Replevin against Edmund Brach and others the Defendant made Conulance as Baily to John Levison and said that long time before the taking c. one William Coup was seised of a house and eight acres of Meadow c. whereof the place is parcell in his Demesne as of Fee and did demise the same to Richard Coup for one and twenty years reserving Rent and the Lessee died and the Land came to his Wife as his Executrix who married Roger Owseley and that William Coup did levy a Fine of the Premisses to Stephen Noke and others to the use of Stephen and his Heires and after Stephen entred and outed the Termor and infeoffed John Leveson and his Heires and then the Termor re-enters claiming his Terme and for Rent arreare the Defendant made Counsans as aforesaid and it was adjudged against the Defendant because this entry and Feoffment by Noke to Leveson and the re-entry of the Termor is no Attornment and this varies from Littleberries case where the Lessor entred and made a Feoffment and the Lessee re-entred for Noke the Lessor had not any Attornment and can have no Distresse and his Feoffee cannot be in better case then he himself And if the first Feoffee makes Feoffment to B. who enfeoffs C. and the Lessee re-enters that is Attornment but to the first Feoffee and not the other for he may be misconusant of it because he was outed by the Lessor but note Iudgment was not given till Trin. 36 Eliz. Pasch 36 Eliz. in C. B. Owens Case EDward Owen brought an Action of Waste against Peerce for land in ancient Demesne the Defendant made defence and pleaded to the Iurisdiction of the Court because the land was ancient Demesne and the Defendant was ruled to plead over for it is but a personall Action and the Statute is a beneficiall Statute for the Common-wealth and by the opinion of all the Court except Walmsley does extent to ancient Demesne 40 Ed. 3.4 Ancient Demesne is a good plea in Replevin 2 H. 7.17.21 Ed. 4.3 it is no good plea in an action upon the Statute or Glocester Mich. 33 and 34 Eliz. in C. B. Rot. 2122. Sir Edward Cleeres Case SIr Edward Cleere brought a Quare Impedit against the Bishop of Norwich Edward Peacock and Robert Hinston Clerk to present to an Addowson holden in Capite Anderson A Devise of an Addowson in grosse is void because it is of annuall value whereof the King shall have the third part But Owen Beaumont and Walmsley held the contrary and so it it was adjudged See the Case of the Earle of Huntington against the Lord of Montjoy of a Devise of Liberties of Cramford which were not of any annuall value and yet the opinion of Wray and Anderson Iustices was certified to some of the Councell being Arbitrators that the Devise was not good Trin. 36 Eliz. in C. B. Rot. 2145. Brownes Case ANthony Brown brought an Action of Trespasse against Richard Pease the Case was this John Warren was seised in fee of the Mannor of Warners and of the Mannor of Cherchall and demised his Mannor of Warners to the youngest Son of Richard Foster his Cosin in fee. at which time Richard the Father had issue George Foster and John Foster And he demised his Mannor of Cherchall in haec verba I will my Mannor of Cherchall to Margery Water for her life and if she die and then any of my Cosin Fosters Sons then living then I will my foresaid Mannor of Cherchall unto him that shall have my Manner of Warners and after the Devisor died without issue and the Reversion of the Mannor of Cherchall discended to Henry Warner as Brother and Heire of the Devisor And after the said Henry Warner by Deed Inrolled did bargain and sell the Mannor of Cherchall to Anthony Browne who devised it to the Plaintiff And then George Foster dies without issue and the Mannor of Warners does discend to Iohn Foster his Brother and Heire who enters and enfeoffs the Lord Rich and after marriage the Tenant for life of the Mannor of Cherchall dies and the Plaintiff enters and the Defendant enters upon him as Servant to Iohn Foster whereupon the Plaintiff brought this Action And Iudgment was given for the Plaintiff because that the words and the intent of the Devise was that the Mannors of Warners and Cherchall should go together and therefore the Mannor of Warners was sold before the death of Margery by John Foster and after the death of Margery John can take nothing by the Devise Mich. 29 and 30 Eliz. Rot. 2325. or 2929. Hambletons Case JOhn Hambleton had issued foure Sons John the eldest Robert the second Richard the third and Thomas the fourth and devised to each of them a parcell of land to them and the Heirs Males of their body begotten and if it happen that any of their Heirs dye without issue Male of his body lawfully begotten then the Survivor to be each others Heire If these words make a Remainder or are void was the question And it was adjudged against the Plaintiff for the Court held that all those that survived