that he agreed if one say of another that he was foresworn in a Court which is not a Court of record that none action will lye because the party is not punishable for that in perjury but in our case the commission issued out of the high Commission Court which Court to the examination of witnesses is in nature of a temporal Court and had been confirmed by act of Parliment and Serjeant Harvey argued to the contrary that the first words are not actionable and then the subsequent words are uncertain and yet if one say of another that he was foresworn at the Common Pleas barre the words are actionable for it shall be intended that this was upon examination in the execution of Iustice Hobert if a man is foresworn in a Court Baron before the Steward this is perjury but in our case the words are altogether uncertain for it doth not appear what authority the Commissioners had nor yet in what manner he was forsworn and Iustice Hutton said if one man say of another he was foresworn before the Bishope of S. this is not actionable but if one say of another that he was forsworn before the Bishop of S. upon examination by him by vertue of a Commission issuing out of the Chancery this is actionable and Hutton agreed to the case of the Court Baron the same Law by him if that be in a Court Leete but in the principal case Iudgement was arrested Wase against Pretty Ent. Hill 16. Jac. Rot. 1716. WAse against Pretty Ent. Hill 16. Iac. Rot. 1716. in an ejectione firme the case was that one joynt Coppiholder did release to his companion and the question was whether this is good without surrender and admittance for it was objected if this shall be good then a Coppihold shall pass without the assent of the Lord but it was resolved by Hobert Warberton and Winch Hutton being absent that the release is good and Warberton said that by Littleton if 3. Ioyntenants are and one of them release to another he to whom the release is made is in by the releasor but if there are but two then he is in by the Lord or from the first conveyance Winch if two Ioyntenants are in capite and one release to the other the King shall not have a fine for this Alienation but Hobert said that the practice is otherwise at this day but he said that when one joynt Tenant releases to another he is in by the first conveyance and in the case in question the release shall be good without surrender and admittance for the first admittance is of them and of every of them and the ability to release was from the first conveyance and admittance it seems if a Tenant in Capite alien upon condition and afterwards he enters for the condition broken he shall not pay a fine for such an alienation Hitcham Serjeant said that if land be given to two upon condition that they shall not alien and one releaseth to the other this is no breach of the condition Hobert if the King grant you his demeasnes you shall not have his Copihold Winch said that it was adjudged in this Court that where one erected a house so high in Finsbury fields by the wind mills that the wind was stopped from them that it was adjudged in this case that the house shall be broken down Goddard against Gilbert GOddard brought an action upon the case against Gilbert for these words thou art a thiefe and hast stolen 20 loads of my furzes and upon not guilty pleaded it was found for the Plantiff and it was moved in arrest of judgement by Hitcham that these words are not actionable for though the first words of themselves had been actionable yet when those words are coupled with other words which do extenuate them it is then otherwayes for if a man say thou art a thiefe and hast stollen my apples or my wood it shall be intended that the apples and the wood were growing and he said there is no difference to say in this case you are a thiefe and have stollen 20 loads of my furzes but it was said by Iustice Warberton that the furzes shall be intended to be cut for that is the most natural and proper signification of the words and Hobert chiefe Iustice said that it is true that it is the most proper signification of the words but yet they are furzes when they are growing as well as when they are cut down and Hobert chief Iustice said if a man say of another thou art a thief and hast stollen my corn in this case the words shall be taken in the better sence and judgement in the principal case ought to be arrested and it was the opinion of him and of Winch that there is no difference where a man said thou art a thief and hast c. and thou art a thief for c. ut supra but it was adjourned Winch Iustice said I was of counsel in the Kings Bench in a case where a man had a window in the backside of his house and another man erected a wall within a yard and half of that in his own ground and adjudged in an action upon the case that the wall shall be broken down Warberton certainly this was an antient house but Winch said that made no difference It was ruled that after imparlance in debt upon an obligation the Defendant shall be received to plead that he was alwayes ready to pay notwithstanding it was strongly urged 13. Eliz. Dyer 306. is to the contrary Gilbert Lewings against Nicholas March. GIlbert Lewings brought an action of covenant against Nicholas March and deâ—lared that Charles Cornwallis had granted the next avoydance to the Church of D. to Thomas March and that Nicholas March was his Executor and that Nicholas March assigned this to Gilbert Lewings his executors and assignes to present to the same Church when that shall become void and covenanted that the same person who shall be so presented by him shall have and enjoy that without the let or disturbance of the said Charles Cornwallis or Nicholas March or any of them or any by their procurement and after Gilbert Lewings presents I. S. and after I. W. presented an other claiming the first and next avoydance by the procurement of Charles Cornwallis and ruled that the declaration was not good for it ought to say that Charles Cornwallis granted to I. w. the next avoydance and procured him to disturbe and that by his procurement he was disturbed Athow It seems to me to be but little difference to say he disseised me by the procurement of I. S. and he commanded I. S. to disseise me and he did that accordingly at his command Sir Edward Sackvil against Earnsby VPon a motion made by Sir Randal Crew in the behalf of Sir Edward Sackvil against Earnsby the case was that two brothers were seised of land to the eldest for life the remainder to the youngest in tail and they
son and his wife and upon a demurrer the question was whether this Covenant did raise a present use to the Son and to his wife or whether this only rests in Covenant and Harris Serjeant argued that no present use will arise by this Covenant for first all other Covenants in the indenture are in the future for the words are that the lands shall remain and come c. and therefore till the death of the Covenantor the fee simple is in him and no use will arise for it shall be in the election of the Covenantor what estate he will make to his Son for he himself shall interpret his intent and the difference in our books is when the words are in the present tense and when in the future and for this he cited 22. H. 7. by Iustice Rede if a man Covenant that land shall discend remain or revert he said this did not give any present interest because the wors are in the future and it is in the election of the Covenantor how and in what manner the land shall pass and there he put the case that if I give my horse or my Cow to I. S. there the Donee had election to take at his pleasure the one or the other because the words are in the present tense but if the words are that I will give a horse or a Cow there the Donor had election which he shall have because the words are in the future the Lord Borroughs Covenanted 34. H. 8. Dyer 55. with another in frank marriage with his son that immediately after his death his son shall enjoy the use of his land of inheritance according to the course as then they stood and the question was whether the see simple was presently out of the Covenantor and the opinion was that it was not because it was but a Covenant and did not change the fee simple and so is Dyer 96. Sir Thomas Seymor promised and Covenanted by indenture in consideration that the Covenantee had granted land to him that he would leavy a fine to Wimbish and Pennoy of other lands which fine should be to Sir Thomas Seymor for life the remainder to the Covenantee in taile and no fine was levied and the question was whether any use was raised by this Covenant to the Covenantee and the opinion of the book is that not because it is in the future and he cited the 20. H. 7. 10. the Duke of Buckingham in consideration that the Lord Henry his brother was to marry the Lady Wiltshire he Covenanted with Bray and with others that the Mannors of D. and of S. shall be to the Lady and to her heirs of her body begotten by the said Lord and after the Duke granted to the Lord Henry and his wife for their lives and it was argued whether this second grant is good or no for if it is then the first Covenant will not work to raise an use to the feme and the book left that as a quere and if it be then he argued that in the principal case no present use is raised but that this rests meerly in Covenant and so he prayed judgement for the Plantiff Serjeant Hendon to the contrary for he thought this will raise a present use and that this was the intent of the parties that this should raise a present use for the intent was to advance them first during their lives with the rent and after the death of the Covenantor and his wife with the land it self and therefore of necessity this will raise a present use for a bare action of Covenant may not be any advancement at all and the rather here because they who take benefit of this are strangers to the Covenant and not Preston himself for as it appears by 3. H. 7. a stranger shall not take benefit by a Covenant and therefore he said the intentions of the parties was to raise an use for otherwise there shall be no advancement at all And further the words in the indenture are Covenant and grant and if no use is raised then this word grant is idle and every word shall be so expounded that they may take effect and the word Covenant is insufficient of it self to pass an estate in land or to have any estate in signification other then to a meer Covenant and to be obligatory as is put Co. 2. Cromwels case Tirrels case there vouched a lease for years provided and it is Covenanâ—ed and agreed there the Covenant is a condition and also a Covenant and 8. Ass 1. 12. it is agreed that if I Covenant that an other shall have my land for 7. years this a good lease of the land it self and it was adjudged here Tr. 2. Jac. Rot. 1696. accordingly and in our case this word Covenant and grant is also sufficient to raise an use and to give an interest in the land it self and yet he agreed that if there was an other act to be made by the Covenantor or the Covenantee that then no use will arise but it shall rest only in Covenant Dyer 162. there are Covenants between the Lady Vere and Sir Anthony Wingfield her son that the said Lady would convey to her son by a recovery and that after 6. moneths the said Sir Anthony shall make an estate to his Mother for life and there it is doubted whether the use is changed within the 6. moneths and it was holden that it was not Mich. 20. Jac. C.P. for then it is impossible that the Covenants should be performed and in that case it is in the power of the Covenantor to make an act that the Covenants shall not be performed and therefore Covenants will not raise an use but in our case no act of the Covenantor may hinder that this use shall arise and therefore good and for that the difference is Dyer 296. which is entered 11. Eliz. the Roll of which I have seen the father upon the marriage of his son promised to the friends of his wife that after his death his son shall have his land to him and his heirs and the book is ruled that this did not change the use and the reason was this Covenant was by words and not in writing but it was not doubted if this Covenant had been by writing but that the Covenant will raise an use which is all one with our case and so was Callard and Callards case 37. Eliz. stand forth Eustace reserving to my wife and my self I give to thee and thy heires and there it was doubted whether any use will arise to the son and ruled that not because this was by words only but it was also agreed that if these words had been by writing they had been sufficient to raise an use to the son and he cited Dyer 232. before the Statute of the 27. H. 8. A Covenanted and agreed with B. that upon the marriage of his son with the daughter of the other that he would retain his land for life and that
had said that he took money for ingrossing of Feodaries which is desceit without question that had been actionable but there may not be Couzning without desceit And he cited Boxes case where one said of an Attorney that he was a maintainer of suits and a Champerter action lies for it shall be taken to be a scandal to him in his profession for though an Attorney may maintain suites yet he ought not to be a Champerter and he further said that he who will maintain an action for words ought to be scandalized in his publick profession and he cited a case which was in the Kings Bench Brad against Hay and the Plantiff declared that he was Bailiff to such a one and that he had the buying and the selling of his Corn and that the Defendant said of him that he sold by false measures and adjudged that no action lies for it is not a scandal to him in his publick profession and so 36. Eliz. one said of a Merchant that he kept a false debt book and because he may be a Merchant without a debt book it was ruled that an action doth not lie but if he had said of him that he deceived men by buying and selling these words had been actionable and he said that two things are required to every publick profession science and fidelity and when a man who hath a publick profession is scandalized in either of those an action of the case lies and cited Palmers case of Lincolns Inne he being a Lawyer 't was said to him by one that he had as much Law as a Iackan-apes and adjudged to be actionable for it is a scandal to him in his profession and so Sir Miles Fleetwoods case where he who is Plantiff in this action was Defendant in that he being receiver of the Court of Wards one said to him Mr. deceiver hath Couzned the King and hath dealt falsly with him and adjudged that an action upon the case lies and yet he did not shew wherein he had Couzned him or dealt deceitfully with him but yet because it appears to the Court that he might deal deceitfully and Couzen the King therefore actionable and he cited Birchleys case you have dealt corruptly an action lies and yet he did not shew wherein he had dealt corruptly and here he had said he was a Couzner by the receipt of money which is an express scandal to him in his office Winch accordingly to every office of trust is a condition in Law annexed that he deal honestly and justly and he cited Wingates case in the Kings Bench one said to another is Wingate your Attorney and the other said that he was and the other replied take heed and follow him well for else he will make you throw your purse over your bosome and it was adjudged that an action lies for it is a scandal to him in his profession and it shall be taken as much as if he had said he will make you spend all the money in your purse if you look not the better to him and so applied this to the principal case and in this case judgement was commanded to be entered for the Plantiff in the action if no other cause be shewed before such a day An action upon the case was brought for these words the Plantiff did load a ship of my Fathers with Barley and did steal and Couzned 7. quarters thereof in measure and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of judgement that the word Cozned being joyned with the word stole had taken away the force of that and made it but Cozning but Hutton contrary and that it shall be understood that he stole 7. quarters in measure and quantity and Winch seemed to agree and it was adjourned and an other day awarded that an action lies Godfrey Wade Alias Mack-Williams case GOdfrey Wade and others in an ejectione firme and the case upon a special verdict was to this effect Henry Mack-Williams the father was seised of land and being so seised he conveyed that to the use of himself for life the remainder to his wife for life the remainder to the heires of their two bodies engendred the remainder to the heires of the bodie of Mack-Williams the Feoffor and the remainder to his right heirs in fee and he had a son by his wife named Henry and 5. daughters and he died and afterwards the son in the life of his Mother by deed indented leased to White-Head for 31. years rendring rent and afterwards he leavies a fine to the use of himself and his heirs in fee and died and after whose death the Mother suffered a recovery within six moneths in which 4. of their husbands were vouched and the recovery was to the use of the feme for life the remainder to every one of the daughters in fee and the sole doubt was whether the lease made by Henry the son is defeated by this recovery and it was argued by Harvey Serjeant that the lease shall stand good notwithstanding this recovery suffered by the Mother for he said that Henry Mark-Williams being issue in tail and also being heire to the remainder in fee who made this lease by indenture in this case this lease issues as well out of the estate taile as out of the reversion in fee and the fine leavied in the life of his Mother binds and bars the estate taile at the time of the fine and then the lease being drawn out of the reversion in fee which discended to the daughters after the death of their brother this reversion shall be charged with the lease and the recovery had not destroyed that and this case will differ from Capels case for it is agreed if tenant in tail bee the remainder in fee and he in remainder in fee granted a rent charge and after Tenant in tail suffer a recovery by this the rent is destroyed for there he who suffered the recovery was Tenant in tail in possession but in our case when the son had leavied a fine in the life of his Mother by this fine the tail is destroyed and the Mother is become Tenant in tail after possibility of issue extinct which is only an estate for life in quantity and then though she suffers a recovery yet this doth not destroy the lease made by Tenant in tail when there was also a fine leavied to confirm that Secondly he argued that when the issue in tail in the life of his Mother made a lease for yeares by indenture and then leavied a fine and died and then the Mother being Tenant in tail and joyntress within the Statute of 11. H. 7. as in our case she is and she suffers a recovery and vouches the daughters in reversion and lessee for years enters after the death of the feme by force of 11. H. 7. for lessee for years is a person who may enter within the express words of that Statute which gives entrie to any person
