1.

WAst war brought by Constance Foster, Wast. and another, a­gainst Lessee for years, in effect the case was such; A man makes a Lease of certain Lands,44 Ed. 3. 34. b. 46 Ed. 3. 22. 28 Hen. 8. 19. a. excepting all manner of Woods, the Lessee cuts down Trees, and he in Reversion brings an Action of Wast, and by the opinion of the Court, the Lessee is not punishable in Wast; for they were never let; and therefore the Plaintif is driven to his Action of Trespass at the Common Law.

2.

THe Sherif returneth in a Writ of Right four Esquires to make the pannel,Return. and doth not say that there be any Knights, it was sayd by the Court, that he ought to return them which be, and that there be no more.

3.

WAst was brought for digging in Land,Wast. and taking away Okes; the Defendant pleaded in bar, That the Queen by her Letters Patents under the Great Seal of England, granted unto him, that he might dig for Mines of Cole in the Land, and prayed that it might be entred verbatim; and a Grant under the Seal of the Exchequor was entred; whereupon the Plaintif Demurred: Now came Walmisley, and would have amended it, and by the opinion of the Court, he cannot amend it after the Demurrer be entred,Demurrer. but Judgement shall be given for the Plaintif, if he shew no other matter.

4.

A Man seised of Lands in Fee,Devise and sale by Exe­cutors. Deviseth to his Wife for life; the Remainder to his Son in tayl, and if his Son dye without issue of his body, that then the Land shall be sold by his Executors, and maketh two Executors, and dyeth; the Wife dyeth; one Executor dyeth; the Sonne dyeth without issue; the other Executor selleth the Land; and Gawdy the Queens Serjeant moved whether the sale be good or no, and it seemeth to him that the sale is good, and vouch­ed the Case in 30 Hen. 8. Brook, Devise 31. And now lately, it was adjudged in the Kings-bench, where a man did Devise his Lands in tayl, and for default of such issue, that the Land shall be sold by his Sonnes-in-law, and dieth, having five Sonnes-in-law; the one dyed, the others sold the Land, and this was adjudged a good sale.

It seemeth the sale is not good; for if one make a Letter of Attorney to two to make Livery and Seisin,Livery. if the one dye, the other cannot doe it: So if one grant the Office of Stewardship to two, the one of them cannot hold Court alone:Stewardship. And if one of them may sell, to what intent was the Statute of 21 Hen. 8. cap. 4. that those which take the Administration may sell?

The Statute will not prove the case, but it seemeth the sale to be naught; And there is a difference where one giveth an interest to two, and when he giveth but an authority;Interest. for an interest may survive, but an authority can­not. Authority.

Rodes to the same intent, and cited M. 4 & Eliz. fol. 219. a. & 177. & 210. & 371.

5.

BAttery,Battery. by Webster against Pain, the Action was layd in London, and in truth the Battery was committed at Uxbridge in Midlesex, the Defendant pleaded that such a day and year at A. in the County of Huntington, 11 H. 4. f. 3. 11 H. 4. f. 61. 22 H. 6. f. 33. 21 H. 6. f. 9. 9 E. 4. f. 46. 43 E. 3. 23. the Plaintif made an assault upon him, and the hurt &c. abs (que) hoc, that he is guilty in London. Snag moved that the Tra­verse should not be good.

Will you have him to say, abs (que) hoc, that he is guilty? that he ought not; for by the speciall matter he hath confessed the Battery, and you will not deny, but that if his Plea be true, he hath good cause to bar the Plaintif; wherefore if we shall not allow this Plea, we shall take the Defen­dant from his remedy to plead, which God forbid: And in 2 Ed. 4. fol. 6. b. In Trespass the Defendant shewed speciall matter in Lon­don, where the Action was brought in Midlesex. Tota Curia, Nelson Prothonotarie hath shewed a president in 2 Ed. 4. where such a Plea as this was pleaded, wherefore the Plea is good.

6.

NElson, Trespass. Prothonotary, brought a Writ of Trespass against another, in effect the case was thus; The Abbot of Westminster was seised of Lands,Ʋnity of posses­sion of Common▪ to which he had common in the Lands of a Prior; af­terwards, by the Statute of Dissolutions, as well the Lands of the Ab­bot, as of the Prior, were given to King Hen. 8. And after that, the Dean of Westminster had a grant of the Mannor which the Abbot had, and Nelson had the other Mannor which the Prior had, into which a Tenant of the Deans put his beasts,11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguish­ment 14 Ass. pl. 20. claiming Common, as once it was in the hands of the Prior, and Nelson brought his Action of Trespass. Walmisley moved that the Tenant should have his Common.

Is this a new case? It hath been adjudged heretofore, that by the union of possession the Common is gone.

Have you any reason why the Common shall not be gone?

No, my Lord, if the Statute will not help us; for the Statute is, that the King shall have it in the same plight as the Abbot had it, and the Abbot had Common, ergo, &c.

So is the Statute, but the Statute doth not say, that it shall continue so in the hands of the King, and it is impossible that it shall conti­nue in the hands of the King as it was in the hands of the Abbot, therefore the Common is gone.

Rodes assented.

7.

MOor brought a Quare impedit, Quare impe­dit. & after Judgment had a Writ to the Bishop of Norwich, and at the alias the Bishop returned, that after the awarding of the first Writ, and before the receipt of the second, the Queen had presented the same Defendant by her Letters Patents, who is admitted, instituted, and inducted, so that, &c. Shuttleworth moved that the Ordinary might be amerced for his evill Return; for when he had Judgement to Recover, he ought to have the effect of his Judgement; for else it shall be in vain to sue a Quare impedit, and thereupon he avouched the case in 21 Hen. 7. 8. & 21 Eliz. 364. Dyer, that the other Clerk shall be removed.

the Return is not good; for me seemeth in a Quare impedit, when one which hath title Paramount presents,Title Para­mount en qu. imp. hanging the Writ, then allthough the Plaintif hath Judgement to Recover, yet his Clerk shall not be removed; but if it be under, or after the title of the Plaintif or De­fendant, then his Clerk shall be removed; and here he hath return­ed, that the Queen hath presented the same man which is Defendant, and therefore he shall be amerced.

Windham to the same intent, and cited the case of Long, 5 Edw. 4. fol. 115. b. Rodes cited the case in [Page 4] Fitzherbert, Quare non admisit, fol. 47. k. and Bassets case in 9 Eliz. Dyer, Alit. en pr. quod reddat. fol. 260.

In a Praecipe quod reddat, if the Sherif return upon the habere facias seisinam, that another hath recovered by title Paramount against the Defendant, and hath execution, he shall be a­merced.

How doth it appear to us, that he which the Queen hath presented, is the same Defendant?

By the Re­turn.

No, Sir; and therefore it is good to be advised:

And after Windham doubted for the same cause. Et adjornatur.

8.

TRistram Ayscough, Dower. and Eulaleia his Wife brought a Writ of Dower of the endowment of her first Husband; the Defendant pleaded in bar, that an Annuitie was granted to her first Husband and her self, in recompense of her Dower, which she after his death accepted; and the Plaintif replyed, quod recusavit praedict. annuitatem, after the death of her husband.

The Plea is nor good.

Your intent is,Disagreement in pais. for that she disagreed in the Country, and not in a Court of Record, that the disagreement shall not be good; but I think not so: for if she say in the Country, that she will not have the sayd Annuity, this is a good refusall; and if she once disagree, she can never agree afterwards (quod tota Curia concessit) but peradven­ture recusavit is no good pleading.

9.

FRancis Windham, Quid juris clamat. one of the Justices of the Common Pleas, brought a Quid juris elamat against the Lady Gresham, to have At­tornment of certain lands comprised within the note of a Fine levied to him by one R. Read: The Lady pleaded, that certain persons were seised of those Lands, and held them of King Hen. 8. by Knights ser­vice, and enfeoffed W. Read, and the Lady then his Wie, to have and to hold to them and the heirs of the husband, who devised the re­version after the death of the Lady to the sayd R. Read in tayl, the remainder, &c. and that the said R. Read levyed the Fine, &c. where­upon Windham demurred in Law.

The Plea is not good for divers causes; the one is for the pretence of the Tenant, for that the Lands were held by Knights service, the Devise is voyd for the third part, so that therein the Conisor hath nothing, but she doth not shew who had the reversion of the third part, which she ought to shew, and thereupon he vouched 30 Ed. 3. fol. 7. & 34 Ed. 3. quid juris cla­mat. 14 E. 3. Fitzh. Quid juris cl. The Defendant said that he held not of the Conisor, he ought to shew who had the inheritance; and 30 Hen. 6. fol. 8. in Wast brought by Radford. Another cause is, for that in the end of her Plea [Page 5] she demandeth Judgement,Eisdem. si pro eisdem duabus partibus, she ought to Attorn, and she doth not speak of any two parts before, and there­fore it is not good, and vouched 7 Ed. 6. in the Comentaries, Parlia­ment held praedict. 28 Ap. & 9 Edw. 4. bona praedict. J. S. and doth not speak of any J. S. before. Then for the matter in Law, for that the Conisor was but Tenant in tayl, this notwithstanding it seemeth she ought to Attorn, and therupon he cited the case in 48 E. 3. fol. 23. in per quae servicia, & 24 E. 3. Tenant in tayl of a reversion of a Mannor levies a Fine, the Tenant for life ought to Attorn. And 3 Ed. 3. quid juris, &c. It is there ruled, that Tenant for life shall Attorn upon a Fine le­vied by Tenant in tayl; and therefore she, &c.

And by the opinion of the Court, the exception, si pro eisdem duabus partibus made the Plea evill without question, and therefore gave judgement for Wind­ham, that he should have Attornment, but they said nothing to the o­ther points.

10.

SHuttelworth came to the Bar,Verdict. and shewed how an Ejection firm was brought of an entry into certain Lands, the Defendant pleaded not guilty, and thereupon the Jury found, that he entred into one moity, and not into the other; and this he alleged in Arrest of Judgement.

It seemeth that Judgement shall not be given; for this is an Action personall, and is not like to a Praecipe quod reddat.

It seemeth the contrary by 21 Edw. 4. fol. 16. b. & fol. 22. see there the case intended.

The cases are not alike.

11.

IN the Exchequor Chamber before all the Justices, &c. the case was such, John Capell gave the Mannor of How-Capell, and Kings-Ca­pell in the County of Hereford, to Hugh Capell in tayl, the remainder to Rich. Capell in tayl, with divers remainders over; the Donor dieth, Hugh hath issue, William, and dieth, Richard grants a rent charge of fifty pound to Antony his son; William selleth the Land to Hunt by fine and recovery with Voucher, and dieth without issue, Antony di­streineth for Arrearages, and the Tenant of Hunt brings a Replevin, and A. avows the taking, whereupon the Plaintif demurs in Law.

It seemeth that the Avowant shall have Return; and first I will not speak much to that which hath been agreed here before you, that a Remainder may be charged well enough; for by the Statute the Remainder is lawfully invested in Richard; and I agree well that no Formdone in a Remainder was at the Common Law, and so are [Page 6] our Bookes, in 8 Ed. 2. and Fitzh. in his Nat. brev. saith, that it is given by the equity of the Statute. At the Common Law there was no Formdone in discender, now it is given by the Statute of Westmin­ster 2 cap. 1. For in novo casu erit novum remedium apponendum. And I have taken it for Law, that when a thing is once lawfully vested in a man,Lawful vesture. it shall never be devested without a lawfull Recovery; and here the Recovery doth not touch the Rent; and I think that all­though the Remainder was never executed in possession, yet the Grantee of the Rent shall confess and avoyd it well enough. The Fine is not pleaded here with proclamation, and therefore it is but a bare discontinuance, in proof whereof is the case in 4 of Ed. 3. Te­nant in tayl makes a discontinuance,Distress per grantee, before entrie of the grantor. yet he in Reversion may di­strein for his service. And if there be Tenant for life, the Reversion to a stranger, and he in Reversion grant a Rent charge, Tenant for life is disseised and dye, the Grantee of the Rent shall distrein, all­though that he in Reversion will never enter: And so if Tenant in tayl, the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without issue,Droit heir de I. S. the right heir of I. S. shall enter well enough: And he put Plesingtons case in 6 R. 2. Fitzh. quod juris clamat 20. & 8 R. 2. Fitzh. Annuity 53. And the case in Littleton, & Dyer fol. 69. a. pl. 2. & 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir with­in age,Rent ch. sur. cond. that the Rent shall cease during the minority, yet his Wife shall recover her Dower when the heir cometh to full age,Dower. Perk. 327 Which cases prove, that allthough the estate whereupon the grant is be in suspence when the grant ought to take effect, yet the grant shall take effect well enough; and if Tenant in tayl, and he in remainder had joyned, this had been good clearly. And 8 Ed. 3. & 43 Ed. 3. Tenant in tayl to hold without service, the remainder to another to hold by service, if Tenant in tayl in this case had suffered a Recovery, and dyed without issue, I think the Lord (in this case) shall distrein for the service, then I suppose that the fine in the principall case shall not exclude the Grantee from his rent; for there is a difference be­tween jus in terra, Jus in terra. Prox. advoc. and jus ad terram; for I think that no fine shall defeat jus in terra, and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem, and after suffer the Advowson to be recovered, the Grantee shall fal­sifie in a Quare impedit, Then whether this recovery shall avoyd the rent or no, and I think no; for this case differs, and now the recovery is had against Tenant in tayl, for the remainder here is out of him by the fine, and in the Coni [...]ee, and the recovery doth not disprove the interest before, for 8 Hen. 4. fol. 12. recovery against Tenant in tayl who dieth before execution sued: And 44 Ed. 3. re­covery of the rent is not a recovery of the homage,Rent & ho­mage. unless it be by title: And here there is not any recompense to him in the remain­der, [Page 7] and therefore there will be a difference in this case, and where there is a recompense,Annuity for Tithes. fol. 7. Hen. 6. if a person grant an Annnity for Tithes,Nomine paenae it is good, but if there be a nomine paenae, it is not good; and 7 lib. Ass. an Annuity granted untill he be promoted to a bene­fice, Promotion to a benefice. it ought to be of as great value as the Annnity, and 26 Edw. 3. the Church ought not to be ligitious; and 22 Ed. 3. two men seised in Fee-simple exchange for their lives, &c. and 14 Hen. 4. the King may grant a thing which may charge his people without,Rent for a re­lease. &c. And 44 Ed. 3. rent granted for a release by Tenant in tayl, is good, and shall bind and charge his issue. And so he seemeth that the Avowant shall have return. Walmisley to the contrary; For first it hath been held, that the charge at the beginning is good, and so I hold the Law, bnt how,Charge contin­gent. or in what manner, that is the question. 38 Ed. 3. If Tenant for life be, and he in reversion grant a rent charge, it is good; but it shall be quando acciderit. 33 lib. Ass. & 5 Ed. 4. fol. 2 b. But this case is out of the Books remembred; for there the remainder nunquam accidit, and therefore shall never be charged; for as I hold when he in remainder chargeth, he chargeth his future possession, and not his present interest;Sci fa. de rem. View. for if a Sci. fa. should issue to execute this remain­der, he shall demand the Land, and before the remainder falleth he hath but quasi jus, Attornment al rent ch. Priority. which is not corporall, neither ought it to be put in view in Assise; and 21 Hen. 6. a. Tenant of the Land shall At­torn upon the grant of a rent charge; and 33 Ed. 3. Priority shall hold place when the remainder falleth, and not when it is granted, 17 Ed. 2. and Dyer Tr. 23 Eliz. pl. 1. Then, Sir, when the foundation out of which the rent is issuing is gone, the rent is allso gone; and there­fore let us see what authority Tenant in tayl hath in the remainder. At the Common Law, there was no Formdone in descender or re­mainder; and the Statute of W. 2. cap. 1. provides but for two per­sons, viz. he in reversion and the issues; but Formdone in remainder is taken by the equity. 50 Ed. 3. If Tenant for life be, the remainder in tayl to another, the remainder in fee to the Tenant for life, and he makes wast,Wast. Bargain de remain. Tenant in remainder shall punish him: and Fitzh. nat. br. fol. 193. a. Cui in vita, by a wife which was Tenant in tayl upon the alienation of her husband: And I think that if he in remainder bargain his remainder that it is voyd, and he cannot grant to ano­ther that he shall dig in the soyl, for by 2 Hen. 7. he in reversion can­not doe so. 12 Ed. 4. Recovery suffered shall bind the issue. 7 Ed. 3. no attaint lieth for him in remainder of a verdict given against Te­nant for life,Nul attaint pur tenant in rem. then in this case he in remainder cannot enter, and the Grantee shall not be in a better estate than his Grantor, and then if he shall never enter, frustra est illa potentia qua nunquam reducitur in actum. The reason for the grant is good; for when Tenant in tayl dyeth without issue, he in remainder shall be in by the first gift [Page 8] in proof whereof is 33 Hen. 6. he in remainder shall be in ward;Ward. and in 11 Hen. 4. in Formdone in descender,Formdone. he shall say that the posses­sion was given to his father.Prebendary. And a Prebendary cannot charge before induction.Ioyntenants. But if two Jointenants be, and the one charge all, and the other disclaimeth, the charge is good from the beginning: And the Recoverer here is not under the charge; for allthough he hath that estate which he in remainder should have if Tenant in tayl had not aliened, yet is he a meer stranger, and in by another title, 10 Ed. 3. If two Jointenants be,Charge per Ioyntenant. and the one charge, this is good, conditio­nally that he which chargeth shall survive. And if Tenant pur auter vie charge and die, occupans shall hold it discharged: So in this case; for he is not in of this possession. Moreover, there is a mischief if this charge be good; for then the Land may be charged by two se­verall persons at once, which shall not be suffered; but yet if cestui que use charge, and the Feoffees charge, both are good, for the one is by the Common Law,Charge per cest. que use & Feoffees. 28 Ed. 3. 10. b. and the other by the Statute Law. So if Lessee for years charge, and he in reversion charge, and after Lessee for years surrender; but this is in severall respects, and I put this case for Law,Ch. per lessee, & per enreversion. that if he in the remainder bind himself in a Statute Merchant,Stat. Merch. per test. en rem. ne charge le poss. this shall not charge the possession. And if in this case he will grant the rent over, none ought to Attorn, and therefore voyd; and Littleton saith, that he in remainder shall not falsifie;No attornment. Falsifying. and 26 Hen. 8. the Grantee of lessee for years shall not falsifie; for the nature of falsifying is properly to find a fault, wherefore it should not be good; and what fault can he find in this case? surely none.Successor lie per confession. 4 Hen. 7. 1. a. & 20 Hen. 6. Abbot confesseth an Action, the Successor is bound: And further, it is within the Statute of 27 El. for fraudulent deeds; and we need not to plead the covin; for the Statute is generall,Fraudulent faits. and vouched Wimbish case in the Comentaries, and so the Replevin is maintainable.

And after at the motion of the Justices the Defendant agreed that the Plaintif should amend his Plea, and allege the Covin. Et adjornatur untill Michaelmas Term following, because there were so many Demurrers hanging to be ar­gued in Trinity Term next. But afterwards judgement was given a­gainst the Rent charge.

12.

KIng Hen. 8. gave certain lands to Sir Edward Bainton, Trespass. Knight, and to the heirs males of his body engendred, who had issue Andrew and Edward, and dyed. Andrew afterwards convenanted with the Lord Admirall Thomas Seymer, that he would convey an Estate of those Lands to himself for life, the remainder to the Lord Seymer in Fee; and in like manner the Lord Seymer convenanted to convey an [Page 9] Estate of other Lands to himself for life, the remainder to Andrew Bainton in Fee. Afterwards Andrew Bainton levyed a Fine, and exe­cuted the estate according to the covenant on his part. Afterwards the Lord Seymer, before performance of the covenant on his part, was attainted of High Treason, and all his Lands forfeited to King Edward the sixth, who dyed without issue, and the Lands de­scended to Queen Mary, to whom Andrew Bainton sued by Petition, and shewed how she had those Lands to the disinherison of him and his heirs: and Queen Mary, by her Letters Patents, ex certa scientia, & ex mer [...] motu, &c. granted to Bainton all those Lands and Tene­ments which he had covenanted to convey to the Lord Seymer, and all reversions thereof, in as ample manner as she had them; Et ulte­rius ex uberiori gratia sua she granted all reversions, claims, and de­mands, qua ad manus suas devenerunt ratione, &c. aut in manibus suis existunt, aut existere deberent. Afterwards Andrew Bainton levyed a Fine of those Lands to one Segar in Fee, and dyed without issue; then Edward Bainton entred, and Segar brought his Action of Trepass.

It seemeth that the entry of Edward Bainton is conge­able, and so the Action not maintainable. First let us see what passeth by this Grant of Queen Mary to Andrew Bainton; and then whether a Fine levyed by Tenant in tayl, the reversion being in the Queen, be a bar to the tayl by the Statute of 4 Hen. 7. The first Fine as it is pleaded is not pleaded with proclamations, and therefore but a dis­continuance, and remains but as at the Common Law. At the Com­mon Law before the Statute of D [...]nis conditionalibus, a Fine levyed was a bar to all men; for all Inheritances were Fee simples, then by that Statute it was ordained, Quod ne (que) per factum, ne (que) feofamentum, of the Tenant in tayl, the issue should be barred. After which Statute, as I intend, the Law was such, that when Tenant in tayl levied a Fine of such a thing as he might discontinue, and the Fine executed in possession, allthough the words of the Statute were Ipso jure sit nullus, yet the issue was put to his Formdone; but if it were a Fine Execu­tory, then by the death of the Tenant in tayl the issue was remitted, and the Fine voyd: But now by the Statute of 4 Hen. 7. the Law is made otherwise; and for that here it is to be granted, that he can­not discontinue the estate tayl, because the reversion is in the King, as it was now lately adjudged in the Exchequer in the case of Gille­brand, ergo, here the estate doth not pass to the Feoffees by the first Fine, when he took an estate again to himself for life, the remainder to the Lord Seymer in Fee, but a Fee simple determinable, then when the Lord Seymer was attainted, Queen Mary had such an estate as the Lord Seymer had, which was a Fee determinable, and she had another Fee absolute in jure Coronae: After when he sued by Pe­tition [Page 10] he did not shew to the Queen what estate he had, nor what e­state the Queen had, but that it was to the disinherision of him and his heirs; then the Queen grants reversionem inde adeo plene libere & integre as she had it, or as it came to her by the Act of Parliament. And I think when the Queen gives by generall words, she doth not give any special Prerogative: And for that 8 Hen. 4. fol. 2. A grant to the Bishop of London to have catalla, &c. and 9 Eliz. 268. in Dyer, the case of the Dutchy of Cornwall, & 8 Hen. 6. the King pardons all Felonies, this is no pardon of the Outlawry, and especially when the Queen hath two interests it shall be construed beneficially for the Queen, as 9 Edw. 4. Grant of an Office where the Grantee was no de­nison, see there Baggots Assise, and 38 Hen. 6. the King grants Land to J. S. for the life of himself and J. D. and after grants the reversion up­on the life of one of them. And further the case in Dyer, where Queen Mary grants in Manerium de Bedminster in Com. Somerset, 5. 13 El. fol. 306. a. Then, Sir, the Patent is, that the Queen intendens dare congruum remedium in praemissis, &c. and when he iueth to the Queen by Petition,Petition certain all titles ought to be in the Petition. 3 Hen. 7. & 1 H. 7. a Latin case, the case of the corody, and this is in nature of a Petition, & therfore ought to be certain, then the Patent is, Et ulterius ex uberiori gratia sua concessit omnes reversiones quae ad manus suas devenerunt ratio­ne actus Parliamenti, &c. aut in manibus suis existunt, vel existere de­berent, &c. and they are not to be expounded so largely, as to make the reversion to pass; for if those words, ratione, &c. were before admanus suas, &c. or after in manibus suis existunt, then it cannot be intended but the reversion shall not pass to Bainton. Now when in manibus suis existunt come after these words,References. ratione, &c. for references are to be intended according to the meaning of the parties,Devise. 29 lib. Ass. & 14 Eliz. Dyer. Devise of all Acres, except a Lease for 30 years: And those words, aut existere deberent, ought to have some relation, ergo, it ought to be intended, quae in manibus suis existunt ratione attinctu­rae, &c. and this will not make any grant of the reversion. For the meaning of the Queen was, because Bainton had no recompense of the other Lands,No use. to give him these, for no use was in him by the co­venant of Seymer, as it is agreed 1 Maria fol. 96. so nothing passed but that which was in the Queen by reason of the atteynder of Sey­mer. For the other matters; I think that A. Baynton is not Tenant in tayl by the grant again; but admit him so, yet he cannot disconti­nue, neither is he bound by the Statute of 4 Hen. 7. for the Statute doth not extend but to such things which are touched by the Fine, & things which are not touched doe not pass, as Commons, Rents, Wayes,Claim per lessee pur [...]ans. alit. postea si soit en post. &c. Br. Fines, 123. 30 Hen. 8. fol. 32. And it hath been adjudged in Sanders case, 21 Eliz. that Lessee for yeares need not to make claim within five years, and vouched the opinion of Br. tit. [Page 11] Fines 121. accordingly, that the issue shall not be barred. And as the King is privileged, so are his possessions, allthough that afterwards they come into a subjects hands.Generall re­straint. And where one hath a special Grant allthough a general Restraint come after, if he doe not speak speci­ally of this, the Grant shall be good in many cases, as 19 Hen. 6. fol. 62. the Parson of Edingtons case, Br. Patents 16. and the case of the Abbot of Waltham, 21 Ed. 4. fol. 44. Br. tit. Exemption 9. & in 19 Hen. 8. it was doubted if the issue of a common person should be barred, ergo, the issue in tayl, the reversion being in the King, is not barred. And the Statute of 32 Hen. 8. is generall, as well for those which were of the gift of the King, as others; and therefore afterwards there was another Statute made, which excepted those which were of the gift of the King, as it was before the Statute of 32 H. 8. and it was a vain thing to make this Statute of Exception, if it were a bar before by the Statute of 4 H. 7. And for authority I have a report de­livered me by a Sage antient in the Law, that in 16 & 17 El. in Jacksons case, where Lands were given in tayl, the remainder to the King in fee, the Ten [...]nt in tayl levyed a fine after the Statute of 32 H. 8. by the opinion of the Court,Difference per enter rem. & reversion in le Roy. this was a bar, but the Court then sayd, that o­therwise it should be if the reversion were in the King, as our case is, wherefore seeing there is neither discontinuance, nor bar in the case his entry is congeable, and the Action not maintainable. Walmisley to the contrary; I will agree that it is not any discontinuance, yet he may admit him out of possession if he will, as in 18 Edw. 3. Where Tenant in tail, the Reversion in the King, makes a Lease for life, and hath two Daughters and died, and Lessee for life was im­pleaded, and upon his default the two daughters prayed to be recei­ved, and so they were; and as me seemeth the Petition made by him to the Queen, shall not prejudice or hinder the Grant, ex mero motu [...], and vouched 3 H. 7. fol. 6. the Priors case.