were Ioynt-tenants and one Ioynt-Tenant cannot have a Trespasse against the other for by the intent of the Will it appears that the Survivors should have that part and the survivority of each other Heire each Survivor that is all that survive shall be each others Heire and so the remainder should be to every one of them 29 Eliz. Fenners Case argued before the Lord Mayor of London at Guildhall IN this Case it was adjudged that if a man Covenants that his Son then within age and infra annos nubiles before such a day shall marry the Daughter of I.S. and he does marry her accordingly and after at the age of consent he disagrees to the marriage yet is the Covenant performed for it is a marriage and such a one as the Covenantee would have untill the disagreement vide 7 H. 6.12 Dyer 143.313 369. 25 Eliz. Webbe against Potter IN an Ejectione firmae by Webbe against Potter the Case was Harris gave Land in Frank-marriage to one White and the Deed was Dedi concessi Iohan. White in liberum maritagium Iohannae filiae meae habend dictae Ioannae heredibus in perpetuum tenend de capitalibus Dominis feodi illius with Warranty to Iohn White and his Heires Periam The usuall words in Frank-marriage shall not be destroyed for the words of Frank-marriage are Liberum maritagium cum Ioanna filia mea in the Ablative case and although here it be in the Dative case it is good And of the same opinion were all the Iudges Also a Gift in Frank-marriage made after the Espousals was held good by all the Iustices 2 H. 3. Donor 199.4 Ed 3.8 Dyer 262 B. And a Gift in Frank-marriage before the Statute was a Fee-simple but now speciall taile and if it be not a Frank-marriage he shall have an Estate for life and to prove this his
the Law makes a Tenure and when the party for if the Law makes a Tenure the Heirs shall have the Rent but otherwise where the party makes it unlesse there be expresse words for the Heire as in 10 Edw. 4.19 by Moile If H. makes a Gift in T. and reserves no Rent yet shall the Donee hold of the Donor and his Heires as the Denor holds over but if he make a Lease for yeares rendring Rent to the Lessor the Heire shall not have this Rent for it is a Tenure made by the act of the party So in the Book of Assises 86. If a man le ts two acres of Land rendring Rent ten shillings for one of them to himself by name without naming his Heires it is adjudged that the Heire shall not have the Rent of this acre And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for yeares rendring Rent to the Lessor and his Assignes here none shal have the Rent but the Lessor and it is void by his death for his Assignee cannot be privy to the Reservation and the words of the party shall not in any case be enlarged unlesse there be great inconvenience to be avoided and his intent and will is performed if he himself have the Rent And if a man reserve such Rent to him and his Executors this word Executors is to no purpose for that the Rent cannot be reserved to them but the Rent shall be extinct by his death And if he reserve the Rent to his Heire and not to himself he shall not have it but his Heire for he shall be estopped to claime it against his own words and reservation And if I make a Lease for years rendring Rent to me during the terme if I dye without Heire during the terme the Lord by Escheat shall not have the Rent which case may be compared to the case of Warranty 6 H. 7.2 That without mention of the Heires the Warranty shall not bind them But if a Rent be reserved to his Assignes and he grants over the Reversion here because the Assignes were mentioned in the Reservation and for that now there is a privity the Assignees shall have the Rent for it shall be intended that when he speaks of Assignes in the Reservation he prefixeth thereby to whom he will Assigne the Reservation wherefore it was adjudged for the Defendant vide Dyer 2 Eliz. 180 181. H. bargaines and sells Land Proviso that if the Vendor shall pay a hundred pounds to the Vendes his Heires or Assignes that then the Bargaine and Sale shall be void by two Iustices The Tendor shall not be made to the Executors because the Law will determine to whom the Tendor shall be made when the parties themselves are expresly agreed Mich. 33 and 34 Eliz. in Com. Ban. Goddards Case Confirmation by the Lessor to the Assignee of Tenant for years H. makes a Lease for years of twenty acres rendring Rent the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirmes the Estate of I. S. Resolved by the Court 1. That by this confirmation the entire Rent is gone in all the other acres for being an entire contract and by his own act there cannot be an occupation for part and an extinguishment for the other part and in this case there is no difference between a suspension in part and an extinguishment If A. makes a Lease for yeares of twenty acres