Corn no more Forfeiture than if Lessee for life sow the Land and after commit forfeiture and the Lessor enter in this case the Lessor shall have the Corn. Fenner At the first the State of the Woman was certain viz. for her life but yet determinable by Limitation if she mary And if a man which hath an Estate determinable by Limitation sow the ground and before severance the Limitation endeth the state yet the party shall have the Corn which he hath sown And in the case at the bar there is no Forfeiture committed which gives course of Entry nor no dishinheritance or wrong made to the Lord as in the case where Tenant for life after his sowing commits forfeiture and if a man enter for breach of a Condition Entry for condition broken he shall have the Corn and not he that sowed the same for that his entry over-reacheth the state of the other but in this case the entry of the Lord doth not overâ—ach the Title of the Woman for he shall take that from the time that the Limitation endeth the Estate and not by any relation before For the Act of the Woman is Lawfull and therefore no reason he shall lose the Corn Popham Chief Justice It is cleare Forfeiture if Tenant for life sow and after commit a Forfeiture And the Lessor enter he shall have the Corne 〈◊〉 the like is it if the Lessee after the sowing surrender his Term the Lessor Surrender or he to whom the Surrender was made shall have the corn but if Tenant for life make a lease for yeares Lease by Tenant for life and after commit a Forfeiture and the Lessor enter now the Lessee shall have the Corn and in the case at bar if the woman had Leased for yeares and the Lessee had sowed the land and after she had taken Husband now the Lessee and not the Lord shall have the corn for the act of the Woman shall not prejudice a third person but when she her self is the party Knowledge and hath knowledge at the time of the sowing what acts will determineâ—er estate then is it reason if she by her own act will determine her estate that she shall lose the Corn For if Lessee for life sow the land Lessee praies in aid and after pray in aid of a Stranger now if the Lessor enter he shall have the Corn And so if Tenant at Will sow the Land Tenant at will determines his own Will and after determine his own Will the Lessor shall have the Corn but otherwise it is if the state be determined by the act of law or of a third person so that no folly was in him that sowed Fenner If the Husband and Wife were Lessees during the coverture Determination by the act of the Law of a third persoâ— and after the Husband sowes the land and then the Husband and Wife are divorced yet the Husband shall have the Corn for that the Husband at the time of the sowing had no knowledge of the Act which determined his interest Divorce So in this case the Woman at the time of the sowing did not know of the future Act which determined her interest and therefore no rason she should lose the Corn for the Corn is a Chattell in her Grant for if she had either granted them or been outlawed after the sowing and then had taken a Husband Now the Queen in the case of the outlary or the Grantee in the other case and not the Lessor Outlary shall have the Corn. Popham I will agree the case of the divorce to be good Law For that is not meerly the Act of the party but allso of the Court but in the case at bar the taking of the Husband is the Voluntary Act of the Woman per que And after Judgement was given against the Husband which was the Plaintif 137. A Scough brought a Writ of Error against Hollingworth upon a Judgement given in the Common place in a Writ of Debt brought upon a Statute Merchant Statute Merchant And the case was that Ascough came before the Maior of Lincoln and put his seal to the same Statute and the Kings seal was also put thereunto but one part did not remain with the Maior according to the Statute of Acton Burnell And it was adiudged a good Obligation against the Partie albeit it is no Statute Godfrey I think the Judgement ought to be affirmed and he cited 20. E. 3. accompt 79. And it is clear that a thing may be void to one intent and good to another by 10. Eliz. but Popham and Fenner were of opinion that it was hard to make it an Obligation for in every contract the intent of the parties is to be respected Intent in every contract And here the intent of the parties war to make it a Statute for the Kings seal is put to it and a Statute needs no deliverie butan Obligation ought to be delivered otherwise it is not good