but part of the house and Waste may be brought for part of a house 3. Error was because the other Coparcener was not joyned with him in the Action But resolved that it was good enough And the Iustices made this diversity viz. When both the parties have an equall Estate and Inheritance and when one of them hath but a particular Estate as in the 27 H. 8.13 Lessee for life and he in the remainder shall joyne in an Action of Waste but where they had equal estate of Inheritance as two Coparceners or two Tenants in Common and one makes a Lease and the Lessee commits Waste there the Writ of Waste shall be brought by the Lessor only for it is not like to a personall injury done upon an Inheritance for an action of Waste is now in the nature of the realty although that at the Common Law before the Statute of Glocester there was but a Prohibition yet the Statute gives the place wasted and damages and therefore it is mixt wherefore both of them shall not joyne and the Writ saies to his â—isheritance that made the Lease vide 22 H. 6 24. by the Court and agreeing with this resolution 4. Error was that the Waste is a permissive Waste and no such Waste lies between Coparceners for each of them are bound to contribution and reparation but the Court would take no notice of this 5. Error was in the entring Iudgment for Iudgment was entred by default whereupon a Writ of Inquiry of damages issued out to the Sheriff and the Sheriff went to the place wasted which he needed not have done And the Iudgment was Quod recuparet locum vastatum per visum Juratorum which was nought for the going to the place was Surplusage But divers Presidents were produced to prove that that was the course as Hilar. Rot. 501. between the Earl of Bedford and William Smith upon a Demurrer and a Writ of inquiry of damages and the Iudgment was Quod recuparet locum vastatum per visum Juratorum and Trin. 31 H. 8. Rot 142. and the book of Entries fol. 620. wherefore Iudgment was affirmed 34 Eliz. in Com. Ban. Gaytons Case Resignation of a Benefice RObert Gayton Parson of the Church of little Eyesingham in the County of Norfolk did by Instrument in writing resign his Benefice before Edmund Langdon publick Notary and others into the hands of the Bishop and the resignation was absolute and voluntary and to the use of Miles Mosse and Paul Britback or either of them And it was further infâ—rred in the said Instrument of Resignation Protestatione sub conditione quod si aliqui eorum non admissi fuerant per assessioneÌ„ Episcop infra sex menses quod tunc haec present resignatio mea vacua pro nulla habeatur nunc prout tunc tunc prout nunc and Cestuy que use came within the time limited to the Bishop and did offer to resigne to him which the Bishop refused to except c. Crooke for the Plaintiff Forasmuch as the Plaintiff may resigne on Condition as well as a particular Tenant may surrender upon condition and two Parsons may exchangâ— and iâ— the estate be executed on the one part and not on the other that Parson whose part was not executed may have his Benefice again as it is adjudged in the 46 Ed. 3. But Coke Solicitor and Godfrey were on the contrary opinion For that the Incumbent may not transfer his Benefice to another without presentation as appeares in the recited case of 46 Edw. 3. Also the resignation is not good and the Condition void because it is against the nature of a Resignation which must be Absolute sponte pure simpliciter and is not like to a Condition in Law as in the said case of Exchange in 46 Edw. 3. for the Law doth annex a condition to it but a collaterall condition cannot be annext by the parties themselves Also this is an Act Iudiciall to which a condition cannot be annext no more then an Ordinary may admit upon condition or a Iudgment be confessed on Condition which are judiciall Acts. But admitting the Condition good yet a new Induction ought to be made by the Ordinary for the Church became one time void and is not like to the case in 2 R. 2. Quare Impedit 143. where sentence of deprivation was given and the sentence presently reversed by Appeal there need no new Institution for that the Church was never void And after in Easter Tearm 36 Eliz. upon Arguments given in writing by the Civillians to the Iudges the Iudgment was entred Quod querens nihil capiat per billam Hiliar 35 Eliz. in the Kings Bench. Rot. 56. Carters Case Action on the case for words WIlliam Crow brought an Action on the Case against Warham Carter for speaking of these words The said William is forsworn and perjured in swearing at the common place Bar upon the Deeds which he then had in his hand Harris Serjeant did move in Arrest of Iudgment for that the words shall be construed according to the common and vulgar sense viz. That he is forsworne upon the Deeds But the Court was against him For the vulgar sense is that men do not use to sweare but upon a Book and the Plaintiff had Iudgment Hil. 36 Eliz. in the Kings Bench. William Bartues Case Prohibition WOodroffe and Cooke brought a Prohibition against Bartue the C se was thus The Abbot of Langley did let Land to one Raston for ninety nine years who let the same to Woodroff for sixty years who granted parcell of the said Land to Cooke during the whole terme And Bartue did libell against them both in the Spirituall Court for Tythes and they joyned in a Prohibition Godfrey They may not joyne in a Prohibition for by the Statute of 34 H. 6.13 If two men are sued in the Court Christian for slander bâ—ttery c. which are severall in themselves there they cannot joyne in a Prohibition but where they be sued for the finding of a Lampe c. by reason of their Land there they shall joyne but in this case the Tythes are severall But it was resolved 1. That their joyning in the Prohibition was good enough 2. That the death of one of them shall not abate the Writ of Prohibition because nothing is by them to be recovered but they are onely to be discharged of Tythes Pasch 33 Eliz. in the Kings Bench Rot. 292. Haslewoods Case Error in Avowry THe Lord of a Mannor did avow on the taking of a Gelding as an Estrey within his Mannor and had Iudgment to have return and damage to twenty pounds And hereupon a writ of Error was brought and adjudged that no Damages shall be had in such case For the Avowant cannot recover damages at the Common Law and by the Statute of the 7 H. 8. and 4. no damages shall be given to the Avowant for Damage-feasant but where he avowes for Rents
a Report 34 Eliz. between Badinton and Hawle in the Kings Bench adjudged that if the Queens Copyholder be outed and a Lease be made for years by the Intrudor this Lessee shall not have an Ejectment if he be outed but he shall have an Action of Trespasse against any stranger The second exception was taken to the pleading because the Defendant pleaded in que estate del Lessee del Abbe without shewing how he came to the Estate And by the Court a good exception for he shall be compelled to shew how he came to an Estate in the terme inasmuch as it cannot be by loyall means vide 1. 2 Eliz. Dyer 171. that a Que Estate of a particular Estate of a terme is not good and 7 Eliz. Dyer 238. where the Plea was of a que Estate of a Termor and exception taken to it and the difference between it and a Freehold so in the 7 H. 6.440 it was agreed that H. could not convey an Interest by a que Estate of a particular Estate as Intail for life or years without shewing how he came by the Estate be it on the part of the Plaintiff or the Defendant The third exception was that the Defendant pleaded a Lease made by the Abbot and Covent by Indenture as it ought to be without saying Hic in curia prolat which exception was also clearly allowed by the Court for he is privy to it and therefore he ought to shew it And for these two exceptions but especially for the former Iudgment was given for the Plaintiff Mich. 36 and 37 Eliz. in C. B. Palmers Case Action on the case for words PAlmer an utter Barrester of Lincolns-Inn brought an Action on the Case against Boyer for these words Palmer being Steward to I.S. the Defendant in discourse had with I.S. said I marvail you will have such a paltry Lawyer for your Steward for he hath as much Law as a Jack a Napes And the Plaintiff shewed all the matter in the Declaration and that by reason of such words he was displaced of his Office Williams Serjeant did move in that the words were not That he hath no more Law then c. for then those words were actionable but that he hath as much Law as c. for which words no Action will lye But resolved by the Court that the Action will lye for the words are standerous and prejudiciall to his credit and by reason of them he was discharged of his Stewardship also an Action will lye for saying That he hath as much Law as a Jack an Apes or my Horse because they are unreasonable creatures but if he had said that he hath no more Law then I.S. that is not actionable although I.S. be no Lawyer And Iudgment was given for the Plaintiff Pasch 35 Eliz. in B. R. Audleys Case A Man brought an Action of Debt on an Obligation made by the Father of the Defendant in which Writ the Defendant was named Son and Heir apparent of the Obligor Iudgment was given against the Defendant whereupon he brought a Writ of Error for the Writ does imply that his Father was living for he is his Heire in truth and in fact if his Father be dead and not apparent To which was answered that that was but Surplusage which shall not abate the Writ as appeares by the Book of the 10 Edw. 3. But the Court held that Iudgment should be reverst for he ought to be named Heire as in debt against Executors he shall be named Executor And Iudgment was reverst Trin. 36 Eliz. in B. R. Downinghams Case Ejectment THe Defendant in an Ejectione firmae pleaded that the Lord of the Mannor did enter into the Land of a Copyholder by reason of forfeiture for Waste committed in suffering the houses to be uncovered by which the timber is become rotten and did not alledge in facto that the Custome of the Mannor is that such Waste is a forfeiture for it was said that although other Waste by the Common Law is a forfeiture yet this permissive Waste is not Sed non allocatur for all Waste done by a Coppholder is forfeitable 2. It was resolved that if a Coppholder made a Lease for yeares which is not according to the Custome of the Mannor yet this Lease is good so that the Lessee may maintain an Ejectione firmoe for between the Lessor and the Lessee and all other except the Lord of the Mannor the Lease is good and so hath it been severall times adjudged in this Court Trin. 36 Eliz. in B. R. Wisdomes Case Action on the case for words STich brought an Action on the Case for slanderous words against Wisdome the words were There is many a truer and honester man hanged and that there was a Robbery committed whereof he thought him to be one and that he thought him to be a Horse-stealer And it was moved in Arrest of Iudgment that these words were not actionable for it is not said in facto that he was in the Robbery or that he was a a horse-stealer in fact but onely by imagination that he thought he was such a one but Iudgment was given for the Plaintiff Trin. 36 Eliz. in B. R. Rot. 815. Palmers Case CHristopher Palmer brought an Ejectione firmae against John Humphrey and declared that one George Hanger the eighteenth day of May in the six and thirtieth year of Eliz. by his Indenture did demise unto him a certain peece of Land called the great Ashbroke and other peece of Land called Stocking and also divers other peeces of Land naming the peeces and of one Garden called Muchins Gardein and of another peece of Meadow called Michins Meade and of seven acres of arable Land for the terme of two years by vertue whereof the said Christopher entred untill the Defendant by force and armes c. did eject him and did set forth in his Declaration that the Defendant ejected him out of the said peeces of Land and yet did not expresse the contents thereof in certainty And upon not-guilty pleaded it was found for the Plaintiff and for the seven arable acres of Land and the Garden the Court gave their Iudgment that it was certain enough but as to the other peeces of land the Court was divided For Popham Gawdy held that it was certain enough being in an Ejectione firmae which is but in the nature of an Action of Trespasse and the damages are the principall and a man may bring an Action of Trespasse for a peece of land without any other certainty But Clench and Fenner were on the contrary for he ought to set forth his terme in the land and then to shew the contents thereof as well in an Ejectment as in a Precipe quod reddat by which land is demanded and a man shall have an Ejectione firmae de una visgata terrae but shall not have a Precipe quod reddat of one portion of land by Skeene and Hill 7 H. 4.40 9 H. 6.3
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
that the Action might be against the Husband onely because that the woman could not convert them to his own use during the Coverture but onely to the Husbands use And the opinion of the Court was that the Writ was good against them both and that the conversion was in nature of a Trespasse and so the Action would well lye Mich. 32. and 33 Eliz. Kent against Wichall IN a Trespasse Quare clausum fregit herbam conculcavit the Defendant pleaded that he tendied sufficient amends to the Plaintiff and he refused the same and demanded Iudgment c. And upon a Demurrer the opinion of the Court was that this is no plea in Trespasse but in a Replevin it is a good plea Sed non dierunt causam diversitatis 21 H. 7.30.9 H. 7.22 F.N.B. 69. G. 31 H. 4.17 Drew demanded of the Court that whereas Edmund Leusage had bound himself in an Obligation by the name of Edward Leusage if this was good or not and it seemed to the Court Quod non est factum and Anderson and Walmesley said expresly that it was void 34 H. 6.19 6. Dyer 279 21 H. 7.8 Sir John Arrundell and his Wife brought a Quare Impedit against the Bishop of Glocester and others who pleaded in Bar that William Sturton was seised of a Mannor to which the Advowson was appendant and bound himself in a Statute-merchant of two hundred pounds to one Long and the Statute was extended and conveyed the interest of the Statute to one of the Defendants and then the Church became void And by the Court the Advowson may be extended and if it become void during the Conusees Estate the Conusee may present Note it was said by the Iustices of the Common Pleas that if a man promise another that he shall have a Lease in his land for eight years or it is agreed amongst themselves that one shall have a Lease of the others land for eight yeares that is no lease of the land but onely a Contract and Agreement but if one promise another that he shall have his land for eight years or openly agree that one shall have the others land for eight years this is a good lease for eight years by force of the agreement A. came before the Major of Lincolne and acknowledged a Statute-merchant and the Seal of the Major was not put to it and it was adjudged that the Statute was not good but a man may sue upon it as an Obligation because the Seal of the party is to it Pasch 36 Eliz. IN a Waste the Case was that a Lessee for yeares purchased Trees growing upon the land and had liberty to cut them