rendring Rent upon condition that if he does not do such a thing that then the Lease shall be void for ten acres if he performes not the condition and the Lessor enters the entire rent is gone And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum for that Statute extends to an Estate in Land of Fee-simple See the Report of Serjeant Benlowes in 14 H. 7. A Warren did extend into three Parishes And a Lease was made for years rendring rent and after the Reversion was granted to another of all the Warren in one of the Parishes and the Lessee did attorne The question was if the Lessor should have any part of this rent during the terme so that the rent may be apportioned or not And the Iustices said in this Case that neither the Grantor nor the Grantee shall have any rent for the Law is that no Contract shall be apportioned 2. It was resolved that no Lessor shall avow for the arrearages of rent before the time of Confirmation and extinguishment for H. shall not avow for the rent determined but he may defend himselfe by way of Iustification See where a man may justifie the taking by speciall evidence 19 H. 6.41 by all the Court except Askew Mich 33 and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords Case Error HAddock brought a Writ of Error against Wardford upon a Iudgment given in the Common Pleas the case was thus Two Coparceners of a house one of them lets her part to a stranger and the other lets her part to a stranger also and then both Leases come to the hands of one H. and then one of the Coparceners bargaines and sells her reversion to the other Coparcener The Lessee commits Wast Permittendo dictum Messuagium cadere and the grantee of the Reversion brought an action of Wast The Errors assigned were 1. That he brought but one action of Wast although of severall Demises by severall Lessors wheras he ought to have two actions of Wast Godfrey He cannot have an Action in other manner then his Grantor might have before the Grant and when the reversion came to him it can be in other plight then it was before Gawdy There is a diversity when the right is severall and when the possession is severall for although the possession be severall yet if the right be intire but one action will lys as appeares F.N.B. fol. 2. Godfrey There is difference between the Writ of Right in F.N.B. and this action for there he was never intituled but onely to the action but in our case the action was once severall and is like the case in F.N.B. 60. where it is said that a man may have one action of Wast and declare upon divers Leases but that is intended where the Leases are made by one person and he cited the case in 21 H. 7.39 where it is agreed by all the Iustices that if a man hold two acres of one H. by severall Services and dies without Heire the Lord shall not have one Writ of Escheat but ought to have two Writs Popham chief Iustice did agree with Gawdy for although that at first the Lessors were intituled to severall Actions yet by matter ex post facto the Actions may be united and said that H. might have an action of Waste and declare ex assignatione and also ex dimissione 2. Error was assigned that he had assigned the Waste to be committed in the whole house whereas he had
this very cause prescribed as we do in this case so they may prescribe in a way or other thing of easement or pleasure 7 Ed. 4.26 a. 15 Ed. 4.29 a. Anderson There is no question but Parishioners may justify their going over any bodies land in their Perambulation Warberton Parishioners shall not prescribe in an easement as in â—y way to the Church Owen The books make a difference between things of interest as in common for in such things Parishioners cannot prescribe and things of easement as a waste for in such things a man may prescribe Anderson It is plain that Parishioners cannot prescribe for none may prescribe but those that have perpetuall continuance and therefore Tenant for years or for life or Parishioners cannot prescribe but must be aided by custome Walmsley of the said opinion for there is no descent or succession in Parishioners And Iudgment was given for the Plaintiff Trin. 37 Eliz. in B. R. Norton and Sharp against Gennet Rot. 178. A Prohibition was sued by the Plaintiffe as Executors to I.S. who surmised that the Defendant sued them in the Court Christian for a Legacy of 200 l. and that the Testator had goods but to the vale of 350 l. and set forth how he was Keeper of the Prison of Ludgate that he was bound to A. and M. Sheriffs of London to discharge and save harmlesse the same Sheriffs from all escapes which bond was to the value of a 1000 l. And shewed that one Holmes was taken by a Capias utlegatum at the suit of a stranger and how the Testator suffered him to escape whereupon an action of debt was brought against the Sheriffs and a Iudgment whereby the Obligation made