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest
the very Common Law see Ouleys case 19. Eliz. in Dyer but Hutton doubted whether this bond is void by the Common Law because the Statute of the 23. H. 6. inflicts so great specialty upon the Sheriffs for extortion and after judgement was Commanded to be entred for the Defendant in the action if no other matter be shewed to the contrary before such a day In trespas quare vi et armis one such being his servant cepit et adduxit at D. in Essex the Defendant pleaded that he was a vagrant in the same Countie and he not having notice that he was servant to another he retained him and it was moved by Finch if I retain the servant of another man in the same Countie where I and his Mr. inhabit this is not justifiable though in veritie I had not notice of that and this according to the express book of the 19. Ed. 3. 47. Hobert the book may not be law for it is a hard matter to make me take notice of every servant which is retained in the same Countie and yet perchance if this retainer be upon the Statute of labourers at the Sessions this is notorious and I ought to take notice of that at my peril but it is otherwise of a private retainer for though it is within the same Countie yet being a private matter in fact the Law will not compel me to take notice of that at my peril otherwise if this be matter of record 2. H. 4. 64. and Hobert and Winch seemed to agree and then Finch moved that the Plantiff had charged the Defendant with his servant by cepit et adduxit and the Defendant excused himself and never traversed cepit et adduxit see 11. H. 4. Hutton and Hobert the receiving and the entertaining of a servant may not be said to be vi et armis Mr. Spencers case HArvy Serjeant came to the barre and demanded this question of the Court in the behalf of Mr. Spencer a man was seised of land in fee and sowed the land and devised that to I. S. and before severance he died and whether the devisee shall have the Corn or the executor of the devisor was the question and by Hobert Winch and Hutton the devisee shall have that and not the executor of the devisor and Harris said 18. Elizabeth Allens case that it was adjudged that where a man devised land which was sowed for life the remainder in fee and the devisor died and the devisee for life also died before the severance and it was adjudged that the executor of the Tenant for life shall not have that but he in remainder and Winch Iustice said that it had been adjudged that if a man devise land and after sowe that and after he dies that in this case the devisee shall have the Corn and not the executor of the devisor nota bene Dodderidge against Anthony Entred Mich. 19. Jac. Rot. 1791. ENt. Mich. 19. Jac. Rot. 1791. Peter Dodderidge brought an action of accompt against one Anthony and he declared that he deâ—ivered to the Defendant so many pieces of cloath called Bridge-water red to be sold at Bilbo in Spain and the Defendant said that he sold the same cloath at Bilbo in Spain for 40. l. 18. s. English to be paid in May next insuing the sale which was in November before and over he alledged the Custome of Merchants to be that if any Merchant had goods in the same Kingdome to be sold to another Merchant and he sell the goods to be paid at a day to come and this is done before a publick Notary and thereby a Bill signed and acknowledged to him in his name who sold the goods and that if the Merchant who so sold the goods delivered the Merchant who was owner of the goods this Bill so taken in his name this shall be a discharge to him of the goods and he averred that he sold them to a Spanish Merchant and that he took a Bill accordingly and at London offered that Bill to the Plantiff who refused that and upon this plea the Plantiff demurred Attoe argued that the plea is not good because he had not alledged that the partie who takes such a Bill may plead that and the Custome is also alledged with an if if the party sell and if he take the Bill and not with positive averment that he may so sell and may so take the Bill which being delivered to the owner of the goods shall be a discharge to the factor who sold the goods and here this custome is not good by the Common Law for if I deliver goods to another to sell and he sell them to be paid the money at a day to come this is not good for he ought by his sale to make a compleat contract and if I sell my horse for 10. l. I may retain the horse till the money is paid for till then the contract is not compleat and so in this case and here the Plantiff shall have an action of accompt upon this delivery and if he sell them otherwise or do not sell them for ready money he had gone beyond his Commission and this Custome is unreasonable that the Bill shall be taken in his name who sold the goods but perchance if the custome had been alleadged to take the Bill in the name of the owner of the goods this had been good but in our case the owner of the goods may not sue nor have any remedy for his goods except the factor will go into Spain and sue the said Bill and it is unreasonable to leave this to the pleasure of my factor whether I shall have any remedy for my goods sold and it is very unreasonable that I shall be paid with a Bill which may not be sued and here the Plantiff is a stranger to the Custome of Spain and shall not be bound by that Serjeant Harris to the contrary the Custome which is alledged is good among Merchants though it is not good according to our Common Law and so if two Merchants trade joyntly and one of them dies before severance of the goods yet his executor shall have his part and not the Survivor and so by the law of Merchants a man cannot wage his law in debt upon a simple contract by which it is apparant that the laws of Merchants differ from our laws and indeed the laws of Merchants are National laws and that this is the Custome in Spain is confessed by the demurrer and then we may not examine that by the reason of our laws and the laws of Merchants ought to be favoured for trading sake which is the life of every Kingdome and by the law of Merchants a Bill without seal is good and yet by our law it is but an escrowl and so I pray judgement for the Defendant Hobert chief Iustice when the Merchant had delivered goods to the factor to sell he had made the factor negotiator gestorum and for that
contingencies by which these remote possibilities shall not be released Hoes case Coo. 5. there a release of all actions and demands to the Bailee made this void and in the case of Brown and Pell which was remembred before it was the opinion of all the Court against Judge Doderidge that where the devise was to the son in fee and if he died without issue living that then his eldest brother shall have that if in this case the second son suffer a recovery yet this had not destroyed the possibility which the eldest brother had to have the land and if a common recovery which is matter of record and the common assurance of the realm will not take away this possibility a fortiori a release which is but matter of fact and so he concluded and prayed judgement for the Plantiff Bawtry to the contrary and he said that if this remainder shall be good then the inconvenience which the judges had alwayes endeavoured to take way shall be on foot again as in the case of Chamley and Corbets of springing uses for if it shall be lawful for a man to limit a fee upon a Collateral condition or limitation then there shall be a perpetuitie and for this if any litteral construction shall be made upon such conveyances this will introduce dangerous events to inheritances and for that he held that limitation to the Plantiff to be meerly void for when the land is devised in fee this devisee by this had an absolute estate in fee and it shall be strange to give this to another though this be by way of devise for though the will of every man shall be supplied by the intent of the devisor yet his intent ought to stand with the rules of the law and otherwise his intent shall revert and for that he cited 29. H. 8. a man made two executors provided that one of them shall not administer here the intent did plainly appear and yet because the intent is contrary to the power which the law gives to every executor therefore it is void and it is put for a bare rule in Corbets case that such a conveyance which a man may not make in his life time by act executed he may not make by his Will but a man may not make such a conveyance by act executed in his life time for as it is said in Colthirsts case if a man let for life the remainder for life upon condition that if the first lessee do such a thing that then the land shall remain over to a stranger this remainder is void for when the land is given before this second limitation is meerly void and also the case is put that if a man give lands in fee upon condition the remainder over this remainder is void for the other had an estate in fee before by which it is apparant that when an estate is one time lawfully vested in any certain person there no limitation may give that to a stranger by any act executed in his life at the common law and then it shall not be good by way of devise 28. H. 8. Dyer a term was devised for years the remainder over and it was adjudged by Baldwin and by Shelley that the remainder in that case is void for when the devisor had given his term he may not limit this remainder over though this be by way of devise and this may be good law notwithstanding Lampets case for there the lease was devised and not the land and for that reason may be a difference and he vouched the case which was remembred by Richardson 29. H. 8. 33. and then as to the second point he held that the release was good admitting the first point to be against him for if the eldest son had any right by this release then this word right in the release will destroy and extinguish that and this possibility is not remote and forraigne for the condition or limitation is annexed to the estate and is not a subsequent condition which creates an estate and this depends upon an ordinary casualty which is common to all men and the payment of debts and of legacies is incident and common to every executor and as for Albanies case Coo. 1. the case was that a man had a power to revoke uses upon the death of a stranger without issue and resolved that this power may be released and yet his power depended upon two contingencies death and death without issue and the case is also there put if A. infeoffe B. upon condition that if B. Survive C. and then if A. and his heirs pay to B. 10. l. that then he shall enter in this case there are many contingencies involved in one conveyance and yet it is there said that these contingencies may be released and in Lampets case Coo. 10. there are six reasons wherefore such a contingencie may be released and our case is within all the reasons which are there mentioned for the words in the release as have been remembred by my brother Richardson are all one with our case and the first reason is because this is a Chattel which as it may be easily created so it may be easily destroyed to this he gave answer that this remainder of a Term was an interest to him who released and so in our it is an interest of a remainder to the Plantiff and for that the release is good Secondly it is a maxime in Law that every land may be charged one wayes or another and we are within this reason also for if this estate be in the Plantiff then this may be released Thirdly the foundation of every act ought to be regarded for Grants case there vouched destroyes the possibility with a fine by reason of the original act the fourth reason there remembred is because that if the devisee had been dead his Executor shall have the interest the same reason in our case if the Plantiff had been dead before the remainder or the contingencie hap yet his heir shall have that See Shelleys case the fifth reason is the legacie was in present though this was to take effect in futuro and so in our case the Will is in present though the state is to take effect in futuro and sixthly it shall be against reason to establish such a perpetuity of a Chattel and so in our case it shall be against reason to establish a perpetuity of a franktenement and the release is very well penued for it is of all his title right and claim to the reversion and remainder which the father devised to the Plantiff and so the release is not general but this is a particular and special release of that which was devised to him by his father and Hoes case Coo. 5. is not like to our case for first there the duty was altogether incertain and secondly the condition there did precede the duty but in our case the condition is annexed to the estate and so he concluded and
in capite and others in Soccage and he made a devise of all his fee simple lands and left only his lands in tail to descend to the heir which doth not amount to a full third part this is a good devise of all the fee simple lands and this case was also admitted that where the Lord Norrice gave land to Sir Edward Norrice his youngest son and to the heirs of the bodie of the father and then the Lord Norrice died and after Sir Edward died without issue that the son of the eldest Brother who was then dead shall take that as heir in tail and that he in this case had that by a descent from Sir Edward Norrice his Vncle which also doth clearly prove that in this Sir Edward Norrice son of the Lord Norrice was in this case Tenant in tail The residue of Easter Term in the two and twenty year of King James Stephens and Randal IN replevin between Stephens and Randal who made Conusance as Bailiff to the Earl of Bath and he shewed that such land was parcel of such a Chantrey which came to King Edward 6. by the Statute of 1. Edward 6. and also he pleaded the saving of the said Statute by which the right of others was saved and pleaded all incertain and shewed that so much rent was behinde upon which he made Conusance as c. to which the Plantiff replied that the land is out of the fee and signiorie of the Earl of Bath c. and this was ruled to be no plea for he confessed so much in his avoury and this avoury is not for rent service for the signiorie is extinct by act of Parliament but this is for rent reserved by the saving of the act of Parliament and this is a rent seek and yet is destrainable for the priviledge which was before but he may traverse the tenure that at the time of the making of the Statute nor never after this was holden of the said Earl of Bath Priest and King Priest and King in an action of which was entered between them Trin. 21 Iac. Rot. 3595. and this was debated between the Iudges and the Prothonotaries and the case was that two were bound for the appearance of an other and judgement was given against the debtor now if upon the capias he come and offer his bodie and the Plantiff refuse that yet that discharges the sureties but the Prothonotaries said that notwithstanding this refusal he may take a Capias against him within the year because that at the first he might have had a fierie facias or an elegit quere of that but Winch thought that in this case he ought to have a fierie facias but if he had come upon the Capias and had no suerâ—tes and he refuse to take him and this is so entred now quere if he had not discharged him Hendon moved the Court for a prohibition to the spiritual Court and suggested that one had libeld in the spiritual Court for a legacie and the Executor shewed that he had not assets to discharge the debts of the Testator and that Court would not allow this allegation and upon this he prayed to have a prohibition and it was the opinion of the Court that no prohibition shall be granted for the legacie is a thing meerly which is determinable in the spiritual Court and no other Court may have Conusance of that and this is also a thing which doth consist meerly in the discretion of the Court and resolved that in a thing which meerly doth rest in discretion of the Court in this case no prohibition shall be granted Henry Good against Thomas Good IT was agreed in the case by the Court between Henry Good and Thomas Good that if the devisee of 500. l. sue in the Marches of Wales for this legacie that a prohibition is grantable for though the Court of the Common pleas had no power to hold plea of that yet because that the thing is only triable in the Ecclesiastical Court a prohibition may be granted to reduce that to its proper Court and though the instruction of the Court of the Marches be to hold plea of all such things wheresoever there is no remedie at the Common Law yet this is to be understood of matters of equitie and not to take the jurisdiction from the spiritual Court for in verity the King may not do that by his Letters pattents but yet the Court agreed that if the Executor do suffer a decree against him in the Court of the Marches and not come to them at the first to be releived it is now meerly in the descretion of the Court whether they will grant that or no for that is a means to lengthen suits and to make the more delay before he do recover his legacie If a Capias ut legatum issueth to the Sheriff to take the partie and to enquire what lands and Tenements he had and the Sheriff findes by inquisition that he is seised of many lands and continues possession in them and the Sheriff do out me I shall have an action of trespass John Marriots case SErjeant Crawley moved this case in arrest of judgement in the case of Iohn Marriot and he declared upon a contract to table with the Plantiff at Ashton in Northamptonshire ad tunc ibidem superse assumpsit to pay 4. s. by the week for his diet and Crawley moved that this ought to have bin tried in Northamptonshire for these words ad tunc et ibident refer to Northamptonshire which was next before and not to London Hutton said that it ought to refer to London otherwise it was idle and it is to be intended of the time and the place where the promise was made but it was said if the issue had been whether he was tabled or no this shall be tried there Giles Bray against Sir Paul Tracie GIles Bray brought an action of waste against Sir Paul Tracie and in his declaration he conveyed a good tearm to the Defendant and a reversion to himself and upon a general issue a special verdict was found to this effect that Sir Edmund Bray was seised of this land in his demeasne as of fee and he being so seised 16. Eliz. made this lease for divers years to I. S. and he being so seised of the reversion conveyed that to the use of himself for life without impeachment of waste and then to the use of Edward Bray his eldest son and to Dorothie his wife and to the heirs males of the said Edward upon the said Dorothie to be ingendred and then Edward died having issue in tail the Plantiff and then this lease was assigned to Tracie and then Dorothie died and then the waste was committed and then Edmund the Grandfather died and the question was whether in this case an action of waste will lie or no. The argument of Serjeant Harris HArris argued that the waste doth lie for the priviledge or despensation which was annexed to the