within eighty yeares and after the said Lessee purchased the inheritance of the land and devised it to his Wife for life the Remainder to the Plaintiff in see and made his Wife Executrix and died who after married with the Defendant who cuts the Trees whereupon the Action is brought And by opinion of all the Court the Action was maintainable for although the Trees were once Chattels yet by the purchase of the Inheritance they were united to the land and Iudgment was given for the Plaintiff accordingly Pasch 36 Eliz. UPon an Exigent the Sheriff returned that after Divine Service he made proclamation and did not say that there was no Sermon and therefore the Iudges held that the return was not good for by the Statute if there be a Sermon in the Church the Sheriff shall make his proclamations after the Sermon and if there be no Sermon then after Divine Service and because it did not appeare whether there were any Sermon or not the opinion of the Court was ut supra It was said that a man shall not aver against a Postea in the Kings Bench or the Common Pleas to say that it was contrary to the Verdict nor shall he be received to say that the Iudges gave a Iudgment and the Clarks have entred it contrary to their Iudgment but otherwise is it in Court Barons or other base Courts not Courts of Record 10 Ed. 3.40 35 and 36 Eliz. Newman against Beaumond IF the Ordinary grants the Administration of the Goods of B. to A. and after grants the Administration to R. this second Grant is an appeale of the first without any further sentence of repeale for the Administrator is but a servant to the Ordinary whom he may charge at any time In an Action of Debt on a Bond bearing date the nineth of July the Defendant pleaed a Release of all Actions the same day usque diem dati ejusdem scripti and it was adjudged that the Obligation was not discharged because the Release does exclude the nineth day on which it was made Mich. 37 and 38 Eliz. Rot. 211. Holman against Collins HOlman brought a Writ of Error against Collins upon a Iudgment given in the Court of Plymmouth in the County of Devon the case was Collins was possessed of a peece of Ordnance and in Consideration that he would tender this to Holman for to put into his Ship which was then going to Sea and that Collins would stand to the hazard of losing it The said Holman did assume upon himself and did promise to give Collins certain Goods which he should gain by the Voyage and after the said Ship did return laden with certain Goods and for non-satisfaction the said Collins brought his Action on the Assumpsit and had Judgment to recover And Crook assigned these Errors 1. That the Stile of the Court was not good for it was Curia Dominae Reginae Burgi praedict tent coram Majori de Plymmouth without saying secundum consuetudinem villae praedict and he who is Iudge of the Court ought to be either by Patent or Prescription and then for not expressing the stile of the Court nor by what authority they held their Court it is error and he cited the case in the Lord Dyer 262. and a Iudgment 30 Eliz. Rot. 32. given in the very point Another Error was that no day was prefixed for the Defendant to appear but generally ad proximam curiam which is Error although it be held every munday And for these Errors Iudgment was reversed Trin. 28 Eliz. Rot. 948. Mercer against Sparks MErcer had Iudgment to recover against Sparks in the Common Pleas upon an Action of the Case for words and Sparks brought a Writ of Error in the Kings Bench and assigned for Error that the Plaintiff did not expresse in the Declaration that the Defendant spake the words malitiose but it was adjudged that it was no Error because the words themselves were malicious and slanderous wherefore Iudgment was affirmed Savacres Case IT was adjudged in the Common Pleas that if a Baron or others mentioned in the Statute of 21 H 8. take divers Chaplaines which have many benefices and after they discharge their Chaplaines from their Service they shall retain their Benefices during their lives and if the Baron takes others to be his
that when he is sued as King at armes in such case wherein his Office or other thing belonging to his Office comes in question then he ought to be named according to his Patent but when he is sued as I.S. then it is sufficient to name him by his proper name Popham Vpon the creation of any Deanery which is ordained and granted by Patent of the King the Dean shall sue and be sued by the name of Dean of such a place yet if such Dean doth sue or is sued about any matter concerning his naturall capacity it is not necessary to name him Dean Fenner But this is a name of dignity and by his installation is made parcell of his name and if a man be made a Knight in all Actions he shall be so named wherefore it seemed to him that the Writ ought to abate Et Adjournetur Hil. 37 Eliz. Hugo against Paine HUgo brought a Writ of Error against Paine upon a Iudgment given in the Common Pleas upon a Verdict the Error assigned was That one Tippet was returned in the Venire facias but in the Habeas Corpus and the Distringas he was named Tipper and so another person then was named in the Venire tryed the issue Curia Examine what person was sworne and what was his true name to which it was answered that his name was Tippet according to the Venire facias and that he was summoned to appeare to be of the Iury and he inhabits in the same place where Tipper was named and that no such man as Tipper inhabited there and therefore it was awarded by the Court that the Habeas Corpus and Distringas should be amended and his true name put in and Iudgment was affirmed c. Hil. 38 Eliz. Rot. 944. Rainer against Grimston RAiner brought an Action of the case against Grimston in the Kings Bench for these words He was perjured and I will prove him so by two Witnesses without speaking in what Court he was perjured and the Plaintiff had Iudgment and upon Error brought by the Defendant it was moved that the words were not actionable But in the Exchequer Chamber the first Iudgment was affirmed Hil. 39 Eliz. Rot. 859. Chandler against Grills IN a Trespasse the parties were at issue and a Venire facias was awarded on the Roll returnable Octabis Trinitat and the Venire was made six daies after the day of Octabis returnable at a day out of the terme and the Distringas was made and the Iury Impanelled and a Verdict and Iudgment for the Plaintiff And in a Writ of Error brought this matter was assigned And the first Iudgment affirmed for this is aided by the Statute being it is the default of the Clark and the case was cited between Thorne and Fulshaw in the Exchequer Chamber Mich. 38 39 Eliz. where the Roll being viewed and the Venire not good it was mended and made according to the Roll being that which warrants it and is the act of the Court and the other matter but the mistake of the Clarks But if the Roll were naught then it is erroneous because the Venire is without warrant and no Record to uphold it and so was it held in the case of Water Hungerford and Besie Hil. 39 Eliz. During against Kettle DUring brought an Action against Kettle after a Tryall by Verdict in London and in Arrest of Iudgment it was alledged that the Venire facias is Regina vicecomit London salut praecipimus tibi quod c. where it should be praecipimus vobis c. But ruled by the Court that this Venire being as it were a Iudiciall Writ that ought to ensue the other proceedings it was holden to be amendable and so it was accordingly Pasch 39 Eliz. East against Harding IT was moved Whether if a Lord of a Mannor makes a Lease for years after a Copyholder commits a Forfeiture the Lessee for years shall take advantage hereof and it was said by Popham that the Feoffee or Lessee shall have advantage of all Forfeitures belonging to Land as in case of Feoffment and the like but on the contrary for not doing of Fealty Mich. 39 Eliz. Collins against Willes THe Father makes a promise to Willes that if he would marry his Daughter to pay him 80 l. for her portion but Willes demanded a 100 l. or else did refuse to marry her wherupon the daughter prayed her Father to pay the 100 l. and in consideration therof she did assure him to pay him 20 l. back again The 100 l. is paid and the marriage took effect And the Father brought his Action on the case against the Husband and Wife for the 20 l. Gawdy and Fenner said that the Action would lye but Popham held the consideration void Mich. 39 and 40 Eliz. Penn against Merivall IN an Ejectment the Case was If a Copyholder makes a Lease for years which is a forfeiture at the Common Law and after the Lord of a Mannor makes a Feoffment or a Lease for years of the Freehold of this Copyhold to another if the Feoffee or Lessee shall take advantage hereof was the question Popham He shall not for the lease of the Freehold made by the Lord before entry is an assent that the Lessee of the Copyholder shall continue his Estate and so is in nature of an affirmance and confirmation of the Lease to which Clench and Fenner agreed and therefore upon motion made by Yelverton Serjeant and Speaker of the Parliament Iudgment was given Quod querens nihil caplat per Billam Mich. 6 Eliz. ONe enters a plaint in a base Court to pursue in the nature of a writ of entry in the Post and had Summons against the party untill such a day at which time and after Sun-set the Steward came and held the Court and the Summons was returned served and the party made default and Iudgment given the question was If the Iudgment was good Dyer Welch and Benlowes held the Iudgment good although the Court was held at night and Dyer said that if it were erroneous he could have no remedy by Writ of false Iudgment nor otherwise but onely by way of petition to the Lord and he ought in such case to do right according to conscience for he hath power as a Chancellor within his own Court Lane against Coups IN an Ejectment by John Lane against Coup and the Plaintiff declared on a Lease made by William Humpheston the Case was William Humpheston being seised of land in see suffered a common recovery to the use of himself and his wife for life the remainder Seniori puero de corpore Gulielmi Humpheston and to the Heirs Males of the body dicti senioris pueri Plowden One point is that when a remainder is limitted Seniori puero in tail if Puer shall be intended a Son or a Daughter also and methinks it shall be intended a Son onely for so are the words in common and usuall speech and words in Deeds ought to be
Writ is grounded upon a recovery by default in a reall action but a waste is a meere personall action And therefore in the 2 H. 4. in a waste against the husband and wife the wife shall not be received also it will not lie in this case because here is no default within the intent of the Statute for the Statute intends to relieve defaults after appearance and therefore all the Iudgment in this Writ is that the recovery was by default and if there was a default in pleading it is a default but not within the Statute Glanvill cont No waste is committed and so the recovery shall not bind for it appears in the 8 Ed. 4. by West That this action was provided instead of a Writ of right and there is no question but a Writ of right will lie here and this Writ is of the same nature And Mr Plowden in his Reading said that this action will lie upon a recovery upon a Writ of waste aswell as in other actions for the recovery is not upon the Inquiry of the Iury but upon default And it is also a reall action 7 Ed. 3. 28 Ed. 3.30 If the husband make default herein the wife shall be received Anderson There is no question but this action lies upon a recovery in waste but if this be a default within the Statute is a doubt for if this should be suffer d it were very mischievous for then contempts shall be favoured which was never the intention of the Statute and therefore it will not lie where there is a default after appearance Walmesley of the same opinion for this case differs much from the Statute of Glocester for this Statute gives remedy to a third person upon default of the particular Tenant and therefore upon this Statute the intent of the partie who makes default is more regarded than the manner of the default and therefore it shall be taken largely But here is default in the party himself and he shall have no favour against his willfull default for every nihil dicit is a confession of it self for thereupon it is supposed that nothing can be said Windham I hold that a Quod ei deforceat will not lie in a Writ of waste for the inquiry of the Iury is the cause of the Iudgment But he agreed that default within the Statute is intended such default that in it self is the cause of the Iudgment but here the Iudgment is given upon contempt and refusall of the party and therefore no favour Perryam This action cannot be compar'd to a writ of right which is grounded upon the right and not on the Iudgment but the form in the Quod ei deforceat is set down in the Statute which ought to be observed and the Statute gives this action upon a default and here is no default for it cannot be a default where the partie appears and hath no day in Court but he doubted much if it lay in awrit of waste because the damages are the principall but as the case is here it will not lie And to prove that a nihil dicit is a confession he cited Pepyss Ease in the Comentaries 438. And at last Iudgment was given that the Writ would not lye Pasch 35 Elizab. James against Portman WIlliam James and Thomas James Ioyntenants for life of a lease made by Portman William James doth assent covenant and agree that Thomas James occupy all the land alone and sow it with his own Corn After the land is sowed Thomas James dyes William James the survivor grants the Corne to Portman who takes it and the Plaintiff as executor to Thomas brought an action of trespass Ewens for the Defendant one Ioyntenant cannot make a Lease to his companion no more than one may infeof the other by reason they have joynt possession 10 Ed. 4.3 2 R. 2. Extinguishment 3. Also the words here are not sufficient to make a Lease but admitting this yet the survivor shall have the corn of that part which belongs to him for by this Lease the Ioynture is severed and then the Survivor shall have that which grows on his part For it two Ioyntenants sowe their land and one of them letts his moytie for years and he who did not let dyes the other shall have the corn as Survivor Pyne cont Although one Ioyntenant cannot inteof another because he cannot make livery because he hath possession before yet may he Release to his companion and so may he make a Lease for years for there is no need of any livery and by the 22 H. 6.43 If one Ioyntenant infeofs another this shall enure by way of confirmation And 14 H. 6.10 One Ioyntenant may put out his companion by this means for he may clayme a Lease from him and then a Release and if it be a good Lease then the Executors shall have it Popham The action is good for one Ioyntenant may make a Lease to the other although he cannot infeof for a Lease is but a contract And 11 H. 6.33 one Ioyntenant commanded the other to occapy all and in a trespass he was compelled to plead this as a Lease and then if one Ioyntenant does sow all and dyes the other shall have the Corne by Survivor and it is not as in case where a man hath an estate determinable upon uncertainty for there his Executors shall have the Corn but in our case the Survivor had contracted with his companion and thereby had bound himself not to meddle with the land and the other bestowed great costs in manuring and sowing the Land and therefore the Executors shall have the Corn. Fenner agreed but doubted whether one Ioyntenant could make a Lease to the other but said that by the contract he had excluded himself from the proffits and by the 39 Ed. 3.27 one Ioyntenant may have an account against the other And he said that if I agree that you shall sow my Land with me you shall gain no interest in the land and yet you shall have the corne And one Ioyntenant may distreyn for himself and as Bayly for the other And the Cause was adjourned and afterwards viz. Hillary 36 Eliz. the case was repeated And Gawdy said That if there be two Ioyntenants and one grants to the other that he may sow the Land yet may the other occupie with him for these words do not transfer any sole interest but if he sayes that he shall occupy all the Land and shall sow it solely this does exclude him from having any interest with him Popham Agreed because this is but a contract and so of a Lease for years Gawdy If one Ioyntenant sayes to the other that he will not occupie the Land with him or that he will not put in his Cattle this does not transfer any interest but that he may occupie with him and so in this case if it had not been said that he should occupy solely Popham of the same opinion for where he sayes he will not occupy