to them by their Testator is forfeit and pleaded riens intermaines and because the Court Christian would not allow this plea they prayed a Prohibition upon which Coke Attorney-generall demurred And it was agreed by Gawdy Iustice Coke and Tanfeild that if the Bond to the Sheriff be not forfeit then is the Surmise good and the Legacy shall be paid But Fenner said to Coke Quomodo probas Who answered The difference is when a bond is made by the Testator for payment of money in a Suit at the Court Christian for a Legacy such a bond is a good plea although the bond be not forfeit as in the 9 Ed. 4.12 13. for the Condition of the Bond is part of the Bond and a duty but otherwise it is where the Condition is collaterall for the performance of Covenants but in our case the Condition is not broken as is supposed for the Capias utlegatum issued the 25 of Eliz. and so the Arrest meerly void for every Capias ought to be returned the next term after the Teste 21 H. 7.16.6 8 Ed. 4.4 6. Sed alii contra But after a Consultation was moved for if a Recovery was afterwards had against the Executors And it was answered that it was not the course to make a Bond to the party but to the Court But Fenner said that it such course be allowed no Legacy would be paid And Iudgment was given that a Consultation should be awarded if the Legatee would enter into a Bond to the Executor to make restitution if c. or otherwise not Hil. 38 Eliz. in B. R. Haddon against Arrowsmith IN an Ejectment the case was The Queen being Lady of the Mannor of Winterburne in the County of Berks by her Steward did license a Copyholder for life to make a Lease for three years if he should so long live the Copyholder did make a Lease generally to the plaintiff for three years who being ejected brought this Action Stephen The Action will not lye because the Copyholder hath not pursued his licence for license or authority must be pursued very strictly as well in form as substance 10 H. 7. license to enfeoff by Deed or license to impark 300. acres he cannot enfeoff by paroll or impark but 100. acres and it was resolved the last Terme in the Exchequer that if the King license his Tenant to alien he cannot alien to one in tail the remainder to the Donor in fee And so in our case where he makes a Lease for 3. years absolutely he hath not performed his license Gawdy contra for when his license is to make a Lease for yeares if he so long live these words If he so long live are but Surplusage for the Law saies that if Copyholder for life makes a Lease for years and dies the Lease is determined and therfore the clause in the License is no more then the Law saies and so is void Quod suit concessum per totam curiam Fenner The Condition in the License is meerly void for the Lord gives nothing by the License but only doth dispence with the forfeiture and the Lessee is in by the Copyholder and not by the Lord for the Lord cannot condition with him in his License Clench The Lord may license on Condition as where the Lord doth licence his Copyholder on condition that the Lessee shall repair the house or shall not cut Trees for otherwise the Copyholder may cut them and the Lord hath no remedy for his License is a dispensation of the forfeiture Popham contra A Condition to a License is void as a License to make a Lease for years on condition that he pay 20 l. the second year this is void for the reason given by my brother Fenner for the license does not give a right but only executes it as a Livery or Attornment but a Limitation to such License is good as license to alien for two years he cannot alien for three but in our case the Condition the Limitation made by the Lord is void and the difference is between a Copyholder in fee and a Copyholder for life for if the Lord doth license his Copyholder in fee to make a Lease for three years if he so long live and he makes a Lease absolutely this is no forfeiture for this Lease shall be a good interest against the Heir of the Copyholder but otherwise of a Copyholder for life And Iudgment was given for the Plaintiff Pasch 38 Eliz. in C. B. Bishop of Rochesters Case THe Bishop of Rochester brought a Writ of Annuity against the Deane and Chapter of Rochester and declared of an Annuity by Prescription from the Prior of S. Andrewes of Rochester which Priory was dissolved the 28 H. 8. 31 H. 8. their possessions were committed by the King to the Dean Chapter of Rochest Anderson The Annuity does not remain for an Annuity chargeth the party and not the possession and therfore when the Corporation is dissolved which is the person the Annuity is gone Walmesley But in 2 H. 6 9. it is said there If a Priory be charged with an Annuity the Annuity shall continue although it be charged to an Abby Anderson That is true for there the Corporation is changed only but here it is