Note that Puckering then said privily to Shuttelworth, is not the book contrary to that which he hath vouched? for he vouched the Book contrary to that which Puck­ering had done before.

No, Sir, but the record is con­trary to the Book, quod nota, and when she granteth ex certa scientia, it shall be taken beneficial for the party, 1 H. 7. 13. omnia debita released to the Sherif, and 29 Ed. 3. the King seised the lands of a Prior alien, &c. Difference per enter interest & prerogative. Touts droits poss. per fine. Fine puis dis­seisin ou dis­cont. alit de recovery. and there is a difference between the cases put, and this case; for when the Queen makes a Grant, all matters of interests may pass by the words, but matters of prerogative, as in the cases put by my brother Puckering, cannot pass, for they are not within the words, but interests are. To that which hath been sayd, that he was not seised of any estate tayl, this is not any argument; for if he had three rights, by the Fine all are gone and passed to the Conisee; for if he be disseised, or discontinue, and then levy a Fine, this is a bar, but [Page 12] otherwise it is of a recovery;Lessee pur [...]ans en reversion & poss. diversity. for that is no bar, but of an estate tayl. And as to the case of Saunders, that lessee for years need not to make claim, the case was not so, but the case was of a lease inreversi­on, and he had never entred, and therefore it was but as a common, or a rent; but if it be a lease in possession, he is bound, as in Zouches case. Then because the King is in possession, it hath been sayd that it is no bar; but this seemeth to be no reason; for the Statute began with the King, and the Preamble seemeth to induce it; and the third, saving of the Statute, is by force of any gift in tayl, so this is generall: And because he cannot discontinue, therefore can he not make a bar? Non sequitur: For he cannot discontinue, and yet a Fine levyed is a good bar; and the Statute of 32 Hen. 8. doth not impair this opinion, but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the case, as it was agreed by all the Judges in Stowels case; and the words of the Statute of 34 Hen. 8. that the recoveries shall be no bar, doth not extend but to the words going before, as in the case in Dyer, that a man had not done any act but that, &c. And the Queen in this case hath not any prejudice; for she shall have the rent with the re­version: And as for Jacksons case; that maketh for me; for the question of the case there was, that the remainder shall be gone, and we ought not to take regard to that which is sayd indirectly in the case, but the point of the Judgement is the matter; and for autho­rity it is direct in Dyer, fol. 26. pl. 1. and therefore it seemeth that the entayl is barred; and so the action maintainable.

You have well argued, but for any thing that I see, none of you shall have the Land;Grant. for the Queen is deceived in her grant, and therefore the Patent is voyd, and then it shall be seised into the Queens hands: And therefore you had best to be advised, and we will hear what can be sayd for this point at another day. And note, that it was sayd by the Justices,3 Costs in for­cible entry. that if a man recover in a Writ of forcible en­try, upon the Statute of 8 Hen. 6. by confession, or by default, he shall recover his treble costs. 22 Hen. 6. 57.

13.

ONe Colgate brought a Replevin against Blyth. who avowed the ta­king, Replevin. and thereupon they were at Issue in Kent, and the Jury found a speciall Verdict. The case in effect was this; Husband and Wife are seised of Lands in right of the Wife: And she by Indenture in her own name agrees that a Fine shall be levyed, and limits the uses by Indenture. After the Husband by another Indenture agrees that a Fine shall be levied, and limits other uses, and afterwards a Fine is levied by them both; now whether the uses limited by the [Page 13] Husband shall bind the Land of the Wife in Perpetuity, The Jury prayed the advise of the Court, &c. For if they be good, they found for the Plantif, if not, then they found for the Defendant.

It seemeth that Judgement shall be given for the Plan­tif; For the use limited by the Husband, shall be a good limitation in Perpetuity,Rent ch. ou Lease per feme covert. and first the Wife only cannot limit any use, for her Acts are of no Validity. And therefore if a Wife grant a Rent charge, or make a Lease, and the Grantee enter, this is a Disseisin, & 43. Ed. 3. Deeds given by a Feme Covert are void. & 17. lib. Ass. a VVife le­vies a Fine Executory,Fine executory executed. per feme covert. sur grant & render, as a sole Woman, and af­ter a Scire fac. Is brought to Execute this Fine, the Husband shall ex­tort the Execution, and if it were a Fine Executed, then it is a Disseisin to the Husband.Vse quod. For an use is a Declaration how the Land shall continue in Perpetuity, and the Feoffees are nothing but Instru­ments, or Organs to convey the use, for the Land yields the use and not the Feoffees; then when the Wife which is under the Power of her Husband,Limitation per infant quaere. limits an use, this is void, for I hold for Law, if an Infant limit uses, and after levy a Fine, and do not Reverse it during his Nonage, yet the limitation shall not bind him, and so of a man non compos mentis. Non compos mentis. And so it was ruled in the Court of Wards, where a naturall Ideot made a Declaration of uses, and levied a Fine accor­dingly, Ideot naturall. that yet it shall be to the use of himself. And then in our case the Limitation by the Wife cannot be good, but her Will depends upon the Will of her Husband, and the expressing of the use by the Husband shall be good.Estate, disseisin, & assumsit al feme. For if an Estate be made to a Wife, if the Hus­band seaven years after agree, it is good, and so it is of a Disseisin to a use, so ofan Assumpsit to the Wife, 27 Hen. 8. in Jordans case, & 1 Hen. 7. in Doves case, and in a Pra [...]cipe quod reddat, the default of the Wife shall be the default of the Husband,Default del feme. because she is Compellable to the Will of her Husband by the Intendment of the Law. 21. lib. Ass. A man seised of Land in Right of his Wife, makes a Feoffment in Fee,Livery per ba­ron. and would have made Livery, but the Wife would not agree to the Livery, yet notwithstanding the contradiction of the Wife, the Livery was Adjuged good. & 33 Hen. 6. Husband and Wife are Plantifs in an Assise,Nonsuite del feme. and the Husband would Prosecute, but the Wife would be Nonsuite, the act of the Husband shall be accepted, and the act of the Wife rejected. So if the Husband will make an Attourny and the Wife wil dissavow him,Attourny. yet he shall be their Attourny. And as I think this Limitation by the Husband shall bind the Wife in perpe­tuity: Case per fine & indentare Difference. Juris clamat. For if the Husband make a Lease of the wifes Land for 100 years, the Wife may avoid it after his death; but if after they both Levy a Fine, the Lease shall be good-for ever. And 11 Hen. 4. He in Reversion, and one which hath nothing, Levy a Fine, & quid juris clamat shall be brought against them both. And as I conceive it, it shall be [Page 14] counted her folly,Reentry per condition. that will take such a Husband as will Limit such uses. For if a Wife hath an Estate in Land, upon condition for not payment of Rent that the Feoffor shall reenter, if she take a Husband, which doth not pay the Rent, whereby the Feoffor or his Heires reen­ter, the Estate of the Wife is utterly defeated. And in 4 Ed. 2. A woman Tenant takes a Husband,Cessavit. who ceaseth by two yeares, whereby the Lord bringeth a Cessavit, and recovereth the Inheritance of the Wife, she shall be bound. And this appeareth in Fitzh. in Cui invita. 21. And it shall be so if the Wife hath but a Freehold,Wast. as it is in 3 Ed. 3. A woman Lessee takes a Husband, who maketh Wast, whereby the Land is recovered, and 48 Ed. 3. fol 18. Husband and Wife sell the Land of the Wife, this is onely the sale of the Husband; but if after they Levy a Fine, this shall bind the Wife. And for express Authori­ty it is the case in Dyer, Joynture. fol. 290. a pl. 2. And so it is a Common case if a man seised of Lands, takes a Wife who hath a Jointure in his Land, and he makes a Limitation of uses, and after they both Levy a Fine, this shall be the Limitation by the Husband, because it shall be intended that the Wife consented, if it doth not appear to the con­trary. Whereby the Declaration of the use here by the Husband, shall be good to bind the Wife, and therefore Judgement ought to be given for the Plantif. Fe [...]ner to the contrary, for here the Inhe­ritance is in the Wife, and where the Husband limits further than he hath Authority, there the Law shall make a Declaration of the uses, for the Husband cannot Limit uses of that which he hath not, 21 Ed. 3. A man takes a Wife seised of Lands in Fee,Atteynder del feme. and before that the Husband was intitled to be Tenant by the Curtesie, the Wife was at­tainted of Treason,Homage. the Land shall be forfeit; and 44 Ed. 3. He shall not make Homage,Conusans. before he be intitled to be Tenant by the Cur­tesie. 12 R. 2. Conusans shall be made by the Bayley of the Husband in the name of the Husband and Wife.Warranoy. And in this case the Conisee is in, in the per by the Wife, and Warranty made to the Husband shall inure to the Wife; and 18 Ed. 3. A man seised of a Mannor in right of his Wife,Villain. to which there is a Villain regardant, the Villain Purchaseth Lands, the Husband shall be seised of the Perquisite in right of his Wife. And yet otherwise it is where a man is Lessee for years of a Mannor, to which, &c. For he shall be seised of the Per­quisite in his own Right.Divorce. 12. lib. Ass. If he be Divorced, his Estate is gone.Lease & Rent ch. diversity. And I agree to the case, put by my Brother Shut. Where the Husband makes a Lease for years, and after he and his Wife levy a Fine, there the Lease shall be good, but if the Husband grant a Rent charge, and after he and his Wife Levy a Fine, I do not agree that this is good, for in the first case the Conisee found one which had an Interest in the Land, but not in the last. Then, Sir, here the Husband hath no power to Limit the use for the Land of his Wife to indure [Page 15] for ever.Feoffee al use. 28 Hen. 8. The Feoffece to use at the Common Law, Li­mits an use to a stranger, this Devesteth the first use, but if he limit is to cestui que use, then it is an ancient use, and not new. And so it is if Tenant for life, and he in Reversion levy a Fine, this sha [...]l be to the use of him in Reversion.2 Loyntenants. And so if two Joyntenants be in Fee, and they limit severall uses, this shall be good according to their li­mitations for the Moities of either of them, and for no more. And if Husband and Wife levy a Fine to the use of the Husbands Sonne,Fits del baron: yet this is to the use of the Wife, but if he be the Wifes Sonne allso, then this is a good consideration, and the use shall be accordingly. And these cases I put to this intent, that when a man limits an use which is repugnant,Ʋse repugnant. or further than he hath Authority, the Law shall make a Declaration of the same use, for Bracton saith, Nemo potest ad alterum plus juris tranferre, quam ipse habet. And I take the Law, if Husband and Wife levy a Fine of the Lands of the Wife, and render back to the Wife in Tail,Fine levie de terres del feme O [...]e r [...]eder al feme en tail. and the Husband dye, and the Wife discontinue, that this is not a Purchase of the Husband within the Statute of 11 Hen. 7. And so it was here adjuged in 18. of Eliz. in Alexanders case. And I agree to that which hath been said▪ that the Wife only cannot limit uses; but because the Jury hath found for [...]he Defendant, if the limitation by the Husband be not good (as I think it is not) then Judgement shall be given for the Defendant.Concessum.

Adjornatur.

14

WIlliam Knight, Eject. firm. as Eessee for yeas to Sir John Fortescne and Rich. Thikston Gentleman, brought an Executione firme against W. Bre [...]h, of one Mesnage with the Appurtenances in Themilstreet in the Parish of St. James Clarkenwell, the Defendant pleaded not guilty, and the Jury appeared at the Bar, and Evidence given on both sides; And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant,Demurrer al evidence. and thereupon the Jury were discharged. And now Gawdy the Queens Serjeant came to the Bar, and demanded Judgement for the Plantif,The case. and rehersed the case in this sort. The Prior of St Johns of Jerusalem in England by deed Indented, A. 29 H. 8. Devised a Mesuage called the high House, 13 Cotages, one Sta­ble, and 14 Gardens, for 59 yeares to one Corda [...]l, rendring 5. l. 6. s. 11. d. viz. For the 13 Cotages, iij. l. And for the high house xiiij. s. and for the Stable xx. s. and for, &c. And if it happen the Rent to be behind by three months, then the Prior to reenter; after by an act of Parliament, An. 31. Hen. 8. the Priory was given to the King, and hee Vested in actuall Possession thereof, with all Conditi­ons and Covenants &c. as the Lessor had. Afterwards the King 29. Sept. An. 36. by Letters Patents gave the St [...]ble to the same Cordall, [Page 16] and one H. Audley in Fee, and the Reversion of the other Parcells descended to the Queen which now is, whereupon 8 die Maii, An. 23. Issued a Commission out of the Exchequer to enquire, si praedict. Cor­dall & assign. sui perimplevissent & performassent omnes conventiones & promissiones, fact. & reservat. super praedict. Indent dimissionis & prae­missis fact. &c. And the Commission was retourn'd in Michaelmas Term after, and it was found that the four usuall Terms in London are the Feasts of St. Michael, the Birth of our Lord, the Annunciati­on, and the Birth of St. John Baptist, for the Rent was to be paid, ad quatuor terminos Anni infra Civitatem London usuales. Ʋsuales termi­nos. And further by the same Iury, being a Iury of Middlesex, it was found that 37. s. 5. d. ob. Part and Parcell of the said Rent, were behind not paid, by three Months next after Michaelmas last past before the taking of the said Inquisition. Cordall made Burnell his Executor, and died. Burnell granted all the Term to Brech the Defendant. Afterwards the Queen 5 Augusts An. 23. (which was before the return of the Inquisition) and before any Entry or Seisure made by her, or by any other, to her use, granted the high House to Sir John Fortescue and Thekston in Fee, and they entred upon Berch and made the Lease to the Plantif for three yeares, &c. And first it is to be considered if they be severall Rents in this case or no;Severall Rents. because he saith, viz. For the high house 14. s. &c. For that I take the Law to be very strong,Co [...]cessum per Fenner, Rodes. that they be se­verall Rents, for allthough that he saith first, requiring 5. l. 6. s. xj. d. which is an entire summe, yet when he saith afterwards, for the high House so much, and for the Stable so much, &c. This ma­keth a severance, and for that I will remember the case in Dyer, fo. 308,Feoffment per deux. so I hold the Law, if a Feoffment be made by two, rendring xx. l. a year, viz. x. l. to the one, and x. l. to the other, these are severall Reservations; but because I hold the Law clear in this point, I will speak no more to it. Another matter is when the Commission issueth to enquire of all Covenants and Promises conteined in the In­denture to be performed by Cordall, Conc. per Rodes. Lease sur condi­cion en un proviso. if the finding by the Jury be con­teined within these words, Covenants and Promises, &c. And I think they be; for if a man make a Lease to one for years, and if it happen the said Rent to be behind, that then it shall be lawfull to the Lessor to reenter, as I think this is a Proviso for the Rent; so the case in 22 Hen. 6. A Lease was made for years,Rent an agree­ment. rendring Rent, the Lessee is bound to perform all covenants and agreements; if he do not pay the rent the obligation is forfeit;Co [...]cess. per Fenner. for the payment of the rent is an agreement: So in this case the proviso doth extend to the payment of the rent. And as for the exception which was taken, viz. That the Jury find that 37 s. of the rent was behind, and doe not say expresly, for the house which is now in question, I hold that a vain exception; for when they have found that more was behind than that [Page 17] which was now in question, allthough that it be in generality, yet it is good for the particularity; and for that matter I could remem­ber many cases, but I will not doubt of a matter (as I think) without doubt. But for the condition, which is the great matter of the case, First, the condition is vested in the King, by the express words of the Statute and,Condition. as I think, grant of parcell shall not extinguish the whole condition. In the case of a common person the condition shall be ut­terly gone, and so are our Books; otherwise, peradventure, I would doubt of that allso; but because the Book is so, in Dyer 14 Eliz. fol. 309. I will speak no more of it; but the case of the King differs from a common person;Rent charge to the King. rent seck. for as he is the Head, and supreme Governour of the Commonwealth, so he is the superior in Prerogatives and Prehe­minences. 13 Ed. 3. & 14 Ed. 3. A rent charge granted to the King, he shall distrein for it in all the lands of the Grantor: and 8 Hen. 5. if a rent seck cometh to the King, he shall distrein for it, and yet it is called seck, because no distress is incident thereto: And there the principall case was of a Fieri facias. No demand by the King. & 2 Hen. 7. the King shall not de­mand his rent. But it hath been sayd, that because conditions go to the destruction and determination of estates,Cond. strictly taken. that therefore they shall be t [...]ken strictly; to which I agree; but not in the case of the King, as in Bro. Apportionment 23. & 168. and so are the presidents in the Ex­chequer, if a man be bound in a Statute Merchant, and after the Co­nisor enfeoffes the King of parcel of the land,Conisor enfeof­fes le Roy. and enfeoffes a stranger of another parcell, and afterwards the Statute is forfeit to the King by atttainder, the King shall have execution against the other feoffee: And in many other cases the King is privileged, especially in things entire: For if there be two Coparceners, and one be in ward to the King,Entire presen­tation. he shall have the entire presentation of all. And in this case, I think, that before the condition shall be destroyed, that the Patent made to Cordall shall be voyd; for it is not ex certa scientia, & mer [...] mot [...], but it is generall, and it was not the intent of the King to take away the intire condition: And allthough the King grants the re­version, yet the condition which was once vested in the King, as I think, remains in him still; for in 31 Edw. 3. an advowson descended to three persons, and the youngest is in ward to the King, and he granted it to Queen Philip his Wife,Advoson to 3 parceners. and she granted it over to the Earl of Arundell, who granted it to the eldest parcener, the Church became voyd, the King had the presentation; for when the King was possessed of the wardship of the youngest, he was intitled to present for all; and when he granted the ward over, this did not devest the title of the two eldest which was vested in him before: and 37 Hen. 6. the Grant of the King upon a false suggestion is voyd;False suggestion and in Littleton, he shall have account against Executors; and yet the Law is clear,Account. that an Action of Account will not lie against Execu­tors; [Page 18] & so for all those Reasons Judgment shall be given for the Plain­tif. Several reser­ [...]ations. Fenner to the contrary: And first, I agree that they are severall reservations; and so is the case which hath been remembred in 8 Ed. 3. A Lease was made of eight Acres of land, reserving eight shillings of rent, viz. for every Acre 12 d. thi [...] is severall; and to that which hath been sayd, that the condition is a proviso, I deny that; for a proviso,Provisio quid sit as me seemeth, either is in the affirmative, that a thing shall be done; or in the negative, that it shall not be done; but here it is neither directly affirmative, nor negative, and therefore they have found it without commission;Agreement. but I confess that agreement extends to rent, 22 Hen. 6. & 14 Hen. 8. then the Jury which was of Mtdlesex have found the four usuall Feasts in London, viz. St Johns, &c. and this as it seemeth they cannot doe, because it is a thing in another County; especially they being but an Inquest of Office. Further, they have found that 37 s. was behind at one Feast, and this is impossible; for then the entire rent should amount to 7 l. And further, the Les­sors have purchased the reversion, before the return of the Inquisition and Commission, and then the Queen cannot be intitled, because she hath not the Freehold; for it hath been adjudged here, that if a man fell his lands, and afterwards makes livery thereof, and after inrolls the sale, this shall not have relation to the date of the deed, because it takes effect by the livery which was before the inrolment: And 8. Edw. 3.Feoffment puis atteynder. A man attainted of Treason makes a feoffment of his land after he is restored, yet he shall not have the land; yet if he had not made the feoffment, he should have been restored to the land with the mean profits. Then if the King grants the reversion, if he shall have the condition remaining, and I think not; for the King hath it by express words of the Statute, as the Prior had it; and if the Prior had granted parcell of the reversion,De percell de Reversion. the entire condition had been gone, and the King shall be in the same case; for Cessavit is given by the Statute of Westminster 2. cap. 21. eodem modo as in the Statute of Gloucester, cap. 4. This doth not ly of an estate tayl, no more than a Cessavit by the Statute of Glouc. 8 Ed. 2. And so I think Judgement shall be given for the Defendant.

1.