the words are in the negative which will not exclude him of his interest but in the Case at Bar they will because they are in the affirmative so That he shall occupy the Land solely And Iudgment was given for the Plaintiff Pasch 3. Eliz. Woodward against Nelson in B. R. WOodward Parson of Wotton in consideration of 120 l. payd by Bretman one of his Parishioners did accord and agree with him that he and his assignes should be discharged of Tythes during the time that he should be Parson Bretman made a Lease to Nelson Woodward did libell against him for Tythes and Nelson prayed a prohibition upon the said contract And it this was sufficient matter for a prohibition was the Question because it was by word only and without writing which amounts only to a cause of action upon a promise for Bretman but no action for his lessees neither can this amount to a Release of Tythes for as Tythes cannot be leased without Deed so they cannot be released or discharged without Deed. Gawdy Justice Tythes cannot be discharg'd without Deed unless by way of contract for a sum of money and he cited the 21 H. 6.43 Fenner for that year in which the discharge was made it was good by way of discharge without Deed because the Parson for that year had as it were an Interest but such discharge can have no continuance for another year for default of a Deed and so a promise being no discharge it is no cause of a prohibition But Gawdy held as afore And about this time Wray Chief Iustice dyed and Popham succeeded and the same day he was sworn Cook moved this Case again And the Court held that the agreement being by parol was not good And Fenner then said that without writing the agreement could not be good between the parties but for one year And the Court awarded a consultation But upon search made no Iudgment was entred in the Roll. Trinit 35 Eliz. Dr. Foord against Holborrow in B. R. Rot. 367. IN an Action of Debt upon a Bond the case was Dr. Drury to whom the Plaintiff was Executor made a Lease to Holborrow of the Mannour of Golding for years and Holborrow the Lessee entred into a Bond that if he his Executors or Assigns did pay to Anne Goldingham widow the sum of 20 l. for 17 years if the said Goldingham should so long live and so long as Holborrow the Lessee or any claiming by or under the said Holborrow shall or may occupy or enjoy the said Mannour of Goldingham and then Holborrow surreudred his Lease to the Obliges praecextu cujus the Defendant pleaded quod non occupavit nec potuit occupare c. wherefore he did not pay the said sum to Anne Goldingham and the Executor of the Obligee brought an Action of Debt upon this Obligation Johnson for the Defendant The term is gone for he cannot occupy after the surrender and also the Obligee is a party to the cause why it is not performed and therefore he shall take no advantage 4 â— 7.2 But the whole Court was against him for he to whom the surrender is made cometh in quodammodo by him and is his Assignee for he shall be subject to the charge that was before the surrender and also the Defendant shall be bound by these words in the Obligation viz. so long as he shall or may and although these words were not inserted yet he shall pay the annuity for where the first Cause does commence in himself he shall not have advantage thereby but otherwise where he is not party to the first Cause As if two Ioynt-tenants with Warranty make a partition the Warranty is gone because they are parties to the act which made the extinguishment but if one makes a Feoffment of his part the Warranty as to the other remains 11 Ed. 4.8 and in the Case at Bar the Obligor made the surrender and therefore he is party and the first cause and there is a diversity when the thing to be done is collateral and when not for if a Lessee does oblige himself to do a collateral thing as payment of money there he ought to do it although that he surrender for although the Obligee do accept of the surrender yet no act is done by him to hinder the performance of the condition but where the Obligee does any act to hinder the performance of the Condition the Condition is saved as if the Lessee be bound to the Lessor to suffer J.S. to enter into a Chamber during the Lease and he surrenders to the Obligee who will not suffer J.S. to enter the Obligation is saved and Iudgement was given for the Plaintiff 36 Eliz. Bedford against Hall in B. R. IN an Action of Covenant wherein the Plaintiff declared that the Defendant did devise and grant to him certain land with all his goods contained in a certain Inventory for 20 years and said that in the Inventory amongst other things were five Cows which the Defendant seized and that one J.S. took them away as his proper goods as indeed they were and hereupon he brought this Action Fenner The Action will not lye for no interest in the Cows doth pass to the Lessee by this Lease neither was there any right to them in the Lessor As if I demise to you the land of J. S. by these words Dem si concessi and you enter and J S. re-enters no Covenant lyes against me And so in the 11 H. 4. a Prebend made a Lease for years and resigned now is the term of the Lessee quite destroyed and if after he be outed by a new Prebend yet he shall have no Action of Covenant And so is it 9 Eliz. Dyer â—57 Lessee for life makes a Lease for years and dyes the Lessee shall not have a Covenant if he be outed by him in the reversion because he is not in as a Termor at the time of the disturbance But if in the principal Case the Lessor had been possest of the goods although by a wrong title and the Owner had seized them then a Covenant would lye And so if a Disseisor makes a Lease and the Disseisee re-enters the Lessee shall have a Covenant Gawdy If a man lets lands wherein he hath no estate together with his goods although the land will not pass yet the goods do and if a man lets goods for a year and re takes them within the year no Covenant will lye for the property was never in the Lessee Câ—…câ— If a man lets anothers goods to me by Deed if I seize them and the Owner re-takes them a Covenant will lye and so will an Action on the Case if it be without Deed 42 Assi 8. If I be in possession of anothers goods and sell them a deceit lyes against me by the Vendee and so is the Book of Ass 42.8 conâ—ra where the Vendor hath not possession at the time of the sale And if I sell goods by Deed which
therefore the Action shall continue And if a man be outlawed he may bring an Action as Executor and the Writ shall not abate Browne If I make I.S. my Attorney and he the Warrant of Attorney still continuing is made a Knight yet is not the Warrant of Attorney determined although the word Knight which is now part of his name be not in the Warrant therefore in this case the Writ is good Mich. 7 Eliz. NOte it was said by Browne that if H. does let the Cite of his Mannor with all his Lands to the said Mannor appurtenant hereby all the Demesne lands do passe but if it were with all the Lands appertaining to the said Cite nothing passeth but the Mannor-place Pasch 6 Eliz. A Man seised of the Mannor of Dale doth let the same with all the Members and Appurtenances to the same to have and to hold all the members of the said Mannor to the Lessee for terme of years Walsh and Weston were of opinion that this was a Lease for years of the Mannor onely and that the limitation of the word Members being after the Habendum was void But Dyer and Browne were of the contrary opinion And Browne said that when the Habendum is used by way of limitation it shall not be void As if he let his Mannor of Dale to have and to hold one acre parcell thereof for a terme of years the Lease is void for all but if there had been no Habendum but the Lease for years had been limited in the Premisses of the Lease that is good enough And if the Lease had been Habendum every part thereof that had been a good Lease of the Mannor for all the parts comprehend all the Mannor And Dyer said that the word Members shall be taken for the Townes and Hamblets wherein the Mannor hath Iurisdiction Note it was said by Dyer that if partition be made by the Sheriff although the Writ be not returned yet it is good enough and none of the parties shall except against it and so was the better opinion concerning the Estate of Culpeper and Navall in the County of Kent Sutton brought a Writ of Ravishment of a Ward against Robinson wherein it was resolved by Dyer Carus Weston and Benlowes That if the Tenant enfeoff his Lord and others all the Seigniory is extinct also if the Tenant does infeoff the Lord but of a Moyety yet is all the Seigniory extinct And Dyer said that if the Tenant does infeoff the Lord and a stranger to the use of another and his Heires and makes Livery to the stranger this is no extinguishment of the Seigniory but if the Livery were made to the Lord it is otherwise and yet is the possession instantly carried away to the stranger by the Statute of 2 H. 7.13 A man seised of lands devises the same to his Wife to dispose and imploy them for her self and her Son according to her will and pleasure Dyer Weston and Walson held that the Wife had a Fee-simple by the Intendment of the Will and the Estate is conditionall for ea intentione will make a Condition in a Devise but not in Grant vide Dyer 2â— 6 A woman Tenant in taile makes a Lease for one and thirty years and after takes a Husband who have issue the Husband being Tenant by the Curtesie surrenders the Heirs doth oust the Lessee and the Lessee brings an Ejectment And it was held that the Surrender was good and that the Privity was sufficient Mich. 40 Eliz. IN an Action of the Case for calling one Bastard Dyer and Walsh said an Action would lye but Browne on the contrary because it shall be tried in the Spirituall Court And Dyer said That at Barwick Assises a Formedon in the Discender was brought and one said that his Father by whom he claimed was a Bastard and thereupon he brought an Action against him for those words and recovered Catlin said That if Lands be given to a man and to the Heires he shall engender on the body of an English woman and he marries a French woman and she dies and then he marries an English woman that now this is a good Estate in special taile Pasch 7 Eliz. THe Prior and Monks of the Charter-house before the dissolution made a Lease for foure years reserving the ancient rent of twenty five Quarters of Wheat per annum and then the house was surrendered into the hands of King Henry the eighth and then the Lord Chancellor did let the said rent of twenty five Quarters of Wheat to I.S. for foure and twenty years And it came into question between I.S. and the Termor if this was warranted by the 27 H 8.28 Harper and Portrell it is not for the Statute is that they may make Leases of any Mannors Lands Tenements and Hereditaments for one and twenty years c. and this Wheat is neither Land Tenement nor Hereditament but a Chattell and shall be demanded in an Action of debt But the opinion of all the Court was that the Lease was good and they did agree that it was directly within the word Hereditaments for it may discend or escheat and the wife shall be endowed thereof Also upon a Lease of Corne a Rent may be referved for a man may reserve a Rent upon a Lease of a Rent and the Rent is not parcell of the Reversion but onely incident thereunto and the Lessor hath the same inheritance therein as he hath in the Reversion Trin. 7 Eliz. AN assurance was made to a woman to the intent it should be for her Ioynture but it was not so expressed in the Deed. And the opinion of the Court was that it might be averred that it was for a Ioynture and that such averment was not traversable and so was it in the case between the Queen and Dame Beaumont Winter brought an Action of the Case against Barnam for these words viz. Thou Murtherer Dyer and Walsh said that the Action would lye for there are some words that cannot be qualified as Murtherer Theef Extortioner false Knave and in such Case an Action will lye but contrary where such words are spoken in a jesting way Note by Dyer that the Lord Fitz-James late Lord chief Iustice of England did devise his land to Nicholas Fitz-James in taile with divers remainders over and in the same devise he devised divers Iewels and peeces of Plate viz. the use of them to the said Nicholas Fitz-James and the Heires Males of his body In this case it was the opinion of the Court that the said Nicholas had no property in the said plate but onely the use and occupation And the same Law where the Devise was that his Wife should inhabit in one of his houses which he had for terme of years during her life because the Wife takes no interest in the terme but onely an occupation and usage out of which the Executors cannot eject her during her life but Walsh held the contrary Hil. 8 Eliz. IF a Bishop