Perryn against Allen in C. B. Rot. 611. 612. IN a debt upon a Lease for years It was found that on Gibson was seised of Land in Lease for thirty years and he let the Land to Perryn for 19. years rendring 10. l. rent and that afterwards it was articled and agreed between Gibson and one J.S. that Pâ—rryn should have and hold the Lands which he had and also other lands which he had for terme of 3. years rendring a greater rent to which Articles Perryn at another time and place afterwards agreed but the intent of the articles and agreement betwixt them was not that the first Terme to Perryn should be extinct That afterwards Perryn letted this Land to the Defendant Allen for 17. years rendring Rent and then the three years expired and Gibson grants his term to J.S. who enters c. If this agreement amounts to a surrender was the question Hanam for the Plaintiff It is not for to a surrender three things are incident First an actuall possession in him who surrenders Secondly an actuall remainder or reversion in him to whom the surrender is made Thirdly consent and agreement between the parties But to all these the Plaintiff was a stranger and therefore no surrender For if I let land to you for so many years as J.S. shall name if he names the years it shall be good from that time and not before but if I let land for so many years as my Executors shall name this is not good for I cannot have Executors in my life time and when I am dead I cannot assent so in this case there ought to be a mutuall assent between the Lessor and Lessee Hâ—…iâ— Cont. It is a surrender for if he concluded and agreed at another time or accepted a new Lease it is a surrender 37 H. 6. 22 Ed. 4. 14 H 7. and then when a stranger does agree that he shall have other lands and pay a greater Rent this is a surrender Anderson If I covenant with you that J.S. shall have my land for ten years this is only a Covenant and no Lease quod Waâ—mâ—slâ—y concessit And so if I covenant that your Executors shall have my land for a term of years after your death this is no Lease And all the Court held that this was not a good Lease for the act of a stranger cannot make a surrender of the Terme Peryam You at the Bar have forgotten to argue one point materiall in the Case videlicet If Lessee for 20. years makes a Lease for ten years if the Lessee for ten years may surrender to the Lessee for 20. years And Hanam said privately that he could not surrender for one Term cannot merge in the other And Anderson said that by opinion of them all that the Lessee for 10. years cannot surrender But to the other point All the Iudges agreed that it was no surrender And Iudgment was given for the Plaintiff Dabridgecourt against Smallbrooke IN an action of the Case the Plaintiff declared that he was Sheriff of the County of Warwick and that a writ came down to him to arrest J.S. at the suit of the Defendant who requested the Plaintiff to make Russell who was the Defendants friend his speciall Baily in consideration of which the Defendant did assume that if the said J.S. did escape that he would take no advantage against the Plaintiff whereupon he made Russell his Bailiff who arrested the said J.S. who afterwards escapt from him and that notwithstanding the Defendant had charged the Plaintiff for this And a verdict was found for the Plaintiff And in this case it was agreed that where a Sheriff did make a Bailiff upon request of any one it is reason that the party should not charge the Sheriff for an escape by reason of the negligence of such Bailiff for the Sheriff hath security from every one of his Bailiffs to save him harmeless wherefore it is great reason that if upon request he makes a speciall Bailiff that the party should not take advantage of such an escape but that the Sheriff may have his action against him again upon his promise And Iudgment was given for the Plaintiff Hillar 31 Eliz. Beale against Carter Rot. 331. IN an action of false imprisonment The Defendant justified the imprisonment for two hours because the Plaintiff brought a little infant with him to the Church intending to leave it there and to have the Parish keep it and the Defendant being Constable of the Parish because the Plaintiff would not carry the child away with him again carryed the Defendant to prison all the said time untill he took the child away with him And hereupon the Plaintiff demurred And it seemed to the Iustices that it was no good plea for although the Constable at the Common Law is keeper of the Peace yet this does not belong to his Office but if he had justified as Officer then perhaps it had been good And afterwards viz. Hillar 33 Eliz. the Case was argued again and then Glanvill said That it was a good justification for any person may do it For if I see A. ready to kill B. I ought to hinder him of his purpose And in the 22 Ass 50. the Defendant justified