Judgement shall be given for the Plaintif. First, I agree that they are severall rents; and yet this question doth not goe to the overthrow of the Action; in proof whereof both great reason and authority is copious: For if the Lessor had entred into parcel, this had not suspended the entire rent; or if the reversion of parcel there­of were granted, this shall carry no more than that which is granted; (& so it was held by the Justices) when it was granted to Cordall. Parcel entred into. And 2 H [...]n. 6. if I reserve an entire rent, and the Lessee will pay but par­cell, &c. & 17 Ed. 3. fol. 52. by Sharde. & 11 Ed. 3. lib. Ass. If I make a Lease of two Acres, reserving for the one Acre x. s. to me and to mine heirs; and for the other Acre x. s. generally: And Dyer, fol. 308. b. & Lib. Ass. pl. 23. If three Coparceners be, and rent be reserved for equality of partition, but one Scire fac. shall be brought; for it is brought but upon one record;1. Scire fac. and Littleton pl. 316. but one action of debt for Tenants in common, but severall Avowries; so I hold that they be severall rents in this case, and yet but one condition: And for that let us see if by grant of parcel, the entire condition be gone. In the case of a common person, it is all gone, as it was adjudged here in Hill. last, where a man makes a Lease for years, reserving xx l. for rent,Sum in gross, and rent reser­ved upon cond. and allso a sum in gross of xxvl. was to be paid to the same Lessor, upon condition, if the rent, or sum in gross were be­hind, then a re-entry to be made. Afterwards the Lessor took an E­state back again of parcell of the term, the sum in gross was not payd, and it was adjudged that he shall not take advantage by the conditi­on; for when he took an estate back again, the rent was suspended, and then for the sum in gross he shall not re-enter, because the condi­tion was entire;Cond. entire. but all though that the case of a common person be so, yet the Princses case differs; for she shall have her Prerogative; and for the Preheminence which the Queen shall have, I referre you to the argument of Iustice Weston in the case of the Lord Barkley: Coment. And that the Queen shall have her Prerogative in a condition, I will remember the case of the Abesse of Sion, & 38 Hen. 6. & 21 Hen. 7. the King may make a feoffment in fee upon condition that the Feof­fee shall not alien,Feoffment in fee upon cond. reservation. and 2 Hen. 7. & 35 H. 6. he may reserve a rent to a stranger; and 21 Eliz. the Queen grants her debt to another, and he in reasonable time will not prosecute, the Queen may take it a­gain, [Page 20] gain,Gr [...]t of a debt and may sue: And allso Cranmers case, where King Hen. 8. gave lands to the use of him for life, and after to the use of his Executors for twenty yeares,Rent charge after atteynder. after he was attainted, the Queen shall have this rent as a rent charge, and yet she had the reversion before. And in reason it seemeth the Queen may apportion her condition; for if this condition by the grant to Cordall shall be avoyded, four principles shall be overthrown; for it is a principle That the King shall not be deceived in his grant. 2. Item, that when concourse and equality of titles come together,4 Principles for the King. that King shall be preferred. 3. Item, in entire things he shall have all. 4. Item, that his grant shall not extend to severall intents or purposes: For the first, if the King be decei­ved 1 in the operation of the Law, his grant shall be voyd, as where he grants to a man and his heirs males,Release several. this shall be voyd. 6 Hen. 7. release of all demands. 11 H. 7. 10. release of all action, and yet in those cases there is matter of interest and not prerogative, and yet nothlng passeth if she be deceived. For▪ the concourse of title, 4 Ed. 6. a man makes a feoffment in fee, upon condition that the feoffee shall 2 not commit treason, after the feoffee commits treason, the King shall have the land,Treason. & 44 Ed. 3. per Thorp, tenant of the King, &c. he shall have the rent again: And for the case of the Lady Hales in the Co­mentaries, where lands descend to a villain. For entireties, 44 Ed. 3. 3 the King and others give lands to a Monastery, the King shall be sole Founder,The. King sole founder. 19 Hen. 6. he shall have the intire obligation where the one obligee is outlawed:Obligation. and in 11 Hen. 7. & 2 R. 3. two are indebted to the King,Release to the oblige. and he releaseth to one of them, then his grant shall not inure to two purposes, Bagg [...]ts Ass. And so if the King give lands to his 4 villain, this shall be no enfranchisment to him. So for all those reasons I hold the condition may▪ well enough be apportioned.Vill [...]in. Then for the third matter, when the commission issueth to enquire of all cove­nants and provisoes, if the condition be within those words; and for that point I think that the Plaintif shall recover; for allthough it be not within the words, yet the commission is generall after; but yet I hold that is within the words, 21 Hen. 7. fol. 37. per Fineux. If I let land for term of years, rendring, &c. I shall have debt or covenant at my election: and Dokerayes case, 27 Hen. 8. Proviso is a conditi­on, and so it was held here in the case of the Lord Cromwell and An­drews. Then when the Jury found that 37 s. 5 d. ob. were behind, if this office be good or no? and in my conscience that which is good, shall be taken for the Queen, and the rest shall be voyd; for offices between party and party may be voyd for uncertainty, as the case is in Dyer, 3 & 4 Eliz. Office in Beverley, &c. fol. 209. Or they may be avoyded for falsity,Proviso is a condition. 1 M. Culpepper fol. 100. b. Or for insufficiency, as in my Lord of Leicesters case in the Comentaries,Offices voyd. but this is only for the Queen, and therefore shall be taken favourably, and therefore I will [Page 21] [...]ompare it to a verdict where surplusage is found, 3 Hen. 6. Plene administravit, Superplusage in a [...]erdict. and the Jury found that they have more than Assets. 47 Ed. 3. the Jury found that he which prayed to be received had no­thing in the land, where the issue was joyned, whether the particular tenant had a fee. And 39 Hen. 6. 9. surplusage in an Inquisition. & 5 Hen. 5. fol. 2.Resceit. Cobhams case, where they found a Divorce in Kent, &c. Inquisition. Allso, Sir, Offices may be good for that which is certain and voyd, for that which is uncertain, and good for the King, and not for a subject, Strenes case, in 15 Edw. 4. & 14 El. Office found after the death of the tenant by the curtefie, & 29 H. 8. Br. tit. Office devant Esche­etr, 58. Dyer. And if a commission be awarded, and the lury say, that d [...] quo tenetur ignorant, then a melius inquirend. shall goe forth▪ but if they say, per quae servicia ignorant, then nothing shall be done, but it shall be intended Knights service, and so is the experience of the Ex­chequer. And here they have found that more was behind, ergo, they have found that so much was behind, Quia omne majus continet in se minus. Then if this be within the Statute of 18 H. 6. c. 16. And it seem­eth that it is not; for that Statute as I think is but an exposition of 8 H. 6. and that speaketh of Leases by Treasurer and Chancellor, and for that see the case of the Duke of Suffolk 3 & 4 Ph. & Mar. Dyer, fol. 145. And so I think for all these causes judgement shall be given for the Plaintif. Peryam Justice to the contrary. For the first matter, I agree that they be several rents for the viz. here doth expound the matter, and when the viz. may stand with the premises,Videlice [...]. then it is good, and o­therwise not, and for that the case in 17 lib. Ass. which hath been vouched,Difference be­tween an an­nuity and a rent charge. and disseisin of one is not disseisin of the other rent: And there is a plain difference between an annuity and a rent service, be­cause for an annuity it is the book in 29 Edw. 3. fol. 51. & 29. lib. Ass. 3 Parceners, and rent reserved for equality of partition, &c. vouched by Rodes; but if I grant you xl s. out of my Mannor, viz. x s. out of parcel in the tenure of A. and x s. out of another parcell,Rent limited out of an intire mannor. this is voyd; for first there was a grant out of the entire Mannor, 9 lib. Ass. yet this is one lease, & but one reversion, & but one condition, & the condition is entire, and that is wel proved by the express words of the condition (totaliter reentrare) and this proved by Winters case in 14 El. and Raw­lins case adjudged,Totaliter. where the sum in gross was behind,Dyer. the case vouched by Rodes, Cond. is undevi­dable. 33 Hen. 8. in a common persons case it cannot be divided, neither by title, nor by the act of the party. If surrender be made of parcell,Surrender of parcel. the rent shall be apportioned, but the condition is utterly gone:Dyer. But peradventure it will be objected▪ that in 17 Eliz. the condition there was divided, where he aliened parcell with the con­sent of the Lessor, and the other parcell without consent, and in that the Lessor entred for the condition broken;Cond, [...]pportion­ed. I grant this case, and yet this doth not prove that a condition may be apportioned; for the [Page 22] reason in that case is, when he made such a condition, the condition extended but to that which he aliened without license, and to no more, and so I hold the Law where a lease is made of twenty Acres, with condition,Eviction. &c. and parcell is evicted. And warranty at the Common Law cannot be divided; for if two Coparceners were who had warranty to detain,Garr [...]nty. and they made partition, the one could not vouch without the other,V [...]u [...]her. and therefore she should pray in ayd, and then both to vouch Paramount, and so the Statute which giveth p [...]tition between Joyntenants saveth their warranty, otherwise it were gone. And so if two Joyntenants make a lease for years, reser­ving rent upon condition,Partition of a [...] and after they make partition (as they well may, having the reversion and the freehold in them) I hold the Law clearly, that the one nor the other shall enter for the condition broken: Then in the case of the King, I hold the Law that it shall not be apportioned; and yet I agree that the King shall have his Pre [...]gatives for his present lands and goods,Prerogative. but he shall never have Prerogative when wrong shall be done to any man.Rent charge app [...]rtioned. If the King have a Rent chage, and after Purchase parcell of the Land charged, it shall be apportioned, 21 Hen. 7. he may well condition that his Feoffee shall not alien; for in those cases there is no preju­dice to others, but all those cases run upon other grounds. And in Bartlets case, the King is bound by the Statute of donis conditionalibus, for it was a wrong that the Donee at the Common Law should alien the inheritance. And this case as me seemeth is not within the con­course of Title,C [...]urse of [...]itle. as my Brother Rodes hath argued, neither is the King deceived as hath been said. For when the King enters, he shall be seised in pristino statu suo, Dyer. and this is a principall reason in Winters case; & 16 Eliz. a person makes a Lease reserving Rent, upon conditi­on, that if it be behind & lawfully demanded, that then he shall re-en­ [...]er,De [...]and. after the reversion cometh to the King, he shall not ma [...] demand, I agree well thereto; the reason is, because the demand is a thing which goeth to the person of the King. Then, Sir, the Statute is, that the King shall have it as the Prior had it, which is meant of the estate and not of the person of the King: Then, Sir, it is impossible that the King should have the land as the Prior had it, ut in pristino statu suo, if he doe not utterly defeat the grant made to Cordall; then here the condition is gone,The Kings grant against the Law is voyd. but not by any grant as it hath been moved, but by the operation of the Law: And 49 Ed. 3. the King grants that lands shall be devisable, it is voyd, because it is against the Law; and it is against the Law, that a condition should be apportioned, ergo, the King shall not apportion it. But admit this question against me, then let us see what title the Queen hath by this commission. First, the commission is to enquire if Cordall his Assigns and Farmers have per­formed all covenants and provisoes contained in the Indenture;Proviso. as [Page 23] for that I hold the law clear that they have au [...]hority, by those words, to enquire of the condicion, but for other reasons I think the Com­mission void. For the Commission is to enquire per bonos & legales ho­mines de Com. nostre M [...]dd. and it doth not appear here that the Ju­rors were of Middlesex, and therefore the inquisition is not good. Further,Severall & spe­special finding. they have found a thing in another County, and this they cannot find, but I hold that the Jury in one County, may find the ge­nerall issue in another County. Allso I hold that when the party can­not plead that which is the great matter of the Action, they may find it in an another County because the party cannot pleade it, as in 9 Ed. 2. in debt against Executors, &c. And for these reasons I hold judgement is to be given for the Defendant.

2.

RIchard Heydon, Misre-cital in Letters, Patentt. Gentleman, demands against Benjamin Ibgrave, Gentleman, the third part of 40. Acres of Land with the ap­purtenances, in three parts to be divided, in Sarrot in the County of Hartford, as his right and Inheritance, and to hold of our Lady the Queen in Capite, and Laies the Esples in the time of Ed. the sixth, and that such is his Right he offers himself, &c. And the aforesaid Benjamin put himself upon the great Assise whether it be his right or no, &c. And now the Assise made by the four Knights appeared at the Bar,Challenge. Snagg Serjeant for the Plantif, we challenge A. B. for that, &c. Nelson chief Prothonotary & all the Court, you cannot challenge, be­cause it was made by the four Knights, and the Assise is now at the Bar.

well Sir, then we will give evidence.

for whom are you?

for the Plantif.

then you shall not give evidence first, for the Tenant affirms that he hath more right,Evidence. and that ought to be first proved.

So it was here rul'd five years ago in Nowells case, and thereupon Puckering gave evidence for the Tenant, that it was Parcell of the Mannor of Sarrot, which Mannor the Tenant hath, and this was gran­ted by the Counsell of the Defendant. And in conclusion upon the evidence given, the▪ Defendant would have had the Tenant▪ to have Demurred upon his evidence, and discharge the Inquest, but the Te­nant would not; in effect this was the doubt. K. H. 8. by his Letters Patents, gave among other things, all the Lands which were in the Tenure of one Whyton, and demised to Johnson in the Parish of Watford. And it was true that the Lands were in the Tenure of Why­ton, but not demised to Johnson▪ Misre-citall. and allso they were not in the Parish of Watford; if this shall be helped by the Statute of Misrecitall, and not Recitall, is the question, and the party did not aver that the intent of the King was to pass this Parcell now in question to the Patentee, [Page 24] and the opinion of all the Court, was, that it is not within the Sta­tute clearly, but they said to the Jury, that they may find all this matter if they will, or otherwise say what they will. And thereupon after they were agreed, they came again to the Bar, and then all the Court told them, that yet they might give a speciall Verdict. The Jury said we are all agreed that the Tenant hath more right to hold these Lands as he now holdeth, then the Demandant as he demands them.

then are you discharged, and as I think you have done well.

So they gave their Verdict according to the opinion of the Court for the Statute of Misrecitall, and yet Peryam was well content to have them give a speciall Verdict, and the Demandant was demanded, who appeared, and thereupon Judgement finall was given for ever against him.

3.

ONe Tirrell brought an Action of Debt against a Hundred in Essex, H [...]e and Cry. for that he was robbed and made hue and cry according to the Statute of Winchester, the. Defendant pleaded that he was not robbed, and a full Jury appeared at this day, and upon the giving of the evidence Shuttleworth moved for the Defendant, that it appeared by the Plantifs own evidence that the money was my Lady Riches, and that the Plantif was but her receiver, and then as he thought the Action should have been brought by the Lady, and not by Tirrell.

in my opinion without question the Action is well brought, for when he had the money, and was robbed; the money was taken from him,Receiver. and he was her receiver, and Vouched a case in 3 Ed. 3. where a man takes my Corn from me, and after, &c. the King shall have it, and so of money, for it cannot be known from other money. Rodes to the same intent, for if my servant be possessed of my goods, and be thereof robbed,Appeal. he shall have an appeal.

I have seen that a man sent his servant to London with money, and he was robbed coming from thence, and the opinion of the Court was, that the ser­vant should have an Action against the Hundred.

So I think clearly,

whereby the Jury found for the Plantif.

4.

THe Quare impedit by Moor was moved again, and the opinion of the Court was,Quare im­pedit. that the Bishop, as well for his contempt in not retournig the first VVrit, as for his evill retourn made upon the se­cond Writ (for it appeared that he which he said was inducted of the presentation of the Queen, was Defendant in this Action) should be amerced, and so he was amerced at x. l. and a new▪ Writ awarded to admit the Clerk of Moor.

5.

AN Action upon the case was brought in the King Benchs for say­ing that the Plantif was a forging knave,Slander. and a Verdict given for Plaintif. And it was spoken in arrest of Judgement, Gawdy Justice inchit capiat per billam, for the Action is not maintenable.

6.

WAlmysley came to the Bar & shewed how Lennard Cust [...]s b [...]evi­um, had brought an Action of Trespass against another, the De­fendant justified, by reason that Sir Christo. Heydon was seised in Fee, and infeoffed him,Feoffment. & gave a colour to the Plaintif. The Plaintif replied that Sir Christofer Heydon died seised, and it descended to his Son, who enfeoffed the Plaintif. Abs (que) hoc, that C. H. enfeoffed the Defendant. And the Iury found a speciall Verdict, viz. That C. H. was seised and made a lease for years to the Defendant, and afterwards by his Deed conteyning dedi, concessi, & confirmavi, gave it to the Defendant and his Heirs with Letters of Attorny to make livery; if this were a Feoffment or but a confimation was the doubt.Feoffment.

It is but a confirmation when it is by deed and hath words of confimation.

Then by your reason, he in Reversion cannot enfeoffee his Lessee for years by deed, as he may without deed, but I think the Lessee is at liberty to take it as a Feoffment, or as a confirmation.

Sir I think that when the Lessee takes the deed, immedi­ately this is a declaration of his meaning, to have it as a confirma­tion, by your favour.

And by your favour, when the Lessor sheweth his meaning, to make livery, and the Lessee his meaning, to accept livery, and livery is made accordingly, is not this an express declaration that he will take it by the livery? and shall this livery be idle? no Sir, and see Bracebridges case in the Commentaries, where Tenant in tail makes a bargain and sale, and makes livery, and with­in six months Enrolls it, this is adjudged a discontinuance, and yet the bargain and sale is not any discontinuance, and if you well mark the cases you shall find but little difference▪ Disseisin.

If Tenant in tail bee disseised, and it is agreed between the disseisor and the dissei­sie, that the disseisee shall make a Feoffment to the disseisor, and make such a deed as this, the disseisor shall not have election to take it as a Feoffment. Anderson & tota Curia, the cases differ, for thedisseisee hath not any power to make a Feoffment.

Well, will you give us a day to argue this matter, and the other.

For the other if you will.

No Sir, if this point be no hot­ter than the other.

The other is cold enough.

And so the [Page 26] Court held the Feoffment good clearly. And they laughed upon Len­nard, because he had profited so well by his action.

7.

LAnds were given by fine, to one Jones and his Wife, and to the Heirs of Jones upon his Wife ingendred, the Remainder to one Owen in Fee.Scire facias. Afterwards Jones only without his Wife suffers a Com­mon Recovery with Voucher,Recovery. the Wife dies, Jones dies without Issue, and Owen brought a Scire facias to execute this fine, and the Tenant pleaded the Recovery in Bar.

the Recovery is good to Bar Owen: For if there be a sufficient Tenant, against whom the Prae­cipe is brought, then is it good. And as I think here the Husband is a sufficient Tenant. The case in 16 Hen. 6. in a purchase to the Hus­band and Wife, during the Coverture there are no Moities, and the case in 23 Hen. 8.Meuies. Recovery against Husband and Wife where the Wife is Tenant in tail, and they Vouch over, it shall be a Bar to the intail, vide Bro. titulo Recoverie in value. 27. and yet the Husband had nothing but in right of his Wife, so in this case.

to the contrary. For if the recompence here doth not go to the Estate of him which brought the Scire facias, then it shall be no Bar, & in 9 Edw. 4. an Action was brought against two Executors, when there were four, and a Recovery had against them two, the other shall falsifie, for that they had equall Authority,Falsifying of re­covery per executors. and here the Husband and Wife have equall Authority, & 10 Ed. 4. the Wife shall have an Assise, if a Re­covery be had only against the Husband, & 2 Ed. 4. he in Reversion prayed to be received,Resceit per def. de un Joynt. he shall plead that the Tenant held joyntly with another, and the reason is, if he should be received only upon the default of one of them, then he cannot have his recompence over Paramount,Grant de rever­sion de un Joynt. & 18 Hen. 6. 1. & 13 Edw. 3. Husband and Wife Ioynte­nants for life, and he in Reversion will grant the Reversion of the Husband only, this is void, for he hath not any such Rever­sion. And here the Estate of Husband and Wife and he in Remainder is all but one, and then the Estate of the Husband only, is not the same Estate, and the case in 23 Hen 8. vouched by Snagg, seemeth to make for me, for the reason wherefore he shall be barred is, because the re­compence goeth according to the Estate which the Wife had, and then it is reason that he shall be barred, but in the same case, if the Husband survive, it is said in the same Book, that the Issue shall be at large, for that the recompence goeth to the Survivor, but let it be as it may be, the reason of the case is for the recompence. And I think,Com. 5. 14. that this case here will be proved by Snowes case in the Com­mentaries▪ Recovery had against Husband and Wife, where the Wife had nothing, all the recompence shall be to the Husband. 10 Edw. 3. [Page 27] Dower brought against husband and wife,Dower: and the husband vouch to warranty, &c. & 38 Ed. 3. Praecipe against Tenant in tayl, & 8 Eliz. in Dyer, fol. 252. where the husband was tenant for life, the remain­der to the wife in tayl, the remainder in fee to a stranger, and a reco­very suffered; and about 15 El. was a case in the Exchequer, where lands were given to Norrice and his wife, and to the heirs of the body of Norrice, Remainder. the remainder in fee to a stranger, and a recovery suffer­ed against Norrice, he in remainder was attainted, and Norrice and his wife were dead before, and by the opinion of Sanders then chief Baron,Recompences. the moity shall be forfeit by the atteynder: And recompences are but as exchanges;Exchange exe­cuted. and Bracton calleth them Excambia; and I think if an exchange be executed in the one part, and not in the o­ther, it is not good, and so I think the recovery shall be no bar.

8.

IN a Writ of Dower brought,Joynture. Gawdy Serjeant shewed how that the husband of the demandant had given certain lands to her in lieu of her Joynture, upon condition that she should make her election with in three moneths after his death, and she made her election to have the Joynture, and now she had brought her Writ of Dower against the heir by covin,Covin. and he hath confessed the Action, to the intent that Thynne who had a lease for yeares of the first husband should lose his term, and prayed ayd of the Court.

There is not any such Joynture as you speak of; for that which was given to the wife was but a lease for yeares, and that (you know) cannot bar her of her Dower.

If the case be so, then is there no cause to bar her of her Dower; for a lease for years cannot be a Joynture.Ease for years.

Quod Peryam concessit clearly, and sayd that the Joynture ought to be a freehold at the least, or o­therwise it is no bar to the Dower, whereby Gawdy moved another matter.

1.

AN Action upon the case was brought for calling the Plain­tif false perjured Knave;Jeofayle. the Defendant justified, because the Plaintif had sworn in the Exchequer that the Defen­dant had refused to pay the Subside, where in truth he had notso done. The Plaintif replyed, de injuri [...] sua pro­pria absque tali causa, the Action was brought in London, and there it was tryed for the Plaintif, and great damage found; and this matter was alleged in Arrest of Iudgement because the triall was in London, whereas the Perjury was supposed to be made in the Exchequer:Triall locall. The Court said, that the matter is tryable in both Counties; and it was answered again,London cannot joyn. that London cannot joyn with any other County.

Then is your Issue vitious; for when an Issue is tryable by two Counties, if they cannot joyn, then ought you to make such an Issue as may be tryed by one onely. And by all the Court, this ought to have been tryed in Middlesex, for there the Perjury is sup­posed to be committed, whereupon the Issue is taken.

See if you be not ayded by the Statute of Jeofayles.

It hath been allwayes taken, that if the triall be evill, it is not ayded by the Statute of Jeofayles.

Then are ye without remedy; for you shall have no judgement.

Et sic fuit opinio Curiae.

2.

GAwdy came to the Bar,Joyntenancy. and shewed how a man devised his lands to his two Sons,Partition. and their heirs, and they had made partition by word without writing:18 Eliz. 350. Tota Cur [...]a, What question is there in it? the partition is naught without doubt.

It hath been adjudged here, that if the partition be of an estate of inheritance, it is not good by paroll.Joyntenant by devise.

But I think that when a man deviseth his lands to his eldest Son, and his youngest Son, in my opinion they are Tenants in common, because the eldest son shall take it by descent.

But I think not so; for if a man make a gift in tayl to his eldest son,Devise in tayl of an heir. the remainder in fee, &c. Is not he in by the devise?

This is another case.

In my case he shall take by the [Page 29] devise for the benefit of the issues, and in your case he shall it take by the devise for the benefit of the survivor, and therefore I think that they are Joyntenants.

There is but small doubt but that they shall be Joyntenants; and there is authority for the case:

And this at length was the opinion of the whole Court.

3.

IN an Action of Debt for Rent,Apportion­ment. it was sayd by Anderson, If a man make a lease of years reserving rent, and the Lessee for years make a feoffment in fee of parcell of the land, the rent shall be ap­portioned.

4.

FEnner came to the Bar,Alien. and sayd to Anderson, that in his absence he had moved this case. An Alien born purchaseth Lands, and be­fore office found, the Queen by her Letters Patents maketh him a de­nison, and confirms his estate, the question is, who shall have the lands?

The question is, if the Queen shall have the lands of an Alien before office found?

True, it is, my Lord.

I think they are not in the Queen before office, and then the confirmation is good.

It seemeth that he shall take it onely to the use of the Queen,Neis purchase lands. and then the confirmation is voyd.

In 33 lib. Ass. is this case; If the Neise of the King purchase lands, and takes a husband who hath [...] issue by her, and she dye, he shall be tenant by the curtesie.

Anderson and all the Court denied that case of the Neise.

I have heard lately in the Exchequer, that an English man and an alien purchased lands joyntly,Joynt purchase by an alien. and the alien dy­ed, it was adjudged that the other should have all by surviving.

Surely this cannot be Law; for it is a maxim, Nullum tempus occurrit Regi.

If the Freehold be in the Alien untill office found,Trespass. if a trespass be committed, who shall punish it? for he shall have no Action.

That is true; and so it is of a Monk if he be a disseisor,Monk. and yet the freehold is in him.

And so it is of a person atteinted,Atteynted per­son. and yet before office found the freehold is not in the Queen.

It is, Dyer 11 Eliz. fol. 283.Feoffment to use. If a man enfeoffee an Alien and a Denison to his use, that the Queen shall have the moity, whereby it seemeth that the confir­ment is voyd.

I hold this rule for certain, that in every feoffment there is feoffer and feoffee; and if there be a feoffee, he must of necessity take, wher by I think the confirmation is good.

Is this case hanging in this Court.

No, Sir.

Wherefore then doe you move it in this Court?