was no apparance unlesse there were a Record But the Case in Court was ut supra Hil. 30. Eliz. IN an Ejectment by Dorothy Michell against Edmund Dunton the Case was A woman makes a Lease for years rendring Rent with a Covenant that the Lessee should repaire the house with other Covenants and then devised the same lands to the same Lessee for divers years more yeilding the like rent and under such Covenants as were in the first Lease the Remainder over in fee and dies and then the first Lease for years does expire and the Lessee continues in by force of the second Lease by vesture of the devise and repaires not the houses so that if the first Lease had been in being he had broke the Covenant If this shall be such condition as he in the remainder may enter was the question Shuttleworth It is a Condition for he cannot have a Covenant and then it shall be intended that iâ— is conditionall But by all the Court There appears no such intent for it appears that he holds under like Covenants Anderson The nature of a Covenant is to have an Action but not an entry and therefore there shall be no entry Shuttleworth To what end then serves these words under like Covenants Periam They are void And at last it was resolved by all the Iustices that the Will expressing that the first Lessee should have the Land observing the first Covenants it shall not be now taken to be a Condition by any intent that may be collected out of the Will for a Covenant and Condition are of severall natures the one giving Action the other entry and here the intent of the Will was that although the Covenants were not performed yet the Lessee should not forfeit his terme but is onely bound to such paine as he was at the beginning and that was to render damages in an Action of Covenant And Iudgment was given that the Plaintiff should be barred Mich 29 and 30 Eliz. Rot. 2449. THe Earle of Kent brought an Action of Debt upon a Bond against William Bryan which was indorsed with a Condition That if the Defendant did permit the Plaintiff his Executors or Assignes not onely to thresh Corn in the Defendants Barn but also to carry it away from time to time and at all times hereafter convenient with free egresse and regresse or else to pay eight pounds upon request c. that then c. And in truth the Defendant permitted the Corn to lye there two years in which time the Mise and Rats had devoured a great part of it and then the Defendant thresht it and the Earle therefore brought this Action And upon Demur it seemed to Walmsley that there was no forfeiture of the Bond because the Earl took not the Corn away in convenient time for convenient time is such as shall prejudice no person Quod fuit negatum per Justitiar and here is great prejudice to the Detendant because the Plaintiff did not carry away the Corn And he put many cases where things ought to be done in convenient time as in the 21 Ed. 4. where an Arbitrement ought to be performed in convenient time But the opinion of the Court was that he might come in covenient time although he comes long after and the words are not within convenient time Windham said That if the words had been within convenient time it would have made a difference Anderson If the words of the Condition had been that he should suffer the Plaintiff in time convenient to come and thresh and take away his Corn then perhaps he ought to send within a year according to Walmsleys saying but the words here are at all convenient times and that day that the Servant came was a convenient day to thresh and carry away and the words At all convenient times shall be construed that at any time when it pleaseth the Earl he may come unlesse it be night or Sabboth day and if the word convenient had not been mentioned then by the words from time to time and at all times after then the Earl may come at any time either in the day or night and that a hundred years after as he pleaseth and then the word convenient does restrain him that he cannot come but in the working daies but does not restrain any time in which he shall come but onely in conveniency of time which is at times of labouring and watching And so was the opinion of the Court ut supra An Action of Debt was brought upon a Lease for years the Defendant pleaded Nihil debet per patriam and did intend to give in evidence an entry of the Plaintiff before any Rent behind And by the Court he could not do it for it is contrary to the issue Hil. 30 Eliz. Rot. 904. Between Spittle and Davis IN a Replevin the case was One Turk seised of lands in fee devised parcell thereof to his eldest Son in taile and the other parcell to his youngest Son in fee. Provided and his intent was that if any of his Sons or any of their Issues do alien or demise any of the said lands before any of them comes to the age of thirty years that then the other shall have the Estate and does not limit what Estate and then one of the Sons makes a Lease for years before such age whereupon the other enters and before he comes to the age of thirty years he aliens that part into which he made entry and the other brother being the eldest enters and makes a Lease to Spittle the Plaintiff for three years and Davies by commandment of the younger brother enters and takes the house Damage-feasant and Spittle brought a Replevin And upon Demur it seemed to the Court that this was a limitation and by vertue of the Will the Estate devised to them untill they aliened and upon the alienation to go to the other upon such alienation the land is discharged of all limitations for otherwise the land upon one alienation shall go to one and upon another alienation shall go back again and so to and fro ad infinitum vide Dyer 14. 29. And afterwards all the Iudges agreed that after one brother had entred into the land by reason of the alienation that land was discharged forever of the limitation by the Will And Iudgment was given accordingly Trin. 27 Eliz. Rot. 190. Carter against Lowe IN an Ejectment the Case was A Termor devised his terme to I.S. and made his Wife Executrix and died the Woman enters and proves the Will and takes Husband who takes a Lease of the Lessor and after the Devisee enters and grants all his Estate to the Husband and wife and herein two questions were moved 1. If by this acceptance of the new Lease by the Husband the term which the woman had to another use viz. to the use of the Testator shall be deemed a surrender And the opinion of the Court was clearly without argument that it
was a surrender But admitting it was no surrender but the first terme continues then the second question is 2. If when the Devisee enters into the terme devised to him without consent of the Executor by which entry he is a wrongfull Seisor and a Disseisor and after he grants his right and interest to the Executor if this Grant be good or no because he had not any terme in him but onely a right to the terme suspended in the land and to be revived by the entry of the Executor And adjudged that it was a good Grant and it shall inure first as the agreement of the Executor by the acceptance of the Grant that the Devisee had a terme in him as a Legacy And secondly the Deed shall have operation by way of Grant to passe the Estate of the Devisee to the Executor and so no wrong and the case was resembled to the case of surrender to the grantee of a Reversion which first shall inure as attornment and after as surrender and so was it adjudged Trin. 37 Eliz. IN an Action on the Case for these words Carter is a prigging pilfering Merchant and hath pilfered away my Corne and my Goods from my Wife and my Servants and this I will stand to And the Action was commenced in a base Court in the Country and Iudgment given and the Record removed by Writ of Error And it seemed to the Court that the words were not actionable wherefore Iudgment was reverst Sed quaere rationem Gowood against Binkes A Man did assume and promise to I.S. in consideration that he would forbeare a Debt due to him untill such a time That he would pay the Debt if A.B. did not pay it and he that made the promise died and the money was not paid and therefore an Action was brought against his Executors who traversed the Assumpsit and a Verdict found against them and in Arrest of Iudgment it was moved that an Action grounded on a simple Contract lies not against Executors unlesse upon an Assumpsit for a Debt or Duty owing by the Testator himself and not of such a collaterall matter as the forbearance of the Debt of another but by Gawdy Iudgment was given for the Plaintiff whereupon Popham said that he believed this Iudgment would be reversed by Writ of Error in the Exchequer Chamber and the same day at Serjeants-Inn such a case was depending in the Exchequer Chamber to be argued and reversed for the cause ut supra And the case was between Jordan and Harvey and entred Trin. 36 Eliz. Rot. 384. Hil. 37 Eliz. Rot. 34. Castleman against Hobbs IN an Action of the Case for saying Thou hast stollen half an acre of Corne innuendo Corne severed the Defendant demurred upon the Declaration Fenner It is not Felong to move Graine and take it away Popham agreed to it and that the word Innuendo would not alter the Case unlesse the precedent words had vehement presumption the Corne was severed and in this case no man can think that the Corne was severed when the words are half an acre of Corne on the contrary if the words had been that he had stollen so many loads or bushels of Corne And Gawdy was of the same opinion and Iudgment against the Plaintiff c. Hil. 38 Eliz. IN an Account the Plaintiff declared that he delivered Goods to the Defendant to Merchandize for him the Defend said that the Goods with divers other of his own proper goods werâ— taken at Sea where he was robbed of them And it was moved that this was no plea in Bar of an Account but if it be any plea it shall be a plea before Auditors in discharge But admitting it be a good Bar yet it is not well pleaded for the Plaintiff as it is pleaded cannot traverse the robbing and try it for things done super altum mare is not tryable here wherefore the Defendant ought to have pleaded that he was robbed at London or any other certain place upon the Land and maintain it by proofs that he was robbed on the Sea Gawdy It is no good plea for he hath confest himself to be accountable by the receipt 9 Ed. 4. and it is no plea before Auditors no more then the Case was in 9 Ed. 4. for a Carrier to say that he was robbed Popham It is a good plea before Auditors and there is a difference between Carriers and other Servants and Factors for Carriers are paid for their carriage and take upon them safely to carry and deliver the things received Gawdy If Rebels break a Prison whereby the Prisoners escape yet the Goaler shall be responsible for them as it is in the 33 H. 6. Popham In that case the Goaler hath remedy over against the Rebels but there is no remedy over in our case Gawdy Then the diversity is when the Factor is robbed by Pyrates and when by enemies Popham There is no difference Hil. 38 Eliz. Rot. 40. IN a Writ of Error upon a Iudgment given in Nottingham the Error assigned was because the Defendant had no addition for it appeared the Action was in Debt and the Record was that H. Hund complained against Richard Preston of c. in the County of Nottingham Husbandman the which addition is not in his first name but in the alias and that could not be good and therefore it was prayed that Iudgment might he reversed But by the Court the Court of Nottingham had no authority to outlaw any man so that addition is not requisite wherefore it is no Error and Iudgment was affirmed Trin. 37 Eliz. Rot. 553. Browne against Brinkley IN an Action of the Case for words the Declaration was That the Plaintiff was produced as a Witnesse before the Iustices at the Assises at Darby where he deposed in a certain cause and the Defendant said Browne was disproved before the Iustices of Assise at Darby before Mr. Kingsley Innuendo that he was disproved in his Oath that he took before the Iustices And adjudged against the Plaintiff for although he was disproved in his Oath yet it is not actionable in this case for that disproof might be in any collaterall matter or any circumstance but otherwise if the words had been that he was perjured and the Innuendo will not help the matter and so was it adjudged The chief Iustice and Fenner being onely in the Court. Trin. 36 Eliz. Higham against Beast IN an Action of Trespasse by the Parson of Wickhambrooke in the County of Suffolk against the Vicar of the same place for taking of Tythes and on the generall issue the Iury gave this speciall Verdict That the place where c. was a place called B. the Freehold of I.S. and parcell of the Mannor of Badmanshall and found that the Pope as supream Ordinary heretofore made such an Indowment to the Vicaridge in these words Volumus quod Vicarius c. habebit tertiam partem decimarum Bladorum Foeni quomodocunque pervenientem de
himself to infeof the Obligee of all the Land which he hath by descent of his Father there he may plead that he hath no Land from his Father for all may be Released although the Releasor hath no right but a feofment cannot be made of land which a man hath not Pasch 38 Elizab. Holcombe against Rawlins in B. R. Rot. 401. IN a trespass Quare Clausum fregit with a continuando from the 31 Elizab. to the 36. the Defendant pleaded that J.S. was seised in Fee and made a Lease to him c. The Plaintiff replyed that long time before J.S. was seised he himself was seised untill the said J.S. did disseise him and J.S. being so seised did make the Lease to the Defendant for years whereupon the Plaintiff reentred Tanfield It appears by the Plaintiffs Replication that the Defendant was in under the title of J.S. viz. the Lessee of the Disseisor of the Plaintif and therefore he cannot be a Trespassor to the Plaintiff notwithstanding his regress 34 H. 6 30. 37 H. 6 35. 2 Edw. 4 17. 