because the Plaintiff was madd and did a great deale of mischief wherefore he imprisoned him And in 10 Eliz. which case I have heard in this Court The Constable took a madd man and put him in prison where he dyed and the Constable was indicted of this but was discharged for the act was legall and so here in this Case if the infant had dyed for want of meat it had been murder in the Plaintiff For it was held in 20 Eliz. at Winchester before the Lord Bacon if one brings an infant to a desert place where it dyes for want of nourishment it is murder Gawdy It was ill done of the Plaintiff but that ought to be reformed by due course of Law for a Constable cannot imprison at his pleasure but he may stay the party and carry him to a Iustice of Peace to be examin'd Wray Then such matter ought to be pleaded Quod Gaudie concessit Fenner If he had pleaded that he refused to carry the infant away then it had been a good justification for a Constable is Conservator of the peace but because it was not so pleaded the Plea is naught But the Iudges would not give Iudgment for the ill Examples sake and therefore they moved the parties to compound Pasch 31 Eliz. Sale against the Bishop of Lichfield in C. B. SAle Executor of J.S. who was Grantee of the nomination and presentation to the Archdeaconary in the County of Derby brought a Quare impedit against the Bishop of Lichfield and declared of a presentment and disturbance in vita Testatoris quod Ecclesia vacavit adhuc vacata est The Defendant pleaded Plein d'Incumbent before the writ purchased and Iudgment was given for the Plaintiff And it was moved
the wife is at large to have the twelve pound and her Dower also But the Court held that she could not have her joynture for by the recovery of the Dower her joynture is barred for the Rent was given her in recompence of her Dower so that it cannot be intended that she shall have Rent Dower also wherefore it was adjudged that her entry on the Land was not good 30 31 Eliz. The King against the Bishop of Canterbury and Hudson Rot. 1832. IN a Quare impedit Hudson the Incumbent did plead that King Edw. the 4th did grant the Rape of Hastings Et bona catalla Fellonum Fugitivorum ategat of all Residents and non-residents within the said Rape to the Earl of Huntington And pleaded that John Ashborne was seized of the Mannor of Ashborne and of the advowson appending to it and held the same of the Earl of Huntington as of his Rape of Hastings and that the said John Ashborn was outlawed during which the Incumbent of the said Church dyed and the Earl presented the said Hudson Shut I conceive this avoydance does not belong to the Earl by reason of this grant for by the same Patent libertie is given to the said Earl his heirs to put himself into possession and of such things as he cannot put himself into possession they will not passe and here this is a thing in action which by these words will not passe 19 H. 6.42 by the grant de Catalla Fellonum obligations do not passe VValmesley Stanford in his prerogative saith that by the words Bona catalla the King shall have the presentation to the Church of him that is outlawed or Attaint and by the same reason he may grant it by such a name and although the party cannot seise such a thing yet it shall passe 39 H. 3.35 Rent for years shall passe by the grant of bona Catalla Periam It will passe by these words for it is an ancient grant for in that time the Patents of the King were not so specially penned as now they are Anderson I conceive the avoydance will not passe by thse words for within this word bona moveables are contained both dead and living and Avoydance is no Chattell nor right of Chattell Quod Peryam negavit c. Mich. 37 38 Eliz. Townsend against VVhales IN an Ejectment the Iury found that J.S. was seized of land in possession and also in reversion for terme of life and made a Devise by these words That his Executors take the profit of all his Lands and tenements Free and Copy for ten years for the payment of his debts and Legacies and after the end of the said ten years that all the aforesaid lands and tenements with their appurtenances should be sold by his Executors or one of them and the silver to be bestowed in the performance of his Will or by the Executors of his Executors or any of them and then one of the Executors dyed within the ten years and the two surviving Executors did grant all aswell in possession as in reversion to House who made a Lease to the Plaintiff And two points were resolved 1. That the Executors may grant the reversion 34 H. 6. for by these words Free and Copy his intent appears that all should be granted 2. That although one of the Executors died yet the other two Executors may sell Anderson If such bevise had been at the Common Law and one Executor had refused the two others could not sell but if one die