And afterwards the [Page 30] question being demanded of Shuttelworth by divers Barristers, he made answer; ‘Truly in my opinion it is not in the Queen before office found, and therefore I think the confirmation is good.’ Quaere.

5.

AN Attorney of the Common Pleas brought an action of debt against another,Misdemea­ner. whereupon he was arrested in the Country, and when he came to London, the Attorney caused him to be arrested in London for the same debt, and this was shewed to the Court, and the Attorney called, to whom Anderson said, if a man be sued here for a debt, and after be arrested in another Court for the same debt, the penaltie is fine and imprisonment, and that is both the law and the custom of this Court, wherefore then have you done this? surely we will send you to the Fleet for your labour.

I beseech you, my Lord, consider my estate.

I have well considered it, and that is, that you shall goe to the Fleet, and therfore War­den of the Fleet take him to you.

We will punish such gross faults in you more severely than in others, because you are an Attorney here, and your fault is so much the greater, by how much you are skilful in the law and customs of this Court, wherefore you shall goe to the Fleet.

1.

IN the case of Sellenger, Annuity. it was said by Anderson, and agreed by the Court, that if a man grant an Annui­ty out of Land, and hath nothing in the Land, that yet this shall be good to charge the Grantor in a Writ of Annuity; and in the same case it was allso agreed by the Court, that if a man grant an Annuity to a Woman, who takes a Husband, and after Arrerages do incur, and the Wife dye, so that the Annuity is determined, that the Husband shall have an Action of debt for the Arrerages, by the Common Law.

This is not remedi­ed by the Statute of Arrerages of Rents, and then at the Common Law it is but a thing in Action.

An Annuity is more than a [Page 31] thing in Action.

He may grant it over, and so the opini­on of the whole Court was, that debt was maintenable.

2.

AT the same day it was said by Anderson, Executor. and not gainsaid, that if an Executor plead ne un (que) administer come executor, yet after­wards he may take the Administration upon him, and well enough be Executor.

3.

IN a Replevin by Bosse against Hawtrey, Triall by provise. they were at Issne, Termino Mic. An. 28. & 29. And Bosse had a venire facias in Termino Mic. retournable in Termino Hill. and after in Termino Hill. took an alias retournable in Termino Pasch. and so awarded it in the Roll of Mic. to the intent that the matter should not be tried at the Assises in Kent, and thereupon Hawtrey which was Avowant, moved the Court and prayed expedition, whereupon the Court caused the Roll to be brought in, and notwithstanding that it was a Roll of Mic. Term, yet because it was awarded the same Term, they mended the Roll, and a­warded the alias retournable the same Term of Hill.

4.

WYlgus brought an Action of Trespass against Welche quare clausum fregit. Travers. Welche said,Trin. 28. Eliz. rot. 537. that I. W. was seised and enfeoffed May, and so conveyed a title to himself, the Plantif replyed that A. his Auncestor was seised, and so the Land descended to him, Abs (que) hoc that I. W. was seised, and upon this Issue the Court was moved.

the seisin is not traversable, but where it is materiall, and therefore clearly the Traverse is not good;

but Fenner cited a book in 2▪ Edw. 6. that the Travers shall be good, but he stood not much up­on it. Snagg 27 Hen. 8. 4. Bro. pleadings 1. is contrary, but the opi­nion of all the Court clearly was that the Travers is not good.

5.

A Man makes a Feoffment in Fee to the use of himself and his Wife,VVast. & alterius eorum diutius viventis abs (que) impeticione vasti durantibus vitis ipsorum, the Husband dies, if the Wife shall hold with­out impeachment of wast or no was moved by the Serjeants. And the opinion of all the Court was, that she shall not be impeached of Wast, because of the severance, but otherwise if it had been Joyntly.

6.

FUlwood brought an action upon the case against Fulwood, Action upon [...] case. and de­clared that whereas a motion of mariage was between the De­fendant and a Widow in London, in consideration that the Plaintif should give his assent, that the Father of those Fulwoods should con­vey to the Defendant all his Lands and Chattells, the Defendant pro­mised to pay the Plaintif such a sum of money as their Father should assign▪ Ac licet that the Plaintif had given his consent, and that their said Father had assigned him to pay 37. l. yet the Defen­dant, &c. and he pleaded non assumpsit, and it was found for the Plaintif, and now Fenner spoke in arrest of Judgement for four cau­ses. 1 First there is no consideration, for the declaration is assensum su­um daret, so that he is at liberty to give his assent or no: and so no 2 perfect consideration. The second is ac licet the Plaintif, &c. and 3 doth not say in facto that he gave his assent. The third is, that he doth not say that he gave his assent when the Father had those Lands and 4 Chattells. The fourth is, that in consideration the conveyance should be made to the Defendant, and it appeareth that it was made to the Defendant and his Wife.

To the contrary, we have alleged in deed, that he gave his assent, and that is as much as if he had said in consideration that he gave his assent. And allthough that the conveyance be to both, yet it is in tayl to them, and so the inheritance given to both. And therefore that which you allege is against you.

And the Wife of the Defendant being in Court was very importunate, whereupon the Court moved an agreement, and the Plaintif was content upon condition that the Defendant would enter into bond, but the Defendant seemed unwilling by his silence.

Wee have made stay to the intent to do the Defendant good, and he will not be content when more than reason is offered him, wherefore let Judgement be entred for the Plaintif.

7.

IN a replevin by Gybson against Platlesse, Revocation of a VVill. the Defendant made Co­nusance as Baylif to Anne Wingfield, and the Issue was whether the Land descended to Anne Wingfield, Norfolk Trin. as Daughter and Heir to I. W. and upon evidence this was the case.28 Eliz. rot. 2 [...]30. The said I. W. was seised of the Lands in question, and divers other Lands, and by his last VVill de­vised all his Lands and Tenements to Anthony Wingfield of London Goldsmith in Fee; and after and before his death, he made a Feoff­ment in Fee of the same Lands which he had devised to the same A. W. and when he sealed the Feoffment he demanded, will not this [Page 33] hurt my Will, and it was answered again that it would not, and he said, if this will not hurt my Will, I will seal it, and then he sealed it, and a Letter of Attorny to make livery, and in some of the Lands the Attorney made livery, but not of the Lands now in question, and af­ter the Testator died, now if the Devisee shall have the Lands or no, was the question; for if this Feoffment be Revocation of the Will, then the Devise is void. And it was said by the Counsell of Anne VVingfield, that it is a Revocation. For if the Testator had said that this shall not be his Will, then it had been a plain Revocation, quod fuit concessum per Curiam, and then the making of the Feoffment is as much to say, as that the Will shall not stand: but it was answered by the Court, that it appeared that the mind of the Testator was, that his Will should stand, and when he made the Feoffment this was a Revo­cation in Law, and if no Feoffment had been made, there had been no Revocation in Law, and there is no Revocation in deed, for he said if this will not hurt my Will, I will seal it, and allthough that the Attorney made livery in part,Feof [...]ent per­fect in part. so that the Feoffment was perfect in part, yet for the Lands in question, whereof no livery was made, the Will shall stand,Will. for a Will may be effectuall for Part, and for Part it may be revoked, and the Court told the Jury that this was their opinion, and thereupon the Jury found accordingly, that the Land did not descend to A. VV. quod nota. And Fenner who was of Counsell with the Plaintif, before the coming again of the Jury to the Bar, said to the Counsell of the Defendant, that the Law was clear against them. Allso he said to divers Barresters afterward privately, that in the case of Serjeant Jeofres it was adjudged, that where one had made his Will, and after one of his friends came unto him, and demanded of the Testator if he had made his Wil, and he answered no. And he demanded again, will you make your Will, and he an­swered no, and yet this was adjudged no Revocation.

8.

ONe Lea of Essex, Privelege. was sued in an Action of Battery in the Com­mon pleas,Battery. and upon non culp. pleaded, it appeared upon the evi­dence, that the Defendant and others had thrown daggers at the Plaintif, and grievously hurt and maimed him in outragious manner, and Peryam said to the Jury that they ought to consider, that the Plaintif was put in fear of his life, and had one of his hands maimed, and what damage he had susteyned by his Mayhem, and that they ought to give damage as well for the fear and assault as for the May­hem, and when the Jury was gone from the Bar, the Defendant cau­sed the Plaintif to be arrested in the Kings Bench, for a battery done to him by the Plaintif before, and this was shewed to the Court, and [Page 34] thereupon they sent for Lea, and were grievosly offended with him, for they said that when a man is sued here,Privelege de Court. he ought safely to come and go by the privilege of this place without vexation elsewhere. And Lea pleaded that he was ignorant of the Law, but the Court an­swered that ignorantia juris non excusat, and therefore they said that they would punish him, and discharge the other. Then the Plaintif said that he had put in bayl to the arrest, and the Court answered, if you had not done so we would have discharged you, but now we cannot, but they commanded Lea to release his arrest, or otherwise he should smart for it,Fine. and Lea was well content to do so.

yet you shall pay a fine here allso, for otherwise we shall be perju­red, wherefore because you are ignorant, you shall be fined at vj. s. and Lea payed the vj. s. incontinently, and went for to release his arrest.

You have escaped well, therefore let this be a warning.

9.

BEtween Smyth and Lane the case was such.Copyhold Mith. 27. & 28. Eliz. Rot. 1858. Rad­ford. A. was a Copyholder in Fee according to the custom of a Mannor, whereof the Queen was Lady. And she by her Letters Patents let the Copy hold to B. for years, and he granted his Term to the Copyholder, if by this the Co­pyhold be determined or no was the doubt. And it was agreed by the Court and all the Serjeants,28 H. 8. 30. b. that if the Lease had been made im­mediately from the Queen to the Copyholder, then it had been a plain determination, but some put a diversity because the Paten­tee was not Lord of the Mannor,

I think the Copyhold is not gone, for when the Copyholder hath an interest in possession, and the other in the Freehold, and the Patentee grants his interest to the Copyholder, what surrender can this be?

I will not have it a surrender, but I will have his interest to be determined. For when he is a Copyholder, this is by Custom, and when the Land is left, this is by the Common Law, and when this is granted to the Copyholder, surely he shall not have both. For he cannot have a Co­pyhold in the Land, and have the Land also, wherefore in my opini­on the Copyhold is gone.

Peradventure by the grant to the Patentee the Rent shall pass if there be any, but it shall be hard to make it a determination of the Copyhold, for they are two distinct and two severall interests.

By the grant made to the Pa­tentee the Rent shall not pass, for he hath no Reversion.

& ad­jornatur.

10.

A Quare impedit was brought by Specot and his wife against the Bi­shop of Exeter, Pasch. 28 El. rot. 2091. and declared how A. F. was seised of the Man­ner to which the Advowson is appendant, and presented, and devised the Mannor to his wife now one of the Plaintifs, and she after took to husband Specot, and then the Church became voyd, and they pre­sented their▪ Clerk, and the Bishop disturbed them. The Bishop pleaded that he claims nothing but as Ordinary, and that the Church is with cure of soules, and confesseth the title of the Plaintif: And that they presented, but he alleged in bar, that he examined their Clerk, and upon the examination, Invenit eum fore schismaticum in­veteratum, so that by the Law of holy Church he could not admit him. Whereupon the Plaintif demurred in Law.

The Plaintif ought to recover.Certainty. First, I agree, that if it had been al­leged in certain wherein he had been a Schismatick, this had been a sufficient plea to excuse him, but as this is, it is otherwise. For a Schismatick is he which divides and separates himself from the Re­ligion and the Faith established.Schismatick. But this plea is insufficient for the uncertainty, and therefore in 38 H. 3. fol. 2. Fitzh. Quare imped. 124. The Earl of Arundell brought a Quare impedit, and the other sayd, that he presented one to him who was perjured for certain causes,Perjury. and shewed for what, whereby he was not a person capable, and so it should be in this case; and in 12 Eliz. Dyer fol. 293. he ought to set down the disability of the Clerk,Notice of dis­ability certain. and give notice to the Patron. And allso in Dyer 9 Eliz. fol. 254. the Bishop refused the Clerk because he was a haunter of Taverns and unlawfull▪ Games,Tavern and gaming. &c. Et ob [...]ea & diversa alia criminafuit criminosus & inhabilis, &c. And there the Plea was thought not good,Evil in it self. because that the faults alleged were not evill in their own nature,Evil forbidden. but by the prohibition of the Law. And allso the Plea was naught, because he had not shewed what the other faults were. And the reason wherefore the Ordinary ought certain­ly to allege what faults the Presentee hath, is, because the Patron may present another unto him, who is not infected with the same faults, and how can the Patron tell that his Clerk is disabled for such a fault, when he doth not know certainly what the fault is? Then if the Plea of the Ordinary be insufficient, whether he shall be a disturber by his evill Plea,Disturber by evil pleading. Triall. and it seemeth that he shall; for so is the Book in 14 Hen. 7. fol. 21 b. &. 5. Hen. 7. 20.▪ Allso for another reason the Plea is not good, for it is too general for the trial; and all though that it may be sayd that it shall not be tryed by a Jury, but by the Metropolitan, as perchance it shall be, yet it is too generall; for how can he know wherein he is a Schismatick,Ravishment of a Ward. so that he may exa­mine him thereof? as in Ravishment of Ward, supposing that the In­fant [Page 36] holdeth of him by Knights service,12 H. 8. f. 6. a. f. 11. it must be shewed in certain by what service: And allso in the case of Winbish the Plea was not good, because he did not shew in certain how she was heir to the o­ther; Coment. f. 42. b. and so I think the Plaintif ought to recover.

to the contrary: And it seemeth the Plaintif shall be barred; First, when a Parson is presented to the Bishop it appears fully that the exami­nation of him appertains fully to the Bishop,Examination. as it is expressed in the Statute De Articulis Clers, de ideoneitate personae present at ae ad be­neficium Ecclesiasticum pertinet examinatio ad judicem ecclesiasticum, & ita hactenus usitatum est, & fiat in futurum. For the cure of the Parson is the cure of the Ordinary, as it is expressed in 32 Hen. 6. He shall say to him, Accipe curam tuam, & curam meam. Then if we shall be driven to shew wherein he is a Schismatick, and I think not; for the Book of 38 Ed. 3. fol. 2. which is vouched against me, is with me;Perjury. for there he shewed before what Judge he was perjured, which is very necessary; for if it be not before a Judge it is no per­jury; but there he did not shew wherein he was perjured: Allso he sayd, that in 12 Eliz. in the Bishop of Norwich's case, the opinion of Walsh, Manners, Lear­ning, difference. that those things which touch the manners of the Clerk, shall be tryed by the Temporall Court, but that which toucheth the learn­ing or sufficiency of the Clerk, shall be tryed by the Spirituall Court. And in vain it shall be to allege wherein he is a Schisma­tick; for this Court cannot judge of it, in proof whereof he cited the Statute of 2 Hen. 8.Schism. And he defined a Schism to be Recens dissen­tio congregationis jure aliquo, but an Heretick is he which hath a habit therein,Heretick. and is invetorate; so he concluded, that Schismaticus inve­teratus est Haereticus, & Haereticus est Schismaticus inveteratus; and he defined inveteratus to be, qui est multi & veteris usus in malitia. And if the Bishop had sayd that he was an Heretick, he should not need to shew wherein, and for that he cited the case in 9 Edw. 4. 24. Bro. Deposition 5.Deposition. Where a Deposition of A. was pleaded, there he ought to shew before what Judges he was deposed, but not wherein. And what is the reason that he must shew before what Judge it was? Surely, because this Court may know to what Court to write; and allso the case in 11 Hen. 7. fol. 8. Bro. 9. of the Union of Wamborough, where it is pleaded, that concurrentibus hiis, &c. and allso he cited 8 Ed. 4. 24. where a divorce was pleaded, causa consanguinitatis pro­ut patet in recordo, and yet well: And allso he cited the opinions of Fitzherbert and Shelley, 27 Hen. 8. 14. that an Action upon the case doth not lye at the Common Law,Heretick. for calling one Heretick, be­cause the Judges at the Common Law cannot discuss it, and he granted the cases put by Shuttelworth, Matter issuable. that where the matter is issu­able, there it ought to be certain, but not as this case is where it shall not be tryed by a Jury; And that which hath been sayd, that the [Page 37] Archbishop cannot examine him, because he knoweth not wherein he was a Schismatick; this is not so, for the Bishop which accuseth him may inform the Archbishop, so that he may be well advised thereof, and so I think judgment shall be given against the Plaintif.

I doubt if the Writ be wel brought in the name of the Hus­band and Wife:Advowson in right of the wife. For if the Husband have an Advowson in right of his Wife, and the Church become voyd, and the Husband dye, the Executors shall have the presentation;

and the Serjeant sayd that there be many Books in that point.

I know it well, but I doubt of the Law in the case. Allso I would have you to argue if this be within the Statute of Demurrers, in 27 Eliz. For if this be not matter of substance, then it shall goe hard with the Plaintif; therefore let it be argued again another time.

11.

ONe Brook was Plaintif in a Replevin,Copyhold. the Case was such: Tho. Speek was seised of a Mannor, in which were Copyholds accor­ding to the Custom, and the place in which the taking was suppo­sed, was a Copyhold; and the sayd Tho. Speek being so seised, took to wife one Anne B. and died seised, after whose death the sayd A. in the time of King Edw. 6. demanded the third part of the Mannor for her Dower, by the name of Cent. Messuagiorum, Cent. Gardinorum, tot acr. terrae, tot acr. prati, &c. and was endowed accordingly of parcel of the Demesns, and parcel of the services of the Copyholds, and after she granted a Copyhold, and if this be good was the question; for if she had a Mannor the Grant was good, and otherwise not. And the opinion of all the Court clearly was against the Grant; for when she demanded her Dower, she was at liberty to demand the third part of the Mannor, or the third part of Cent. Mes. Cent. Gard. Cent. acr. &c. and when she demanded it per nomen Cent. Mes. &c. Mannor a cor­poration. she could have no Mannor: For a Mannor cannot be claimed except by his name of Corporation, as Anderson termed it, and not otherwise; and then Cent. Mes. and Cent. acr. &c. cannot be sayd a Mannor; and then the Grant of a Copyhold by her which had no Mannor was utterly voyd; and this was the opinion of the Court clearly. Quod not a.

12.

SHuttelworth shewed how one Knight was Plaintif in a Replevin,Visne. [...] Ass. pl. 42. and they were at issue upon a prescription for Common in New­ton appendant to land in another place, and the venue was of New­ton onely, and it was found for the Plaintif, and he prayed his judg­ment, for the tryall may be in the one place as well as in the other, [Page 38] as in annuity where the seisin is alleged in one County,Annuity. and the Church in another, it may be tryed in any of the Counties.

But we think otherwise, for it ought to be of both places, when the matter ariseth in both; and if they had been in severall Counties,Counties joyn. the Counties ought to have joyned.

So is 10 Ed. 4. fol. 10. But our case being after a verdict, I think we ought to have judgement.

The verdictdoth not amend the matter, if it be mis-tried, as this case is. Rodes agreed that it was a mis-triall,Mis-trial. and therefore evill, and that mis-trialls are not helped by the Statute of Jeofayles.

I agree to that, if you say that the triall is not good.

So we say.New Venire facias.

Then Shuttelworth advised his Client to take a new Venire facias.

13.

WAkefield brought a Replevin against Costard, The Lord. who avowed for damage fesaunt.Comptons case. and the Plaintif prescribed for Common, that all the inhabitants of Dale, except the Parson and infants, and such a house,Prescription for Common. have used to have Common in the place. The Avow­ant sayd that the house whereunto the Plaintif claimed Common, was built within thirty yeares last past, and if he may have Common to this new house by prescription or no was demurred in judgement in Michaelmas Term, and then Shuttelworth argued for the Plain­tif that he should have his Common by prescription, but not of com­mon right. And Gawdy argued for the Avowant, that the Plaintif shall not have Common, because the prescription is against all rea­son, that he should have Common time out of mind to that which is but of thirty years continuance: And allso he excepteth the Par­son, and infants, and such a house, and by the same reason he may except all, which is not good. Then one of the Judges sayd that if this be good,Antient inha­bitants. hereafter there shall be no Common for the ancient inhabitants.Improvement.

By such a prescription he shall for ever barre the Lord from improving any Common,Common entire, which is no reason.

All Common is intire; for if a man have Common to three Mesuages, and he infeoffee one man of one Mesuage, and another of the second, and another of the third, the Common is gone. And by this reason allso the new house cannot have Common. And now this Term Gawdy demanded of the Court if they were resolved in the poynt.

We are all agreed that the prescription is utter­ [...]y voyd; for it is impossible to have Common time out of mind for a house which was built within thirty yeares, and then he com­manded to enter judgement, if nothing were sayd to the contrary by the next day.

We have sayd all that we can say, [Page 39] my Lord.

Then let judgment be entred against the Plaintif.

14.

SNagg shewed how the Earl of [...]Kent had brought an action of debt against a Londoner for rent behind,Grant. and shewed how the Countes [...] ▪ of Derby was tenant in Dower of this land, and took to husband the Earl of Kent, and that Henry Earl of Derby had granted it to the Earl of Kent habendum after the death of the Countess for certain yeares, and he shewed how the grant was made by the name of a reversion also,Lease in rever­sion, Grant in reversion, diffe­rence. and that the Tenant had attorned, and alleged the death of the Countess. And the Court said that the Attornment is not necessary, for it is but a lease in reversion, and then no rent passeth thereby.

If you had been privy to the case of Tal­boys in the Kings-bench, you would not have moved this doubt.

It is allso the very case of Throckmorton in the Commen­taries.

But here in my case he hath granted it by the name of the reversion allso, and then the reversion will carry the rent.

Then is your grant voyd; for a man cannot grant his reversion, habend. after the death of another; and therefore, quacunque via data, you shall have no rent.

And thereupon Snagge conticuit cum rubore.

15.

MOunsay was Plaintif in debt upon an obligation against Hyly­ard, Jeofayle. and the Defendant pleaded the Statute of Usury, because it was made for the sale of certain Copperas, and he took more than was limited by the Statute, and that it was made by shift and chevisance, and other matter he alleged to prove it within the Sta­tute; the Plaintif replyed, that it was made upon good considera­tion, and traversed the delivery of the Copperas, which was an evill issue clearly,Issue mis [...]oyned. and it was found for the Plaintif, and this was alleged in arrest of judgement, and yet for that there was an issue tryed, all­though it was mis-joyned, the exception was disallowed, and judge­ment was given for the Plaintif.

16.

AN Action of Debt was brought upon the Statute of Purveyors,Issue. because he had cut down Trees against the form of the Statute of 5 Eliz. The Defendant pleaded not guilty, and it was moved that this was an evill issue; for he ought to have pleaded nil debet; and the Court commanded him to plead nil debet.

17.

WAlmisley shewed how the Lord Anderson is Plaintif in an Action of Trespass against Wild, Ayd prier. who was Tenant for life, and they were at issue, and the Venire fac. issued in Michaelmas Term, and now this Term the Defendant prayed in ayd, which he sayd he ought not to doe, be [...]use they have furceased their time; for they ought to pray it when the Venire facias is awarded, or otherwise they shall not have it; and he cited for that purpose 15 Edw. 3. And the Court was of the same opinion, that he ought then to pray it, or not at all.

18.

A Writ of Error was brought upon a judgement given in London, [...]orfeiture. and this was the case; Sir Wolstan Dicksey Alderman, brought an Action of Debt in London against Alderman Spenser for rent behind upon a Lease for years made to Spenser by one Bacchus, who after­wards granted the reversion to Dicksey, and the Tenant attorned, and the rent was behind, &c. Spenser pleaded in bar, that before the grant of the reversion to Dicksey, Bacchus was seised, and shewed the custom of London, to make inrolments of deeds indented, and then shewed that before the bargain to Dicksey, he bargained the reversion to him by paroll, and so demanded judgement, si actio, &c. and this plea was entered upon record, and hanging this suit, Dick­sey entred into the Land for a forefeiture of the term, because he had claimed a Fee simple, and Spenser re-entered with force, and his ser­vant with him, but not with force, and thereupon Dicksey brought an Assisse of fres [...] force against them in London, and all this matter was there pleaded, & adjudged that it was a forfeiture of the term, & the Jury gave damages, and the Court increased them, and the judge­ment trebled as wel the damages increased as the others, and allso the Iudgement was quod praedicti defendentes capiantur, &c. Increase of da­mages. and thereupon Spenser brought a Writ of Error, and assigned Error in the point of the Judgment, because it was no forfeyture. And allso because the Dama­ges increased by the Court were trebled. And allso because the judg­ment was Capiantur where but one was a Disseisor with force, & ther­fore it should be Capiatur.