13 H. 7.15 Atkinson contra At the Common Law the Disseisee being out of possession shall not recover any damages but only against the Disseisor and not against any other that comes to the land afterwards and for this cause the Statute of Glocesteâ— was made But at the Common Law when the Disseisee re-enters he is remitted as if he had not been out of possession at all and he shall have a trespass against the meane occupiers as in the 4 H. 7. A man was restored to his land by Parliament as if he had never been out of possession at all and he shall have a trespass against the occupiers that are in by title aswell as here he had against the Kings Patentee Gâ—wdy If a Disseisor be disseised and the first disseisee enter he shall have a trespass against the second Disseisor And Popham and Fenner agreed but Clench cont But at last adjudged for the Plaintiff vid. Cook 11. Rep. fol. 57. Lyfords Case to the contrary Pasch 37. Eliza. VViseman against Baldwin in B. R. Rot. 341. IN a writ of errour to reverse a judgment given in the Common Pleas the Case was thus Râ—chard Baldwin did demise his land in Taile upon condition that the Devisee should pay to J.S. 20. l. and if he failed of the payment that then the land should remain to J.S. and his heires for ever and whether this be a Condition in Law that the heir shall take advantage of or a limitation of the estate so that J.S. shall take advantage was the Question Gawdy It is a limitation and not a condition as is apparent in Dyer Wilfoâ—ds Case 7.128 and Pewis and Scholasticas Case in the Comentaries and there is great diversity between an estate in Law and a devise in which the intent of the Devisor is to be observed and here if this shall be taken for a condition the intent of the Devisor is defrauded Clench agreed For this should be as a new devise to J.S. and not as a remainder as a devise to a Monk the remainder to J.S. the remainder is not good as a remainder but as a new devise Fenner of the same opinion and said it had been so adjudged in this Court in an Attournies Case of Devonshire and also in Sir Edward Cleeres Case Gawdy The received opinion of all learned Lawyers hath been such as hath been said viz. that to the end the intent of the Devisor should be observed it shall be a limitation Then I put this Case A man deviseth his Land to J.S. upon condition and for non-payment be devises that his Executors shall sell the Land if J.S. faile of the payment it is cleere that the Executors may sell the Land Godfrey I agree because the Executors have nothing devised to them but only an authority given them by the Will to sell Gawdy But when the Executors have sold the Vendee is in by the Devisor and then it is no other than a devise to one in Fee on condition of payment c. and if he fail then to another And the three Iustices agreed but because the Chief Iustice was absent it was adjourned to another day at which time Fenner said that he had spoken with â—…wen one of the Iustices of the Common Pleas who said he never agreed to the Iudgment but in case of a perpetuity And therefore the Iudgment in the Common Pleas was reverst The Earl of Lincolne against Fisher THe Steward of the Leete being in Court did say in Fisher who was resident within the precinct of the Leet that he must be sworn for the Queen to make presentments at the said Court. To which Fisher replyed in saying I ought to be sworn you lie For which Fisher was fined at the Court 20 l. And the Earl who had the Leet brought his action for the same Yelverton The action will not lie for he is not finable for such words for they are no disturbance to the Court nor hindrance of Iustice for this word you lie in ancient speaking is no more than to say you do not say true Gawdy agreed that the action would not lie But Fenner Clench and Popham cont For this is a misdemeanor for which the defendant is finable for every Leet is the Queens Court and a Court of Iustice to which respect and reverence ought to he given and these words are in great contempt to the Court and the authority thereof which is supreme And Posito that he should here say to the Iudge of a Court when he delivered his opinion in any Case Mr. Iudge you lie without question he may be fined and imprisoned and as it is of a Iudge here so is it of a Iudge of any inferiour Court because it is a Court of Iustice And Popham said That if any misdemeaned himself in the Leet in any outragious manner the Steward may commit him And Gawâ—y changed his opinion Wherefore the Plaintiff had judgement to recover Pasch 36. Eliz. Allens Case A Scire facias issued out in the name of the Queen to shew cause why execution of a debt which is come to the Queen by the attainder of J.S. should not be had The Defendant pleaded that the Queen had granted over this debt by the name of a debt which came to her by the attainder of J.S. and all actions demands c. upon which the Plaintiff demurr'd And the question was if the Patentee might sue for this in the name of the Queen without speciall words And two presidents were cited that he may 1 Pasch 30 Eliz. rot 191. in the Exchequer where Greene to whom a debt was due was attainted and the Queen granted over this debt and all actions and demands and a â—câ—re facias was sued for him in the name of the Queen also in the 32 Elâ—z rot 219. Mabb of London was indebted by bond and the debt came to the Qu. by
not claimed to hold at Will for he hath done contrary for he hath made Copies By all the Iustices if Tenant at will or for years or at sufferance make a Lease for years this is a Disseisin and a Tenant at will doth thereby gaine a Freehold and thereby doth claim a greater Estate then he ought and so it is in this case 2. Admitting him to be Tenant at sufferance the question is if he may grant Copies and if whether they be good and it seems he may for no trespasse lies against him because he is Dominus pro tempore and it is not like a Copy made by an Abator or Disseisor for it hath been adjudged that Copies made by them are void but in this case his act of making Copies agrees with the Custome as in Grisbrooks case If an Administrator sells Goods and paies debts with the money and after he who is Executor proves the Will he shall never avoid this sale for that it was done according to the Will which the Executors were compelled to do So in the 12 H. 6. If a Baily cuts Trees and repaires an ancient Pale this is good and 6 R. 2. if he paies quit-rents it is good Coke He comes in by right and therefore is Tenant at sufferance and like this case is Dyer 35 H. 8.57 Lord Zouches case where Cestuy que use for life the remainder over in taile made a Lease for the terme of the life of the Lessee and dies and the Lessee continues his Estate And the opinions of the Iustices of both Benches were that he is but Tenant at sufferance Popham If a Mannor be devised to one and the Devisee enters and makes Copies and then the Devise is found to be void yet the Copies of Surrender made by such Devisee are good but contrary where new or voluntary Copies are made by him 7 Eliz. and in the Lord Arundells case a Feoffment in fee was made of a Mannor upon condition the Feoffee upon Condition grants voluntary Copies those are good Atkins on the contrary And he made a difference between a Tenant at will and a Tenant at sufferance for a Tenant at will shall have aid but so shall not the other as in the 2 H. 4. and a Release to one is good to the other not c. and when he holds over he doth assume an Interest which shall not be thought wrongfull for he is neither Abator nor Disseisor and therefore Dominus and therefore the Copies made by him are good 4 H. 7.3 Tenant at sufferance may justifie for Damage-feasant And all the Iustices held for the Plaintiff and that he that made the Copy was but Tenant at sufferance and not Disseisor and that he had no Fee And the Iudgment was to be entred unlesse the Defendant shewed better matter Trin 28 Eliz. Rot. 329. Smiths Case SMith assumed upon himselfe that when I. N was indebted to I.D. in an Obligation of forty pounds that if I.D. would not implead the said I.N. that then if the money were not paid at such a day that then he viz. the said Smith would pay the money Vpon which Assumpsit after the day I.D. brought his Action on the case and did set forth in his Declaration that he did not implead I.N. and it was moved by Kingsmill that he could not have this Action untill I.N. be dead for so long as he lives I.D. hath time to implead him As if a man promiseth another that he will be named in his Action that he hath against a third person and if the third person payes not the money at such a day then he will he cannot sue unlesse he shewes he hath discharged the other of the Obligation Clench It is implied that he will never implead him Shuttleworth Iustice not so for if hereafter he sue him contrary to his promise then the other who made the Assumpsit shall have his Action on the case and recover to the value of the sunâ—m in the Bond. And after the case was moved again and the Plaintiff brought the Obligation in Court and thereupon the Obligation was entred so that now the Plaintiff could not implead I. N in posterum for which Iudgment was entred for the Plaintiff 29 Eliz. Cosens Case COsen the Father had issue three Sons John George and Thomas John the eldest died in the life-time of his Father his Wife Enseint with a Daughter the Father makes a Devise in these words That if it shall please God to take to his mercy my Son Richard before he shall have issue of his body so that my Lands shall descend to my Son George before he shall be of the age of one and twenty years then my Overseers shall haue my Land untill George come to the age of one and twenty years If Richard who is yet living had an Estate in taile by these words was the question And all the Iustices agreed that it was a plain implication to make an Estate-taile in Richard the second Son 13 H. 7.17 29 Eliz. in C. B. Warrens Case WIlliam Warren brought an Action of Debt for forty pounds and in his Declaration confessed satisfaction of twenty pounds and hereupon a Writ of Error was brought in the Kings Bench and the Iudgment reversed For by his Declaration he had abated his owne Writ and he ought to have Iudgment according to his Writ and not to his Count. And Error was brought upon the Outlawry for if the first Record was reversed the Outlawry thereupon is reversed 4 and 5 Phil. Mar. BEnlowes Serieant moved this case a man seised of Lands and Teâ—ements in London devises them by these words I will and bequeath unto my Wife Alice my livelyhood in London for terme of her life By this Will the lands in London passe to the Wife by this word Livelyhood Nota for Brook Iustice said that it was in ancient time used in divers places of this Realm and had been taken for an Inheritance To which Dyer agreed Case of Slander BRook said that if a man speak many slanderous words of another he who is slandred may have an Action on the case for any one of these words and may omit the others But if a man write many slanderous things of another in a Letter to a friend an action upon the case will not lye for it shall not be intended that it is done to the intent to have it published Mich. 1 and 2 Eliz. N. Arch-bishop of York and I.B. Executors of the last Will and Testament of Thomas Duke of Norfolk did bring a Writ of Ravishment de Guard and then he was deprived by his own consent The question is if the Writ shall abate Benlowes It shall abate for if a Dean and Parson of a Church bring an Action for such a Custome and then resigne the Writ shall abate because it is their own Act. Dyer The Writ shall not abate for the Action is not brought in their own persons but in their Testators and
make a Lease for years the second of May and the Dean and Chapter confirme it the first of May this is a good Lease after the Bishops death by Catlin and Southcote Wray How can a Lease be confirmed before it be made Catlin and Southcote The assent before is a good confirmation after Hil. 40 Eliz. AN Obligation wanted these words In cujus rei Testimonium and yet adjudged to be good 7 H. 7.14 Dyer 19 A. It was said by Catlin in the Star Chamber that if an Infant being a Feme Covert or other Infant does levy a Fine by grant and render to her or him in taile or for life and the Husband dye the Wife shall not have a Writ of Error because she is Tenant of the land and she cannot have a Writ of Error against her selfe so that she is without remedy so in the case of the other Infant Cardell Master of the Rolls in the case between Stinkley and Chamberlain said that when Executors had Goods of their Testator to dispose of to pious uses they cannot forfeit them for that they have them not to their own use but their power is subject to the controlement of the Ordinary and the Ordinary may make distribution of them to pious uses And it was said at the Bar that the Ordinary might make the Executors account before him and to punish them according to the Law of the Church if they spoile the Goods but cannot compell them to imploy them to pious uses Hil. 28 Eliz. IN an Action of Slander the words were Thou art an arrant Whore and hadst the French Pox. It was moved in Arrest of Iudgment that the words were not actionable because part of them relate to the time past but by the Court adjudged that the action is well brought because it is a discredit to the woman and thereby others will shun her company Trin. 31 Eliz. Inter Winter and Loveday IN this Case which was put by Coke it was agreed that a stranger as Cornwall in this Case was could not tender the money to be paid upon the Mortgage for it ought to be one who hath interest in the land and so was it in the 28 H. 8. between Whaydon and Ashford where the Mother ought to have made the tender for her Son within age and because it did not appear within the Verdict what age the Infant was whether he was of the age of fourteen years or more so that his Mother could be Guardian to him by reason of his Nurture or not It was awarded that she could not make a loyall tender In an Assumpsit for a hundred pounds the case was That the Defendant in consideration of a French Crown given him by the Plaintiff did assume and promise that if he did not such an act before such a time that then c. It was moved by Godfrey that the Plaintiff can onely recover so much as he is damnified by the French Crown and the like case was before the Chancellor where a Gentlewoman took the death of her Husband so heavily that she said she would never marry againe and her Son comforted her and said God will provide a new Husband and said that he would give her ten pounds to pay a hundred when she should marry which money she accepted of and then the Son brought an Assumpsit for the hundred pounds within half a year after she married And the matter was brought into the Chancery And the Master of the Rolls awarded ten pounds onely and said he would give never a penny more because it was unreasonable to bar a Gentlewoman from marriage The Lord Rich was seised of Hadley Park and of all the Tythes thereof and payed for the Tythes but one Buck in the Summer and a Doe in the Winter for thirty years past The Park was disparked and turned into arrable land and the Parson would not receive this Fee Buck and Doe but would have tythe Corne and thereupon brought him into the Spirituall Court and he brought a Prohibition And Carus and Catlin said that he need not pay other Tythes but Buck and Doe for although they be not tythable yet may they be paid by composition and he may not take them but they are to be delivered to him and in like manner Partridges and Pheasants in a Garden are not tythable yet may they be paid in lieu of Tythes and shall be brought dead to the Parson and although there be no Park yet may he give a Buck out of another Park and perhaps it may be made a Park agen Mich. 13 and 14 Eliz. NOte it was said by Dyer that an Adminiscrator durante Minoritate cannot bring an Action of debt for he is but as a Servant or Bailiff in such cases A Devise was made to the Major Chamberlaine and Governors of the Hospitall of Saint Bartholmews whereas they were Incorporate by another name yet the Devise held good by Dyer Weston and Manwood for it shall be taken according to the intent of the Devisor And Weston said that a Devise to A.B. a mans eldest Son is good although his name be not B. because the other words do make a sufficient certainty It was said That by the Grant Panagium Hoggs may eat the grasse but if a man grant his Acrons the Grantee must gather them and where Panagium is granted the Grantee may put in his Hoggs into the place granted If Tenant for years hold over his terme he is Tenant at sufferance and his descent shall not take away entrie But if Tenant for terme of anothers life holds over his terme he is an Intruder and his descent shall take away entrie Quod fuit concessum per Dyer A Court-Baron may be holden at any place within the Mannor but not out of the Mannor and so a Leete may be held in any place within the Liberty and Franchise and although no Court hath time out of mind been holden within the Mannor yet it is not thereby lost for it is incident to a Mannor of common right Coke L. 4.26.6.27 A. Mich. 14 and 15 Eliz. AN account was brought by Tottenham against Bedingfeild who pleaded Ne unques son Baily pur account render Gawdy prayed the opinion of the Court if the Action would lye And the Case was thus The Plaintiff had a Lease of a Parsonage and the Defendant not being Lessee nor claiming any interest took the Tythes being set forth and carried them away If the Lessor may have an account against such Trespassor was the question Manwood Iustice An Account will not lye because there is no privity and wrongs are alwaies without privity yet I will grant that if H. receive my Rents I may have an account against him for my assent to have him receive it makes a privity and when he hath received the Rent he hath not committed any wrong against me because it is not my money till it is paid and therefore in this case I may resort to my Tenant and compell him