the year and afterwards the money not being paid Hickman sued forth a Capias ad satisfaciendum against Sir William Fish directed to the Sheriff of Bedfordshire for 210. l. and now upon a habeas Corpus Sir William Fish was brought to the bar and Serjeant Crawley moved for a supersedeas for him because the writ emanavit improvide c. and by the Court it is a cause to discharge him of the execution for the Capias ought to have issued for 200. l. only and he ought to have sued a scire facias though this was after the year because the Proces was not continued but they said withall it was in their discretion whether they will grant a supersedeas for they may put the Defendant to his writ of error It was ruled that if an action of debt was brought and the venire facias to trie the issue is in placito debiti and so is the habeas Corpus and the Pannel but in the Iury Roll of the nisi prius at the latter end of the jurata there it is placito transgressionis and agreed in this case this is amendable or in this case it is good without amendment Wen against Moore THomas Crew Serjeant did move in arrest of judgement where one Wen brought an Action upon the case against Moore and upon non assumpsit it was found for the Plantiff and he said that the Colloquium was laid to be at Bourn in the Countie of Lincoln and the venire facias was de Vicineto de Born without the letter u. and for that reason that they are several Towns therefore error for if the entire Town is omitted the trial is insufficient but the Court held this to be very good without amendment and shall be intended to be the same Town It was moved in arrest of judgement by Serjeant Finch that where one had brought an Action upon the case against one and shewed that the Defendant in consideration of 12. d. given to him by the Plantiff he assumed and promised that if the Plantiff may prove that he cut quandam arborem upon the land of Sir Francis Vain tunc crescent that he would give to him 10. l. and this being proved by the Plantiff it was now moved in arrest of judgement that quandam arborem is an individual tree and it ought to be aliquam arborem and another cause was alledged because it was not shewed that this was upon the land of Sir Francis Vain then growing but only he had said growing and that may be for perchance he purchased the land afterwards and before the Action brought and so it might be growing though not tunc crescent at the time of the promise but the Court c. Winch Hutton and Harvey seemed that the declaration was good for they said there is no question if quandam had been out this had been good for it is the singular number and he that certain or be that incertain yet by the verdict it is made certain that this is a tree and also those words tunc crescent do refer to the time when the tree was feld and not to the promise Holman against Sir Thomas Pope and Elizabeth his wife SErjeant Hendon moved in a case where an Action was brought by one Holman against Sir Thomas Pope and Elizabeth his wife as daughter and heir to Sir Thomas Watson and pending the writ Pope died and he moved that the writ ought not to abate because it is brought against her as daughter and heir where the land is assets in which the husband had nothing like to the case of an Executrix who brings her action in her own name and the name of her husband and pending the writ the husband dies the writ shall not abate but Justice Harvey said this case of Executors was adjudged against him and Hobert chief Justice was of opinion that the writ shall not abate but day was given over in that case Sir Thomas Holbeach against Sambeach IN the case between Sir Thomas Holbeach and Sambeach in a replevin where a demurrer was joyned the case was this one being Tenant for life and he in remainder in tail joyned in a grant of a rent in fee out of that and then they joyned in the levying of a fine to a stranger and his heirs and in this case it was said that the estate of the grantee of the rent which before was determinable is now made absolute and a judgement was also cited to be in that case lately adjudged to which the Court seemed to agree and they said if this be the point they will give judgement presently Crompton against Philpot. HEndon Serjeant moved in arrest of judgement in a case for Philpot a crier of this Court where one Crompton had recovered 40. l. damages against him in an action upon the case for words spoken against Crompton c. he innuendo the Plantiff stole a ring and had been hanged for that but for me and it was said in the first place that it doth not expresly appear that the words were spoken of the Plantiff himself neither is this introduced by any precedent Colloquium as it ought for otherwise the innuendo will not aide it but in veritie the declaration was that the words were spoken de eodem Richardo innuendo c. and also he said that the words are not actionable because that no value is exprest but it was ruled if that were but petie Larcenie the action lies but the Court gave no absolute opinion in the case for they were willing to compound for the poor man The residue of Michaelmas Term in the two and twentieth year of King James Brown and Ware against Barker BRown and Ware brought an action agaist Barker and they declared that whereas there was a suit depending between the Plantiffs and other Coppiholders of such a mannor in the Chancery against Brook their Lord and that one Woolsey was there Clark and that he for his fees and for the procuring of a decree had disbursed 14. l. and that there being a Communication between the Plantiff and the Defendant concerning the same he being a Coppiholder of the same Mannor that in consideration that they would pay to Woolsey 14. l. he would pay to the Plantiffs 40. s. upon request and the Plantiff shewed that they had paid the 14. l. and that the Defendant had not paid the 40. s. Licet postea saepius requisitus fuisset and upon non assumpsit pleaded it was found for the Plantiffs and now it was moved in arrest of judgement by Crook Serjeant First because he is a stranger to the suit for he had not alledged that the Defendant was a partie and then it is no consideration but this was over-ruled because they paid the 14. l. upon his request the second exception was that this postea saepius requisitus was not sufficient in this case because that he ought to express the certaintie when and the place where the request was made
ought to maintain the award but to shew the breach for it shall be otherwise if it be found against him and then Hendon answered to the other exception that this is not for direct usury but is rather for the damage which he sustained by the forbearance of the money and yet if it were for interest it is good and then as to that which now had been agreed by my brother Bridgman that contracts and obligations for usury are good I say then by the same reason an award for that is good for whatsoever a man may contract for the same thing may be awarded if the contract will bear that and usury is not malum in se but only malum prohibitum and is good by our law and here in this case though the Arbitrator was deceived in the summe yet after the award made it is altogether certain and an implied recompence is sufficient in this case but the Court said that the casting up of the accompts did not make an award for it is not a good Calculation but the ending of the controversies that doth make the award but yet the opinion of the Court in this case was that the award was good for an Arbitrement shall not be taken absolutely upon the bare words and the Court did command the parties to come before them upon the morrow in the Treasury and as it seems this was for mediation to make an agreement for the opinion seemed to be for the Plantiff The case of Hilliard and Sanders argued by the Court. IUstice Harvey this Term did argue the case of Hilliard and Sanders which see before and after a brief recital of the case he said that his opinion was that the avowant shall not have return because that by the fine of the lands the rent is extract and I am induced to be of this opinion by two things the first is the agreement and tâ—e other is the favourable exposition of the Statute of fines to settle repose and quiet and I will first shew the efficacie of fines at the common law 21. Ed. 4. the Pryor of Binghams case it is laid for a ground and rule in law if a thing be contained in a fine either expresly or implicitly this is very good and so is 44. Ed. 3. 22. 37. H. 6. 5. for a fine is no more then an agreement and therefore it is called in latin Concordia and then see if by any words you may pass this rent by the fine and though the word rent is not there yet if it be so infolded in the lands that is good with that it is very good and for that 3. H. 7. 16. 17. 21. H. 7. proves that by a feofment of the land the rent doth pass and wherefore not by fine then and this shall be within the Statute of 4. H. 7. and 32. H. 8. and a case may be out of the Statute of 32. H. 8. and yet be within the Statute of the 4. H. 7. as the 2. Ed. 3. in Dyer though the feme after the death of the husband she may enter upon the discontinues of the husband yet if she do not within 5 years she shall be barred and now you see that the construction of these Statutes was alwayes to settle repose and quietness for if such a construction should be made according to the opinion of Chornton in Smith and Stapletons case then it will be mischievous and for his opinion it was only in the way of arguing and yet I conceive he had the good opinion of the Reporter and without all question it is a case of as hard a construction as that is of Archers case where the heir who nothing had in the land in the life of his father did levie a fine this is a bar for ever and the reason is because it is of a thing which is intailed and he cited a case in Bendloes Reports where a discontinuee was disseised by Tenant in tail who levied a fine and the discontinuee entred and then proclamations passed that in this case the issue was barred truly I do agree the case of 36. H. 8. that that a fine levied of land did not bar him who had title of Common or a way the reason is because there is no privitie but in our case there is a privitie and by Margaret Podgers case a Coppiholder is within this Statute and in our case the rent passeth especially in regard of the agreement as in the Lord Cromwels case and he cited a case primo Jacobi between Gage and Selby in an ejectione firme where Gage was Tenant in tail and he levied a fine to I. S. in fee and after he levied another fine to the use of himself for life the remainder over and his brother brought a writ of error to reverse the first fine and ruled that he may not for the second fine had barred him of any writ of error and so I conclude the fine had extinguished the rent The argument of Justice Hutton to the contrary HUtton contrary the fine had not barred the rent in which I will consider the nature of fines at the Common Law and they were of mightie and great esteem and force as appears by the great solemnitie which is used in them as is prescribed in the Statute of fines 18. Ed. 1. de modo Levandi fines and he agreed that such a fine by Tenant in fee simple will pass that inclusively for by the release of all his right in the land a Signiorie is gone I agree also that a fine is but an agreement but yet it must work according to the nature of the thing as upon a writ of Measne or of right of advowson a fine may be levied and yet it is not levied of the lands but of the advowson or Signiorie and so if the writ of covenant be one thing and the agreement of another thing then it is not good and first I will prove that at the Common law fines have been rejected when the writ of covenant did not contain the thing of which the fine is to be be levied and if at the Common law a fine was levied of rent there ought to be a writ of covenant of that 18. Ed. 2. fines 123. and there the rule is given that it is against reason to hold covenant of that which never was and the rent there never was before but ought to begin then and yet it is clear a man may create a rent by fine but he shall not have a writ of covenant of that when it was not in esse before and because the concord may not varie from that therefore it was not received 38. Ed. 3. 17. Knevet put the rule that a fine may not be of more then is in the writ of covenant and when a fine is properly levied of that it is by way of release Fitz. fine 100. and so I conceive here the rent doth not pass Secondly here no man may plead that any fine is levied of
pleads no award the Plantiff maintaines the award and the breach the Defendant rejoyned that before the time of the award they discharged the Arbitrators 75 Debt by a servant for wages in the debet and detinet and for 2 shirts in the detinet only good without shewing that it was according to the Statue and by several precipes in one writ 75 In Dower the Tenant pleads never seized to have Dower the husband having an estate but by disseizing which was avoided by entrie no Dower 77 In Debt two were bound for the appearance of annother and judgement against the debtor who upon the capias offers his body the Plantiff refuses the suerties are discharged but the Plantiff may take a Capias within the year but if he had come on the capias and had not Suerties and he refused him Quer. if he be not discharged 77 78 Dower of a reversion after a lease for years she shall have the rent and the Defendant pay no damages 80 Dower what judgement shall be given where the vouchee dieth whether absolute or conditional 81 88 Dower where the trial ought to be by witnesses and in what manner 82 Dower the Tenant pleads that the demandant had entred and disseized since the last continuance 90 Where the Demandant shall have judgement and where only a petit Cape 90 Dower against an Infant who pleads a devise to the demandant in satisfaction of Dower and entrie 100 E ERror lieth not for a judgement given in the Stanneries in Cornwal 8 If an Executor be nonsuit he shall pay no costs 10 Executor where he bringeth an action he ought to shew the Will otherwise if the issue be joyned 19 If the Debtor makes the Debtee Executor he may retain and plead fully administred 19 Execution what fees are due to the Sheriff where the debt exceeds 100. l. 21 22 Essoign in a Formedon after the Vouchee appeared 34 Escape against the Warden of the Fleet retaking upon fresh suit good after an action but not after issue joyned 35 Escheat where lands are given to a Monasterie and all the Monks die who shall have it the founders or the Lord of whom it is holden 38 Executor where he or a devisee shall have the Corn 51 If an Executor waste the goods of a Testator and dies intestate his Administrator shall be liable and by the Court 31 Ed. 3. Coo. 11. gives no remedy but against an immediate administrator 65 Estray whether the partie may fetter him or no 67 68 124 An Executor where compellable to plead a general issue and give the special matter in evidence 70 Executor may bring an action in the debet and detinet upon his own contract 80 Executor an action brought against him by Journeys accompts where good 82 Execution where the partie shall be discharged by supersedeas at the Courts discretion 100 101 Execution see purchase 112 F TEnant for life and he in remainder in tail Covenant to levie a fine Tenant for life dies if he in the remainder ought to do it 4 In a Formedon the Tenant pleads that at the day of the writ the Plantiff was seised of the moitie thereof not good 23 Fees where an action of the case lieth for them by a Sollicitor 53 54 G GEneral issue where it ought to be pleaded and where not 70 H HErriot whether it be due to the Lessee of part of the Mannor or to the lessee of the whole Mannor 46 47 57 I INformation for ingrossing a 100. Quarters of Corn and upon inquiry he is found guiltie of a 100. it is good for so much 5 In an idempnitate nominis the Plantiff prayed a superdeas to stay Execution Curia Advisari vult 6 Information for entertaining his apprentice without a Testimonial contrary to 5 Eliz. 25 Joynture the father makes a feofment to the use of himself for life the reversion to his son and his wife intail this is no Joynture though the father die in the life of the son so if it had been for years 33 Infant and Apprentice unto what Covenants lyable 63 64 Issue in a quare impedit is joyned the wife one of the Plantiffs dieth before the venire facias the writ doth not abate because it was a Chattle vested in her husband 73 Infant where he may declare uses upon a fine and what acts are by him void or voidable 104 Infant in a judgement against him where he shall be relieved by audita querela or error and whether against the Attorney who suffered it 114 K VVHere the King may seise without office and where not 9 Where an usurpation gaineth an advowson from the King 14 King where he hath title to present the incumbent being created a Bishop in Ireland and what act is a dispensation thereof and where a Commendam is well granted and the several kindes thereof 94 95 96 97 98 L A Lease of a rectorie excepting the Gleab void otherwise if parcel of the Gleab 23 A Lease for a year and so from year to year this is a Lease for 3. years and if the Lessee hold over Quer. what remedy for the rent 32 A Lease for years by him in remainder in tail if destroyed by a recoverie 41 42 43 In a lease to trie a title of several parcels he ought to enter into them all severally 50 M A Miss-trial is not aided by any Statute of Jeoffales 69 N NUsance by stopping the winde abated 3 Nusance for stopping a light abated 4 Notice to give bond where necessarie and where not 26 27 New Assignment if it be more large then the declaration it is good in Trespass but otherwise in an ejectione firme 65 Notice where ought to be taken and by whom 108 120 O ORdinary what power he hath to dispose after debts and legacies paid 11 An Obligation where good upon the Statute 23. H. 6. 20 21 50 51 P A Prescription to pay the Vicar a Buck in Summer and a Doa in Winter for a Park which becometh Disparked 144 Prescription to have land it self void 6 Prescription See Replevin A Prohibition to the Admiraltie lieth not after judgement given there 8 Protestation where good and where not 13 14 Prohibition where it lies to the Court of Audience for saying thou art a common and base Quean 14 15 Promise by a Lessee or a stranger to pay rent if an action he thereupon 15 A Presentation by the Lord Chancellor where it belongeth to the King is only voidable 19 Prohibition where it lies for a seat in the Church a difference between the Lord of the Mannor and another Person 19 A Protection from a Peer not good in a Capias utlagatum 24 A Prohibition where the parties agree in the modus but varie in the place of payment lieth not 33 A Prohibition awarded against one who sued in the Court of Audience Administrators for a Legacie as Executors 64 65 In a prohibition the Tenants of a Dean and Chapter alledge prescription for non-payment