There is no forfeyture made by this Plea before triall had thereof.Wast. For if in Wast the Defendant say that the Plaintif hath granted over his Estate to another, this is no forfeyture, so in Cleres case, if he say that another is next Heir, this is no forfeyture.Quid juris clam. And in 26 Eliz. here was a case in a quod jur [...]s clamat, the Defendant pleaded an Estate tayl, and after at the Assises, [Page 41] he confessed but an Estate for Life, and yet this was no forfeiture.

None of us do rememember any such case here.

Surely the case is so, and I can shew you the names of the parties.

I will not believe you before my self, and I am sure that I never heard of any such case.

If any such case had been here we would have made a doubt therof, for ther are Authorities against it, as in 8 Eliz. & 6. R. 2. Plesingtons case.

Allso theyhave said that the fresh force was brought infra quarentenam, silicit qua­draginta septimanas, Quarentenae. Scilicet a sur­plusage. and the quarentena is but 40 dayes.

That is no matter, for the silicet is but surplusage, and so no cause of Error.

If a man disseise another without force, he shall not be taken and imprisoned, and therefore for this cause the Judge­ment is erroneous, and allso the costs encreased are trebled, and therefore erroneous,Aydin Trespass. and cited 22. Hen. 6. 57.

In an Acti­on of Trespass, If the Defendant pray aid of a stranger, this is a for­feiture, and if it be counterpleaded, yet it is a forfeiture, then shall the deniall thereof make any change in the case? surely no,Proper acts. in my o­pion. And I say that Acts which come from himself are forfeitures,Collaterall. but Collaterall Acts,Difference, as in the case of Wast are not.

In 22 Ed. 3. 13. the Tenant said that the Grantor hath released unto him, the Judgement shall be but that he shall Attourn. And allso he cited 3 Ed. 3. & 33 Ed. 3. & 18 Ed. 3. & 36 Hen. 6. & 34 Hen. 6. fol 24. to prove that it shall not be a forfeiture before triall.Quid juris cla­mat.

If one who hath no Reversion, bring a quid juris clamat against Tenant for life, this is a forfeiture of his Estate, and as you have said, if in VVast the Tenant plead the Feoffment of the Plaintif, or non dimisit, true it is that these are no forfeitures, for you know well enough that a Feoffment is no Plea, and then it is void, and to say non dimisit is no forfeiture.

The Judgement given in Plesingtons case is not well given, for it ought to have been, quod pro seisina sequatur si volunt. as in the case of Saunders against Freeman, and he cited 10 Edw. 3. fol. 32. to that intent.

The doubt which I conceive is for that he pleads a custom in London for the inrollment of Deeds indented, and he sheweth that his bargain was by parol, and therefore void, and then no forfeiture, as if in Trespass a man prays ayd, as by the Lease of I. S. and in the conclusion prayes aid of I. N. this is void.Praying in ayd.

Allthough that it be so, yet the pleading is, that he bar­gained the Reversion, and then this is good by parol in London, therefore there is no doubt in that point.

The Books in 15 Ed. 2. & 25 Ed. 3. Import [...] that Judgement ought to be given be­fore any forfeiture can be.Forfeiture be­fore Judgement.

Without doubt he may take ad­vantage thereof before Judgement, as well as after, if the plea be en­tred upon record.

For the point of capiantur, the Book is in 2. lib. Ass. Pl. 8. Br. imprison. 30. & in 9. lib. Ass. & 12. lib. Ass. Pl. [Page 42] 33 Br. imprison. 40.

Two may be Disseisors,Present Dissei­sor, absent, Differance. and the one with force and the other not, as if I command one to make a Disseisin, and he makes a disseisin with force, and allso if one enter with force to my use, and after I agree, he is a Disseisor with force and I am not so, and those cases will answer the Books of Assises, for in those ca­ses they were present,Present▪ but in these not, and so I hold that he which is present when force is made, is a Disseisor with force.

Then it was moved if the Statute of 8 Hen. 6. doth extend to fresh forces.

It doth extend to them by express words,

and Fleetwood cited a case in 44 Edw. 3. 32. that an Attaint lieth of fresh force. Then for the other matter of trebling of damages increased, the Court made no doubt but that they shall be trebled, and they said that so it was late­ly adjudged here in a case of Staffordshire.

19.

PUckering shewed how an Attaint was brought upon a false Oath made in a Replevin,Challenge. where the Defendant made Conusance as Bayley to one Hussey, and in the Attaint surmise was made that the Sherif was Cosen to Hussey, and thereupon prayed Process to the Coroners, and Puckering moved that no Process should issue to the Coroners, for Hussey was not party to the Attaint, and then this is but matter of favour, and he cited 3 Hen. 7. And all the Court accor­ded with him, that it is but matter of favour onely, and no sur­mise to have a Writ to the Coroners, but VValmisley would have put a difference between Lessee for years and a Bayley,Lessee pur ans. for as he pretended, in the case of a Bayley, it shall be a principall challenge, but not in the other case; but all the Court was against him, and that it is no principall challenge in the one case nor in the other. The last day of the Term it was moved again, and the Court was of the same mind as before.

20.

IN a Quare impedit, Adverson. it was said by Anderson, and agreed by all the Court, that if a man make a Feoffment in Fee of a Mannor with­out deed, and without saying (with the appurtenances) yet the Ad­vowson shall pass, and cited 15 Hen. 7. where it is adjudged that it is parcell of the Mannor, and lieth in Tenure.

21.

IN an Action of debt Anderson cited a case which was before him at the Assises in Somersetshire, Pleading. an Action of Battery was brought in London, and a Justification made in Somersetshire, Abs (que) hoc that he was guilty in London, and the Plaintif replyed de injuria sua propriae abs (que) tali causa, and Anderson said that a man shall never plead, de son tort. demeasne: where the matter ariseth in a Forein Country.

22.

AN ejectione firme was brought by Clayton against Lawson, Bar. the De­fendant pleaded in Bar, a Recovery had in the Kings Bench a­gainst the Lessor of the Plaintif. And Fenner moved that it should be no Bar no more than in Trespass.

I think it to be a good Bar. For this Action is as strong to bind the possession, as a Writ of right is to bind the right.

I think it is no Bar no more than in Trespass.

This is more than an Action of Tres­pass, for in this he shall recover his Term.

This case was mo­ved the last Term, and the opinion of the Court then was, that it was a good Bar.

True it is, if it were between the parties themselves; but here the Plaintif is but Lessee to him which was Barred.

Allthough that it be so, yet he claymeth by the Lease of him which was Barred, and during the Lease of the other his Lessor could have no right, and what shall he have then?

That which is between the parties cannot be an▪ Estoppell to the Plaintif here which is but a stranger.Estoppell.

I know that he shall not plead it by way of Estoppell, but he shall conclude Iudgement si Actio,

If in an Assise a Recovery in another Assise be pleaded in Bar,Assise. he shall not conclude by way of Estoppell▪ but Iudgement si Actio, and there he is driven to a higher Action, and so here; and the Law shall never have end, if after a man is Barred in his Action, he may bring the same Action again, therefore I think it a good Bar, and that he is driven to a higher Action.

Lessee for years can have no higher Action.

If one which hath a Lease for years and no more,Tenant for years disseisor of tenant in Fee simple. enter upon him which hath a good title, he is a disseisor of all the Feesimple.

If two claim by Lease from one man, and one bringeth an Ejectione Firme, and is Barred, what Action shall he have then?

None, for he hath no Right.

That is hard.

What Action shall he have which is Barred in Formdone? surely none.

This is another case.

Aliquantulum incensus, truly it is a [Page 44] plain case that he shall be Bared, whereunto Peryam and Rodes agreed clearly.

23.

IN a praecipe quod reddat, View. the Tenant demanded the view, and an ha­bere facias visum issued, and the Tenant came not to the Sherif to take the view, it was said by the whole Court, that the Sherif may ret [...]urn, that none came to take the view, and he shall never have the view again.

The habere fac. visum is the suit of the Te­nant, and then when he doth not come to take the view, this is a de­fault, and then good reason to exclude him from the view.

Such a retourn was never seen before, and therefore it is to be noted, the case was between Ho [...] and Hoo for Lands in Norfolk.

24.

IOhn VViseman of the Inner Temple,Apportion­ment. brought an Action of debt a­gainst Thomas VVallenger, the case was this. A man seised of three acres of Land in Fee, makes a lease, reserving xxx. s. of Rent, and after devised the Reversion of two acres to a stranger, and the third acre descended to the Heir, and he brought an Action of debt for xij. d. being behind, and Puckering moved if they were agreed of their judgement in the case.Rent extinct by the grant of part of the Re­version.

If a man let two Acres of Land rendring Rent, and grant the Reversion of one of them, all the Rent is gone, as it is in Dyer, and at the Common Law, before the Statute of W. 3. there was no apportionment, and the Statute speak­eth of no such apportionment as this is.

Surely no Book in all the Law will warrant this apportionment.

Yes Sir, 5 Ed. 3. If a man have a Rent of xx. s. and grants parcell thereof, and the Tenant Attourns, this is good.

This is another case. But shew us the case which was in the Kings Bench against the next Term.

& adjornatur, but the Plaintif said then to divers Barresters that such a case was adjudged with him in the Kings Bench. Pasch xxviij. Eliz. Rot. 341. between▪ Wiseman and Brewer, and another case in the Com­mon place, London, Rogers versus Hunt, Pasch. 16 Eliz. Rot. 1544.

25.

A Quare impedit was brought by Beverley against Cornwall, Vtlary. which was the Presentee of the Queen, and the Plaintif had Judgement to recover, and now the Queens Serjeant shewed that the Plaintif is outlawed, and prayed that he Writ to the Bishop might be stayed, and that they may have a scire facias for the Queen, to shew [Page 45] wherefore she shall not have Execution of this Judgement.

This cannot be debated now, for the Plaintif hath no day in Court, after Judgement, and this is but a surmise.

The Record here before us testifies that he is outlawed.

Yet it is but their surmise that he is the same person.

In debt upon an Oblig: If the Plantif be outlawed, the Queens Serjeants may pray the debt for the Queen; and yet this is but a surmise. And the opinion of three Justices was (for Anderson was absent) that they ought to stay Execution, but how▪ Processe shall be awarded, or if a Scire sacias shall issue against the Plaintif or no, they would be advi­sed for the course thereof, but Peryam thought that they might have a Scire facias against the antient Incumbent.

4.

A Quare impedit was brought by Gerard, Travers. and declared that his An­cestor was seised of the Mannor, to which the Advowson is ap­pendent, and presented, and died seised, and the Mannor descended to him, and so he ought to present, the Defendant pleaded in Bar, that the Ancestor of the Plaintif was joynt ly seised with his Wife, and that she survived, & for default of her Presentation th [...] Lapse ac­crued to the Bishop, who did collate. Abs (que) hoc that he died sole sei­sed, and it was moved by Gawdy that the Traverse shall be naught, for he [...]ad sufficiently answered to him before. And the opinion of the Court (Anderson being absent) was that the Traverse is void, because he had confessed and avowed him before, and cited 5 Hen. 7. 11. 12. Bro. tit. Traverse sans ceo 13.

27.

BYngham brought an Action of debt upon an Obligation against Doctor Squire, Cond. im­possible. and the Condition was, that if the Defendant did obtein a good grant of the next avoydance of the. Archdeaconry of Stafford, so that the Plaintif might enjoy it, that then, &c. and the Defendant pleaded that he had obteined a good grant of the next a­voydance, and in truth so he had, but the antient Incumbent was cre­ated a Bishop, whereby it perteined to the Queen to Present, so that the Plaintif could not enjoy it, and therefore the Plaintif moved the Court that the Defendant should amend his plea, and the Court (An­derson absente) commanded him to do so, for it seemed unto them that the Obligation was forfeit. Gawdy moved for the Defendant that when the Archdeacon was made a Bishop, the avoidance per­teined to the Queen by her Prerogative, so that it was become im­possible, but nevertheless he took day to amend his Plea.

1.

THE First day of this Easter Term, Sir Christopher Hatton, Knight, late Vicechamberleyn to the Queen, and Cap­tain of the Guard, rode from his house in Holborn, the Lord Burghley Lord Treasurer being on his right hand, and the Earl of Leicester on his left hand, and the Gen­tlemen Students of the Inner Temple attending upon him, (because he was one of the same House) and with great Honor he was brought to VVestminster Hall, and there in the Chancery sworn Lord Chancellor of England, according to the Patent and Seal delivered unto him the Sunday before.

2.

THe Queen brought a Quare impedit against the Incum­bent and the Bishop,Abatement. the Bishop pleaded that he claimed nothing but as Ordinary, and thereupon Judgement Formall was given a­gainst him,The incumbent dyeth. sed cesset executio, &c. the Incumbent pleaded in bar, whereupon they were at issue, and this issue depending, the Incum­bent died, and now Gawdy moved if the Writ should abate against the Bishop or no? and VVyndam and Peryam clearly that it shall abate; but if the Plaintif had averred the Ordinary to be a disturber, then Judgement should have been executed; but now he claiming nothing but as Ordinary, and thereupon Iudgement given, which is but con­ditionall upon the Plea of the Incumbent, it seemeth that the Writ shall abate, for there is none now to plead against the Queen; But if the Bishop had been averred to be a disturber,Patron. then it had been othe [...] ­wise, and Peryam resembled it to the case of 9 Hen. 6. where it is brought against the Patron and the Incumbent, and the Patron dieth, or the Incumbent, the Writ shall not abate against the other. But they commanded him to move it again, when the Lord Anderson was present.

3.

EJectione Firme was brought by King against King and others,Surrender. who pleaded not guilty, and now the Jury appeared, and the Plaintif declared upon the Lease of one West. Gawdy for the Defendant shewed that before the said Lease, VVest had made a Lease for six yeares, so that during that time this Lease could not be good: the Counsell of the Plaintif confessed the said Lease for six years, but said further that it was surrendred. VVyndam demanded where that surrender was made, and it was answered in London, and the Land lay in Essex. Was the surrender (said VVyndam) made in London, Out of possessi­on. and he out of possession, and the Land in Essex? What surrender call you this? And the Justices laughed at this evidence, and so did the Serjeants for the Defendant, concluding that it was not good without questi­on. And so the Plaintif was Nonsuite, and the Iury discharged incontinently.

4.

SHuttleworth shewed how Hurleston was Plaintif in an Ejectione Firme, Trave [...]s. and declared upon the Lease of one Pinchine, to which the Defendant said, that before P. had any thing &c. one E. Roberts was seised in Fee in right of Fayth his Wife, and so being seised, made a Lease to the said P. If the said E. R. so long should live, whereby P. being possessed, made a Lease to the Plaintif, and shewed that the said Roberts was dead, and the Defendant as servant to the said Fayth en­tred and Ejected him, now he demanded what he should Tra [...]erse in this Plea.

This is a shifting Plea.

Is this Plea true?

No Sir.

Then you may trice him upon this Plea, for you may Traverse the seisin in the right of his Wife without doubt, or you may Traverse any other part thereof,

and VVyndam and Rodes agreed clearly thereunto for the seisin (Anderson absente)

5.

AN Action of the case was brought upon an Assumpsit, Jeofayl. the Defen­dant pleaded non▪ Assumpsit, and the issue was found for the Plain­tif, and now Gawdy spoke i [...] arrest of Judgement, because the Plain­tif had alledged no place of the Assumpsion, No Place of the assumpsion. and he said that when an Issue is mis-tried, it hath been adjudged here that it is not helped by the Statute, and here is no place alledged, whereupon the Tryall may be.

The opinion of many hath been, that the Statute [Page 48] shall be taken most strictly, but in my opinion it shall be taken most liberally, so that if a verdict be once given, it shall be a great cause that shall hinder judgement, wherefore allthough no place be shewen, yet when it is tryed and found, it seemeth, that he ought to have judgement; and so was the opinion of the Court, Anderson absente.

6.

AN Action upon the case was brought in Staffordshire by Whor­wood against Gybbons, Considera­tion. how in an account between them, the Defendant was found in Arrerages, and in consideration that the Plaintif differreret deem solutionis debiti praedicti per parvum tempus, the Defendant did assume to pay it, and upon Non assumpsit pleaded, it was found with the Plaintif, and it was alleged in arrest of judge­ment, that this was no consideration. And the opinion of the whole Court (Absente Anderson) was, that insomuch as the Proviso was made by him by whom the debt was due, that it is a good considera­tion, and that it is a common course in Actions upon the case a­gainst him by whom the debt is due, to declare without any words in consideratione. And allthough that Gawdy moved that parvum tem­pus may be three or four hours, or dayes, which is no consideration, yet for the cause alleged, the Court sayd that they saw no cause to stay judgement.

7.

AN Action upon the case was brought for these words,Scandal. Thou dost harbour and maintain Rebels and Traitors; and the issue was found for the Plaintif, and the judgement was entred by the Preg­notary; yet notwithstanding Walmisley moved the Court to have re­gard unto it, for the Action was not maintainable; for if a man ke [...]p Theeves, and do not know them to be Theeves, he is in no fault, and an Action for these words will not lye, and the Plaintif hath not averred that the Defendant sayd that the Plaintif knew them to be Traytors.

The Action in the Kings-bench was, that the Plaintif kept Theeves; and there if there be no such averment, the Action is not maintainable,Maintain. but here is the word Maintain, and that word implyeth a thing prohibited, and therefore not sufferable, and therefore I think the Action is maintainable, and by the opinion of VVindham, Peryam, and Rodes the Action was well brought (Ander­son absente propter agritudinem.)

8.

AN Action upon the case was brought by Richard Body against A. Considerati­on. and declared that whereas Kary Raleigh was indebted to Body in 14l. and the said A. was indebted to Raleigh in 50l. in con­sideration that the said K. R. allocavit eidem A. 14l. & promisit ei ad exonerandum e [...]ndem A. de 14l. parcell praedict. 50l. the Defendant did assume to pay to the said Plaintif the said 14l. and the Court was moved if this were a good consideration to bind the Defendant, And the opinion of all the Court (Anderson absente) was, that the Consideration was good, for that he was discharged of so much a­gainst Raleigh, and Raleigh might also plead payment of the 14l. by the hands of the Defendant.

9

AN Action of Assault and Battery was brought,Assault. and the Defen­dant was condemned by nihil dicit, and a Writ to enquire of damages went forth, and then the Attourney of the Plaintif died, and another Attourney without Warrant prayed the second Judge­ment and Execution,Warrant. if this shall be error or no it was moved by Fenner; And the Court gave their opinion that if in an action after Judgment the Attourney dye, a new Attourney may pray Execu­tion without Warrant, but in this case because that he died before the second Judgement, it seemeth that he ought to have a Warrant of Attourney, for the first Judgment is no finall Judgement. And the Pregnotaries said, that if after the first Judgement one of the parties had died, the Writ should abate, quod fuit concessum per curi­am. And also Fenner moved that this shall not be within the in­tent of the Statute of Jeofayles which speaketh of Verdic [...],Verdict. for this shall not be said a Verdict; whereto the Court agreed, for a Ver­dict is that which is put in issue by the joyning of the parties.

10

A Woman brought an action,Covenant. and she Covenanteth that she shall not do any act, to repeal, to discontinue, to be nonsuit, or countermand this action, and hanging the Writ, she takes a hus­band, whereby the Writ abateth. Now Fenner moved if she had bro­ken the Covenant.

If one be bound that he shall not attorn and he make an Attornment in Law,Attornment. the Obligation is for­feit without question.Assignment.

If I be bound not to make in Assig [...] ­ment of such a thing, and I devise it by my will, this is a forfeiture, as it is in 31. H. 8.

there is a case in Long 5. E. 4. If one be bound [Page 50] to appear at the Sessions, &c. and. I am to make a plea in this case, and I would know your opinions.

You may plead ac­cording to the truth of your cause, for that shall not change the Law, therefore plead what you list.

11.

DEbt was brought upon an Obligation,Condition. the Condition was to perform Articles contained in an Indenture, and one Article was, that the Defendant Sir William Drury should plead the generall Issue, or a [...]issuable Plea, or such a Plea in quo staret aut persisteret, within seven dayes next ensuing. The Defendant sayd that he plead­ed such a Plea, and shewed what, and averred that it was sufficient, and issuable within seven dayes. The Plaintif demanded judgement if to this Plea he shall be received, for he appeared in Michaelmas Term, in which he ought to have pleaded, and took imperlance o­ver unto Hill. Term, And Fenner shewed, that in truth an issuable Plea was pleaded, and drawn in paper in Mich. Term, and the Plain­tif replyed, and the Defendant rejoyned, and the Plaintif surrejoyn­ed, and the [...] by ass [...]t in Hill▪ Term all this was waved, and an im­perlance of the other Term entered forfear of a discontinuance; and now he would have the Obligation of five hundred pound forfeited by this. And the opinion of the Court (Anderson absente) was, that the Obligation [...] was forfeit, for the Plea ought to have been entred of Record [...] [...] be bound in an Obligation to appear here at a certain day,Appearance entred. allthough he do appear at the same day, yet if his ap­pearance be not entred upon Record, his Obligation is forfeit.

If the Plaintif deny that he did not plead a sufficient Plea, this shall be trued by the Record, and how can that be, when it is not entred of Record▪ But the Court sayd further, that it was hard that he should have the forfeiture; and sayd that there was great neg­ligence, and oversight in the matter.

You may plead all this matter specially, and how by his assent the Plea was waved, and peradventure his assent (if any thing) will help you.

12.

PArtition was brought between Coparceners,Estrepment. and hanging the Writ the Tenant made Wast, and Gawdy moved the Court for a Writ of Estrepment.

Where you are to disprove the interest of the Tenant, Estrepment will lye, but here you confess an equall interest in him, how then can you have it?

Whereunto VVindham a­greed; and after it was shewen how they were Tenants in common, whereby his motion was at an end.

13.

NOte that in the Starchamber this.Perjury. Term it was over- [...]uled by the Lords, that if in an Action at the Common Law, a man wage his Law, allthough that he make a false Oath, yet he shall not therefore be impeached by Bill in the Starchamber; and the reason was, because it is as strong as a Tryall. And the Lord Chancellor demanded of the Judges, if he were discharged of the debt by wa­ging of his Law, and they answered, yea. But [...] said, that it was the folly of the Plaintif, because that he may [...] his Action into an Action of the case upon an Assumpsit, wh [...] in [...] Defendant cannot wage his Law.

14.

AT another day in the Starchamber between Hurlestom and Glaseour, Conspiracy. it was over-ruled by the Lords, that if a Jury at the Common Law give their verdict,Perjury, allthough that they make a false Oath, yet they shall not therefore be impeached by Bill in the Star­chamber: But if any collaterall corruption be alleged in them, as that they took Money, or Bribes, a Bill shall lye thereof well enough. And allso in the same case it was ruled, that where Glaseour had brought a Bill of Conspirary against Harlestone, and others, and di­vers of the▪ Jury, for that they had indicted him of Perjury, that before the Indictment be traversed, or otherwise avoyded by Error, he cannot have a Bill of Conspiracy, because this shall quash the tryal at the▪ Common Law, and shall prevent it. And allso before a man be acquitted, a Writ of Conspiracy doth not lye for him by the Law.

1.

THe Quare impedit brought by Specot and his Wife was moved again by Gawdy, Quare imp. and it seemed to him, that be­cause the Bishop did not shew in what thing he was a Schismatick, the Plea was therefore uncertain, and so insufficient, and he cited 33 Edw. 3. 2. & 9 Eliz. Dyer 254 b.

If he had certainly shewed in what thing he was Schismaticus inveteratus ut ea occasione inidoneus sit & inhabilis, &c. This had been a good Plea without doubt, but as it is here, sure it is no Plea; for it is even as if he had sayd, that he was criminosus,

whereunto all the other Judges agreed.

All that I doubt is, whether this be helped by the Statute of Demurrers 27 Eliz. For otherwise the Plea is insufficient without doubt.

The Sta­tute helpeth onely matters of form, and this is the substance of his Plea, that he is a Schismatick.

Allthough it be the sub­stance of his Plea, yet it is but form to plead it certainly. And if one demur generally to a double Plea,Double plea. it is not good at this day, and so here.