the survidors may sell the land for there the authority doth survive Which difference the other Iustices agreed to And at another day Anderson said there was difference where the Devise is that Executors should sell his and the money divided between them there if one die the others shall not sell but otherwise here because the money is the performance of his will Walmesley The sale by the two Executors is good for it is said the Executors or any of them c. And Beaumond agreed Wherefore judgment was given for the Plaintiff Note that there were two verdicts in this case and the first only found that the Executors shoull sell after the ten years and that one dyed and the other two did sell within the ten years and the opinion of the Court was that the sale was voyd but in the 39 and 40 Eliz. all the whole will was found and Iudgment given ut supra The Earle of Rutlands Case Roger Earl of Rudand and John Maners and others Executors to John late Earl of Rudand Executor to Edward Earl of Rutland brought an action on the case against Isabell Countess of Rutland And Declared for divers Iewells and goods c. that came to the hands of John Earl of Rudand as Executor to the said Edward and the said John the 10th of July 29 Eliz. did casually loose them which after came to the hands of the Defendant licet saepius requisita she would not deliver them to the said John in his life time nor to the said Plaintiffs after his death but knowing the goods did belong to the Plaintiffs in D. in the County of Notingham converted them to her proper use And a verdict for the Plaintiff And it was moved often in arrest of Iudgment but all the Iustices agreed that the action of Trover and converversion would lie by the Executors upon the Satute of the 4 Ed. 3. upon a conversion in vita Testatoris and so hath it been adjudged in the Kings Bench and although the Statute mentions onely a Writ of trespass that is only put for example Also they all agreed that the sole cause of action to the Conversion for it there were no conversion they shall be put to their Detinue therefore the great doubt did arise because the day and time of the conversion was not shewed for perhaps it was after the Writ and before the Declaration And also if it was in vita Testatoris they should have this action by the 4th of Ed. 3d. But at length Walmesley said That all Iustices of the Common Pleas and of Serjeants Inne in Fleet-street besides Peryam Chief Baron were of opinion that Iudgment should be given for the Plaintiffs for that some of them held that the day of the Conversion is not materiall to be shewn and others that of necessity as this case is it shall be intended that the conversion was in the Plaintiffs time wherefore Iudgment was entredfor the Plaintiffs but a Writ of Errour was brought and the Case much debated Michaelm 38 39 Eliz. Carew against Warren in C. B. Rot. 1945. GUnter Tenant in Tasle of Lands in antient Demesn made a Lease for 60. years to J.S. and for security thereof levied a Fine to Lee and Loveland who rendred to Gunter in Fee who devised the reversion to his wife for life the remainder in Fee and dyed And then the Lord of Andover which is an ancient Mannor by an
reverse a fine levies by them against both 21 VVhere two persons bring a writ of Error and the Tenant pleads the release of one it shall bind both 22 Against the stile of a Court for not saying secundâ—m consuetudinem 50 For want of the addition of the Defendants name 58 VVho shall have a writ of Error to a-avoid a recovery and whether the heir generall or speciall shall have it 68 VVhere the heire shall have this writ and where the Executors 147 Escheat No Escheat to the Lord where the Felony is pardoned before attainder 87 Estovers Turbary leased and the Lessee converts half to arrable and then grants totum turbarium 67 Execution VVhere the Sheriff delivers a Mannor cum pertinentiis in execution what passeth thereby 4 VVhere a writ of execution is good against one attaint of felony 69 Executors Where an action grounded on a simple Contract will be against Executors 57 VVhere the second administration shall repeal the first 50 In what case Executors shall have an action for things done in the life of the Testator 99 VVhere Executors shall be said to be Assignees 125 Where an Administrator or Executor shall be said to take by purchase 125 Extent VVhere the Sheriff extends a Mannor by the name of acres land Meadow and wood what passeth 4 Felony and Felons FElony of a Shepheard to steal Sheep 52 VVhat persons shall keep felons goods 121 Fine VVhere the husband and wife shall bring a writ of Error to reverse a fine levied by them 21. in error Where in a mistake in a fine shall be remedied 42 Fish Whether the Heire or Executors shall have the fish in a Pond 20 Where waste will lye for taking fish 19 Forfeiture Executors cannot