of the obligation and so had disabled himself afterwards and the obligor is bound that a fine shall be leavied this is to be understood of a good and a lawfull fine and not a fine in name only and he put the case that I let for years and after Covenant to make a feofment to I. S. this lease for years is a breach of the Condition though at the time of the Covenant made the lease for years was made Iustice Winch thought the contrary for this disability is by the act of a stranger and for that the obligor may not take any certain notice of that and therefore if I am obliged to you that I. S. shall enfeoffe you of his Mannor and at the time I. S. had made a feoffement of two or three acres of the same Mannor yet if he enfeoffe you of that which he was seised at the time of the obligation this is a good performance of the Condition though that 2. or 3. acres were disjoyned from that before and so in this case the obligor being a stranger to the estate of I. S. if I. S. make such an estate as he had at the time of the obligation made this is sufficient upon which he concluded that the Plantiff shall not have judgement but afterward judgement was commanded to be entered for the Plantiff according to the opinion of Hobert and Hutton Hoels case HOels case upon a special verdict was to this effect a man was seised of 2. acres of land in fee and had 2. sones and he devised both the acres to his wife for life the remainder of one acre to his eldest son in fee the remainder of the other acre to his youngest son in fee upon this condition in manner and form following if either of my sonnes die before my depts and legacies are paid or before either of my sonnes enter into their part that then the longest liver shall have both parts to him and to his heires in fee and the devisor died and Hoel the Plantiff being the eldest sonne in the life of his mother released all his interest and his demand in this to his younger brother and the doubt was whether this condition was gone by this release and Attoe argued that it was gone for Littleton saith that every land may be charged one way or other see Anne Mayowes case Release Coo. 1. Albaines case power of revocation released see more of this afterwards Trin. 20. Jac. C. P. Whitgift aganist Sir Francis Barrington IN Replevin the Defendant avowed as Baliff to Sir Francis Barrington and that Whitgift the Plantiff held certaine land of Sir Francis Barrington by escuage et quendam reditum and that the said Sir Francis was seised by the hands of Whitgift his very Tenant and for homage he avowed and upon this the Plaintiff demurred first because he had avowed for homage and had not shewed how nor in what manner the homage is due whether in respect that the tenancy come to him by discent or by purchase and for that this general allegation is naught for by Hendon Serjeant all the presidents in such avowryes made mention of the title to the homage as 4. E. 4. in avowry for homage the tenure is shewed and a discent alleadged or a purchase of the land and in no book or in any president that he ever yet saw did he see such a general allegation in avowry for homage but he agreeth the book of the 44. E. 3. 42. if the avowry is upon tenant by the curtesie this general allegation is good but otherwise of a tenant in fee simple and for that he alledged the second E. 3. avowry in a replevin the Bishop avowed for homage due by the Plantiff and exception was taken because it was not shewed in whose time the death of the ancestor was whether in his own time or the time of his predecessor and ruled to be evill for his avowry being his title he ought to shew that in certaine and so in our case Hobert this case doth not prove our case for in our case prima facie it is certain to all intents and purposes and I cannot see how an avowry may be better made and Finch at the barre vouched a president in the book of entries title horse de son fee secondly where such a avowry as in our case is made and then Hendon moved that the avowrie is not good for he had shewed the tenure by homage and by escuage and rent de quo quidem redditu he was seised c. and this is also repugnant for when he said that he was seised of the rent by the hands of the Plaintiff this is a seisin of the homage as Bevils case is and then by his own shewing because the seisin of the rent is a seisin of the homage he shall not have the homage of the Plantiff Thirdly admitting this point against him and that the seisin of the rent is not seisin of the homage yet the pleading is not good for when he expresly alleadged seisin of the rent in this manner de quo quidem redditu he was seised this excluded the seisin of any other services but only of the rent which is expresly alleadged and therefore in our case he ought to have alleadged generally de quibus serviciis he was seised and to leave this to the construction of the Law and he vouched 13. H. 7. 31. Serjeant Harvy to the same intent for though perchance no good reason may be given wherefore the pleading shall be such and that the seisin of the homage ought to be expressed yet because all the presidents are so the course of pleading shall not be altered and all the presidents shew a seisin of the homage see the book of entries 597. and 598. Serjeant â—owse to the contrary the book of the 19. E. 2. Recovery 224. is that the alleadging of the seisin or escuage as in our case of tent is a sufficient avowry for homage and 29. H. 3. such an allegation of the seisin of rent was made in avowry for fealty and good Hutton if the book of the 19. E. 12. be as Towse had alleadged it is all one with our case Hobert seems the avoury is good notwithstanding this last exception for perchance he was not actually seised of the homage by the hands of the Tenant himself and then by his own shewing his avowry shall abate and he demanded of Brownlow if there were any such president of an avowry who answered no. Hobert if the continual pleading be as my brother Harvy had alleadged we will not alter the course of pleading but in my opinion in reason none may plead in better manner or form and Hutton being only present agreed and then Hobert commanded the presidents to be searched concerning that matter and Finch at the barre being of Councel with the avowant said that till the resolution in Bevils case it was a great question whether the seisin of the rent was the
the words are found generally but yet admitting that the last words are actionable yet the Plantiff shall not have judgement for the damages are intirely given and for that reason void see more and Bedles case cited in Osborns case Cook 10. Harris Serjeant to the contrary for an Auditor is an officer of trust and he took an oath when he entered into his office and his receiving fees which are not due are also extortion and the words of Cousâ—â—age shall have also relation to the office as in Barkleys case you are a corrupt man an action lyes and Haywel and Stakleys case of a Iustice of the peace and Sir Miles Fleetwoods case he being receiver of the Court of wards one called him Mr. deceiver and ruled action lies and tunc et ibidem shall have relation to the same time in which the said words were spoken and so he prayed judgement for the Plantiff and it was adjourned till another time See after Good against Bawtry GOod brought an Ejectione firme against Bawtry for ejecting him of certain lands in Creeting St. Maries in Creeting St. Olaves and in Creeting omnium sanctorum and a Venire facias issued to try the issue to Summon 12. men de vicineto de Creeting St. Mary Creeting St. Olaves and Creeting omnium omitting Sanctorum and it was now moved in arrest of judgement by Attoe Serjeant that the Venire facias was not good for it ought to be of all the Creetings and the Court blamed the Clark very much for his negligence but it was adjourned till another time A man lett an advowson for 40. years and the lessee covenanted that he would not alien without the assent of the lessor and he shewed all the matter because he had aliened to I. S. without his assent and the Defendant pleaded that he had not aliened without his assent and upon that they were at issue and it was found for the Plantiff and now it was moved in arrest of judgement because he had not laid that the alienation was by deed for an advowson may not pass without deed and Hobert said if a man will declare in an ejectione firme of a lease made by the husband and the wife without deed this is not the lease of the wife without deed or yet if the Defendant will plead not guilty or non dimisit and this is found for the Plantiff the Plantiff shall have judgement for this shall be intended to be by deed which was granted by Winch Iustice being only present that the breach was well laid and he alleadged a president 43. Eliz. a man avowed and had not shewed that this was by deed and the Defendant pleaded non concessit and found for the avowant and he had judgement but Hobert denyed this case but afterwards in the principal case it was adjudged that the breach was well laid and the Plantiff had judgement In a formedon in reverter the Tenant was essoyned and the vouchee also appeared the case was essoyned and he had day over till octabis Michaelis And then the Attorney of the Defendant would have been essoyned and it was argued by Hendon Serjeant that he shall not be essoyned and yet he agreed if the vouchee had not appeared the Tenant might have been essoyned againe 13. E. 3 essoyne the 8. and the same Law of the vouchee be returned tarde but if the vouchee appeare and is essoyned there the Tenant shall not be essoyned againe and so is the express â—ook of the 3. H. 7. 17. 9. E. 3. 39. and the reason is because by the appearance of the vouchee the Tenant is out of the Court c. and it was adjourned till another day and at that day it was resolved by the Court that the Attorney shall be essoâ—ned and this was upon the view of a like judgement in the case of the Earl of Clanrickard and Hobert said that in that case the Roll of the 3. H. 7. was searched for and could not be found and Towse urged 22. H. 6. and 13. E. 3. essoyne 8. Sir Henry L. Warden of the Fleet. RIchardson Serjeant moued for the warden of the Fleet Sir Henry L. and his motion was that whereas one I. S. was in execution in the Custody of the Warden of the Fleet for 300. l. and he made an escape and he at whose suite he was in execution brought an action upon this escape against the Warden of the Fleet and he shewed that the Warden upon fresh suit had taken him again and he prayed that the Plantiff may not proceed in his action for though the Warden of the Fleet may plead this though the action was brought before the retaking of the party yet he prayed for the saving of charges that the action may be stayed and he said that there was such a case in this Court against Harris deputy Warden to Sir Henry L. upon such an escape and he pleaded to the issue and after he retook the prisoner and in this case the Court had also relieved Harris if the issue had not been joyned but Hobert let the Plantiff be brought here present in Court and then we will speak to that point Gell against White Gell against White and others and he declared in action of Trespass but the writ was general but the declaration was quare vi et armis bona et catalla sua ceperunt et asportaverunt viz. tertiam partem unius dishei plumbei Anglice the third part of a dish of lead Ore and it was moved that the Plantiff shall not have judgement for the variance between the writ and the declaration and though it is objected that here is nor any original writ at all for in verity there was not any yet the declaration is contrary to it self for if in a replevin the Plantiffs writ is de bonis et Catallis and his declaration is of a taking of a horse this is not good and so here bona viz. tertiam partem c. for this particular thing may not be said to be goods and Chattels and Harris Serjeant moved that the Attorney might be banished the Court for declaring without a writ according to the express book 20. H. 6. Hobert good reason adjourned till another time Anne Buckley against Simonds Mich. 18. Jac. Rot. 2120. ENtered Mich. 18. Jac. Rot. 2120. Anne Buckley was Plantiff in a Quare Imp. against Simonds and the case in effect was that Andrew Buckley Grandfather of the husband of the Plantiff did Covenant by indenture with Preston that before such a day his Son should marry the daughter of Preston And Covenanted to convey 6. l. 13. s. per Annum of rent issuing out of land to hold to them during the life of the Covenanted and his wife and after this he Covenanted for him his hetres and assignes that after the death of the Covenantor and his wife the land to which the advowson in question is appendant shall remain come and be unto the said
who hath an interest and see for that Coo. 3. Lincoln Colledge case and Dyer 148. Thirdly he held that though it should be so that lessee for years may not enter by force of the Statute of the 11. H. 7. yet he may falsifie a recovery by the Statute of the 21. H. 8. which enables lessee for years to falsifie as well as lessee for life and it appears by the verdict that the sole intent of this recovery was to defeat the lease for years for this was suffered within 6. moneths after the death of Henry Mark-Williams the son and also the recovery was to the very same uses which they were before and therefore the lessee may falsifie the recovery it is true in Capels case the lessee of him in remainder may not falsifie a recovery suffered by Tenant in tail though it was suffered of purpose to defeat the lease for years but in our case the lease for years doth not enure by vertue of the estate tail for that is bound by the fine but this issues out of the reversion in fee and for that reason the lessee shall falsifie this recovery in an ejectione firme or in an avowry and he cited Kings case Hill 37. Eliz. B. R. Rot. 293. Tenant in tail infeoffed his son and after he disseâ—sed him and afterward leavied a fine of that with Proclamations the son entered upon the Conusee and made a feofment and the Proclamations passed and the feoffee of the son let for years and then the father and the son died and the issue in tail brought a formedon and recovered and it was agreed that lessee for years may falsifie this recovery and he said that he had seen a Note in Iustice Manwoods Study that it was agreed in his Circuit that lessee for years to begin at a day to come may falsifie a recovery and so be concluded his argument Hendon Serjeant to the contrary and he divided the case in three points First when Tenant in tail had issue a son and a daughter or two sons and the eldest son in the life of his father who is Tenant in tail levies a fine and dies without issue whether this shall binde the youngest son and he thought that it should not and yet he agreed that an estate tail may be barred by a fine though he who leauied the fine was not seised at the time of the estate tail and this by the very words of the Statute of the 32. H. 8. see the case of fines Coo. 3 and Grants case vouched Lampets case and so is the case of Hunt and King 37. Eliz. cited by my brother Harvey and so he agreed cleerly if the son who leavies the fine survives the father who was Tenant in tail that then in this case this binds the estate tail for ever and the reason is upon the very words of the Statute of 32. H. 8. or any was intailed to the Ancestor of the issue in tail and in this case when the issue doth survive the Ancestor and dies this shall binde the issue because it was intailed to him who leavied the fine who was his Ancestor for he may not make any Conveyance to the estate tail except he make mention of him who leavied the fine because that he survived the father who was Tenant in tail but when he who leavies the fine dies in the life of his father viz. the eldest son then the youngest son may convey an estate taile to him without making mention of his eldest brother and this appears by the 46. E. 3. 9. 4. H. 6. 10. 11. H. 7. 6. see the case of Buckner Coo. 8. from which cases he inferred that if the youngest brother may have an action at the Common Law without making mention of his eldest brother then such a construction shall be made of this word Ancestor in the Statute of 32. H. 8. that it shall be taken for such an Ancestor by whom the issue in tail claimes and for no other Ancestor and for this he put the case if land be given to a man and to his heirs females begotten of his body and he had issue a son and a daughter and the son leavied a fine and died this shall barre the estate tail for the cause aforesaid and for authorities in this kinde he cited the reports of Dallison of Eliz. printed at the end of Ashles Tables in Stamfords case in the end of the same case where the very difference is agreed Mich. 29. Jac. C. P. where the eldest son dies in the life of the father and where not and Hobert demanded of him by what warrant those reports of Dallison came in print And then Hendon cited the opinion of some of the judges in the case of Zouch and Banfield and see Coo. 3. the case of fines according to this difference and he said that Sir George Browns case will warrant that in the very letter of it for there it is said that no issue inheritable by force of the tail may enter after the fine by which he inferred that if he is such an issue that is not inheritable he is out of the Statute and so he concluded the first point that the fine being leavied by the eldest son in the life of his Mother that shall not barre the estate tail Secondly he argued that as this case is the feme is not within the Statute of the 11 H. 7. because that at the time when she suffered a recovery she was seised of an estate in general tail by force of the remainder which was limitted to her and her husband and to the heirs of their two bodies ingendred which took effect in the feme at the time of the death of the husband and this being an estate in tail of the purchase of the huband which took effect in remainder this may not be a joynture within the Statute of of the 27. H. 8. and then if she be not a joynteress within that Statute though this estate was of the purchase and of the acquisition of her husband yet this is out of the danger of the Statute of the 11. H. 7. for the words are any woman who had any estate in dower or in tail joynt with her husband of the purchase and of the acquisition of the husband which words of the purchase of the husband had relation to Tenant in dower or to a woman who was a joyntress and was not the intent of the Statute to make such a remainder to be within the danger of the Statute when the husband himself in his life may dock this by a recovery and therefore it is not within the Statute And as to the Third point he argued that admitting that she was a joyntress within the Statute of the 27. H. 8. yet when the feme suffers a recovery with the assent of him in remainder in fee this recovery is out of the body of the Statute of 11. H. 7. any which shall discontinue or release with warranty and