And so was the opinion of Peryam, and the other Justices by their silence seemed to agree thereunto, yet they gave day to the Serjeants to argue this matter. And Peryam sayd that he would help the Plaintif in the best sort that the Law would suffer him; for the Bishops are grown so presumptuous at this day, that they will make question of all the patronages in the Realm, and if it be against their pleasure, none shall have his Presentation. And allso now Anderson was agreed that the Action was well brought in the name of the Husband and Wife, allthough he had once moved to the contrary. Allso in this case it was moved,Demurrer is a confession but of things suffici­ently alleged. that by the Demurrer it shall be confessed, that the Plaintif Clerk was a Schismatick: Whereunto Anderson said, that if a thing be sufficiently alleged, it is confessed by the Demurrer, but otherwise not.

2.

A Replevin was brought by Brode against Hendy, Replevin. of his own wrong. the Defendant made Conusance as Baylif to the Queen for Rent behind, wher­unto the Plaintif sayd, De son tort demeasne sans tiel cause, and the [Page 53] Court was moved whether this be a good Plea, and by the opinion of three Judges it is no Plea in a Replevin (Anderson absente) but in Trespass it is good, notwithstanding that it was objected at the Bar, that there is a diversity in our books taken, that when the Action is brought against the Baylif, there it shall be a good Plea, but not a­gainst the Master. But the Court over-ruled it; for in a Replevin he ought to make a title.

3.

THe Queen brought a Quare impedit against the Bishop and The­mas Leigh Incumbent,Discontinu­ance. and they both pleaded severally speciall Plea [...], and so it depended, whereupon Fenner shewed the Court that the Queen did not prosecute the Suit, but let it depend still, and therefore he prayed that she might be called Nonsuit: But all the Court,The Queen can­not be Nonsuit. and the Pregnotaries said, that the Queen cannot be Nonsuit.

Shall we then which are Defendants always be delayd?

After a year passed you may have it discontinued, but she shall not be Nonsuit. And in the case of a common person the Plaintif may discontinue it within a year, but the▪ Defendant cannot discontinue it untill after a year.

4.

WAlmisley moved for Judgement in the case of Kimpton. Common ex­tinct by pur­chase.

We have given Judgement allready.

No, Sir, I have not heard of it:

What is the case?

The case is this; a man was seised of a 140 acres of land, and had Common appurtenant to them in 46 acres of land, and the 46 acres of land were in the occupation of severall men, viz. two in the occupation of A. and the rest in the occupation of B. and he which had Common purchased the sayd two acres, now if this entire Common be ex­tinct or no, so that they which were Tenants of the residue of the 46. acres shall take advantage thereby was the question. And all the Justices sayd that they were agreed of this case long agoe. For all­though that the acres be severall, and in severall occupations, yet the Common concerning that is intire, and so by purchase of parcell it is extinct.

Surely I have noted my book that Judgement is given, and so I supposed that it had been.

5.

SHuttelworth moved that whether a Lease is made to a man o [...] his own Land by Deed indented,Estopple. this is an Estopple, whereto the [Page 54] Court agreed. But VVindham and Peryam sayd, ‘if the Lease be made for life by Indenture,Liv [...]ry. that yet this shall be no Estopple, because the Lease takes effect by the Livery, and not by the Deed;’ but Rodes did not fully assent to that; Anderson was absent in the Sta [...] chamber.

6.

DEbt was brought by Lassels upon an Obligation,Hill. 1 [...] Eliz. tot. 1 511. with condition, that if the Defendant did personally appear in the Kings-bench such day,Stat. 23▪ Hen. 6 that then &c. the Defendant pleaded the Statute of 23 H. 6. & said that he was taken by the Plaintif being Sherif then, by force of a Latitat, and that the Bond was not made according to the Statute: For being made for his deliverance, this word (personally) was in­serted in the condition more than is in the Statute. And it seemed by three Justices (Anderson absente) that if it were in such an Action where a man may appear by Attourney, that then it shall be voyd; but now the question is whether the party ought to appear in pro­per person by force of a Latitat or no; And some said yea, and some said no. And the Plaintif shewed a Judgement given in the Kings bench for Sackford against Cutt. where Cutt. was taken by a Latitat, and made such an Obligation as this is for his deliverance, Sackford being Ballivus sanct. Etheldred [...]e in Suff. and adjudged for the Plaintif that the Obligation was good. And this was in the Kings-bench, Mic. 27 & 28 Eliz. Rot. 575. but Peryam doubted of that judgement; for peradventure he might appear by Attourney; Ideo quare; for that was the reason of the judgement given in the Kings-bench, as it was sayd, because he could not appear but in proper person.

7.

AN Action of Trover was brought for Goods,Jeofayle. and the Defen­dant pleaded a bargain and sale in open Market, thereupon they were at issue, and found for the Plaintif; and now the Defendant spake in arrest of judgement, because the Plaintif had shewed no place of conversion;No place of conversion. yet notwithstanding by the opinion of the Court the Plaintif shall have his judgement by the Statute.

If in Debt upon an Obligation he doe not shew the place,36 El. rot. 266. yet if the De­fendant plead a collaterall bar, as a release, or such like, judgement shall be given for the Plaintif notwithstanding, by the Statute, if it be found for him by Verdict.

8.

THe case of Beverley was moved again at this day,Utlary. how the Queen had brought a Scire facias against him, to shew wherefore she should not have the Presentation.

It seemeth that she shall not have the Presentation; for allthough we have recovered our Presentation,Disseiser out­lawed. yet before execution we have but a right. As if a man be disseised, and after outlawed, he shall not forfeit the profits of the land. And allso she hath brought a Scire facias, and this will not lie, except for him which is party, or privy.

After that you have recovered, it is a chattle, and then forfeited by the Utlary.

The judgment that he shall recover, doth not remove the Incumbent, and as long as he remains Incumbent, the Plaintif hath nothing but a right.

Then Peryam sayd to Walmisley, ‘argue to that point, whether he hath but a right or no, but for the other point, that she shall not have a Scire facias, for want of privity, that is no reason,Recoverer in debt outlawed. for in many cases, she shall have a Scire facias upon a Re­cord between strangers.’

If I recover in debt, and after am Outlawed,Recovery in quare impedit. shall the Queen have this debt?

If I reco­ver in a Quare impedit, and dye, who shall have the presentation, my Executor or my Heir?

Sed nemo respondit.

It is a new, and a rare case, and therefore it is good to be advised:

Whatshall we in the mean time plead in bar to the Scire facias?

Demur in Law if you hold the matter insufficient.

Sowe will.

9.

ONe Combford was robbed within the Hundred of▪ Offlay in Staf­ford-shire, Hue & Cry. and he and his servant pursued the Felons into ano­ther County, and there one of the Felons was taken, and the Hun­dreds did nothing. And now Puckering moved that he might have an Action against the Hundred,Plaintif a Hundreder. allthough that he himself was re­siant within the same Hundred;Hue and Cry by strangers. but the opinion of the Court was against him; for they sayd that if a stranger make Hue and Cry, so that the Felons be taken, the Hundreds are discharged. Ano­ther question he moved, because that but one of the Felons was taken.Qua [...]re. But qu [...]re what was sayd to that; for I heard not.

10.

FRancis Ashpool brought an Action against the Hundred of Even­ger in Hampshire, Hue & Cry. for that he was robbed there. And the Jury [Page 56] found a speciall Verdict, viz. that he was robbed after the setting of the Sun, & per diurnam lucem, and that afterwards the same night he came to Andever, which is in another Hundred, and there gave no­tice of the robbery, and the morning following, the men of Andever came into the Hundred of Evenger, and there made Hue and cry about ten a clock in the morning, and that there were many Towns nearer to the place where he was robbed than Andever was, and allso with­in the same Hundred of Evenger, and that the Melafacters escaped, 1 and they prayed the advise of the Court. Now this matter rested on two points,Robbery after Sunset. the first was, if he which is robbed after the Sun-set, shall have the benefit of the Statute, and the other was, if he had made 2 Hue and cry accordingly,Hue and cry or whether any Hue and cry be needfull. And Walmisley argued that he which is robbed after the Sun-set, shall be helped by the Statute, for they are bound to keep watches in their Towns to take night-walkers. And to the second he said, that the Statute doth not speak of any Hue and cry, but only recens insecutio, and that ought to be done by the Hundreders.

to the contrary;No distcess.

and that it ought to be in the day, and cited Stamf. fol. 35. and after the Sun-set it cannot be said to be day. For the Lord cannot then distreyn for his Rent per 11 Hen. 7. 4. nor demand Rent, for he is not bound to be there after the Sun-set, and he vouch­ed Fitz. titulo core. 302. but at this time the Judges seemed to hold for the Plaintif.

The Countries are bound by the Statute to keep their Country in such sort, so that men may safely travell upon their way.

So that at this time the Court held that he should be aided by the Statute, and also that no Hue and cry was ne­cessary or convenient to be made by the party, but they were not resolved, and therefore they gave a day to have it argued again.

11.

AN Action upon the case was brought for these words,Normans case. thou wouldest have stoln a piece of cloth, or else thou wouldest have delive­red it to my Wifes Daughter, and thou art a thief and an arrant thief, and I will prove it, and upon not guilty pleaded, it was found for the Plaintif. And the Defendant spoke in arrest of Judgement, because the former words proved but onely an Intent,Words. which was no Flony, and the last words shall be referred thereunto, and therefore the Acti­on not maintenable. But now Shuttleworth moved for Judgement for the Plaintif, because the last words are sufficient by themselves, and shall not be referred to the former, because they were spoken ab­solutely by themselves, and so was the opinion of three Justices (An­derson absente)

Otherwise it is if the words had been,Therefore. and therefore thou art a thief.

12.

SAmuell Hayles brought an Action of debt upon an Obligation, the Condition was, that if the Defendant did pay to the Plaintif 40. l. within twenty dayes after the retourn of one Russell into England from the City of Venice in the parts beyond the Seas, that then, &c. and the Defendant pleaded in Bar, that Russell was not at the City of Venice, whereupon the Plaintif demurred in Law, and at this day the Record was read and clearly per 3. Justices (Anderson absente) it is no good Plea. For in such cases, where parcell is to be done within the Realm, and parcell without the Realm, they ought to plead such a Plea as is triable in this Realm, and therefore they commanded the Serjeant to move for Judgement when Anderson was present, and so he did the last day of the Term, and Judgement was given for the Plaintif by all the Court.

13.

IN Trespass by Moor against Hills, Attornment the Defendant pleaded that the Dean and Chapter of Westminster, made a Lease t [...] one Payn, who, made Leases out of it, first to A. for certain years rendring Rent­and after the end of that Lease, then to B. rendring Rent; and after­wards sold all the entire interest to the Defendant, to whom the second Lessee (which had no possession) Attorned;Possession. And the Plaintif moved that he might plead a better Attornment, for this is not good, because it is no Attornment. And so was the opinion of the Court, and therefore they gave him day to amend his Plea, or else let a De­murrer be entred.

14.

VPon a wager of Law,Payment by estranger. it was said by Anderson, that ‘if I am bound to you to pay you a certain sum of money, and a stranger deliver you a Horse by my assent, for the same debt, this is no satisfacti­on. So if I be indebted upon a simple contract, and a stranger make an Obligation for this debt, the Debtor cannot wage his Law, for this doth not determine the Contract.’ Et nullut dedixit.

15.

BEtween Peirce and Davy this was the case.Legacie. A man covenants with I. S. to pay to A. B. and C. every of them x. l. at the age of twenty four years, and makes an Obligation to perform the Cove­nant; And afterwards makes his Will in this sort. ‘Item, I will that every one of my Wifes Children, viz. A. B. and C. shall have every of them x. l. at their severall ages of 21 years, in performance of my Bond and Covenant, in that behalf made at the time of my Mariage, and not otherwise, and dyeth.’ Then A. B. and C. sued in the spirit­tuall Court,Prohibition. for these Legacies, and Peirce brought a Prohibition, and they prayed a consultation, and the Court seemed to encline to their demand, because they were all strangers to the Covenant, but yet they would not absolutely grant it; And afterwards in Termino Pasch. 30. it was moved again, and then the Court doubted, because it was not given as a Legacy, allthough that it was payable before, for that it was given in performance of the Covenant, and not other­wise, and Anderson and Rodes said precisely that a consultation should not be granted, sed alii haesitabant. But yet they all thought it good reason and conscience that it should be payd, wherefore they com­pounded the matter, and gave day to Peirce to pay the money, and 2 pound 8 pence, to them which had sued in the Spirituall Court for their costs. The same Testator allso devised diverse summs of money to his Wife, to pay to the said A. B. and C. in performance of his Covenant, who had the money accordingly. And in debt brought upon the Obligation for the same Covenant the Executor pleaded plene administr▪ [...]. and upon the Evidence all this matter appeared, and the opinion of the Court in the Exchequor was, that it shall be assetz. and so adjudged there.

16.

BUrnell of Shrewsbery was robbed in Buckinghamshire, Hue and cry. and thereup­on he brought his Action against the Hundred, who pleaded not guilty, and the Jury found a speciall Verdict, viz. that he was rob­ed the day and year specified in the Declaration, but in another place within an other Parish than he had alleged, but they found allso that both the Parishes were within the same Hundred, and thereupon they prayed the advise of the Court. And three Justices (Anderson being in the Starchamber) held clearly that the Plaintif shall have Judgement, and they said, that so was the opinion of my Lord An­derson allso, for it is not materiall within what Parish he is robbed, so that it be within the same Hundred.

17.

RIchard Hamington Administr. of the goods and Chattels of Isa­bell Oram brought an Action of debt against James Richards and Mary his Wife,Future charge by possibility. Administraterix of the goods and Chattells of Lau­rence Kydwelly, upon a bond for performance of covenants, and the case was such. Tenant for 31 one years deviseth to his Wife as long as she shall be sole and Widow, the occupation and Profits of his Term, and after her Widowhood expired all the Lease and interest to Reignold his Son, and dieth, and the Wife hath the Term by force of the Devise, and he in the Reversion by Indenture bearing date. quinto De­cemb. An. Mari [...] primo, did give and grant, bargain, and sell, all that his Tenement to the Wife and to her Heirs for ever. And also did covenant to make further assurance, and that at the making thereof, it should be discharged of all former Bargains, Sales, Titles, Rights, Joyn­tures, A Feoffment. to her and after also. Dowers, Morgages, Statutes Merch. Statutes Staple, intrusions, Forfeitures, Condemnations, Executions, Arrerages of Rents, and all other charges, (except Rents and Services which shall be due after, &c. to the chief Lord) And afterward he made and levyed a fine; And after the Wife maried, and then the Son entred, and the Admi­nistrator of the Wife brought debt upon the Obligation against the Administrators of him in Reversion, and averred that the Land at the time of the Feoffment was charged with the said Lease of 31 yeares.

It seemeth that Judgement shall be given for the Plaintif, because it was not discharged at the time of the Feoffment. For in the Commentaries a man Deviseth his Term to his Wife until his Son come to full age,Com. fo. 539. after at his full age the Son shall have it, so that there it was chargable to the Entry of the Son hereafter. And here allthough that it be not presently charged, yet when there is a charge arise, the Covenant is broken. And for that in 8 Eliz. a man bargains and sells Land,Rent charge future. and Covenants that it shall be discharged of all charges, and he had granted a Rent before to begin twenty years after, when the Rent begins it shall be said a breach. And this is not like the case in 3 Hen. 7. 12. b. Where Tenant in Tayl disseiseth the Tenant of the Land▪ &c. And so I think Judgement shall be given for the Plaintif.

to the contrary,

and here the Term was ex­tinct by the grant end sale, and then the Feoffment void, and therefore no charge, and thereupon no charge at the time of the Feoffment, and for that he cited 42 Ed. 3. & 11 Hen. 7. 20. where Tenant in Dow­er infeoffs the Heir without deed, &c. so here, in that she took no­thing by the Feoffment, there was no charge at the time of the Feoff­ment. And this possibility of a remainder doth not make an interest, and thereupon he cited 8 Ed. 3. 3. Fitz. resceipt 35,Resceit upon Cond. where Tenant for life lets the Land to one upon condition, that if he dye in the [Page 60] life of the Lessor, that it shall retourn to the Lessor, &c. upon such a matter he may be received, and he cited for that the case of Wheler, 14 Hen. [...]. fol. 17. and a title suspended is no title, 3 Hen. 7. 12. & 30 Ed. 3. Lease for life upon condition, that if the Rent be behind, then he shall retain the Land, &c. and he said that the opinion of B [...]omley in Fulmerstons case was contrary thereunto; but yet he said in 3 Eliz. he hath a report which was adjudged contrary to the opinion of Bromley. And allso he cited 50 Ed. 3. that a man shall not have the Rent and the Tenancy of the Land allso. And so it see­med to him that the Plaintif shall be barred.

18.

THE case of Fr. Ashpool was moved again by Fenner, Hue and cry. and it seemed to him that the Plaintif ought to make Hue and cry, for as he said it hath allwaies been the manner of pleading, and allso it hath been allwaies parcell of his issue to prove. Allso he argued that he should not have remedy by the Statute, post occasum solis; For Stam­ford saith expresly, that if a man be robbed in the day, that he shall have remedy, and the day shall be said but from the rising of the Sun to the fall thereof, for the words of the Statute are, that the Gates of the walled Towns shall be shut, ab occasu us (que) ad ortum so­lis, and then if the Gates be shut, and that walled Town be within a Hundred, how can they make Hue and cry? And the case in 3 Ed. 3. is not like to this case,Fresh suit by the Hundred­ers. for there it was enquired and found of the Dozen.

The fresh suit mentioned in the Statute, ought to be made by the Inhabitants, and not by the parties, and I am of your opinion, that Hue and cry was at the Common Law, but what of that? But look the Statute, and there is no word of Hue and cry. And the Statute of 28 Ed. 3. is an exposition of that Statute, and there is no mention thereof, but Fresh suit is there mentioned, which ought to be made by the Inhabitants. And by those Statutes it seemeth clear­ly that the Inhabitants ought to guard the Country in such sort, as men may safely travell without robbing. And for the night, Sir, wee ought to construe it, as it is most reasonable, and about the setting of the Sun is the common time of robbing, and therefore if this shall not be intended by the Statute, nothing shall be intended; and all­though the walled Towns cannot persue,Walled Towns may keep the▪ waies. yet they may keep the waies so, that no robberies shall be committed, and this is both day and night as I think. And if a man be slain in the robbery so that no Hue and cry can be made, I doubt not but the Country shall answer for the robbery,A man is rob­bed slain and bound. and so if he be bound: And if Hue and Cry ought to be, when ought it to be? For if a man be bound two dayes together, he had as good make no Hue and cry, as make Hue and cry after­wards, [Page 61] and yet I hope you will agree that this man shall be relieved by the Statute; which case was agreed by all the Court.

The day without doubt is after the Sun-set.Day after Sun-set.

Rodes cited the case of waging Battail in an Appeal in Stamford. And so by agreement of all the Justices, Judgement was entred for the Plaintif; but Fenner sayd privately, that in his conscience it was against the Law; yet not­withstanding all the Judges were clear in opinion, and the Serjeants of the other part allso.

So that it seemed to the Judges, that no Hue and Cry is necessary by the party; for they all agreed that the Country ought to be kept so that no Robberies be committed. And Anderson and Rodes affirm­ed precisely, that it is not necessary, and the other agreed in the reason thereof, and sayd that it is not mentioned in the Statute, but sayd that the waies ought to be kept so that men may travell safely, or otherwise it is against the Statute.

19.

IN a Writ of False Judgement brought against the Mayor,Tryall. Sherifs, Citizens, and Commonalty of Norwich, it was moved where the Issue shall be tryed, and per Curiam it shall not be tryed there, but yet the Action may be used there. And in the same case it was de­manded, Summons. if the Sherif may summon himself, and the Court an­swered that he could not, and Peryam sayd that so it hath been ad­judged here many times.

20.

THe [...]ast day of the Term the matter of Lassels was moved again, and it seemed to Anderson that the Obligation is voyd, in that there is an express form limited by the Statute, and this varying from the form in substance, is voyd; for in his opinion he excludes the party from his advantage given him by the Statute. But all the other Justices held opinion against him; for they sayd, that a man ought to appear in proper person upon a Latitat, which Anderson denyed, and sayd that the Latitats are not but of threescore yeares continuance, which the other day Peryam had affirmed, and he seem­ed to mislike with the Latitats. And the Serjeant moved for their resolution in the case.

All my Brethren are of opinion against me, wherefore take your judgement accordingly. And so judgement was entred for the Plaintif.

21.

GAwon brought Debt upon an Obligation against White, Traverse. with condition that if the Defendant suffer the Plaintif his Tenants and Farmers to enjoy such a Common, that then, &c. And the De­fendant pleaded conditions performed, and the Plaintif assigned for breach, that he did not suffer A. B. his Tenant to enjoy, &c. Abs (que) hoc, that he performed the condition. And it was sayd by the Court, that this Traverse was not good, no more than if one be bound to perform the covenants in an Indenture, and the Defendant pleads that he hath performed all, generally, if the Plaintif assign his breach, he shall not say further, Abs (que) that the Defendant hath performed the covenants; for so much he had sayd before. But Walmisley would have put a difference between the cases, because in the one there were divers covenants to be performed, but not so here.

If a man plead a Plea which is sufficient of it self, and take a tra­verse allso, you will grant that this Plea is not good, quod fuit con­cessum, and this Plea had been sufficient of it self onely, quod fuit con­cessum, ergo the traverse was not good without question.

Et sic opinio totius Curiae.

22.

GOverstone brought a Replevin against B. Rent charge who avowed the taking for a Rent charge granted to him by the Duke of Suffolk, And this was the case, The Duke was seised of three parts of a Mannor, and granted a Rent charge to the Avowant; And one Pole was seised of the fourth part; and Hatcher purchased the Dukes three parts, and the part of Pole allso, and demised a fourth part to the Plaintif; but the Serjeants could not agree whether it was Poles fourth part, or otherwise the fourth part generally; and as it seemed to the Court, if it were the fourth part of Pole, then the Avowry is not maintain­able; but otherwise if it were the fourth part generally. And after in Michaelmas Term the case was rehearsed again, and it was that he demised eandem quartam partem to hold at will. And all the Justices agreed that it shall be discharged, because it was never charged, all­though once he might have distreined in all the Mannor;Ʋnion of pos­session. for that then there was no fourth part, for all was alike in the hands of the purchaser, but now when the fourth part is in the hands of a stranger, it is no reason that it shall be charged.

But the Tenant at will hath nothing but the profits by the way of taking,Tenant at wil. and not any land; but if Hatcher had made a Feoffment, then I agree that it shall be discharged.

And as well shall Tenant at will take the profits in his own right, as long as the will doth continue,

where­fore judgement was given for the Plaintif.

23.

LEssee for years,Wast. the reversion in fee to Constance Foster, and the Lessee granted over all his term and interest to A. B. Pasch. 18 El. reserving and excepting all trees growing in and upon the premisses,Rot. 420. the Lessee makes wast and destruction in the trees, and C. F. brought Wast against the assignee, and if this action will lye or no, was the question, wherein it was disputed, whether this exception and re­servation made by the Lessee be good or no; for if the reservation be voyd, then the action will lye well against the Assignee, and there­upon these cases were put, to shew both what interest the Lessor and Lessee have in the Trees, viz. 33 Hen. 8. 2 Hen. 7. 42 Ed. 3. 21 Hen. 6. 46. 27 Hen. 6. Wast in Slatham, & 2 Eliz. fol. Danseyes case, & 7 Hen. 6. & 12 Ed. 4. but to prove the reservation voyd Fenner took this ground, ‘That thing which a man cannot grant, he can­not reserve; and the Lessee cannot grant the Trees, ergo, he cannot reserve them.’ And afterwards judgment was given for the Plaintif, for default of pleading on the part of the Defendant; but for the matter in Law two Judges were against the other two, so that they could not agree.

1.

AN action of Debt was brought by Bret against Andrews upon an Obligation indorced with condition to stand to the arbitrement of A. B. Request. who did arbitrate that the Defendant should pay to the Plaintif xx [...]l and appoint­ed no certain day of payment; and the Defendant in pleading confessed the arbitrement; but he sayd further, that the Plaintif did never require him to pay it, and thereupon the Plaintif demurred in Law, and upon reading of the Record, the Court held clearly, that it was no plea, because the Defendant at his peril ought to make payment within convenient time, and the Plaintif needeth not to make any request. And Anderson commanded to enter judg­ment accordingly.

2.