forfeit goods to charritable uses 33 Frankmarriage The necessity of the word Frankmariage in the gift and the nature and quality of the estate 26 Gift in Frankmarriage after the Espousall good 26 Where a gift in Frankmarriage shall be by matter ex post facto be made an estate in tail or other estate 27 Grants WHat passeth by this grant PanagiuÌ„ by the grant of acorns 35 What passeth by the grant of pastura terrae 37 Grant to I.S. and there be many of that name to whom it shal be intended 64 Habendum LEase of a Mannor habendum with all the members what passeth 31 Lease to one habendum to three others for their lives and the longer liver successively what estate 38 39 Lease to husband and wife primogenito what estate 40 Heire Where the heir shall have the rent reserved in a Lease for years 9 Where the Heir Tenant of the King in Socage shall enter without livery 116 Inditement FOr drawing a Sword in Westminster-hall the Courts then sitting 120 Infant Where payment or tender of money for an Infant is good and at what age 137 Inrolement Where the Bargainee shall be accounted Tenant of the land before the Inrolment 69 When the use passeth by the Inrolm 149 Joynt-tenants and Tenants in Common Lease made by them rendring rent to one of them both shall have the rent 9 Many cases declaring what acts are good by one Joynt-tenant to another and what not 102 Joynture Where an assurance made to a woman for her Joynt-ture shall be good by averment although not expressed in the Deed 33 Judgment Reverst in an action of debt for declaring less then is alledged in the writ 35 Jury Jury eat before verdict the verdict good 38 Jury finding out of their Issue 91 Jury-man returned that is no freeholder 44 Leases LEase to a man by these words Dedi concessi confirmavi 9 Of a house excepting one Chamber 20 Of him that hath nothing in the land 96 Sub hac conditione si vixerit vidua habitaret super pramiss the Lessee dies how the term continues 107.108 Of three acres and of the Mannor habend three acres and the Mannor for 21. years severall Demises 119 Lessee assigns over and continues possession 142 Lord and Tenant Feoffment of the Tenant to the Lord 31 Where the Tenant enfeoffs the Lord of a Moyety and the Seigniory is extinct how to be observed 37.73 Mannor WHat passeth by this word Cite of a Mannor 31 Lease of a Mannor habend all the Members what passeth 31.138 How a Mannor may be divided 138 Grant of a Mannor in one Town that extends it self into two Towns 138 Master and Servants Where the Master may justify for the man and where the man for the Master 151 Nobility VVHere the woman shall lose her Nobility or Dignity by marriage 81 By what act a man shal lose his Nobility 82 Obligation Statute-merchant and Staple Recognizance WHere tryall on a Bond shall be within the Realm though the Condition to be performed without 6 Two bound in a Bond and the Seale of one taken away yet the Bond good 8 Action brought againg the Heir of the Obligor as heir apparent the Father being dead not good 17.119 Obligation wants in cujus rei testimonium good 33 Where an action of debt on a bond for money to be paid at severall times shall be sued before the last payment and where not 42 One bound by a wrong name 48 What shall be said to be no delivery of a bond althoug the Defendant seal it and layes it on the Table and the Obligee takes it up 95 In what case the Obligee shall be accounted a party to the cause why the Obligation cannot be performed 104 Where two shall joyn in Audita quaerela on a Statute and where not 106 Where Conditions on Bonds shall be void in Law 143 Outlawry A Disseisee outlawed shall not forfeit his Lands 3 Where an Outlawry pleaded shall be taken for a Dilatory plea where not 22 Pious uses GOods given to pious uses not forfeitable by Executors and what remedy gainst the Executors 33 34 Pawne He that hath a Pawn hath no interest therin to deliver it one to another 123 How a man may make use of Goods or Cattell pawned to him 124 Parceners and Partition Where they shal joyn in waste 11 The writ of Partition returned how good 31 Payment Demand Tender Amends Where request to pay money must be made and where not 7 Where the Law will expound to whom a tender must be made 10 Who shal tender for the heir within age 34 Where payment of rent to him that extends the land shall save the Condition against the Lessor 38 Where severall actions for payment shal be brought on a Bond or Contract at the severall dâ—ies and where not till all the da es are past 42 Payment in debt on a bond pleaded at the day and given in evidence before the day good 45 Tender in trespass not good otherwise in Replevin 48 Where the Obligor shall give the Obligee notice when he will tender the money and where not 108 Where on Bonâ— given for payment of rent the Lessee shall demand the rent where not 111 Pleas