Rot. 610. Bond against Richardson In Debt the Defendant pleaded payment at the day and gave in evidence payment at another day before the day of payment and so was it found by the Iury in a speciall Verdict And Anderson said We are all agreed that Iudgment shall be given against the Plaintiff for payment before the day is payment at the day and Iudgment was given that the Plaintiff should be barred Willis against Whitewood A Man was seised of lands in Socage and made a Lease for years by Paroll and died his wife was Guardian in Socage to his Son and the Lessee accepted of a new Lease by Deed of the Guardian in Socage and then the Guardian died and a new Guardian entred and outed the Lessee and if the second Guardian could do this was the question Anderson It cannot be a surrender for a Guardian hath no Estate that may be surrendred but it is an extinguishment of the Lease and if a Woman Guardian in Socage takes Husbandâ— and dies the Husband shall not be Guardian in Socage Almeskey against Johnson JOhnson had a second deliverance returned which was returned Averia eloigniata c. whereupon he prayed a Withernam of the Cattle of the Plaintiff and it was granted and then came the Plaintiff and satisfied the Defendant his damages and charges and praid a Writ of Restitution to have his Cattle again taken in Withernam Fleetwood Cattle taken in Withernam are not repleiditable how then can you have your Cattle and then we shall not be paid for the meat And the Court held that the Cattle were not repleivisable but for satisfaction of damages he shall have restitution of the Cattle and so is the course which was confirmed by the Clarks And Walmesley cited 16 H. 6. Repleviâ—… to warrant this And as to the meat he had the use of the Cattle whereby it was reason he should sustain them And a Writ of Restitution was granied Mich. 31 and 32 Eliz. IN case of a Farmer of Dame Lineux Manwood it was said that the Order called the Cistrenses Order hav a priviledge that they should pay no Tythes for the lands that Proprils manibus excolunt but if they let it to Farmers then they were to pay Tythes and now comes the Statute of Monasteries 31 H. 8. If the Queen should pay Tythes was the question And it was said that the Queen and her Farmers also should hold the land discharged of Tythes as well as the particular persons of the Order should for the King cannot be a Husband and therfore his Farmers shall hold the land discharged so long as the King hath the Freehold in him although he make a Lease thereof for years at will but to if the King sell the land to another or the reversion to another then the Farmers shall pay Tythes Mich. 31 Eliz. IT was said by the Barons in the case of one Beaumont that a Debt which is not naturally a Debt in it self but a Debt onely by circumstance may be assigned to the Queen As where a man is bound in a Bond to save another harmlesse and failes thereof the Obligation may be assigned to the Queen But in such case a present extent shall not be awarded but the Processe shall be onely a Scire facias against the party to see if he hath any thing to plead against it which note well And where a man recovers damages in an Action on the case parcell of the damages cannot be assigned to the King before execution for he must bring a Scire facias upon such Record And Manwood chief Baron held clearly that a moyely hereof could not be assigned over 22 H. 6.47 One was indicted of Treason at S. Edmundsbury Coram Justiciariis ad diversas felonias c. audiendas and after the Indictment made mention of Bury and did not say praedict and by the opinion of the Iustices the Iudgment was quasht Trin. 30 Eliz. AN Action of the Case was brought against one Gilbert for saying that the Plaintiff was a Suitor to a Widow in Southwark and that he consened her of her money in procuring false witnesses to consen her And a Verdict found for the Plaintiff And in Arrest of Iudgment it was said that in the case of Kerby it was adjudged that Cousener will not beare Action and so was it adjudged in this case Mosse against Reade THe Defendant called him Theef and thou forgest a Deed and a Verdict was found for the Plaintiff and in Arrest of Iudgment it was said that Theef generally without saying of what nature specially will not bear Action But Wray chief Iustice denied that and said that it had of late been adjudged to the contrary and Gawdy against him But as to the words that he had forged a Deed adjudged that the Action will lye although it be not specially alledged what manner of Deed was forged Pasch 32 Eliz. COllings informed upon the Statute of buying of Tythes against Robert Davyes and Stock And it was said by Periam that although the words of the Statute be Pro termino diversorum annorum yet if a Lease be made but for one year yet is it within the penalty of the Statute Mich. 31 and 32 Eliz. CRipps brought a Quare Impedit against the Bishop of Canterbury and others and declared upon a Grant of the next avoidance and the Defendant demanded Oyer of the Deed and the Plaintiff shewed a Letter which was written by his Father to the true Patron by which he had writ to his Father that he had given to his Son that was the Plaintiff the next avoidance and upon this there was a Demur And the whole Court for the Demur for that such Letter was a mockery for the Grant was not good without Deed and Iudgment was given accordingly In Tymbermans Case it was said that if a Sheriff took one in Execution by force of a Capias although he return not the Writ yet an Action of Debt will lye against him upon an escape and Periam said it had been so adjudged Katherine Gilham brought an Ejectment as Administratrix to her Husband Quare determino eject bona catalla sua ibidem inventa cepit c. and a Verdict for the Plaintiff and it was alledged in Arrest of Iudgment that this word Sua shall not be intended her own Goods and not the Testators And the Court was of opinion that Sua shall be intended in such manner as Administrator and no otherwise And therefore Iudgment was affirmed Mich. 31 and 32 Eliz. Baldwin against Mortin USe to the Husband and Wife habendum to the Husband for thirty years the Wife shall take nothing thereby and this case was argued at the Bar and Bench and was called the Earl of Cumberlands case Fleetwood moved that an Action was brought against the Husband and his Wife and dit declare a trover of the Goods of the Plaintiff by the Wife which she converted to her own use and prayed
Declaration that the Defendant did promise to pay the 10 l. before Michaelmass in consideration the Plaintiff would forbeare to sue A. and that he hath forborn adhuc abstiâ—et and does not say that he made request as he ought to have done But the Court held it was well enough and there is a difference when the Defendant does promise to pay generally and at a certain day named there the Plaintiff ought precisely to alledge a request made in certain but when the Defendant promiseth to pay at a day certain he is bound to pay it at his perill without request and therefore to alledge quod saepius requisitus is sufficient without alledging a speciall request otherwise it is if the Defendant assume to pay it upon request for there it ought to be specially pleaded Another errour was because the consideration was that the Plaintiff should forbeare to sue A. and does not set forth for how long time for perhaps the forbearance was but for a quarter of an houre Peryam The consideration upon which an assumpsit is grounded ought to be of value but of what value is it where the forbearance is but for half an houre Fleming By his promising not to sue he is ingaged never to sue Peryam There is great difference between a promise not to sue and a promise to forbeare to sue for a promise not to sue excludes him from suing at all but a promise to forbeare to sue is only to forbeare for a time so that notwithstanding such promise he may sue after and it being not here exprest how long he will forbeare there is no consideration Walmesley There is a difference when the Defendant sâ—eaks the words and when the Plaintiff For if the Plaintiff sayes I will forbeare to sue you so you will promise to pay me and upon this the Defendant makes a promise accordingly the Plaintiff in this Case ought to forbear to sue him for ever But if the Defendant only speaks the words as here he does If you will forbeace to sue I will promise to pay you and the Plaintiff agrees and forbeares a certain time yet he may have his action afterward sed adjournatur Pasch 38. Eliz. Stroud against Willis in B. R. Rot. 66. IN Debt upon a Bond the Condition was If the Obligor shall well and truly pay the Rent or sum of 37 l. yearly at two feasts according to the tenure and true intent of certain articles of agreement indented and made between the Obligor and Obligee during the terme therein mentioned that then c. The Defend intâ—…eâ—ded that these articles ut supra contain that the said Stroud the Obligee Dumisit ad firmam tradidit to the Defendant Omnia talia doâ—…s tenementa terras in Parochia de Petminster de in quibus the sayd Stroud hath an estate for life by Copy according to the Customs of the Mannor Habendum to the Defendant for 21 years if Stroud should so long live rendring to the said Stroud during the said terme 37 〈◊〉 to be paid at the Castle of Canton and pleaded further that at the time of the making the said Articles the said Stroud had not any estate in any Lands houses c. in Petminster aforesaid for the term of his life or by Copy And upon this plea the Plaintiff demurred and Iudgment was given for the Plaintif in the Common Pleas and now was removed by Vrit of Errour And in this Case were two questions First If nothing passe by these Articles and so the reservation of the Rent is also voyd Secondly If the Obligation for payment of the said sum be also voyd and it was said that this could not be payable as a Rent upon the 14 H. 4. 4. 20 Ed. 4. 20 H. 6.23 for no Rent is reserved because there is no land out of which it can come and then the obligation is also discharged 2. Admitting the Rent is not vayable as Rent then whether it be an â—stoppell to plead as here is done against the Articles and therefore they took a difference where the recitall is generall and where not as if A. be bound to infeof me of all his lands of the part of his Mother and he hath no lands of the part of his Mother but otherwise if it were to infeof me of Black acre for he shall be estopped to say that he had not Black acre and so here he shall be estopped to say that there are no Articles but he may plead that he hath no land by Copie Cook 2. Rep. 33.6 Fenner When a man makes a voyd Lease rendring Rent the Reservation is also voyd because the land is the consideration and recompence for the Rent but where a man reserves Rent upon a grant or Lease which grant and Lease are good but the thing out of which the Rent is issuing cannot be charged with the Rent there the reservation is good as where a Rent is reserved out of an advowson or menaltie but in the Case at Bar the Lease did never begin and therefore Rent shall not then is it to be considered whether the Rent is to be payd by reason of the bond as a sum in gross or not and as to that matter the condition of the bond is to pay the Rent according to the true meaning of the Articles which is that if the Lessee have not the Land the Lessor shall not have the Rent therefore it shall not be paid as a sum in gross Popham cont But he agreed that the reservation was voyd for if no Land do pass no Rent is reserved and the reservation only does not make any estoppell and he took a difference upon the 14 Ed. 4. A man makes a Lease generally and the Lessee is bound to pay the Rent in such manner as it was reserved there such Rent ought to be demanded otherwise the Obligation is not forfeit and the demand ought to be upon the Land but if such Lessee for years do oblige himself to pay the Rent at a Collaterall place out of the land there he ought to pay it at his perill without any demand for now he payes it in another nature than as Rent so here if the payment had been limited at a place out of the Land the Obligor is bound to pay it although nothing were demised to him for by the bond he hath made it a sum in gross And it is altered from the nature of Rent upon the first reservation and he is bound also to pay the Rent or sum and if this be any of them he must pay it As to the second point he made this difference A his bound to J.S. to Release to him all his right which he hath in the Land descended to him on the part of his Mother there in Debt upon this bond the Obligee cannot plead that he hath no right descended to him on the part of his mother but must Release at his perill But if he binds