FEnner moved this case,Possibility of Interest. a man deviseth lands to his Wife for term of her life, and if she live untill his sonne come to the age of 24 yeares, that then he shall have the lands; and if she dye before he come to that age, that then I. S. shall have it, untill his sonne come to that age, and dyed; then I. S. dyed before the wife, and after she dyed before the sonne came to 24 years, if the Executors of I. S. shall have the land untill the sonne come to that age or no, was the question. And the opinion of all the Court was, that they shall not have it, because their Testator had never any interest vested in him.

But here was a possiblity of an interest.

But that is not sufficient.

Rodes cited the case of Bret and Rigden in the Com­mentaries. Grant.

If I grant you, that if you pay me xxl. at Easter, then you shall have an Annuity of xl s. to you and your heirs, if you dye before Easter, now your Heir shall never have it, and so in this case.

3.

THatcher recovered in an Assise of Novel disseisin against Elmer for Lands in Hackney in Middlesex, Redisseisin. and after Elmer re-disseised him, and Thatcher re-entred, and Elmer disseised him again. And Fleetwood moved the Court if Thatcher may have re-disseisin, be­cause that after action accrued to him he had re-entred.

What is the Judgement in this Action?Judgement. Surely it is not that he shall recover any land, but double damages, and that the Defendant shall be taken, and shall make a Fine; wherefore forasmuch as he shall recover no land, the entry into the land cannot purge the offence and wrong, which is made punishable by the Statute; and so was the opi­nion of the whole Court.

And the Court then held opinion like­wise, that if a man be disseised, and after re-enters, and is disseised again,Assise. that he ought to have an Assise of the last entry, and not of the first, 27 Ass. pl. 42.

4.

ONe Powell was sued in the Common-Pleas,Privilege. and as he was com­ing to Westminster, he was arrested in London, and thereupon had a common Writ of Privilege surmising that he was coming to re­tain Counsell; and Walmisley prayed that he might be examined whether he did so or no, but the Court would not.

It is no reason that if he be going about other matters he should have the privilege of this place.

A hundred Writs have been al­lowed [Page 65] without any examination.

In 10 Hen. 6. & 4 Hen. 7. such an examination was made.

But that was not de rigore Juris,

and all the Court refused utterly to examine him. But Walmisley sayd privily, that it was against the Law.

5.

DOrothy Millington brought Debt against J. Burges for 9 l. and declared that he bought certain Oad;Wager of Law. and the truth of the case was, this Oad was sold to him upon condition, that if she did not prove it to be good and sufficient, then he should pay no­thing for it, and all this was disclosed by the Defendant upon his Wager of Law.Detinue.

If the case be so, then you may wage your Law,

and it was sayd, that she must have detinue for the Oad.

6.

IN an Avowry made by the Lady Rogers, Title in a­vowry. it was sayd by the Court (Anderson absente) that it is sufficient for the Avowant to plead his Freehold, but if the Plaintif will traverse the same, he ought to make himself a title. Nelson Pronotary, so are all our Presidents.

It is not sufficient to make it of his own seisin, but he must make it Paramount his own seisin.

7.

WAlmisley moved for Judgement in the case of Richard Han­ington for the Plaintif. For he sayd that it was not clearly discharged, because of the possibility of the charge ensuing, allthough the charge were not then presently executed; in proof whereof, he sayd that it is not all gone by the acceptance of the Feoffment, and then it is a bargain, for a Lease for years is a bargain; for there he hath quid pro quo. Allso it is a Title, as in Nichols case in the Com­mentaries: And then allthough he had nothing which he could re­lease, because it was casuall whether it shall happen or no, yet now when it happens it is a charge ab initio, and thereupon he cited 9 H. 6. where one which had nothing but a possibility may maintain. And so where a man makes a Feoffment, and covenants that it shall be discharged, as here; and afterwards his Wife recovers her Dow­er, the Covenant is broken, and yet it was but a possibility. And 8 Eliz. where a man covenants that it shall be discharged, and he had granted a Rent charge to begin twenty years after, this was not dis­charged. Fenner argued to the contrary for the reasons moved by [Page 66] him before.

Here allthough it be no charge at the time of the Feoffment, yet it is not discharged; for if it were discharged, then it shall never be charged afterwards.

And so was the opinion of all the Court (Anderson absente) and after at the end of the Term when Anderson was present they were all agreed that it was an in­cumbrance, and not discharged of the incumbrance, and therefore they gave Judgement for the Plaintif.

8.

IN Avowry by Johns of Surrey Esquire,Tenure. it was sayd by Anderson for Law, that if a man before the Statute of quia emptores terra­rum, makes a gift, and reserveth to himself upon every alienation the value of the Land by a year, this shall be adjudged according to the value of the Land at the time of the tenure, and not that where­unto it is enhau [...]ced at this day, for a tenure ought to be certain when it is made.

9.

[...]Aven brought Debt upon an Obligation against Stockdale who pleaded non est factum, Statute 23 H. 6 and the Jury in Norfolk found this spe­cially Verdict, that the Defendant was sued by the Plaintif, and made a Bond to the Plaintif endorced with Condition, that if the sayd S. did personally appear in the Queens Majesties Court called the Kings bench, and then and there make answer to such matter as the Plaintif should object against him, the sayd Plaintif giving him war­ning, that then, &c. And the Plaintif was neither Sherif nor Sherifs Officer, for the pretence of the Defendant was to avoyd it by the Statute of 23 Hen. 6. And now the Plaintif prayed Judgement.

The case is no more than this; A man is bound to another to appear at his suit in the Kings-bench, and doth not so, if this Obligation shall be avoyded, and I see no colour to avoyd it; for it is not within the Statute,

and all the Judges agreed clearly, that it is not within the Statute, and therefore they gave Judgement for the Plaintif.

10.

BLosse brought Trespass vi & armis against Halmon for taking of his Goods,Possession. the Defendant pleaded not guilty, and the Jury found a speciall Verdict, that the Plaintif at the time of the Tres­pass supposed was of the Mystery of the Grocers, and that the Defen­dant was his servant, and put in trust to sell res & mercandisas de­tempore [Page 67] in tempus in shopa sua existen. and he took those goods and carried them away, &c. and they prayed the advise of the Court. The doubt was because the action was vi & armis, whereas the De­fendant had the custody, or if this shallbe called a custody. Shuttle­worth for the Plaintif, and he cited the case in Littleton fol. 15. if I deliver my sheep to compost your land,Sheep. and you kill them, I shall have trespass, whereto the Justices agreed, and held clearly that he shall have this action well enough.Auctority.

he hath but an au­ctority only, and not any custody or possession. v. 2. E. 4. 22. 2 E4. 8. 22 E. 4. 5. 13 E. 4. 9. Tenant at will ought not to cut down trees nor abate. 3. H. 7. 12. 21 H. 7. 14. the case of Butler.

11.

TRespass by Foster against Pretty and his wife,Title. who justified that I was seised and made a lease to them for yeares, &c. the Plain­tif replied de son tort demeasne, Abs (que) hoc that he leased,&c.

Will you take a Traverse and not make your self a title?

with­out question you ought to make your self a title, otherwise it is if the Defendant claym a Common, or such like, and no possession of the land.

11.

BRet Plaintif against Shepheard, Appara [...]ce. the Condition of the Obligati­on was to appear at his Suit in the Kings-bench, and upon Condition performed pleaded,Triall by the Record. the issue was found for the Plaintif. And now he spake in arrest of judgement, for that the triall ought to have been by the Record, and not by the Country. And so was the opinion of the Court. But Radford Pregnotary said that the triall was good enough, for it may be that he appeared there, and yet there is no Record made thereof; to whom it was answered, that then it is no appearance if it be not recorded; and Radford re­plied, suppose that there is not any such suit there? how then can it be recorded? but the rule of the Court was ut supra, for then the Obligation seemeth to be single.

13.

THe case of Calgate against Blyth was now again argued by Flete­wood for the Plaintif. And first he said that the limitation by the Wife is not good, for which he took this ground, that alwaies when a man shall gain a fee simple by matter of conclusion of Record, that he shallbe seised to his own use, And here the Husband had a [Page 68] fee by conclusion by the fine, and therefore his limitation good on­ly. Carill. And there upon he put a case reported by Carill, who was a grave man,Fine levied and very learned in the law. That if Husband and Wife levy a fine to B. who rendereth to them again for life, the reversion shall remain in the Conisor to his own use, Also he put another case put by Baldwin in the time of H. 8.Grant of all Estate. that a man seised in right of his Wife grants totum statum suum to another, the grantee shall have it no longer than during the life of the Husband if his Wife overlive him, but if she have issue by him, then he shall have it du­ring the life of the Husband absolutely.Fine. And if two tenants in com­mon in [...]eoff B. Fe [...]ff [...]ent. in see to their use, they are then tenants in common of this use,Diff [...]n [...] per Tenants [...]n common. but if they levy a fine to B. to their use, then they are Joyn­tenants. And in Queen Maries time a parson of a Church, by licence of his patron and ordinary levied,fi Parson levies a F [...]e. a fine of a portion of his Rectory, and it was adjudged that it shallbe to his own use in his naturall capacity;Bishops. the same law is if a Bishop levy a fine, and he cited 1 [...]. H. 4. 1. the first case, and so he prayed judgment for the plaintif. Anderson chief justice rehearsed the case, and first he said that the Wife with­out her Husband cannot limit the use without doubt, And here the case is no more, but whether the husband may limit the use without the privity of his Wife, and I think it a strong case that he cannot.Notice of a use. If Husband and Wife have an use, and they grant it over to one who hath notice of the Use, this shallbe to the use of the Wife again;What a use is. and he defined an Use to be an intent and trust to convey lands, and cited 6. H. 7. and that when the interest of the inheri­tance is in the Wife,Fine. if Husband and Wife levy a fine, this shall be to to the use of the Wife, for the use ariseth out of them which give the land, and not by the Conises or Feoffees, for they neither grant nor give the use,Feoffment by he Husband a­lone. and then it shalbe to the use of the Wife again. But if the Husband alone make a Feoffment, this shall be to his own use, and the Wife after his death shall be driven to her action. And if the wife had been privy or assenting to the limitation,Assent without naming. although she had not been named, yet it should be a good limitation, but the Jury have found that she was not privy; And a case was here ad­judged, Indenture after a fine levied. that where a fine was levied, and the limitation made after by Indenture, that this shall be to the use of the Indenture, if there be no other against it; but in this case it is found expresly by the Jury, that shee never agreed, which doth impugn that which o­therwise should be intended; then now the case is no otherwise but that a fine is levyed, and no use is limited, but if the fine had been levied,Silence is an a­greem [...]ni. & the Husband only limited the use, and nothing els had been done against it, then it should have been to the use limited by the Husband, because it should have been intended that the Wife had consented thereunto, and so I think judgment shalbe gi­ven [Page 69] against the Plaintif.

I am of the same opinion, and it seemeth that their difference and disagreement in the limita­tion is the cause that both the limitations are void. First let us see who hath auctority to limit the use? surely the principall owner of the land hath the principall auctority to limit the use, and here the Wife is the principall owner,What a use is. and therefore hath chief power to dispose of the use; And, Sr. the use is the chief profit and commodity of the land, and cannot be severed from the land, no more than the shadow from the body, and this was the reason of the Statute of 27. H. 8. which draweth the possession to the use, and not the use to the possession, for the use is the principall, for by the com­mon law by bargain & sale enrolled the land shall pass without livery,Bargain and sale. for this was a contract for the use, and then the law shall make the land to pass,The Law erects. the use. and whithersoever the use is now carried, the land and possession shall follow, but when the Law carrieth the use, it is to the owner and proprietary of the Land.The mothers heir. For if a man seised of Lands on the part of his Mother, levy a fine thereof, the use shall pass according as the land shall, because the law carrieth the use. And here the Wife cannot limit the use without her Husband, and therefore that is void, but yet it is good to this intent, to shew her disagreement.Silence Consent And if the Husband limit the use, and she doth not disagree, the law intendeth that she consenteth thereunto, because she hath joined in the fine.Sale in London by Husband and Wife. And therefore in London, sale of the lands of the Wife by deed enrolled by the Husband only is good if she assent, or if she do not disagree. And although that she shall not be examined concerning the use, yet the Law will not have her defrau­ded of her land by joyning in the fine, without her consent to the use; for by that meanes every Wife may be defrauded of her land by joyning in a fine, which were a great inconvenience, and con­trary to this ground in Law, that the Husband cannot dispose of the Wifes lands without her consent. And although that if the Wife had not shewed her agreement or disagreement, then it should have been to the use limitted by the Husband, yet here she hath shewed an express disassent, and so by their variance, both their declarations are void,Quare impedit. as in a Quare impedit by two, if both make severall titles, both shallbe barred, and so judgment shallbe given against the Plaintif.No Ʋse limit­ed.

to the same intent. First it is a plain case that if a Husband and Wife levie a fine and limit no use, then the use is to them as the land was before,Ʋse what it is. for the use is the profit of the land, and the Wife alone cannot limit the use, for du­ring the coverture she hath submitted her will to the will of her Husband.Silence. And if they both levie a fine, and he onely by Indenture limits uses,Limitation af­ter fine. if she do nothing, then his limitation is good, and the case of Vavisour adjudged here that a limitation after the fine is [Page 70] good. And here the Husband hath limited the use to himself for life;Who shall limit uses. and afterwards they both agree in the limitation, now if the residue in which they agree shall be good? I will shew my opi­nion therein likewise, because that also may come in question here­after. And I think that this shall not bind the inheritance, for it is a ground in Law, that limiters of uses shallbe such as have power interest and auctority of the land, and no further; As if Tenant for life and he in reversion joyn in a fine,Fine. Tenant for life shall limit but for his life, but here by the death of the Wife the ability of the Husband is gone, for he had no issue by her, and therefore his use shall bee gone allso, for otherwise it should be a great inconvenience; but if they had joyned in the limitation, then the inheritance of the Wife had been bound,Inheritance. shall be bound by agreement. and so it is if the Law can intend that she had agreed; And to say that the Conisees shall take it from the Husband and Wife, and therefore the Wife to be concluded, is but small reason, for she may confesse the Record well enough, as appeareth by the case of Eare and Snow in the Com. and no man can limit uses further than he hath the land, and here the limitation for the inheritance after the death of the wife cannot be good, and for their variance both are void. And so I think judgment shallbe given against the Plaintif. Rodes to the same intent, for the Jury hath found that the Wife did not agree, and this speciall finding shall avoid all other common intend­ments. Intendment. And the intendment of the party shall overthrow the in­tendment of the Law, and he cited Eare and Snowes case, where it was found that the wife had nothing. And he cannot limit uses farther than he hath estate in the land, and therefore judgment shall be given against the Plaintif.

then enter judgment accordingly.

14.

AN Action upon the statute of Hue and cry was brought against the hundred of Dunmow in Essex, Robbery in the night and the Jury found a spe­ciall verdict that the Plaintif was robbed about three a clock in morning before day light, and thereupon prayed the advise of the Court, And now all the Judges were agreed, that for because the Robbery was done in the night, and not in the day, therefore the Hundred shall not be charged, and they commanded to enter iudgment accordingly.

15

BEtween Cogan and Cogan the case was,Copulative. that the Defendant had sold certain land sowen with oad to the Plaintif, and that if any restraint shall be by proclamation or otherwise, that it should not be lawfull to the Plaintif to sow and make oad, then he should have certain mony back again, and after proclamation came that no man should sow oad within four miles of any market Town, or clothing Town, or City, or within eight miles of any Mansion House of the Queen, and the Plaintif shewed the Land was within foure miles of a Market Town, and because he did not averr that it was a Cloathing Town also, the Defendant demurred in law, And all the Judges held, that he had shewed sufficient cause of his Demurrer, for the mea­ning was to restrain by the proclamation aswell all manner of market Townes, as those market Townes which were clothing Townes. And after Puckering shewed that the restraint was onely from sowing oad, and not from making, and their Contract was that if any restraint should be from sowing and making, in the copu­lative, whereby he thought the Plaintif should be barred, quod Curia concessit.

16.

BEtween Cock and Baldwin the case was,Pas. 29. Eliz. that a lease was made for 21 yeares to one Tr [...]w penny and Elizabeth his wife,Rot. 1410. if he and shee,Copulative. or any child or children between them lawfully begotten, should live so long; And after they were married the wife died without issue; if the lease be thereby determined or no was the question? because it is in the conjunctive (he and she) and now one of them is dead without issue; and this case is not like Chapmans case in the Commentaries; where one covenants to infeoff B. and his heires, for there it is impossible to Emfeoff his heires as long as B. Lease to a for life shall live, and therefore there it shall bee taken in the disjuctive and the same Serjeant said that if A. Lease for life of 2 lets land to two for life, if one dye, the other shall have all by survivour, because they took it by way of interest;Difference. but if I let land to two to have and to hold for the lives of two other, if one of them dye, the lease is gone, quod fuit concessum, and here the lease shall be determined by the death of one, because so was the intent.

the meaning seemeth to be conrrary, for by the (or) which commeth afterward, it appea­reth that they should have their lives in it.

Anderson and Wyndham said that it appeareth by the disjunctive sentence which commeth afterward, that the intent was that the lease shall not be determined by the death of one of them, and the reason which moved [Page 72] the Lord Anderson to think so was, because the state was made be­fore the marriage, and so it is as a joynture to the wife, and therefore not determined by the death of the one.

And after they all gave judgment accordingly.

17.

WAlgrave brought trespass quare vi & armis against Somersetbeing Tenant at will,Trespass vi & armis a­gainst Te­nant at Will Wast. and the Defendant demurred in law whether such an action will lie against him or no, it was for cutting down of trees, And at this day Anderson rehearsed the case, and said that they were all agreed, that the action will lye well enough vi & armis, for otherwise he shall have no action, for wast is not maintainable, and Littleton saith that Trespass lyeth, & so seemeth the better opinion, in 2 E. 4. 33. for otherwise this being a common case, it shall be a common mischief; And he commanded the Pregnotary to enter judgement for the Plaintif.

18.

Snagg moved to stay Judgdment in the case of Blosse, Property. and he cited 2 Ed. 4. 4. If the servant of a Mercer take his goods, Trespass will not lie, (sed vide librum) and he cited 3 Hen. 7. 12. that it shall not be Felony in a Shepherd or a Butler.

If he had imbezeled the goods, it is Felony, and for the case of 3 Hen. 7. it is Felony without question,Property.

quod fuit concessum.

The servant hath neither generall nor speciall property in the goods,Taking Embezeling. and he shall have no Action of Trespass if they be taken away, and therefore if he take them,Difference. Trespass lieth against him, and if he imbezell them, it is Felo­ny,

wherefore he commanded to enter Judgement for the Plaintif.

19.

THomas Taire and Joane his Wife brought an Action of Wast a­gainst Pepyat, Pas. 25. Eliz. and declared how that the Defendant was seised in Fee,Rot. 602. and made a Feoffment to the use of himself for life,Wast. and after to the use of the Mother of Joane in Fee, who died, and it descended to her, and after the Defendant made Wast, &c. The Defendant plea­ded that he was, and yet is seised in Fee, Abs (que) hoc that he made the Feoffment in manner and form, pro ut, &c. And the Jury found a speciall Verdict, that the Defendant made a Feoffment to the use of himself for life, but that was without impeachment of Wast, the Remainder in Fee as before. And the Plaintif prayed Judgement, and the doubt was, because they have found their issue, and [Page 73] more, viz. that it was was without impeachment of Wast.

Whether it were without impeachment of Wast or no, was no part of their issue, and then the Verdict for that point is void, and the Plaintif shall have Judgement.

The doubt is for that they have found that the Defendant, is not punishable, and where a Verdict discloseth any thing, whereby it appeareth that the Plain­tif ought not to Recover, Judgement thereupon ought to be given against him; As in detinue, the Plaintif counts upon a Bailment by himself,Bailment. and the Jury findeth, that another Bailed to his use, the Plaintif shall not Recover.

And a Serjeant at the Bar said, that the issue, is not found.

That which is found more than their issue is void,Assise. and therefore in 33 Hen. 6. where the Tenant in Assise pleades nul Tenant de franktenement nosme en lasise & [...]i tro [...] ne so it. &c. and the Jury found that he was Tenant, but that he held jointly with another, and there the Plaintif Recovered, and so he shall here.

And at length by the opinion of all the Court, Judgement was en­tred for the Plaintif; for he might have helped the matter by pleading.

16.

IN debt by May against Johnson, Payment. the Condition was to pay a 100. l. to Cowper and his Wife, and by all the Court, if he plead payment to Cowper alone, it sufficeth, for payment to him alone sufficeth without naming the Wife.

15.

IN a Quare impedit by Sir Thomas Gorge, Avoydance. against the B. of Lincoln and Dalton Incumbent, the case was that a Mannor with an advow­son appendant was in the hands of the King, then the Church becoms void, and after the King grants the Mannor with the advowson; now the question was, if the Patentee shall have this presentation, or the King? And all the Judges held clearly that the avoydance doth not pass, for it was a Chattell vested in the King, and they cited 9 Edward 3. 26. and Dyer fol. 300. but Fitzh. nat. br. is contrary. fol. 33. 11.

22.

DEbt was brought by Goore Plaintif for 200. l.Bailiwick. upon such a Bill; Be it known unto all men by these presents, that I, Ed. Wing­field, of H. in the County of Midd. Esq do acknowledge my self to [Page 74] be indebted to William Goore, in 200. l. for the payment whereof I, mine Heirs, and Assigns, do licence the said G. to have and use the Baliwick of Dale; to the use, &c. untill, &c. the Defendant pleaded in bar, that the Plaintif had used the said Bailiwick, and said no more, nor at what place he had received the money; and Suagg moved that the Plea was not good, because he had not shewed the value, which he ought to have done:Value. and the Judges were of the same opinion, and they said moreover that this Plea is not good in bar of this specialty, for payment is no plea upon a single Bill,Licence. and he might have brought his Action upon this Bill, without using the Bailiwick; for this Li­cence is no Condition. & [...].

1.

AN Ejectione Firme was brought by Dorothy Michell against Edmund Dunton, Covenant. and the case was this. A man maketh a Lease for years, rendring Bent upon Condition, with a Covenant that the Lessee shall repair the Houses, with o­ther Covenants. And after he deviseth the same Lands to the same Lessee for more years, rendring the like Rent, and under the like Covenants, as in the first Lease; the remainder over to another in Fee, and dyeth. Then the first Lease expires, and the Lessee held in, by force of the Devise, a [...]d did not repair the Houses, so that if the first Lease had been in esse, Condition. he had broken a Covenant, now if this shall be a Condition, so that he in Remainder may en­ter, was the question.

This is a Condition, for he cannot have an Action of Covenant, and then the intent was, that it shall be a Condition. But all the Court was against him, and that the intent was not so, for the words are (under like Covenants) which words do not make a Condition, allthough they be in a Will.

The nature of a Covenant is, [...] ▪ to have an Action, and not to enter, and so all the Court held it no Condition.

And Per [...] said, that (under like Covenants) were void words, and therefore Judge­ment shall be given against you.

2.

PUckering the Queens Serjeant moved,Fee deter­minable. that one Adams was in­debted to the Queen in a great sum which was stalled to pay [Page 75] yearly so much, untill all werere paid. And for security he levied, a a fine to William Lord Burghley Lord Treasurer, and others that they should stand seised to the use of Adams untill he made default of pai­ment of the said sum, and then they should stand seised to the use of the Queen untill she were satisfied and payed, and then to the use of Adams and his Heirs; And after Adams by deed enrolled, sold the Land to a stranger in Fee, and after the said stranger failed in pai­ment of the said yearly sum, whereby the Queen seised the Land, and so continued untill she was satisfied, now the question was, who should have the Lands, Adams, or the Bargainee?

Ifyou will take the case according to the words, it is short, tell me, what Estate had Adams by this Limitation?

A Fee de­terminable.

How then can the Bargainee have it when the Estate is determined?

But the Fee was limited to A­dams and his Heirs.Possibility can­not be granted, nor released.

This is but a possibility which can­not be granted over. And if I were a Chancellor, Adams should not have the Land, but upon the words I tell you my mind, & alii Justie. conticuerunt.

3.

DAniel Bettenham Plaintif against Debora Harlackendon; Reversion upon a de­vise. the case was this, one Harlack was seised, and deviseth it to the Plain­tif for years, the Remainder to the Defendant being his Wife for life, and provided that the Lessee should pay the Wife xx. l. a year for Rent, at two Feasts, and after the Plaintif failed of payment, wherby the Wife entred for the Condition broken.