that all such recoveryes shall be void and shall be taken for fained recoveries and this may not be imagined a fained recovery where he in remainder in tail is vouched by him who is Tenant for life Jennings case Coo. 10. and such recovery as is there resolved is out of the Statute of the 14. Eliz. and is good by the Common Law and so in our case but admitting this to be within the Statute of the 11. of H. 7. yet the proviso of the same Statute had made that good for there is an express proviso that a recovery with the assent of the heir inheritable if this appear upon Record this shall not be within the Statute and in our case this is with the assent of the heir inheritable and also this appears to be of record and so the recovery is out of the danger of the Statute of the 11. H. 7. See Doctor and Student a book which was written but a litle time after the making of this Statute and Dyer 89. Vernons case and he said that the intent of the same Statute and of the proviso of the same Statute was to have issues and heirs and not termors who had only a future interest to falsifie recoveries and so he concluded that the recovery is out of the same Statute and that the proviso of the same Statute had made that good by the assent of the heir but admitting this should be against him that this recovery shall be within the Statute yet the lessee in our case shall not falsifie nor take advantage of the forfeiture by force of the same Statute but it hath been objected by Harvy that the wife in this case had only an estate for life or Tenant in tail after possibility of issue extinct and he answered that the resolution in Beamounts case Coo. 119. is contrary for it is there expresly agreed that she was Tenant in tail after the fine leavied by the issue and so was it also resolved in Pophams case 9. Eliz. but there it was doubted whether she was Tenant in tail within the 32. H. 8. who might make a lease but all agreed that she was Tenant in tail who may suffer a recovery and binde the remainder and then when the feme suffers such a recovery as in our case that recovery shall take away a term for years which was made by the issue in tail Mich. 20. Jac. C. P. in the life of his mother notwithstanding she was a joynteress within the 11. H. 7. also he said that this lease for years being made by Henry Mark-Williams the son who was heir to the estate in tail and also to the reversion in fee being made by deed indented rendring rent this shall be a lease which issued out of the estate in fee simple and not out of the estate tail and this shall be out of the estate tail by estoppel being by deed indented for an estate shall not enure partly by way of interest and this lease to begin after the death of the feme he may not take advantage of the forfeiture for though the words of the Statute are that all such recoveries shall be void yet this shall not be void without entry and he who will have benefit by this ought to be mabled to enter presently so soon as the recovery is suffered for as there ought to be a person in esse who shall take benefit of the same Statute as appears by Coo. 3. Lincoln Colledge case so there ought to be a present estate in esse at the time of the recovery for the words of the Statute are to whom the interest shall appertain but in our case the interest doth not appertain to the lessee who had only a future term and therefore he shall not take the benefit by any forfeiture within the Statute of 11. H. 7. and the rather in our case because there is a rent reserved also all this matter is found by special verdict what estate the son haâ— when he made the lease by indenture Dyer 244. Coo. 155. and Bredons case in Treports case lessee for life and he in reversion by indenture let for years this is no estoppel and it shall be said to be the lease of one and the confirmation of the other and here the lease shall be said to issue out of the reversion in fee and not out of the estate tail and he vouched a case adjudged 10. Jac. when Flemming was chief Iustice of the Kings Bench between Errington and Errington and the case was that a man conveyed land to the use of himself and his wife in tail the remainder to his right heirs and had issue a son and a daughter and he died and the son let for years to begin after the death of his Mother and he died without issue and the daughter leavied a fine and the wife who was Tenant in tail died and the question was whether this lease for years issued out of the estate tail by way of estoppel for then the Conusee shall not avoid this but it was adjudged this lease was drawn out of the reversion in fee and the Conusee of the daughter shall avoid that which is all one with our case but admit that this lease is good by estoppel out of the estate taile yet he shall not take benefit of the forfeiture within 11. H. 7. and this differs from Sir George Browns case for there the Conuser entered by vertue of a remainder and not by the estate tail which passed to him by estoppel and upon that he concluded that if this is an estate meerly by estoppel he shall not have benefit by that Pope and Reynolds before NOw the case between Pope and Reynolds which see before was moved again by Ashley for the Plantiff in the prohibition and the case was that he was owner of a Park and the Park had been time beyond memory replenished with deer till the 10th of Eliz. at which time that was disparked and that the owners had used before the disparking to pay a Buck in Summer and a Doe in winter in full satisfaction of all Tithes due to the Vicar and the Parson had libelled in the Ecclesiastical Court for Tithes in kinde and also traversed the prescription and it was found for the Plantiff in the prohibition and it had been moved in arrest of judgement that notwithstanding this prescription is found for the Plantiff yet he shall not have judgement for two causes First because gross Tithes belong to the Parson and not to the Vicar for the Vicaridge is derived out of the Parsonage to this he answered that for the most part every Vicaridge is derived out of the Parsonage but it is a meer non sequitur that this doth for the Vicarage and the Parsonage may have several patrons Fitzh 45. also a Vicarage may be time beyond memory as in our case 40. E. 3. 2. 7. and Fitz. juris utrum a Vicar may have a juris utrum and
the lessee of the Mannor or to the Bishop was the question and it was argued by Serjeant Hendon that this appertaines to the Plantiff and not to Wood and as to that the single point is a Bishop is seised of a Mannor in the right of his Bishoprick and lets parcel of that for life whether the reversion of this parcel be alwayes parcel of the Mannor notwithstanding this lease and he argued that it was not and yet he agreed that if another let as aforesaid the reversion continues alwayes parcel of a thing in possession and that in the case of the King himself as appears by Dyer 230. if the King lets parcel of a Mannor for life the reversion of this parcel passeth to the King for the reversion had all times continuance in the same capacity and no alteration is made of this by force of the lease but where the lease for life is a discontinuance there he gaines a new reversion and this shall not be parcel of the Mannor and for that if a man is seised of a Mannor in the right of his wife and he lets parcel for life this is a discontinuance and he had gained the reversion in his own right and for that reason the reversion may not be parcel of the Mannor as appears by 18. Assises and also he held if Tenant in taile lets parcel of a Mannor for life that were the reversion of this parcel is not parcel of the Mannor for the cause aforesaid and so in our case when the Bishop granted parcel which is not grantable by the Statute now he had discontinued the reversion and had gained a new fee simple which may not be parcel of the Mannor so long as this new fee simple had a continuance and this was his first reason And secondly he argued from the intent of the parties because the intent was that the lease to Wood shall be good and if the reversion of the 20. acres pass to Wood this will make all the lease void for no rent may be reserved out of the reversion but out of the land it self 3. Assise Placito ultimo a Bishop let land and a hundred rendring rent the rent issues out of the land and not out of the hundred and so here it issues out of the land and not out of the reversion which made the lease all void and so he concluded the first point that the reversion of the 20. acres did not pass to Wood the lessee of the Mannors Secondly when the Bishop lets 20. acres of ground rendring rent and this is not confirmed by the Dean and Chapter as it ought and after he lets the Mannor and the successor accepts the rent of the Mannor this acceptance shall not make the lease of the 20. acres to be good admitting that the reversion do pass and when the Bishop had made a lease for 3. lives he may not contract for the reversion and when a lease is meerly void in the creation there no acceptance afterwards may make that good but admitting this to be against him yet the lessee shall not have the Herriot for they are not appendant to the reversion but due only by way of Covenant and the words are yielding c. and this being a Collateral thing it shall not go with the reversion and the Herriot here may not be had without it be delivered by the lessee for life Secondly it is paid only in the name of a Herriot and this is not Herriot service Thirdly it is to be paid upon the death of a stranger and not upon the death of the lessee and all this proves this Herriot to be collateral and he cited Rawlins case a lease for years paying for a fine 20. l. this is a summe in gross and shall not pass with the reversion and so he prayed judgement for the Plantiff Attoe contrary and yet he agreed the case of the husband and wife and of the Tenant in tail for here the lessor gaines a new fee simple but in our case when the Bishop lets for life this is not any wrong for the successor may enter and he shall have this lease not in his natural capacity but alwayes in his politique capacity and for that there is an apparent difference between the cases and for that reason he held that the reversion was parcel of the Mannor and so passed to the lessee and as to that which had been said that the intent of the parties was only that the Mannor in possession and not the parcel in reversion should pass to the lessee for that is most beneficial to the lessor to this he answered that by express words this is granted and no construction shall be made contrary to the very express words of the grant and here though the Defendant had not any title at all to the Herriot yet the Plantiff shall not have a trover and conversion for this because that he himself had not right to this and for that reason judgement shall be given for the Defendant and he also argued that the lease of the reversion is not meerly void but voidable and then the acceptance extends to this see 37. H. 6. the lease of a Priâ—r 2. E. 6. Bâ— Abbots case Vpon which authorities he said cleerly by the Common Law this lease of the reversion is not meerly void but voidable and for that the confirmation of the Dean and Chapter after the Statute of the first of Eliz. had not altered that and for that a lease after the Statute shall not be meerly void and see Lincolns Colledge case Coo. 3. and in our case there is a possibility that the lessee of the Mannor may survive the cestui que vies of the 20. acres and that possibility is sufficient to make this good out of the reversion for then the lessor may distrain for his rent but where no possibility of a distress is there no rent may be reserved as in Iewels case the lease was void for there was no possibility that the lessor shall ever distrain but in our case the lease for years is good for the lessor is not without his remedy for he may have an action of debt upon this reservation 1. H. 4. 2. there a measnalty in gross was let rendring rent and good for by possibility the Tenant may die without heires and yet this is a remote possibility 12. E. 3. execution 112. a reversion granted by fine in tail rendring rent is good and Coo. 5. Elmers case that a reversion being let for life rendring rent is a good reservation at the Common Law and he held without question that where a Bishop is seised of a Mannor which consists part of freeholders and part of Copiholders that a lease of the Mannor rendring rent is good and in our case the reservation of the rent is intire and shall bind the successor and as to that which had been said that the Herriot is Collateral and shall not go with the reversion to this he
reason the factor may sell the goods without ready money and this is good reason for perchance the goods are of that nature that they will not keep without perishing by which clearly it appears that if I deliver goods to another to Merchandise and to sell he may sell them without ready money but if my factor or Bailiff will sell them to one which he knows wâ—ll prove a Bankrupt without ready money this is not good but secondly he held the custome as it is here alledged not to be good for then the partie shall have no remedy for his money except the factor will go into Spain and sue the Bill and the laws of Merchants are special laws for their benefit and not for their prejudice and this custome as it is alledged is too large but if he had alledged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name this had been good besides the custome is not good for it is alledged to be that when the factor had delivered the Bill to the owner of the goods this shall be a discharge to him who was the factor and here is no time set within which this may be delivered and so for ought is shewed it may be delivered 10. years after which may be good and to that which had been said that the laws of Merchants are national laws he denied that for every Kingdome had its proper and peculiar laws and though this is the law of Spain and national to them yet this ought to be reasonable or else it shall not binde and judgement was commanded to be entered for the Plantiff Hobert and Winch being only present It was ruled that he who had land in a parish who did not inhabit there shall be chargable to the reparation of the Church but not to the buying of ornaments of the Church for that shall be levied of the goods of the parishioners and not of their lands by Sir Henry Yelverton and said to be so formerly adjudged In trespas the Defendant pleads that one such was possessed of a term for years and bring so possessed by his last will and Testament devised that to the Defendant and died after whose death the Defendant entered and was possessed by vertue of the devisee upon which plea the Plantiff demurred generally and Hutton thought this plea prima facie to be good though the Defendant had not expresly alledged that the devisee died possessed but his plea implies that for he had said that he entered by vertue of the devisee and was possessed and this only matter of form and not matter of substance and no cause of general demurrer which Winch also granted that this was also matter of form and not matter of substance Gage against Johnson for his fees GAge brought an action against Iohnson as his servant and Solicitor to the Defendant in a suit in the Kings Bench taking for every Term 3. s. 4 d. for his fees and for this he brought his action of debt and Serjeant Hitcham moved in arrest of judgement and he urged the case of Samuel Leech an Attourney of this Court in an action upon the case brought by him upon a promise to pay so much for the solliciting of a cause of the Defendant and the opinion was that the action will not lie for it is in nature of maintenance for a Solicitor may not lay out money for his Clyent and if an action upon the case will not lie then much less an action of debt and Hobert said that a Councellor may take fees of his Clyent but he may not lay out or expend money for him and the same law of an Attourney for if he did disburse money for him he doubted much what remedy he should have and he further said a servant may follow business for his Mr. and may take money for his labour for if I retain my servant generally he is not bound to follow my suits at law except at his pleasure for that is an extraordinary service and for that if I will say to my servant that if he will follow my business at Westminster I will give him so much for his pains my servant in this case is not without his remedy but if his service is coupled with Soliciting to take money for his pains his opinion was that no action will lie to which the other justices also agreed and they arose Wright against Black before NOw the case of Wright and of Black was moved again and the case was that Wright had brought an action upon the case against Black and Black for that the Defendants intending to make away his good name and to cause him to lose his goods did maliciously and without cause at Norwich in the County of Norfolk prefer a Bill of indictment at the Sessions of peace containing that the Plantiff stole two bundles of fetches and also did cause and entice one I. S. to give in evidence that the indictment was good and true by reason of which he was bound to Answer that at the next Assiles and there he was accquitted and whether the action was maintainable was the question and Attoe argued that the action is maintainable though it is not shewed that the Bill of indictment was found and he vouched a case which was Hill 10. Iac. B. R. Rot. 921. between Whorewood and Cordery and his wife Defendants which case and judgement was after affirmed in the Exchequer Chamber upon a writ of error and the case was that the Plantiff declared that the Defendants intending to take away his good name did charge him to have ravished Dorothie Coxe and maliciously exhibited a Bill of indictment containing that the Plantiff did felloniously ravish the said Dorothie their daughter and did give this in evidence to the Grand jury who found Ignoramus and yet it was adjudged that an action lies and he cited a case the 19. Iac. in B. R. Deney against Ridgy where was only an indictment preferred concerning the stealing of a horse and no more and yet an action lies Hobert chief Iustice said that if seemed to him that it is actionable for this is as great a scandal to give this in evidence to the Grand jury as to publish this upon an Alebench and as the course of Iustice ought not to be stopped so neither ought the good name of man in things which concern his life be taken away without good cause and I have heard that judgement was given another Term for the Plantiff but quere better of that Hoes case HOes seised of land in fee he devised that to his wife for life the remainder of one parcel of that to Thomas his eldest son the remainder of the other parcel to his youngest son in fee and this devised was with proviso that the feme shall pay his legacies and also his will was that in case his wife died before the payment of his debts and legacies