the attainder and she granted it to Bones and all actions demands and a scire facias was issued out in the name of the Queen And the principall case was adjourned but the Patentee had express words to sue in the name of the Queen although it was not so pleaded 43 Eliz. Pelling against Langden in B. R. Rot. 438. IN a trespass for breaking his Close and killing 100 Conies The Defendant justified because he had common time out of mind and because the Conies were damage Feasant in the place where he killed them The Plaintiff demurr'd and judgment given for the Plaintiff for Conies are beasts of Warren and profitable as Deer and are not to be compar'd to Foxes and vermine which may be kill'd but the Owner of the soil may keep Conies where the Common is aswell as other cattle also he may make Fish-ponds in the Common and the Commoner cannot destroy them Cook 5. Rep. 104. 22 H. 6.59 so it was adjudgâ—d Trinit 43 Eliz. Gresham against Ragge in B. R. Rot. 1295. IN trepass for entring into a house The Defendant pleaded that the Plaintiff was indebted to the Defendant in 100 l. and that he by the permission of the Plaintiffs servant the doores being open did enter to demand his debt Vpon which the Plaintiff demurred And adjudged for the Plaintiff For the servant of the Plaintiff could not licence any to enter into the house of his Mr. also a man cannot enter into anothers house to demand money unless the debtor be within the house Gawdy If it had been averred that the Plaintiff had been then in the house the Plea had been good Hillar 44. Eliz. Streetman against Eversley in B. R. IN an ejectment the Case was a Lessee for 80. years upon condition that if the Lessee his Executors or Assignes did not repairo the house within six weeks after warning that the Lease should be void the Lessee made a Lease for ten years who suffered J.S. to occupie the house and then the Lessor came to the said occupation of the house and at the house gave notice and said that the house was defective in reparations and did shew in what and so gave warning to have it repaired and after for default of reparations he entred and the Defendant as servant to the Lessee re-entred And his entry adjudged lawfull for notice given to J.S. who was but an Occupier of the house and not Lessee or Assignee of any interest of the terme was not sufficient but it ought to be to the person interessed in the terme who is liable to reparations Vid. Cooks 6. Rep. Greens case Also the notice at the house is not sufficient but it ought to be to the person of the Lessee and Popham agreed to this Trinit 1 Jacobi Shopland against Radlen in C. B. Rot. 853. IN a Replevin the question was when a Guardian in socage holds a Court in his own name and does grant Copies in reversion if this be a good Grant or not and adjudged to be good against the Heir Walmesley Dominus pro tempore of a Mannour may hold a Court and make a Grant of Copyholds but this is to be understood of perfect Lords which a Guardian is not but onely ad commodum haereâ—is and is rather a servant to the Lord than Dominus pro tempore and he cannot be called Dominus because he can neither grant nor forfeit his estate and hath nothing to do to meddle in the Mannour but to account for the profits and a Writ of Ward does not lye for the land but onely for the body Gawdy chief Justice Warburton and Daniel Justices to the contrary Who held that a Guardian in socage is Dominus pro tempore and that he hath interest in the land and may make a Lease thereof for years Commentar 293. and may avow in his own name 29 Ed. 3. Avowry 298. But a Guardian in socage cannot present to an Advowson because he cannot be accountable But Daniel Iustice said that the Guardian may present where the heir is not of years of discretion and a Guardian in socage shall have a Trespass and a ravishment of Ward 24 Ed. 3.52 and he hath the Ward by reason of looking to him and therefore he hath interest sufficient to keep Court and admit Copyholders who are not in by him but by the custome But a Bailiff of a Mannour hath no interest and therefore cannot make Grants and Copies but a Guardian hath interest provisione legis although it be such interest as cannot be forfeit and the heir cannot be at any prejudice for he shall have an account made to him of such Fines for the heir himself cannot grant them and the Law cannot compell the Guardian to occupy them neither can the Court be held in the name of the heir but the Guardian and therefore he may grant Copies And if a Guardian in socage hath such interest that he can make a Lease for years and his Lessee shall maintain an Ejectment a fâ—r â—…oti he may grant Copies Neither is it any argument at all to say that a Guardian in socage hath no interest because he cannot grant or forfeit his estase for the reason is because these things are annexed to his person And after Mich. 3 Jacob. it was adjudged that the Grant was good and shall binde the heir Vid. Keloway 46.6 37 Eliz. Brown against Hercey in C. B. Rot. 620. IT was found by office that J.S. who held the Mannour of D. of the King did dye without heir whereupon W.S. as heir to him did traverse the said Office and hereupon was at issue with the Queen if he were heir or not and depending this suit he made a Feoffment in Fee with a Letter of Attorney to make Livery and after it was found for him against the Queen and Iudgement given against the Queen but before the Writ of Amoveas manum the Attorney made Livery and adjudged good for it cannot be said that the heir at the time of the Feoffment had nothing or that the Queen at the time of the Livery was in possession for by the Iudgement given the possession of the Queen was utterly defeated and possession in the party before any amoveas manum sued out for that serves but to compell the Eschaetor to avoyd the possession it he hold the land after Iudgement Vid. Stanford praerogat 78. 10 Ass 2. 10 Ed. 3. and the difference is where the King is seized by title and where without title for when the King is seized by title and his title is determined he ought to make Livery to him that hath right but when he is seized without title and he who hath right hath Iudgement against him he may enter without Livery 5 Ed. 5. Quare impedit 34. But it was here said by Owen Iustice that if a man makes a Feoffment of White-acre with a Letter of Attorney to make Livery and then he purchase White-acre this is
21. years that is good and the Executor shall have it as in right of his Testator But where a man makes a Lease for years or life the remainder after his death for 40. years to his Executors the Executors shall have it as purchasors for this word remainder divides it from the Testator and makes the Executors purchasors Walmesley Glanvill and Kingsmill cont And their chief reason was from the intent of the parties and their intent was that the Lessee should have an estate during life for it is to him for 89. years if he so long live and because by common intendment he cannot survive those years their intent was that his Executors should have it after his death and that the certainty of the time might be known it was limited for 40. years And W lmsley said that the Administrator could not have this by purchase for when a man takes by purchase he must be named by an apt name of purchase by which he may be known as if there be tenant for life the remainder to the right heirs males of J.S. and J.S. hath issue two sons and the eldest hath issue a daughter and J.S. dies this daughter shall never take any estate because she is not heir male she hath no name of purchase and therefore here the Administrator cannot take by purchase for the Administrator comes in by the ordinary and therefore cannot be an assignee And at last Iudgment was given That the Administrator should hold it as a thing vested in the Intestate Michaelm 41 42 Eliza. VVhite against Gerish in C. B. Rot. 366. IN a Replevin the Defendant avowd for Rent The case was this Two persons did joyne in leavying a fine to J. S in Fee â—ur coâ—…ns de droit come ceo c. J.S. by the same Fine renders the Lands to one of the Conusors in taile reserving Rent and further would quod tenementa preâ—…cta remanerent to the other who is the avovee Walmesley The Rent shall passe as if a man grants land for life and also grants quod tenementa predicta remaneâ—unt to another these words Quod tenementa predicta do make a grant of the reversion and also these renders are as severall Fines and so it shall be taken as a grant in Taile rendring Rent and after a grant of the reversion Glanvill accorded Warburton If a man makes a gift in Taile rendring rent the remainder over in Fee the Donor shall have the Rent and not he in the remainder Walmesley That is true in a grant but not in a Fine Anderson If a man makes a gift in Taile rendring rent and at the same instant grants the Reversion and the Deeds are delivered accordingly this shall passe as a reversion And after it was adjudged to be a grant of the reversion and that the rent passeth Crawleys Case IN Replevin the case was thus A Rent is granted to two during the life of J.S. to the use of J.S. the grantee dieth and if the Rent were determined was the Question Walmsley The rent remains to J.S. for the grantees have an estate during the life of J.S. and by the Statute of the 27. l. 8. the use is raised and conjoynd with the possession whereby the Rent it self is carryed to J.S. whereby J.S. hath an absolute estate for his life and the life of the grantees is not materiall as if Rent be granted to two for the life of J.S. if he does not grant over the rent their lives are not materiall And if they grant over and dse the Rent shall not cease but the grantee shall have it during the life of J.S. And here the Statute 27 l. 8. vests this in cestuy que vie otherwise if it were before the Statute of use quod fuit concessum per curiam Pasch 41 Eliz. Shaw against Sherwood Rot. 2504. THe Executors of Shaw brought an Action of Debt for 20 l. upon a Bill and the Bill was thus I William Shaw have received of Thomas Pret 40 l. to the use of Robert Shaw and Elizâ—beth Shaw equally to be divided which said sum I acknowledge my self to have received to the use aforesaid and the same to re deliver again at such time as shall be most fit for the profit and commodity of the said Robert Shaw and Eâ—…zabeth Walmesley Two points are here First if this be a Debt to cestuy que use or to him who gave it Secondly if it be divided so that each of them shall have an Action for 20 l. And as to the first he held that it was a debt to him for whose use the money was delivered and as to the second that they shall have a debt as of several debts by reason of these words equally to be divided Kâ—…gâ—…m Here is no Obligation for the words are not obligatory but onely an acknowledgement of the receipt Glanyâ—ll accorded Walmesley When he acknowledged the receipt to both their uses without question such Receiver is a Debtor And agreed by the Court that admitting it was a Debt that then it shall be a divided Debt and not joynt Quod nota Lane against Cotton IN Debt upon a Bond on condition to pay 20 l. within a month after the Obligee had a son that did or could speak the Lords Pâ—…er in English that he could be understood the Plaintiff pleaded that he had a son qui loqui potuiâ— praecationem Domini uâ—intelligâ— potuerit and the Defendant demurr'd because it was pleaded that he had a son qui loqui potui for that is a secret ability that cannot be known Kingsmill The plea is good and shall be tryed as in case of a Writ of non comâ—…s mentis Glanvill accorded for it may be proved by the testimony of those who have heard him speak and if he ever spoke it it is good evidence that he had ability to speak Walmesley contr Because it is a secret thing it cannot be tryed Kingsmill A man is bound in a Bond to give me 20 l. when the River of Varâ— is novigable it is a good plea to say that the River is navigable without saying that some have navigated upon it Herâ— Serjeant cited a Case adjudged in a Quare impedit by the Patron against the Bishop who had pleaded that the Parishioners were Welshmen and that they could not understand English and that the Clerk he presented could not understand Welsh and the Patron pleaded that the Clerk could speak Welsh and upon Demurr it was adjudged a good issue and that such matter might be tryed Anderson The issue is good and it is at the election of the party to plead quod loqui potuit vel loquutus est And if I am obliged to you to give you a 100 l. when I am able to go to Pauls this may â—e tryed although in facto I never went to Pauls and if I am able I shall pay the money And he cited Broughtons Case where in Maintenance the Defendant pleaded that he
propertie To which it was answered that if the ancient stock of Sheepe were still it had been godd but it was not and therefore the grant is voyd Walmesley Although the first stock was changed yet the new stock does supply it and is in place thereof and shall be in the same condition as the other stock is and therefore the Lessor shall have propertie in it But the whole Court was against him for they said that the increase of the stock of Sheepe should be to the Lessee and the Lessor shall never have them at the end of the terme but they agreed that if the lease were of the stock with Lambs Calves and Piggs there the increase belongs to the Lessor And all the Court took this difference sc when a lease is made of dead goods and when of living for when the lease is of dead goods and any thing is added to them for reparations or otherwise the Lessor shall have this addition at the end of the terme because it belongs to the principle but in case of a stock of Cattle which hath an increase as Calves and Lambs there these things are severed from the principle and Lessor shall never have them for then the Lessor shall have the Rent and the Lessee shall have no profit Trinit 29 VViseman against Rolfe in in C. B. Rot. 1454. IN a Writ of right the Case was thus A man selfed of Land in Fee makes his will and gives to D. his wife such Land for life the remainder to T. his son and heires of his body and also gives to T. his son his Land in B. and also his Land in C. and also he gives his Land called Odyum to the seed of his son habendum all the demised premisses to his T. son and the heires males of his body The Question was it T. should have an estate in Taile in B. and C. or if the last words shall relate only to that which was last named Fenner for the Plaintiff For the last Clause is a new Clause and shall not be preferred to the first for it begins with a verbe viz. I give my Land called Odyum and therefore the limitation afterward shall be referred only to this And 10 H. 7.8 There was a grant by Dedi custodiam Parci Arbores vento prostrat The Grantee shall have the trees by this Clause and 14 Eliz. A man deviseth thus I give my Mannour of C. to my second son Item I give my Mannor of S. to my second son to have and to hold to him and to his heirs And by Dyer Welsh and Weston he had an estate but for life but Brown cont for if a Lease be made to A. B. and C. successively it is adjudged that they are Ioyntenants but if it be to them as they are named they shall have it one after the other and if a devise be to one and his heirs and after to another for life the Law will conster that the estate for life is to procede for that words of Relation in Wills shall be taken stricttly as if a devise be to A. and his heirs of his body and he does devise other land in Forma praedicta this shall be but for life Walmesley cont and said that this limitation did go to all whereof no limitation was made before for the rules of reason are uncertain and therefore such matters shall be expounded according to the best sense that may be and here the sense is most naturall to refer it to all and the word all imports this and the Case of the fourth of Elizabeth under favour accords with this viz. that the Devisee shall have Fee in both But if the Devise had been I devise D. to my son Thomas and also to him and his heirs the Mannor of S. there he shall have D. but for life And if a man devise to his 4. sons A. B. C. and D. to have to the persons last named to them and their heirs there all shall have Fee 19 Ed. 4. In a precipe of a house and an acre of land in three severall Towns and that the Defendant Ibidem ingressus est and did not say into the house and land and yet it was held good Periam and Rhodes He shall have an estate Taile in all and the relation shall be to all Anderson doubted at first but agreed afterwards and Iudgement was given accordingly 32 33 Eliz. Mathewson against Trott in C. B. Rot. 1904. UPon a speciall verduit the Case was this A man seised of land in soccage devised it to his yonger son and died seised the elder son enters and dies seised and his heir enters and the yonger son enters upon him the Question was if his entry be taken away by this descent VValmesley It is not and he compar'd this case to a title of entry for a condition broken or a Conusee of a Fine upon grant and render c. in which Cases no descent shall take away entry Anderson The Devisee hath interest presently and the land does not descend for the devise prevents the descent and the Freehold is presently in the Devisee and the Statute 32 H. 8. which gives power to Devise lands does make a Title in the Devisee as a Title of entry for condition of Mortmaine and the Devisee shall not have an ex gravi querela upon this Statute but he must enter Walmesley The Devisee hath not a Freehold presently for if it were so the Devisee at the Common Law ought not to sue an Ex gravi Querela but certainly if the freehold be in the Devisee his entry is taken away And afterwards Iudgment was given by Anderson that descent does not take away the entry of the Devisee but delivered no reason for it Hillar 33 Eliz. Mosgrave against Agden Rot. 2529. IN an action of the Case on a Trover and conversion of six barrells of Butter The count was that they came to the hands of the Defendant and after the trover they were impared and decayed ratione negligentis custodiae And the Court held cleerly that the action would not lie for he who finds goods is not bound to preserve them from putrefaction but it was agreed that if the goods were used and by usage made worse the action would lie 44 Eliz. Ayer against Joyner in C. B. Rot. 2529. IN a second Deliverance it was said by the Court that if Lessee for years does assign over his terme and yet continues possession that he hath but a naked possession and no interest nor estate but the estate and interest does remain in the grantee so that he may grant it over And Walmesley said that if the Lessee makes waste the Lessor may have an action of waste against him and there is a casâ— that if a man makes a Lease and the Lessee waves the possession and a stranger commits waste the Lessor shall have an action of waste against the Lessee but the principall question