that then his two sons shall pay them and if it happen that either of them die before his debts and legacies paid or before either of them do enter into his part that thou the other shall have all the land in fee and after the devisor died and in the life of the mother the eldest son released to the youngest all his right title Claim and demand to the land which was devised to him by his father and after the wife died and two points came in question in this case First whether this limitation is good Secondly whether the release is good and it was argued by Richardson Serjeant that this limitation of the Statute by way of devisee is good and he vouched Dyer 330. Clarks case and 4. Eliz. Goldley and Buckleys case a man devised to his son and his heirs provided that if his personal estate did not suffice to pay his debts and legacies that then his lands shall be to another and he vouched Brown and Pells case which was adjudged in Banco Regis the case was that a man had two sons William the eldest and Thomas the youngest and he devised his lands to Thomas his son and his heirs provided that if Thomas died without issue living that then William shall have the land and it was resolved that this was good to William by way of executory devise and in that case doubt was moved whether if Thomas suffer a recovery whether this shall take away the estate of William and it was holden by all the Court except Doderidg that it shall not but all agreed that this devise upon the future contingency is good and so he concluded that if the youngest son die in the life of the Mother and before the legacies are paid the land shall remain to the Plantiff according to the intent of the devisor but the other doubt is when the Plantiff did release all his right and claim to the other whether this release will extinguish this future possibility and he held that it will not and he said that he had seen the case of Lampet Coo. 10. and there the release of a possibility is penned as in our case and if any word discharge this possibility it is this word right but if the resolution of that book had not been against him he would have argued that this right was not sufficient to extinguish this future possibility but that there ought to be a more apt and proper word but he said he would not argue against books but he said that which he would insist upon was the distinguishing of possibilities for there are two manner of possibilities the one is Common and ordinary the other is more remote and forreigne And first there is a possibility which is Common and necessary and this depends upon an ordinary casualty as a lease for life the remainder to the right heirs of I. S. for it is apparant that the right heirs of I. S. may take by this and such a possibility may be released and a possibility which is remote and forreigne is as if a lease be made for life the remainder to another during the life of the lessee for life or a lease for life the remainder to the Corporation of B. those remainders are void but yet by possibility they may be good for in the first case the Tenant for life may enter into religion and in the latter case the King may make Corporations and yet because such possibilities are not usual the remainders are void see Coo. 2. Chamleys case where such a remote possibility may not be released if a man give land to one which is married and to another woman which is married and to the heirs of their two bodies ingendred this is a good estate tail for there is a common possibility that they may intermarry but if the gift be to a man and to two women who are married and to the heirs of their bodies ingendred they shall not have an estate tail executed for it is a remote and forreigne possibility and an imbrodery of estates which the law will not allow nor respect see the Rector of Chedingtons case that such a possibility as in our case may not be released for first here the mother ought to be dead before the Plantiff shall have land Secondly legacies ought to be paid Thirdly Thomas ought to be dead and till all these possibilities hap the Plantiff shall have nothing in the land and for that it is a remote possibility which is not gone by the release for as it is said when a possibility shall be gone by a release there ought to be a good foundation upon which the release may operate secondly the possibility which is released ought to be necessary and Common but in our case it is not necessary that the son shall enjoy it in the life of his mother and also the mother may in a short time pay the legacies and then neither of the sons shall have the land by which circumstances it is apparant that this is not a Common or an ordinary possibility but is a remote and forraigne expectancy which shall not be gone by this release and this differs from Lampets case for there was a possibility of a Chattel which as it may easily be created so it may easily be destroyed but in our case it is a franktenement which as that requires a greater ceremony in the creation and for that it will require a greater matter to destroy and to extinguish that and it is said in Woods case cited in Shelleys case Coo. 1. that if a man covenant with A. that if I. S. infeoffed him of the Mannor of D. that then he will stand seised to the use of him and his heirs of the Mannor of B. and the Covenantee died and the said I. S. infeoffed the Covenantor in such case the heir shall be inward and yet it is only a possibility which descends which possibility of an use may not be discharged or released and yet in that case there was a possibility which is more Common and ordinary then in our case for there was a possibility that I. S. should make the feofment and so say a good foundation upon which the release may operate and he put the case that I. shall let for so many years as I. S. shall name if I. S. name it is good and yet he held if I. S. release before the nomination that this release is meerly void because he had only a possibility and as to Digs case Coo. 1. there a power of Revocation may be released and good reason for the Covenantor who released had the bird in his own hand and for that it was no remote possibility but there it is said that if the power be limited to an estranger there the stranger may not release and he also agreed Albanies case for there the power to release was upon the death of a man only but in our case it is upon death and other
his son and to Elizabeth Preston and to the heirs of John and so the Defendant claimed by vertue of a lease for 1000. years made by Iohn Buckley and the Plantiff demanded Dyer of the Indenture which was read to this effect that Andrew Buckley by the said Indenture covenanted with Preston that in consideration of a marriage between his son and the daughter of Preston that he will grant a rent charge of 6. l. 13. s. out of his land at Weymouth and at Melcombe Regis payable at 4. usual feasts and he Covenanted for him and his heirs that he would convey the land in Melcombe Regis and Wike Regis to such persons as Preston should appoint provided that the said Andrew Buckley and his wife may injoy that during their lives without impeachment of waste and covenanted that immediately after their deaths the lands shall immediately remain come and be to the said Iohn Buckley and Elizabeth his wife and that the advowson of Bradway shall remain come and be to the said Iohn Buckley and Elizabeth his wife and upon all the matter the question was whether by this last covenant an use will arise of the advowson in Bradway to Iohn Buckley for if an use is raised to him then this lease made by him is good and by consequence the title of the Defendants is good to present to this advowson and if not then the fee alwayes remained in Andrew Buckley the Grandfather and by devise discends did come to Andrew Buckley the Husband of the Plantiff and thâ—n the quare Impedit is maintainable And Hutton began his argument he argued that no use will arise to Iohn Buckley by this Indenture for when a man will raise an use by way of covenant there are 4. necessary things which ought to concur First is a sufficient consideration as of blood or marriage or other Collateral considerations as if I covenant with you that when you infeoffe me of certain land I will stand seised to the use of you and your heirs this is good but if the consideration be for money then this ought to be inrolled or otherwise no use will arise the second point is there ought to be a deed to testifie this agreement for otherwise no use will arise as was resolved 38. Eliz. in Collard and Collards case Thirdly he who covenants ought to be seised of the laâ—d at the time of the covenant as was resolved 37. Eliz. in Yelvertons case a man covenanted to stand seised to the use of his son of such lands as he should afterwards purchase and it was holden void because he was not seised at the time of the covenant and lastly the uses must agree with the rules of the Common law Cook 1. and he cited Chudleys case a man covenanted to stand seised to the use of one for years the remainder to the right heirs of I. S. this remainder is void though this is by way of covenant and use for the free-hold may not be in abeyance and so if I will at this day bargain and sell my lands in fee they shall not pass without the word heirs for it was not the intention of the said Statute to raise uses in such mannor contrary to the rules of the Common law or uses which are uncertain and in our case the intent was that no present use shall arise for out of the same land is granted a rent charge to Iohn Buckley and Eliz. his wife by which it appears plainly that it was not their intent that any present use should arise by the delivery of the indenture and if the use do not arise presently upon the delivery of the Indenture it shall never arise at all also the intent appears for it is that the land shall remain free from incumberances and this sounds only in covenant and for this reason the covenants shall be of the same nature and lastly the covenant is that the land shall remain and be and this is altogether incertaine and for this no use will arise because this failes of words as if I covenant to leave my lanâ— to my son after my death this will not raise an use to my son no more then if I covenant with the friends of my wife that after my death she shall have my goods this will not make my wife to be Executor and he vouched 21 H. 7. 17. 34. H. 8. 59. the Lord Borroughs case Dyer 355. 166. 324. and so be concluded that judgement ought to be given for the Plantiff Iustice Winch argued to the same purpose and he said the first part of the covenant contains that there shall be a marriage before such a day if the parties shall agree and the second part is a covenant that the feme shall have 6. l. 13. s. for her joynture and if this covenant executed an use of the land presently then this destroyes the joynture which was not the intention of the parties Thirdly there is another covenant to convey Coppihold land and if this covenant do raise an use then it will follow that Iohn Buckley shall have the land though the marriage do take effect and besides the covenant doth create an use presently or not at all and then when this use is to be raised by this covenant which contains in that nothing but future and Executory matter this will not create a present use and he cited the books which were vouched at the barre and by Hutton and so he concluded that this covenant will not raise an use presently to Iohn Buckley and that judgement ought to be given for the Plantiff And at another day the case was argued by Hobert chief Iustice for the Plantiff and that no use will arise by this covenant and he said if I will covenant to make assurance of my land to my son or to a stranger this covenant is meerly nugatorie and will not raise an use but on the contrary if I will covenant to stand seised to the use of my son though there is also a covenant to make further assurance yet this will raise a present use for the covenant is declaratory and not obligatory and so is Dyer 235. and there was no word to assure the land or to stand seised to uses but only that the land shall come remain and be in tail or in fee and there was no word to assure the land and this case is agreeable to the case of 21. H. 7. 18. by Rede that no use will arise and the reason is plain because the covenantor had election in which manner he shall have that whether by discent or in any other manner for if I covenant that my land shall descend to my son after my death no use will arise by this covenant and he put the case in Chudleys case that if a man covenant that after his death his son shall have his land in tall it is said that the son shall have an estate executed by the Statute of 27. H. 8. and the
covenantor shall have an estate for life and so the law makes in that case fractions of estates as the case of the Lord Seymor Dyer 96. seems to accord with this and besides those two books he said he could not finde any book which will warrant that and for that reason he held those two books to be no law for if I Covenant that my son shall have my land after my death this will not raise an estate to me by implication for life and an estate to my son and so by such means to change my estate in fee for an estate for life without more words for the word covenant in his proper and native signification is only obligatorie and yet it had been alwayes conceived sufficient to raise an use to him who is not partie to that as if I covenant with a stranger that I will stand seised of my land to the use of my son this will raise an use to my son and yet neither my son nor the covenantee may have an action of covenant but an use will very well arise to my son as if a man bargain and sell his land in consideration of 100. l. paid by I. S. though in this case the consideration ariseth from a stronger yet that will pass the use to the bargainee and in case of covenant it is not this word covenant only which creats the use but it is rather the agreement of the parties which is testified by the covenant for if sufficient agreement appears there will not need this word covenant as if I will agree and declare to stand seised to the use of my son by which it appears that the word covenant is onely declarative of the intentions of the parties and then in the principal case the covenant is not that the son shall have the land but that the land shall come remain and be to him and those words are incertain as 21. H. 7. redert come or discent and for that reason it is all one with the law of the same case and then void to raise any use for the incertainly and then when Andrew Buckley covenants that his son shall have his lands and no words to inforce his intention and for that reason the intention shall be lyable to an action of covenant and not to change his estate which he had in fee for an estate for life by this covenant but if he had expresly covenanted that in consideration of marriage of his son that he would hold his land for life and after this should be to his son this will change the estate which was in fee for an estate for life but in our case the covenant being general and left to the indifferent construction of the law the word covenant shall be taken in his proper and native signification and this is obligatorie and so he concluded that this covenant being at the first to grant a rent and was executory and the last part of that is executory for assurance and the limitation of the estate to the son being intangled between these two Covenants this shall be of the same nature and by consequence the covenant is obligatorie only and will raise no use to the son and so he concluded that judgement shall be given for the Plantiff and it was commanded to be entered accordingly Sparrow against Sowgate IN debt by Sparrow against Sowgate who declared that the Defendant became Bail for one Richard Sowgate in Banco Regis against whom the Plantiff had brought a Bill of debt of 77. l. and now the Defendant bound himself in a Recognizance of 77. l. upon which the action is now brought that in case judgement should be given against the said Richard Sowgate that he shall satisfie the said judgement or render his bodie to prison for in this case no part was impossible for after the judgement the principal may render himself in B. R. to the Marshal for the redemption of his suretie and that is the Common course there as he said but he agreed the case to be otherwise if a scire facias issue out of the Kings Bench against the Bail for there the death of the principal is a good plea for a scire facias doth not lie there till default is assigned in the principal in his not comming upon the capias ad satisfaciendum which may not be when he is dead Note that but yet before any capias it is clear he may have an action of debt Sir Robert Hitcham Serjeant of the King to the contrary and he alledged this to be the constant course in the Kings Bench that the Bail is never chargable till there is default assigned in the principal upon the recorn of the Capias ad satisfaciendum which may not be here for the principal is dead and he agreed the case of the other side that when a man is to do two things though the one is become impossible yet he ought to perform the other but when it is in the election of one to make either the one or the other then it is otherwise see Dyer 262. and so he concluded for the Defendant Hobert chief Iustice said that it is inconvenient that the Plantiff shall be forced to sue his Capias ad satisfaciendum against the partie before he have execution against the Bail for perchance he will sue a fieri facias or an elegit against him and that the Corps of the partie will not satisfie him and Browlow Prothonotary said that it had been adjudged in this Court that such plea is not good Winch the course of the Kings Bench is that default shall be assigned upon the retorn of the principal before the Bail shall be charged and though the Plantiff refuse to take his bodie after he had made his election to take his fieri facias or elegit he shall never more resort to the Bail which was granted by Hobert and Hutton as to that last point and it was holden by all the Court that if the principal render his bodie though the Plantiff refuse to take that yet that is a discharge of the Bail and also it was agreed by Hutton Hobert and by Winch that if the course of the Kings Bench be such that the Bail shall not be forfeit till there is a default assigned in the principal the same course also shall be followed here and per Curiam if the course of the Kings Bench be such that such Capias is necessary to be awarded that then a convenient time shall be allowed for the principal to render his bodie gratis and if the principal do die before such time the Bail is discharged but it was said by Winch if he die before convenient time and the Capias is awarded that such death shall not discharge the Bail note that Iones Iustice said that he thought in this case that it is necessary that the principal render himself gratis for when he is let to Bail the law supposeth him to be alwayes in custodie
he was seised in fee and that he had power to alien that and this was to encourage the Purchasers and for the form he needs not aver that this was in the hands of Anne Parker for he had confessed that in the bar that he came lawfully to that and besides the Covenant is broken though he never was seised and so I conceive that the Plantiff shall have judgement Winch to the same intent it is true if it had been all but one Covenant then if it had been no question this had not been broken but I think they are several Covenants like to the case of Sir Robert Napper lately adjudged also the first two Covenants are in the affirmative and the other in the Negative and for that they ought to be answered with several pleas and these kinde of assurances are the Common assurances and therefore they ought to be interpreted favourably for the Purchasers and Iohn was not deceived in these Covenants for they brought down upon the deed an estate in fee and it is also agreed if the word Covenant and grant had been divers times added to the several clauses then they had been several Covenants and now it is all one word and made those to be several Covenants and words of relation never will controul that which is certainly put down before and so he concluded in this case the Plantiff shall have judgement to recover Hobert chief Iustice to the contrary every deed ought to be construed according to the intention of the parties and the intents ought to be adjudged of the several parts of the deed as a general issue out of the evidence and intent ought to be picked out of every part and not out of one Word only and here Peter joyned with his father to strengthen the assurance and Iohn had not only his own estate but the estate of Proud and it is plain he never meant to intangle himself with other Conveyances then those which he and Proud had made and I hold this to be no independent Covenant and it is all bound with one clause S. for any Act or Acts made by them c. and it is confessed if these words had been placed in the forefront that then they should relate to all and it is as clear as if they were and the first reson is that the intent appears only to undertake for himself because he should but have part of the land and for that he was to warrant his evidence and to that end he was to deliver to him his title at large in the said indenture and here he had made the Plantiff privie to every several conveyance of that to inform the Purchaser of it and will you also intangle him with a covenant you might have taken notice of his title and it appears to be the very intents of the parties that you should take notice of the title and inform your selves concerning the same Secondly this is a sentence which may be taken both wayes and I say it is agreed that if it had begun with these words notwithstanding any Act or Acts c. that then it shall be all construed by this and I never saw any difference I grant they are several Covenants in point of fact but not in point of obligation for there are not several words of binding nay I say if he had released this last he had released all but it hath been said that one is in the negative and the other is in the affirmative but I do not value that and it hath been said that this is the Common assurance of the Realm and if other construction shall be made then no man shall be sure of his own we had given him leave to say that no reversion nor remainder is in the King by any Act by him made and the King may not have any reversion and he seised in fee also this clause standing indifferent whether this shall be referred to all or not and then the question is how the Court will adjudge of that for my part I take it that this may stand with the intent of all the parties of the deed but take that as you take it that this destroyes all for if he is absolutely seised in fee what matter is where the reversion is and yet if the reversion was in the Crown and not by his Act you confess that may not charge him which is expresly against the first Covenant if this be distinct by it self but take that indifferently and all the parties will stand together Nappers case hath no affinity with this for questionless there were several Covenants for in that indenture it did not appear what estate Sir Thomas Eearsfield had and for that reason nothing might be collected out of that but he had a present estate but in our case all is contained in the bodie of the indenture and Nokes case is a strong case and stronger then the case at the bar is for thereupon construction of all the parties of the deeds the special warrantie controuls the general warranty and the reason is no man will take an express special warranty when the intent is that he shall have a general warranty there was a case lately ajudged between the Earl of Clanrickard and his wife against the Countess of Leicester where the Lady pleaded that she was Tenant in Dower where in veritie she had the revesion in fee expectant upon a Term for life and they conveyed all the estate the Lady had in Dower and then they covenanted that they would convey all their estate to the Lord of Leicester and his heirs during the life of his wife and then Covenanted that they would convey all their estate to the Earl of Leicester and his heirs for ever in the aforesaid land and it was resolved that though such Covenant will raise an use to the partie who ought to have that and so the reversion will pass if there had been no more words now it was but during the life of the Lady for that third part for the Covenant was but to strengthen an estate and not to convey it and so he concluded that the Plantiff should be hard and after it was said by the Court that this case was not of weight to be brought into the Exchequer Chamber and therefore the Court advised that the parties would agree quere for the residue in the Exchequer Chamber concerning that Entred Hill 18. Jac the case of Comendams Richard Woodley against the Bishop of Exeter and Mannering RIchard Woodley brought a quare Impedit against the Bishop of Exeter and Mannering who was Parson of the said Church and he declared that Arthur Basset was seised of an acre of land to which the said Advowson was appendant in his demeasne as of fee and that he the 13. Octobris 13. Eliz. granted the next advowson to one William Manwood who was then incumbent in the said Church who by his will 20. November made one Harcourt his executor
recovery here the Term is saved and yet for the time the lessee was seised to his own use but because that the fine was Preparatory to inable him to suffer the recovery now in this case after the recovery suffered that will look back to the first agreement of the parties and so the Statute hath saved the Term and for that reason if the Statute do save a Term which is of small account much more a freehold and so he prayed judgement for the defendant see more after The case of Hilliard and of Sanders entred Mich. 20. Jac. Rot. 1791. HIlliard brought a replevin against Michael Sanders for the taking of Beasts in a place called Kingsbury and the Defendant avowed and shewed that Sir Ambrose Cave was seised in his demeasne as of fee of Kingsbury where the place in which c. is parcel and 14. Feb. 16. Eliz. granted a rent charge of 42. l. 8. s. 4. d. to one Thomas Bracebridg and to the heirs of Thomas upon Alice to be ingendred the remainder to the right heirs of Thomas and Thomas had issue John and Thomas died and then Iohn his son died having issue Anne the wife of the Avowant in whose right he avowed for the rent of half a year c. 21. l. 4. s. 2. d. due at W. in Bar of which avowrie the Plantiff pleaded that true it is that Sir Ambrose Cave was seised of the Mannor c. and he made the grant according and that Sir Ambrose Cave died seised and that the said Mannor descended to Mary his daughter as daughter and heir to him who was married to one Mr. Henry Knowles and shewed that he was seised and then shewed that the 12. Iac. it was agreed between the said Sir Thomas Bracebridg and Alice his wife Mich. 22. Jac. C. P. and the said Henry Knowles and mary his wife that for the extinguishment and final determination of the said rent that Thomas and Alice should levie a fine to Henry and Mary of the said lands and Tenements aforesaid by the name of the Maniior of Kingsbury 300. Acres of land and of divers other things but no mention was made of the rent and this fine was upon Conusance of right as that which they had c. and also they released all the right which they had in the land to Henry and to Mary and then shewed that after the death of Mary this land descended to two daughters one being now married to the Lord Willoughby the other to the Lord Paget under whom the Plantiff claimed to which the avowant said by protestation that there was no such agreement and for plea that the rent was not comprised and upon that it was demurred in Law and now Serjeant Attoe this Term argued for the Plantiff and the substance of his argument was in this manner Attoe said the case was Tenant in tail of a rent charge agreed with the Tenant of the land to extinguish that and that he would levie a fine of the land to the land Tenant which is upon Conusance of right and upon release which fine is levied accordingly whether this cuts off the tail of the rent and I hold that it will and I do not finde any opinion in all the Law against this but only the opinion of Thornton in Smith and in Stapletons case in Plowden which I do not esteem to be a binding authoritie and the case is Tenant in tail of a rent disseised the land Tenant and levied a fine with proclamation of the same fine to a stranger now said Thornton this shall not bar the issue in tail of the rent because the fine was only levied of the land and he cited this to prove another case which is Tenant in tail of land accepted a fine of a stranger as that which he had c. and he rendered to him a rent and he said that his issue may avoid that rent and this case I grant because the rent was not intailed but for the other case I openly denie that and there is much difference between those two cases for a fine levied of the land may include the rent as well as the land but it is impossible that a fine of rent should include the land and our case here is pleaded to be of the land and of the rent and a fine of the land may carry the rent inclusively because it is a fine of a thing intailed yea it is not a new thing that rent should be carried inclusively by way of extinguishment in the case of a feofment and then á fortiori in a fine which is a feofment upon Record and especially when it is levied on purpose to extinguish the rent and the Statute of fines is more strong for that is of any lands Tenements and hereditaments any wayes intailed to any person c. but this rent is an hereditament intailed to the person who levied the fine and this which is carried inclusively is within the Statute nay if a man had nothing in the land yet if it was intailed to him who levied the fine this shall bar the estate tail for ever as if Tenant in tail made a feofment to G. S. and after that he did levie a fine to a stranger of the same land that in this case the issue shall never avoid this and yet neither the Conusor nor the Conusee had any thing in the land and see for Archers case Cook 3. where the issue in tail levied a fine in the life of his ancestor and a good bar and yet there he had but a possibilitie and so was the case of Mark-williams Mich. 19. Jac. Rot. 763. C. B. where all the distinctions were made for Henry Mark-williams was heir apparant to his Mother who was Tenant in tail and he levied a fine in the life of his Mother and died without issue and then his Mother died and it was ruled that this did not bar the sister heirs because she may have that and never make mention of her brother but in our case if the rent had been granted in fee it had been no question but that a meer release will extinguish that and I think a fine with proclamation is as forcible to extinguish a rent which is intailed as a release is for a rent in fee another reason is this is a fine directly of the rent though this is by the name of land and also this is upon Conusance of right c. and also in that he released and remised to the Conusees all his right in the said land but a case out of Bendloes Reports may be objected Tenant in tail accepted a fine of the land and rendred that for life ruled the issue is not barred but first I do not allow this case to be good law but if it be good law the reason is because he accepted only a fine of the land and for that it only extends to that and not to the rent as if a man is seised
to be good for though that shall be void for the interest yet it shall be good for the residue and then the non payment is a breach of the condition for where an award is made for a thing against the law and for another which doth stand with the law this is good for one and void for the others so here Secondly this award is not for interest but rather for the damage for the forbearance of the money but admit that this were for direct usury yet that is not void my brother Bridgman had cited a case where an assumpsit for usury was void I know well what the judgement was for I was of Councel in the case and much was said in that against usury and Glanvil was cited Lib. 9. cap. 14. which said that an usurer did forfeit his goods but that is to be intended of such who live by the common oppression of the people and there was not any precedent found where a contract for usury was void Noy the 26. Ed. 3. 24. debt is brought for money given for usury and admitted and the Statute of the 13. Eliz. and 37. H. 8. which were made against usury shall be frivolous if such contract shall be meerly void for they made only such contracts to be void as were made for above 10. in the 100. and so I pray judgement for the Plantiff An action upon the case was brought for calling one thief and the other did justifie the words and said that he was possessed of a Heifer which was privately taken from him and that upon search he found that in the possession of the Plantiff with his ears cut off and marked with the Mark of the Plantiff and it was ruled that this was not a good justification for the matter is not sufficient but he ought to have expresly averred that the Heifer was stole from him and accordingly it was adjudged Hill 22. Jac. C. P. Hillary Term in the two and twentieth year of King James in the Common Pleas. THe residue of the case between Cooper and Edgar and now this Term Serjeant Crook argued the case for the Plantiff and after a recital of the case he said that the general question is whether the Lady Cesar had any estate by this fine or whether the old estate for life remains for if she had the one or the other then it shall be against the Plantiff and he said the points which I will insist upon are four First whether these words do make a precedent or a subsequent condition for if the uses do not arise till there be a failing of the payment then it is on my side but if the uses do arise before then indeed it is against me and I hold that no use will arise till there is a default in payment in which I will observe that the words are all in one period and one sentence and till the first of September the use wil remain in Robert Foyne for here the same is voluntarie and it is without any consideration and then what doth the Law say till the condition was performed the use was in him and his heirs the grand doubt is whether si here made a precedent or a subsequent condition and I hold that si is alwayes a note of a precedent condition if it may stand with the law and with the intentions of the parties but if it doth cross either of those then that is a subsequent condition and yet I agree if si is annexed to an estate which passeth by liverie then this is a subsequent condition and the same if it be annexed to a grant which is executed but if it is annexed to a grant which is executory then that is a note of a precedent condition and so is Bracton lib. 2. fol. 190. where there is an example and the placing that first or last is not material and in the case of an use which is executory as this is there till the if is performed nothing will pass Plowden 172. nay the case of 14. H. 8. by Brooks and by Brundwel if I covenant that another shall have my land when he marries my daughter no use will arise till he marrie her and the case of Colthirst proves my difference both the wayes for the lease was made to Henry and his wife for life the remainder to William si ipse inhabitaret c. and if he die in the life of Henry or his wife that then it shall remain to Peter there the first si is a precedent condition for if he do not die in the life of them then Peter shall take nothing by that and to this purpose there is a notable case 13. H. 6. 7. where a man made two his executors and if they did refuse to administer then he made two others within 3. moneths after his death and ruled that in the mean time they are not executors and yet si was placed in the subsequent place there and there was a case H. 33. Eliz. between Iennings and Cawman where a man made his will and devised his lands to his son for 3. years and afterwards appointed that if his wife whom he made Executrix did not suffer him to injoy that for 3. years that the son shall be executor and the question was whether the feme was executor in the mean time and there Anderson said that this was a precedent condition but the other Iustices were against him because it was a thing of continuance and there they agreed the case of Colthirst that the word si ipse inhabitaret are a subsequent condition because it is a thing of continuance which may be infringed and broken every year and there was a case in this Court 29. Eliz. Rot. 854. between Iohnson and Castle where a man devised his term to his youngest son if he lived to the age of 25. years and did pay to his eldest brother so much money and agreed no estate passeth till the age of 25. years and payment of the money and the reason was that a devise executory may depend upon a precedent condition and so here the use is executory and nothing passeth till there is a failing of the payment like to the case of the 15. H. 7. where a grant is made upon condition that if the Grantee perform such a thing he shall have such an Annuitie there nothing doth pass presently and so 21. Ed. 3. 29. where a man was bound in an obligation not to infeoff when he came to the house of Ancestor c. vide the case and here in our case because the condition is that if he do not pay that then she shall have it to her and her heirs therefore it is a precedent condition and if the use had been limited to him if he marrie his daughter such a day in the mean time no use will arise because the limitation is to him upon a thing not executed and this being all in one sentence no use will arise in the