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
Ostensum est nobis returned in the Common Bench against Lee and Lovelace upon a scire Facias awarded against them and two Nihils return'd the Fine was reversed Anderson The scire Facias is not well awarded for it ought to be brought as well against those in possession as the Conufors and this appears by the 21 Ed. 3.56 by which they in possession and those in remainder ought to be made privy Walmesley agreed for the Freehold which is in me shall not be taken from me without making me privie no lesse then if A. bring a Precipe against B. of my land and recover for I shall have an Assise upon this Also another matter is in the Case For the land now in question is alledged to be parcell of the Mannor of Andover and therefore cannot be ancient Demesne But no Iudgment was at this time given because there were but two Iustices Halling against Comand IN an action of Covenant the case was thus Comand the Defendant did covenant with the Plaintiff that at the Costs and charges of the Plaintiff be would assure certaine land for the Ioynture of the Plaintiffs wise before Mâ—châ—e mas And the Plaintiff declared that no assurance was made nor tender before the said Michaelmas And hereupon the Defendant demurred for that the charges should have been offered before the assurance 3 H. 74.23 Eliz. Dyer Anderson in the 35 36 Eliz. Fâ—steâ— did covenant with Franke to make an assurance at the costs and charges of Franke and Franke brought a Covenant and Foster Demurred because no charges were tendred to him it was adjudge against Fester for Franke could not have cognizance what manner of assurance should be made and so could not tell what charges to tender and therefore he ought first to shew him what manner of assurance he should make and according to that he ought to tender reasonable Charges Walmesley But the charges ought to precede the assurance but the declaring of what manner of assurance should be made ought first to be done Beaumond of the same opinion Michaelm 38 Eliz. Damport against Sympson IN an action on the Case the Plaintiff declared that he had given to one Spilman certain Iewells to Traffique with them beyond the Seas and that he had not fold them but had delivered them to the Defendant who had spoild them whereupon the Plaintiff brought an action against the said Spilman and upon not guilty pleaded they were at issue and the now Defendant at that evidence did Depose upon his oath that the Iewells were worth but 200 l. whereas they were worth 800 l. by reason whereof the Iury gave indeed but 200 l. damages and for this false oath he brought this action and the Iury upon not guilty pleaded found for the Plaintiff and assessed 300 l. damages And now it was moved in arrest of Iudgment that the action would not lie no more than against those informe a Iustice of Peace of Fellony upon his oath against J. S. 20 H. 7.11 Also the party grieved hath his remedy in the Star-Chamber And Walmesley said that for perjury there was no remedy and so is it in the 7th Eliza. Dyer 243. a. for it is not to be thought that a Christian would be perjur'd and in the 2d H. 6.5 a Conspiracy will not lye against Indictors who informe their company of their oath Wherefore It was adjudg'd that this action did not lie Note that Anderson was against this Iudgment but Walmesley Owen and Beumond were against him FINIS The Table of the principall matters contained in this Book Abatement WHere the Resignation of a Bishop Dean or Parson shall abate the writ and where not 30 31 Where the writ shall abate for not naming the party according to his Dignity or Office and where not 61 In trespass against two the writ shall not abate for the death of one 107 Admirall Where he hath Jurisdiction and where not 122 123 Action and what words will beare Action Slanderous words of several kinds 13 17 18. vide Slander where the Lessee for years by intrusion shal have an Ejectment and so in case of the King 18 What Action the Lessee of an Intruder or Copyholder of the King shall have if he be outed 16 Where an Action will lye for slanderous words spoken or for any of them and of a slander in writing 30 Action of Trover good against the Husband onely though the wife made the conversion 48 Action of debt by an Administrator durante minoritate not good 35 VVhere a second Action for the same matter shall be brought and where not 37 For warranting sheep sound 60 VVhere a Trespass or Detinue shall lye for Goods taken and sold 70 VVhat Action for a Dogg Ferret or Hawk 94 VVhere two shall joyn in the action and where not 106 Non-suit of one Non-sult of both in a personall action 107 For a Fine in the Leet brought by the Lord 113 VVhere an action of Trover will lye for money 113 Account For fish in a Pond 19 Account will not lye where is no privity 35 36 Against a Receiver 36 Severall actions of Account 36 Administrator vide Executors Advowson VVhere by the presentment of another the King shall be said to be out of possession 43 Grant of the next avoidance by a Letter 47 Advowson appendant to a Mannor and the Mannor is granted yet the Advowson will not pass 53 VVhere the Patron shall dispose of the Advowson though thre be a deprivation 151 Age. The Heir of the Tenant in tail that is impleaded during life of the Tenant by Curtesie shall not have his age 33 Aide Difference between Tenant at wil and Tenant at sufferance in case of praying aide 29 By him in reversion 43 Where the Tenant praies in aide of a stranger it shall be a forfeiture 81 Alien Debt by an Administrator alien Born 45 Who shall be accounted an alien enemy 45 Amendment Where the Habeas Corpus distringas shall be amended though the Venire be well returned 62 Amends vide payment Annuity Where the husband shall have an action of debt for the arrears of an Annuity granted to the wife before marriage 3 Granted by him that hath no Estate what remedy for the Grantee 3 From a Corporation 75 No Dower to the Bargainees wife before inrolement 70 Where the suing or recovering of Dower shall be accounted the waving of the Assignment of Dower 150 Entry WHere the Entry of the Lessor on the Lessee shall not avoid the Covenant of the Lessee 65 The Lord shall not have a Cessavit after entry in parcell 66 Where the entry of the Discontinuee shall avoid the fine of the Tenant in tail 75 76 VVhere the discent of the Intruder on the King shall not take away the entry of the Kings Feoffee 45 Entry into a house to demand money where good 114 Error Error in Judgment whether amendable 19 VVhere a writ of Error by the husband and wife within age shall
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
and pleading By the Lessee of an Intrudor 16 Where a Lease must be pleaded hic in curia praelat 16 By the Obligor on a bond to save harmless plea that he was not taken in execution c. 19 Where ancient Demesne is a good plea 24 Where in an Avowry a man shall plead for Frank-tenement 51 Difference in plea between appeal of Mayhem and Murther 59 Where a man shall be bound to set forth Seisin of him who made the Devise and where not 103 Prescription For a Common 4 5 To buy and sell c. 6 7 Who shall prescribe to a way and who not 72 Presentation Where the King shall be limited in time to present by Lapse and where not 2.89.90 Where Recusancy of the incumbent shall cast the Lapse on the King 5 Where the King shall not lose his Presentment by Lapse though he do not present in time 5 The Church how void for Symony 87 Prohibition vid. Writs Promise vid. Assumption Proviso vid. Condition Property Where the property of stollen Goods shall be altered according to the Statute of 2 and 3. Phil. Mar. 27 A man outlawed hath property in his goods 116 What property the Constable shall be said to have of Felons goods 120 Quare Impedit IN what cases it lies and what not 99 Releases DIfference of a Release to Tenant at sufferance and Tenant at wil 29 Of a Bond the Release bearing date the same day not good 50 Of the avoydance of a Church why void 86 Remainder Lease for years with Remainder to the said persons where good and where not 38 39 Seniori puero whether a Female shall take 64 Reparations Notice to the Astignee of a Lease to repair not good 114 Rents Where the Confirmation to the Assignee of the Lessee of part of the land shall extinguish the Rent of the whole 10 Where an entry for breach of the Condition in part of the Land shall extinguish the Rent for the whole 10 Rent granted out of Land not chargeable therewith how good 111 Where the Tenant of the Freehold shall be charged with the Rent-charge and where the Termor 117 Reservation Rent reserved to his Executors or Assignees where good and where not 9 10 Reserved at Michaelmas what time of Michaelmas shall be intended 64 Resignation Of a Benefice without presentation or on Condition 12 The Nature of a Resignation 12 Sheriff WHere an action of debt lies against him for an escape though the Capias be not returned 43 No escape against the Sheriff when especiall bails are requested 98 Where a man shall aver or traverse against the return of a Sheriff 132 Slander and slanderous words vide Actions Calsing one Bastard 92 Calling one Whore and that she had the French-pox 34 For saying Thou Murtherer good 33 By him in remainder for saying the immediate Tenant was alive 33 For the word Cousener 47 Thief and thou hast forged a Deed 47 For pilfering 56 Thou hast stollen half an acre of Corn innuendo Corn sowed 57 He was disproved before the Justices 58 He was perjured and I will prove him so 62 Statutes Mistaking the Parish on an action for Robbery on the Statute of Winchester 7 Lease for years not within the Statute of Quia emptores 10 Lease on the Statuce of 27 H. 8.28.32 Who are within the Statute of Monasteries 31 H. 8.56 Lease for one year within the penalty of the Statute of buying of Tythes 57 21 H. 8. for Noblemens Chaplains 51 In the 8. of H. 6. how to plead the entry 93 Exposition of the Statute 5 Ed. 6.14.135 Where a man shall plead Contra formam statuti though there be more Statutes of the same matter 135 Traverse by Executors on the 4. of Ed. 3. good 156 Surrender By the Husband Lessee for years of his wives estate how good 32 What and how may things belong to a Surrender 97 Tenure NO Tenure between Donor and Donee in Frankmarriage 26 Tenant at jufferance Will D'auter vie c Where such Tenants holding over shall gain a Feesimple or make a Disseisin and where not 27.28 Tenant at sufferance shall justifie Damage-feasant 29 Difference where a Tenant at sufferance holds over and where a Tenant at Will 35 Tythes Where Tythes by composition shall be paid according to agreement although they be not tyâ—hable 34 35 Where they shall be paid of the Glebe land 39 By the Parsons release of all Demands Tythes are not released 40 Where altering the Crop of the Land shall alter the Tythes from grosse to small Tythes 74 Where a discharge to pay Tythes without Deed is good and where not 103 Tryall Where the tryall shall be on the land though the cause or matter were on the Sea 54 Vses and Cestui que use USe to the husband and wife habendum to the husband for three years 48 How Cestui que itse shall be said to be seised before entry 86 Wardship WHere the husband alone shall have a writ of Ravishment of Ward without the wife 82 83 Whether the brother of the half blood or the Uncle of the whole blood shal have the Wardship in Socage 128 Warranty The exposition of the word To warrant Land 100 Two Joynt-tenants with Warranty make partition the Warranty is gone 104. Otherwise of a Feoffment 104 Warren VVhat it is and whereof it consists 66 Of VVaste committed there 66 VVarren in a Common is good and the Commoners cannot kill the Conies Damage-feasant 184 Waste VVhere a man shall have but one action of waste on severall Leases and where not 11 The form of entring Judgment in a writ of waste 12 For taking Fish out of a Pool 19 VVaste in the house for not scouring a Ditch 43 In Pigeon houses Hop-grounds and Fish ponds 66 VVhere the Lease is ruinous at the entry of the Lessee and falls down afterwards the Lessee is excused and where not 93 Way How extinguisht by unity of possession 127 Wills and Testaments Executors Administrators and Legacies VVhere a man deviseth that his wife shal have the occupation and profits during her widowhood 6 7 Where a Devise shall be intended within the word Demise 14 VVhere a Devise shal be taken as a Demise for breach of a Condition 14 VVhere a Devise of severall parcels of Land to several persons and the Survivors to be each others heir what Estate passeth 25 VVhere an Administrator paies debts and there a Will is found yet the payment good 28 VVhere a Devise shall make an Estate tail by implication 29 30 VVhat passeth by this word Livelyhood in a Will according to the custome of London 30 VVhere Ex intentione shall make a Condition in a Devise 32 VVhere an uncertain Devise shall be construed good as to a certain intent 35 Legatees refusing to prove the Will shall lose their Legacies 44 Devise of a Tenant in Borough-english to his two Sons 65 Devise to his two Daughters his Heirs 65 Devise of all Lands Meadows and Pastures whether the house passeth 75 VVill made and the party sayes he will not make his VVill no Revocation 76 VVhat passeth by the Devise of a Mannor 88 89 Devise of Jewels what shall remain to the Heir and will not pass by the VVill 124 Writs VVhere a Scire facias lies and where not 3 VVhere certainty in a writ of Ejectment is requisite and where not and difference between such writ and a writ of Novel Disseisin 18 19 Quod ei deforceat how it will lye in waste 102 FINIS