mean time the second point is whether the heir of Robert Foyne may pay that or is bound to perform that then the law dispenceth with that for it is limited if Robert do not pay and so it is personall to him like to the case in Plowden when a thing is reserved to be made by the person of a man no other man may perform that neither the heir nor yet the Executor as in Dyer 66. 8. H. 4. 19. 21. Ed. 3. 29. where the heir is not named he is not charged and 10. Ed. 4 12. 11. Ed. 3. 16. and so in this case because it is personally limited to Robert Foyn and ergo if he do die there the law will not compel the heir and that is the reason of Littletons case fol. 76. for there though the father Morgaged and the son is not named in the condition yet because he had an interest in the condition he may perform that and so the case fol. 77. the feoffee of the feoffee may perform that though it is annexed to the first feoffee only and this is for the salvation and safety of his estate and in the first case being in A. Morgage the law said that the heir shall not be prejudiced but when it is a voluntarie Act and in point of discretion to the father there the son may not perform that and here the law had prevented the father in the point of election ergo it is discharged and it is like to the case of the Countess of Arundel where a thing is annexed to the person of a man no other may perform it and so here the heir may not perform that for it is discharged by the death of Robert Thirdly admit that he may perform that then the question is whether default of notice may not excuse and here the Lady was a partie to this condition in the indenture and here the ignorance of the fact may excuse and when the law doth put a man upon a necessitie there it will excuse him as 44. Ed. 3. 61. and 50. Ed. 3. 39. and so the Law will not impose a necessitie of notice upon him The residue of the case of Cooper and Edgar by Serjeant Crook BVt Crook said that he being heir is bound to take notice but for answer to that I will cite you one express case Francis case Cook 8. for there the heir was not bound to take notice of the proviso in the feofment without notice given to him of it Winch that case directly complies with our case and so Farmers case Cook 3. lessee for years in possession levies a fine that doth not bar the reversioner because he continued in possession at the same time and he had not notice of that and here if the Ancestor had not died seised there had been some colour that he might have had notice and this differs from Littletons case where the heir may pay the Morgage that in that case he ought to take notice at his peril because he did not die seised Corbets case and see 4. Coo. 8. where land is given to executors to take the profits there resolved that default of notice doth not hurt them but they shall hold against the heir now for that last point whether the estate for life is saved by the Statute of the 27. H. 8. or whether it is gone by the acceptance of the fine and I think it is gone and yet I agree if it had been lessee for years it had been within the saving of the Statute because he is but a conduit pipe to convey that but in our case when it is by limitation of the use then it will not be saved because that it is by her own provision that the use is so limited to her and so the law will not aid that and by the common Law it is an express determination of the estate 1. H. 7. also the cases of Tenant for years being within the saving of the Statute doth in no sort help this case for it may well stand with the estate but out of the freehold the uses do arise and besides the law will not provide for him who had not provided for himself as 5. H. 7. 7. if a man made a gift intaile rendring rent the Law will not raise any other tenure and it is a rule in law that a man shall not take an estate by implication where he had expresly limited an estate to himself and to that purpose there was a good case Hill 13. Eliz. between Richmond and Bowcher where a lease was made rendring rent to the lessor his executors and his assigns and there the lessor died and it was ruled in that case that the Executors nor the assignes shall not have that nor the heir for it was not reserved to him and in 16. Iac. one Farmers case where such a lessee for years took a feofment with an intent to suffer a recovery but he continued in possession two terms after before he suffered the recovery and yet it was adjudged the Term for years was saved but here he being Tenant of the freehold this may not stand with the limitation of the uses and so I pray judgement for the Plantiff The argument of Davenport Serjeant DAvenport to the contrary after a Recital of the case said that he thought this to be a subsequent condition for here are two uses limited and so there is two conditions for the first if if he do not pay this is subsequent and the estate doth proceed but the other is precedent and the estate is subsequent and the sole difference when if makes a precedent and when a subsequent condition is upon the words for in this case words make the case and if the estate is limited first and then the condition seems annexed in words to determine that in that case it is a subsequent but if the Act is first appointed to be made and then the estate is limited by express words there the estate will not begin till the tunc is performed and so is the very difference 14. H. 8. 22. and there the principal case is adjudged to be subsequent and upon that difference is 15. H. 7. and Coo. 7. where the estate is first limited and then the condition is after that and the meaning of the parties was that the Lady shall have the fee if the other will not redeem that and I desired to be tried by no other cases then those which my brother Crook had cited Mary Portingtons case si is a proper word to determine an estate and then the estate ought to be before and for the difference between things executed and things Executory under favour that is no difference but that is as the words are placed and I denie the case of Executors put by my brother Crook and so I say it is a present estate but it is defeasable after by payment but now for the second point whether it was discharged by the death of Robert or whether
the parties hinders the operation of the law and that law will not provide for him that provides not for himself and the Lady her self was partie to the limiting of the uses and she covenanted that she will be seised by vertue of the fine and under the condition in the indenture and so it is a plain Surrender of her former estate and so I pray judgement for the Plantiff The argument of Serjeant Hendon to the contrary HEndon contrary there are 3. points First whether this be a precedent or a subsequent condition and I conceive it is subsequent and here the indentures being but to declare the uses of the fine and not to create any use ergo it shall be guided by the intents of the parties appearing in them and so is the Earl of Rutlands case Cook 5. and Dyer 357. and Shelleys case and the meaning of the parties was not to raise any use to Robert but only a possibilitie to reduce that by the performance of the condition and first it is here said that the Conusee shall be seised to the uses hereafter expressed and under the conditions and then the use ought to preceed the condition for no man may stand seised under the condition except the condition is subsequent to the use to arise Secondly when is the use to arise to Robert surely when he payes 10. s. and then in the mean time the use is to the Lady and her heirs for tunc had here relation to when as it is said in Boles case Cook 3. and in Grants case cited in Loves case Cook 10. and 17. Ed. 3. 1. all which cases prove that tâ—en had relation to when and before this when he had nothing and this doth appear to be the agreement of the parties and now for the words themselves I take it that they make a subsequent condition and so it is here limited in intention and for that in matter also and it is said in Colthirsts case in Plowden that if the estate doth first pass reducible upon condition then it is subsequent and here it is limited to the Conusee and his heirs if the Conusor do not pay but here it hath been said is inversio verborum and the consequent is placed before the Antecedent and this hath been proved by Logick I never knew cases in law to be expounded by Logical and Grammatical learning but by the intentions of the parties and here I conceive that the estate is vâ—sted in the Conusee by the fine and so the condition is subsequent but admit it is Executory and I say concerning that there are these differences that if the state of the thing granted is executory and that the condition of the thing granted is Executory and the condition is to remain with the estate so long as the estate doth remain the condition is precedent 28. E. 3. 2 4. 3. 1. H. 6. 32. but if the condition be but one time to be executed and that not contained with the estate then it is subsequent 10. Eliz. Dyer Calthorps case but here our estate is executed for it is expresly limited to the Lady Cesar and her heirs which takes away all implied uses so that no implied use shall result in the mean time and so 75. Assises land given to a man and to his heirs if he have heirs of his body now this if is subsequent and so I conceive that it is not a condition simply but a conditional limitation for it appears by Mr. Littleton because it is no otherwise expressed and another reason is because the condition is annexed to the future time ergo that is subsequent and yet I grant there is a difference betwixt such an estate conditional annexed to an interest and where it is is annexed to an authoritie it may be precedent but for an interest it is subsequent as is the case of Bracton lib. 2. fo 3. and now for the second point whether the heir may and ought to perform that and I do conceive that he is and it is not annexed to the person because it is real and doth arise with the land Secondly yet the law doth expect who ought to have performed that but it is the performance it self which the law doth respect 4. E. 3. 2. such condition real which doth arise with the land and in such a case no notice is in that case requisite and the last point is whether the estate for life is gone and I hold that it is saved by the common law of England for the fine only is as the grant of the reversion by the explanation of the indenture and then there is no surrender in the case but when the condition is performed the estate for life doth remain and so was it resolved in Mr. Mansors case and yet I agree that a litle matter will make a surrender and Mr. Ruds case where lessee for years of an advowson was presented by the Patron that was a surrender but the Statute of the 27th of H. the Eighth at the end saved that though it is to her own use for the words of the saving are to every person and their heirs which hereafter shall be seised to any use all such former rights c. possession c. as they might have had to their own use in any lands whereof they be seised to any other use whatsoever and so upon the whole matter I do conceive that judgement ought to be given for the Defendant The residue of the case of Gibson and Ferrers NOw the case of Gibson and Ferrers which see before was argued again by Serjeant Bridgman and he said as before the award is not good for the interest and yet he now agreed that covenants bonds and contracts for usury are good in law but yet it may not be awarded 17. Ed. 4. 5. if a man do submit to Arbitrators they may not award that he and his wife shall levie a fine but if the partie himself do promise that this is good and shall binde the wife to perform that and besides he said that here is an award made only of one side and nothing is allowed to Ferrers and so not good 9. Ed. 4. 29. 29. H. 6. 22. and I pray that the Plantiff may be barred Hendon to the contrary and he argued if an award be good in any part though it be not in that which is assigned for breach yet it is good upon such plea of nullum fecerit arbitrium and the other shews an award and assignes the breach in this case the breach is not traversable for it is of the form and not of the substance of the action but to that the Court did presently answer that the cause of the action is the breach of the award and this he ought to make apparent to the Court for otherwise he shall not have any action and though the breach is not traversable yet it is of the substance of the action for upon such plea pleaded he not only
covenanted with Sir Edward Sackvil to levy a fine to him of that land before the fine acknowledged the eldest brother dyed and the question was whether the youngest shall be compelled to levy the fine and presidents were commanded to be searched concerning that matter Note that it was said that where a commission issued out of the Court of wards to 4 persons or to any 2 of them and one of them refuse to be a Commissioner and the other 3 sit as Commissioners and he who refused was sworn and examined by them as a witness and ruled that this is good for though he refused to be a Commissioner yet he is not excluded to be sworn as a witness In evidence to the Iury the case was that Tenant in taile bargained and sold his land to I. S. and his heires and I. S. sold to the heire of the Tenant in taile being of full age and Tenant in taile died and the heire in taile claimed to hold his estate and the doubt was whether he was remitted or no Hobert was of opinion that after the death of the Tenant in taile that the heire is remitted for if Tenant in taile bargain and sell his land the issue in taile may enter and where his entrie is lawful there if he happâ— the possession he shall be remitted Hutton and Warberton Iustices contrary For at the first by the bargain and sale the son had fee and then the estate of the son may not be changed by the death of the father he being of full age when he took this estate and this was in an Ejectione firme of land which concerns Sir Henry Compton and the Lord Morley and Mounteagle White against Williams VVHite brought an action of accompt against Williams as his Bayliff to his damages 100. l. the Defendant pleaded he never was his Bayliff and it was found against him and the Iudgement was given that he should render an accompt and at the day the Defendant made default Ideo consideratum est per Curiam quod Querens recuperet versus predict Defendent 42. l. 10. s. and upon that the Defendant brought a writ of error and assigned for error that the Court gave Iudgement of the value without inquiring of the value and it was holden by Gaudy and Fenner only present that the Iudgement ought to be given which the Plantiff had counted of Baron Altham contrarie for the Court may in discretion give a lesser summe Hill 43. Eliz. B. R. vide 14. E 3. Accompt 109. 20. E. 3. 17. Sir George Topping against King VVA st was assigned in the cutting of Elmes and other Trees to such a price and Iudgement was given for the Plantiff by nihil dicit and a writ of inquiry of dammages issued upon that and the Iury found to the dammages of 8. s. and upon this Davies the Kings Serjeant moved to have a new writ of inquiry and that the old writ shall not be returned for the dammages are too litle Winch said all is confessed by the nihil dicit Hobert The Iury here have found the value and presidents were commanded to be searched and Hobert said that if an information is for ingrossing of 1000 quarters of corn and Iudgement is given by nihil dicit and a writ of enquiry issues which findes him guilty of 100. yet this is good And not that at another day the case was moved again it was between Sir George Topping and King and it was said if a man recover in waste by nihil dicit and a writ of inquiry issues the Iury in this case may inquire of the dammages but not of the place wasted for this is confessed and so are the presidents according and Hobert said if the Defendant is bound by the nihil dicit as to the place wasted for what cause shall not he be bound as to the dammages and by all the Court if the jury finde dammages only to 8. s. the Plantiff shall not have Iudgement for it ought to be above 40. s. Hob. this is in the discretion of the Court in this case and it was also said in this case that upon the grant of all the trees and after the grantee cut them and new ones grow upon the slumps which in time will be trees that in this case the grantee shall have them also by Hobert Wetherly against Wells in an action for words VVEtherly against Wells in an action upon the case for these words thou hast stollen hay from Mr. Bells racks and upon not guilty pleaded it was found for the Plantiff and now it was moved in arrest of Iudgement because he had not shewed what quantity was of that and perchance it may be of so little a value that it is not fellony and the rather because it is hay from the Racks but Hobert contrary that Iudgement shall be given against the Defendant for the Plantiff for it hath been adjudged lately in this Court that where a man was charged with petty Larceny to steal under the value of 12. d. that an action of the case will lie for the discredit is not in the value but the taking of that with a fellonious intent and yet it had been adjudged in this Court that where one said of another thou art a thief and hast stolen my trees that in this case an action will not lie but this is by reason of the subsequent words trees for it is said Arbor dum crescit lignum dum crescere nescit And Winch said that it had been adjudged actionable to say thou art a thief and hast stolen my corn and yet perchance not exceed 2. or 3. grains and Warberton said that it had been adjudged in the Kings Bench that where one said thou art a thief and stollest the corn out of my field that no action will lie The Earl of Northumberland and the Earl of Devon NOte that in the case of the Earle of Northumberland and the Earle of Devon execution issued out for dammages recovered against the Bayliff of the Earle of Northumberland by the name of I. S. of D. and there was I. S. the father and I. S. the son and the father being dead the son issued his writ of Idemptitate nominis and he prayed to have a supersedeas and Warberton demanded of Brownlow if he had any such president to award a supersedeas in such case who answered no and Warberton and Hutton being only present said that they will advise of that Sir George Sparke Prescription IN a Replevin for the taking of a horse in 5. acres of land in such a place and the Defendant avowed as Bayliff to Sir George Spark and shewed that Sir George Spark and all those whose estate he had in the land had used time beyond the memory of man to have herbage and pasturage in all the 5. acres when that was not sowen and upon this plea the Plantiff demurred Ashley argued for the Plantiff that the prescription is void and this is not