Where­fore may not a man make Reservation upon a Devise?

A man may reserve to himself or to his [...], but this is to a stranger.

Every man which takes by a Devise, is in, in the per by the Devisor, quod fuit concessum, wherefore then shall not this be as a Re­servationto the Devisor, and as a grant of the Reversion to the Wife.

If it shall be a firm in gross,Sum in gross. yet I think that she ought to de­mand it, which she hath not done.

and Rodes denyed that case clearly, and that the contrary hath been adjudged,

If I Devise Lands to a man for years, rendring Rent to me and mine Heirs,Devise of a Re­version after a Term. And after I Devise the Reversion, he shall have the Rent as incident to the Reversion.

This may be agreed, but the ca­ses are not like.

& adjornatur.

4.

IN debt by Rostock, Waging of Law. the case was, that the Plaintif and, another made a Contract with the Defendant, and the Plaintif alone brought [Page 76] the Action and Walmisley moved the Court, if the Defendant may wage his Law, for it is not the same Contract, and he cited 20 Hen. 6. ac­count before Auditors, where it was but before one Auditor, he may wage his Law, & 35 Hen. 6. is an express case in the point. And so was the opinion of the Court. Anderson absente.

5.

A Writ of Entry sur diss. Voucher. was brought by Sir Thomas Sherly, against Grateway, who vouched one Brown, and he entred into the Warranty, saving to himself a Rent issuing out of the same Land, and this was allowed by the Court, and the Voucher was in a Writ of entry for a Common Recovery to be had.

6.

EDward Smith brought his Action of the case against Winner, Slander. for words, viz I was robbed of goods to the value of 40. l. & they were stollen by Smith and his Houshold (ipsum Edwardum ac quosdam Eliz. xuorem ac L. F. servientem ejus muendo) and the issue was found for the Plaintif. And the Defendant spake in arrest of Judgement, because S. alone brought the Action. But all the Court said, that the Action is well brought, for the slander is severall. And Peryam that if [...] a man say that three have robbed him,Vno flatu. and name them, uno [...], every of them may have a severall Action.

7.

IN an Assise by Thatcher where he was Redisseised,Redisseisin the Redisse [...] was found in part, and thereupon the Court was moved, if Re­disseisin will lie, in as much as it is not but of part, and the Writ is, if he be Redissesitus de [...]odem tene [...]nto, then Redisseisin lieth; but the Court held that Redisseisin lieth of part, and that he shall recover damages, as they are assessed by the Jury, and not by the [...]. Then it was moved, if Redisseisin lieth in Middlesex or [...] Fleetwood saith, that the ancient Expositors have taken it, that it doth not lie there, because it is not coram lustic. itinerant but all the Court held the contrary. And Walmisley said, that there be Writs in the Re­gister accordingly.

8.

THe Earl of Kent brought debt upon an Obligation indorced with Condition,Time conve­nient. that if the Defendant do permit the Plaintif his Ex­ [...]cutor [...]s [Page 77] and Assignes not onely to thresh the Corn in the Defendants Barn, but allso to cary it away, from time to time, and at all times hereafter convenient, with free Egress and Regress, or else to pay 8 l. upon request, that then, &c. and in truth the Defendant permit­ed the Corn to be there two years, in which time, Mice and Rats had devoured much of it, and then the Defendant threshed the Resi­due, and the Earl brought his Action, and there was a demurrer en­tred.

the Bond is not forfeit, for the Earl hath not taken it out in time convenient, for he ought to take it in time conveni­ent, and time convenient is that which is not prejudiciall to any per­son, (which the Justices privily denyed,) and here it is a prejudice to the Defendant, if the Plaintif will not carry away his Corn, and thereupon he cited many cases, that things shall be done in time convenient,Arbitrement. as in 21 Ed. 4. arbitrement ought to be made in time convenient.

Your cases are by act in Law, but here you have bound your selves, and the Condition is (at time convenient) and if he will come in the night, or on the Sabbath day, this is no convenient time, but allthough that he come in a long time after, yet it may be (at) time convenient, and the words are not (within) time convenient, and so was the opinion of the Court.

And Windham said, that if it had been (within) time convenient, there would have been a difference.

9.

MIchael Hare and 3 others brought an Action of Trespass quare clausum fregit, Trespass. and Assigned the place in sixteen Acres of Land called Churchclose,Contents of a new assignment. and the Defendant pleaded not guilty, and the Jury found a speciall Verdict, that Churchclose conteyneth fixty A­cres, whereof those sixteen were parcell, and that diverse men were seised of divers other parcells of the said close, and that Hare only was seised of the said sixteen Acres, in which, &c. & exposuit eas to the three other Plaintifs to be sown, and that he should find half the seed, and they three should find the other half, whereby the Land was sown accordingly, and that the Bore of Okely came and de­stroyed the Corn. Sed utrum, &c. And the doubt rested upon two points, 1. because the Verdict saith, that it conteineth sixty Acres, and so shall be intended not the same place, and the Court varied in opinion thereof, insomuch that the sixteen Acres are found to be within the close conteining sixty Acres, but for the 2 which was, that they all four joyned in quare clausum fregit, and it appeareth that three have nothing there,Verdict shall abate the Writ. but that Hare is sole seised, And for that, the Court held opinion that the Verdict shall abate the Writ, for the Defendant cannot break their close where three of them have [Page 78] nothing, but Hare onely.

A Case hath been adjudged a where Che [...]ey brought Partition against Bury, Partition. who pleaded that they did not hold in Common, and the Jury found that he and his Wife held in Common, and yet the Verdict abated the Writ.

You will all grant that the other three have no interest in the Land (quod Walmisley concessit) how then can they have quare [...] fregit?

Executors shall have quare clausum fregit, Executors. and yet they have no interest in the Land.

There they have an interest for the time.

Here is but a bargain, and no in­terest, and then the three have no colour to bring Trespass, quare ela [...] ­sum fregit.

10.

THe Quare impedit brought by the Queen against the Bishop of Lincoln was demurred in Law,Avoydance. and now the Record was read, and day given over to hear the Arguments, but [...] said, that it is all one case with that which hath been adjudged here, viz. that the Queen hath title of Lapse, and doth not present, but the Patron presents, and after the Church becomes voyd by the death of the In­cumbent, that now the Queen shall not present; but the Court an­swered, Difference be­tween Death and Privation. that there the avoydance came by death, but here it cometh by privation, and whether this will make a diversity was the question.

11.

HArper brought Trespass against Spiller and Drew, Estate. upon not guilty pleaded, a speciall Verdict was found, and the case in effect was this, F. gave Lands to a woman, to have and to hold to her, & to the heirs of F. of the body of the woman ingendred; what estate the woman had was the question; and now the Record was read, and day given over to argue it.

12.

SHuttleworth moved the Court,Amendment. and shewed, that one Brokes by had brought a Quare impedit against the Bishop of Lincoln, and others, and the Writ was, suam spectat donationem, and this word ( [...]) was omitted, and he prayed the Court that it might be amended, and he cited 11 Hen. 6. 2. where it was (imaginavit) and it should have been (imaginat. fuit) and 13 Hen. 7. where the teste was omitted, and the Court took time of advisement, and at length by the opinion of all the Justice it was amendable, and then a Clerk [Page 79] of the Chancery came into the Court of the Common-pleas, and a­mended it.

13.

IN an Avowry for an Amercement in a Leet,By-law. a Prescription was made for making of By-lawes, and Peryam sayd that every By-law ought to be made for the common benefit of the inhabitants, and not for the private commodity of any particular man, as J. S. onely, or the Lord onely. As if a By-law be made that none shall put in his beasts into the common-field before such a day, this is good; but if a By-law be made, that they shall not carry hay upon the lands of the Lord, or break the hedges of J. S. this is not good, be­cause it doth not respect the common benefit of all: And Windha [...] sayd, that some Books are, that they shall bind no more than such as agree to them.

14.

HAre brought Debt against Curson for a great sum,Capias utl [...] ­gatum. and Process continued untill Capias [...]tlog. And the Plaintif moved the Court that the Sherif might be commanded to execute the Writ, because they doubted thereof, and the Writ was delivered to the Sherif in Court; and he sayd that he would doe his endeavour, but Curson hath long kept his house, so that he cannot come at him.

You may take the power of the Country with you, and break his house, and take him out; for so it hath been adjudged here,

which the Court granted.

15.

PUckering shewed how an Action of Debt was brought against an Administrator,Asset [...]. who pleaded plens administra [...]it, and thereupon the Jury found a speciall Verdict, that certain Obligations made by the Testator to the value of a hundred pound were forfeit, and the Administrator took in the said Bonds, and gave his own Bond for the Debt, and retained the money in his own hands, besides which, &c. he had nothing, &c. and if that hundred pound shall be liable to this Action of the Plaintif, they prayed the advice of the Court; and by the opinion of Windham and Peryam it shall not be Assets, be­cause the property is changed in giving his own Bond for the same,Payment with Proper r [...]ds. and it is, as if he had payd the Debts with his own goods; but if he had compounded for less,Surplusage. then the surplusage should have been As­sets. But Rodes was of a contrary opinion in the principall case, for­asmuch [Page 80] as he had payd no money, but onely given his Bond for in and Anderson was absent at this day. And after at another day, the case was moved again by Shuttelworth, and then he shewed that for part thereof the Administrator had given his Bond, and for another part his promise,Promise, and he sayd that this is no payment but a composition, and therefore no change of property.

For so much as he hath given his promise, I think it not good, because that by this promise this first debt being due by Bond is not discharged, but for so much as he hath given his Bond for, I hold it good enough, be­cause the first Debt is discharged thereby, allthough that the Obliga­tion be made to a stranger,Estranger. by the appointment of the Debtee, and allso before the Debt due; for by this the first Debt is gone.

And Windham and Peryam were of the same opinion, that the Debt was discharged, and that it should not be Assets in his hands, but Rodes doubted thereof, and it was adjorned.

16.

JOhn Cleyton brought an Ejectione firme against Lawsell and Lawsell Defendants,Abatement. and after a Verdict found for the Plaintif, and before Judgement one of the Defendants died, and the Writ was adjudged to stand good against the other.

17.

IN Debt by Saunderson, Wager of Law. the Defendant pleaded nil debet per legem, and in truth the money was due to the Plaintif, but the Plaintif was allso indebted to the Defendant in the like sum, and before the Action brought, they were agreed, that each of them should be acquitted against the other, and thereupon the Defendant would have waged his Law,Concord. and Anderson and Peryam doubted much whether he might do so, or no; for an accord without satisfaction is no plea [...] and Debt cannot be discharged by paroll;No discharge by word. but Rodes sayd that it is good by consent of the parties, and so sayd some Serjeants, and Fenner cited 11 Rich. 2. tit. Bar. 242. where a man hath a Rent by way of Retainer, and Rodes cited 22 Hen. 6. & 37 Hen. 6. Payment by way of Retainer.

18.

EDward Sibill brought Debt against George Hill, Rent sus­pended. for Rent reserved, upon a Lease for years, and the Defendant pleaded, that the Plaintif had entred into part before any rent due, and the issue was, expulit & amovit & adhuc extra tenet, whereby it is plain, that entry [Page 81] into part suspends all the rent. And in Hill. Term before in the like case for rent reserved,Pleading. the Defendant pleaded nil debet per priam. and he would have given in evidence an entry before any rent due, & per Curiam, he could not doe so, but ought to plead it, ut supra; for it doth not maintain the Issue, no more than in the case of Wast, 12 Hen. 8. 1.

19.

IN a Quare impedit by Agnes Kemp against the Bishop of Winchester, Joynt Ad­vowson. Anderson told the Jury upon the Evidence given, that if there be four Joyntenants of an Advowson, and one of them grants over his interest, this is good, and the survivor shall not hold place. And Windham and Rodes did not gain-say it; and Peryam was absent, but Fenner spake against it, because it is a thing entire, but Anderson clearly to the contrary.

20.

CUnuy brought an Action of Debt upon an Escape against Sir James Harrington Sherif of the County of Huntington, Escape. who pleaded that the Plaintif dedit concensum eidem Jacobo, that the pri­soner should goe at large, whereby he did so.

He ought to plead it by way of licence, and not by consent.

The Plea is good without question, and he may take issue there­upon.

21.

TAylor brought an Action upon an Assumpsit against Fulham for payment of money,Release by word. and the Defendant pleaded that after the Assumpsit, the Plaintif released to him all Assumpsits, and this he pleaded without Deed, and the Court sayd that this Plea is not good, and they commanded Shuttelworth to demur to it, and they would give him expedition; and he demurred to the Plea; and Ander­son was very angry with the Serjeant which set his hand to the Plea.

22.

IAne Plain was Plaintif against Sams, Tenant by curtesie. and the Jury found a speci­all Verdict, viz. that one Jane Plain the Mother was seised in fee, and had issue Elizabeth and Jane now Plaintif, and by Inden­ture upon consideration of naturall affection to her two Daughters, [Page 82] covenanted to stand seised to the use of Elizabeth in tayl, upon con­dition following, viz. that the sayd Elizabeth the heirs of her body or their Assignes should pay to Jane (now Plaintif) thirty pound within one year after the death of Jane the Mother, or within one year after that Jane (now Plaintif) should accomplish the age of eighteen years, and for default of issue in Elizabeth, the remainder to Jane (now Plaintif) in tayl; Elizabeth takes a Husband, and hath issue of her body, which dyeth without issue, and Elizabeth did not pay the thirty pound within the year after the death of Jane the Mother; and then Jane (now Plaintif) came to the age of eighteen years,Disability of performance. and after Elizabeth dyed within the year after that Jane came to the age of eighteen years, without issue, and after the year passed, and no money was payd, whereby the Plaintif entred, and if the Husband shall be Tenant by the curtesie, was the question; and upon the motion, the Court was clear in opinion, that he shall be Tenant by the curtesie; for the condition was gone; because Eliz. dyed within the time which she had limited to her for performance therof. And Anderson sayd, that if an estate be determined by limitation, this will not avoyd a Tenancy by the curtesie,Limitation, condition, diffe­rence. but otherwise it is if the estate be determined by a condition; for this shall relate to the defeasance of the estate.

23.

EJectione firme was brought by Stapley against Lark, Use. and upon E­vidence the case was, that Feoffees seised to the use of B. before the Statute of 27 Hen. 8. by consent of B. made a Feoffment to ano­ther and his heirs, to the use of the sayd Feoffee and his heirs, and the Feoffee had notice of the first use; now if he shall be seised to his own use or no was the question, and all the Justices held, that he shall be seised to his own use, because the use was so expressed upon the Feoffment. And so is the Law if the second Feoffment had been in consideration of money,Consideration of mony. allthough no use had been limited, yet it should have been to the use of the Feoffee and his heirs, and not to the first use.

24.

IT was the opinion of three Justices,Disseisin. that if a man levy a Fine, sur conisans de droit come ceo que il ad de son don. &c. and after continue possession, that yet he is a Disseisor, and not Tenant at will or suffer­ance, and that a Praecipe lyeth against him.

1.

IN a Writ of Annuity, it was the opinion of the Justices, that if one grant a Rent charge to B. which is paid to him,Rent charge. and af­ter B. grants it over to C. and the Tenant of the Land at­tourneth, that now C. shall not have his election to make this an Annuity, but ought to take it as a Rent charge.

2.

THomas Michell brought debt upon an Obligation against Stock­with and Andrews, Seal fall off after issue. and the Jury found a speciall Verdict, viz. that after the issue joyned, and before the nisi prius, the seal of Andrews was fallen off, & si, &c.

A case hath been adjudged here, that where a Bond was delivered to the Custos brevium to be kept, and the Mise broke the seal,Custos brevium. and the Court adjudged that the Plaintif should be at no prejudice thereby.

And here insomuch that no fault was in the Plaintif, the Court awarded that he should recover, and Judgement was entred accordingly.

3.

WIghtman is Plaintif against Chartman. Conjunctim. And the case was this, two were bound in an Obligation & quilibet eorum conjunctim, and the Action was brought against one alone, and the opinion of the Court was, that it is not maintainable, by reason of this word conjunction.

4.

WAlmisley moved concerning the Quare impedit brought by the Queen And he thought that she shall recover,Avoidance. for the avoi­dance is by Privation, and the same party is presented again, and and if these shifts may be used, the Queen shall never have a Lapse, for then the Incumbent shall be deprived, and the same Incumbent pre­sented: Fenner to the contrary, and said that where her title is re­strained to a time, there she shall have no Prerogative, to the preju­dice [Page 84] of a third person, nor to alter their Estates. And for that in 1 Ed. 3. if the King have a Lordship and Rent, and he grant the Lord­ship over, and retain the Rent, and after the Land escheats, the Rent is gone,The year day and Wa [...]t. as in the case of a common person, and the Queen shall have the year, day, and Wast; but if Tenant for life dy, she shall not have it;Dower against Guardian. And in Dower against the Guardian, if the Heir come to full age the Writ shall abate.

5.

AN Action upon the case was brought for calling the Plaintif Bankrupt,Bankrupt. and a Verdict passed for the Paintif. And now Shut­leworth shewed in arrest of Judgement, that the Plaintif had not declared that he was a Merchant, or of any Mystery or trade. And the Court held the Declaration insufficient for the same cause, and made a rule for stay of the Judgement accordingly.

6.

IN a Replevin brought by Mary Colthirst against Thomas Delves, Discent of a third part. it was agreed by three Justices (Anderson being in the Starchamber) that if a man have Lands held in chief to the value of 60 l. that he may Devise Lands to the value of 40. l. if he suffer the rest to the value of 20. l. to descend to his Heir; And therefore they overruled it upon evidence to the Jury, that where one Barners was seised of the Mannor of Toby, in the County of Essex, and was allso seised of the Mannor of Hinton in the County of Gloucester, Entire Mannor. and all those were held by Knights service in chief, and deviseth the Mannor of Toby to his Wife for life, that his Heir at the Common Law shall have no part thereof, if the Mannor of Hinton amounteth to the third part of all his Lands. Allso they overruled, that if a man after Mari­age convey a Joynture to his Wife, and dy, that after the Wife may refuse the Joynture,Refusall of Joynture. and demand her Dower at the Common Law. Allso that by refusall in the Country, she may wave her Joynture, and hold her to her Dower, and that this is a sufficient Election. All­so they held that if a man makes a Joynture to his Wife during the Coverture,Devise for Joynture. and after by his Testament deviseth other Lands to her in stead of her Joynture, that she may refuse the Joynture, and hold her to the Devise, and that this shall be good by the Statute, (and yet Gawdy moved to the contrary, because the Statute is, that she may refuse the Joynture and hold her to the Dower,) but the three Justices overruled it clearly, and said, that such was the meaning of the Statute,No wayving af­ter agreement. but they agreed, that if she have once agreed to the Joyn­ture, that she cannot waive it afterwards. Allso they agreed that if a [Page 85] Wife do once refuse her Joynture in her own house amongst her ser­vants, and not to the Heir, that yet this is a good Refusall. And Pe­ryam said for Law, that where a Joynture is conveyed to the Wife during the Coverture,Refusall by bringing Dow­er. and after the death of her Husband she say no­thing, but bringeth a Writ of Dower, that this is a good Refusall, aud so he hath seen in experience.

7.

AN Action upon the case was brought by John Cuttes against an antient Attourney of the Court,Slander. for these words, viz. John Cutts was one of those which robbed Humphrey Robbins. And they were at issue, and it was found for the Plaintif. And it was al­leged in arrest of Judgement, that the words were spoken in Queen Maries time, as appeareth by the Declaration. And yet the opinion of the Court was, that he should have his Judgement, allthough peradventure robberies were pardoned by Parliament after that time.

8.

CArleton brought Entry sur disseisin against Carre, Abatement for part. who for part pleaded that he had nothing but in Right of his Wife, not na­med, &c. and so demanded Judgement of the Writ, and for the rest he pleaded in bar, and they joyned issue for both, and the Jury ap­peared at the bar, and found both the issues for the Defendant. And now the question was, whether the Writ shall abate for all or no, be­cause for part it was found that the Defendant had nothing but in right of his Wife, or whether it shall abate but for this part onely? And Shuttleworth argued that it should abate for part onely, and he resembled it to Joyntenancy, in which case it shall abate but in part, and he cited Dier. 291. & 7 R. 2. titulo joint. 8. & E. 1. titulo breif 860.Severall Te­nancy. And VValmisley said, that it was more like to a severall Tenancy, in which case all shall abate, as in non tenure; but Peryam said to him, put a case, where severall Tenancy shall abate all the Writ.

Joyntenancy, and seised in right of his Wife is all one to this effect and intent,Joyntenancy. for in Joyntenancy he confesseth that he is sufficient e­nough, but that another hath right as well as himself allso. And so where he confesseth that he is seised in right of his Wife, he confess­eth that he is Tenant, but that another ought to be named with him.

True it is, that there is no difference concerning this pur­pose and intent, and if the Recovery be had against the Husband sole, he shall be bound, And at length, all the Iustices agreed, that the [Page 86] Writ shall abate but in part, and that Judgement shall be given for the rest, and so for that residue the Judgement was, nihil capiat per breve. vide 3 Hen. 4. 2. 13 Eliz. fol. 301.

9.

AT this day Walmisley prayed Judgement in the Quare impedit for the Queen.Lapse.

we are all agreed that the Queen shall have Judgement for the reason of the mischief; For otherwise, when the Queen hath a Lapse divolved unto her, one shall be Pre­sented, and afterwards deprived, so that the Queen shall never have her Lapse. And it differeth much from the case of that avoidance which cometh by the Act of God; for this is by the Act of the par­ty, and the refore Covenous. And so let Judgement be entred for the Queen.

10.

A Writ was (ad respondendum I. S. & Fidei uxori ejus) and the Defendant pleaded in abatement of the Writ, because the name of the Wife was Faith in English, therefore they pretended that it should be Fidi.

I know a Wife which is called Troth in Eng­lish, and she was called Trothia in Latin, and it was good.

And all the Court adjudged this Writ good here.

11.

AN Action upon the Statute of Winch. was brought against a hundred in Gloucester, Hue and [...]. and the Jury found a speciall Verdict, viz. that the money was delivered to a Carrier of Bristow, to be carried to London, who packed it up; And as he was on his journey, certain Malefactors came to him, in an another Hundred, and there took his Horse and Pack, and led him into a Wood, within this Hundred, a­gainst which the action is brought. And if this Hundred be guilty or no, they prayed the advise of the Court; And all the Justices agreed, that this was a robbery in the first Hundred, and not in the second, for upon the first taking he was robbed; but if the Carrier had led the Horse himself,Possession. then it should be adjudged to be in his own possession, and no robbery untill he came into the second Hundred, and if a man have money, and the Malefactors take him in one Hun­dred, and carry him unto another. Hundred, and there Rifle him, this shall not be a robbery in the first, but onely in the second Hundred, for he is allwaies in possession, per totam Curiam, and Judgement was given accordingly. So of the purse picked in the Kings Bench, and [Page 87] the thief taken with the manner, but a key being fastened to the purse, still stuck in the pocket, and 2 Justices against two, that the man was still in possession of his purse, and so no robbery.

12.

WAlmisly shewed,Termor. how a woman brought Dower against her two daughters and another, and in truth the third was but a Termer, and the Wife hath no cause of dower but that this was onely to make the Termer to lose his term, for they all have made default at the grand cape, and now he prayed to be received, and shewed cause that the Husband made a lease for yeares, and after the Lessee levied a fine to the Lessor, and they granted and ren­dred back again to the Lessee for the same yeares rendring the same rent, and the Statute of Gloucester is, if the Farmour have, &c. that is, if he may have covenant, as in 19 Ed. 3. and here he may have co­venant, Ejectione firme. and prayed to be received, and shewed his plea.

You are at no mischief, for you shall have an ejectione firme if you be ousted, where she hath no cause of Dower.

But we shall be put out of possession, which shall be no reason.

I hold that a Termer may falsify by the Common law.Falsify.

But his lease is after our title of dower.Lesser may plead destruction of dower.

although that it be after, yet if he have matter which goeth in destruction of the Dower, he shall falsify well enough, as if she have title of Dower and five yeares pass after the fine levied.

And Anderson and Peryam said that the Statute of Gloucester was made that a Termer should not be put out of possession, but here the Termer is named, ideo quare, And after at another day Shuttleworth moved it again,Resceit of the partie to the Writ. and said that the Termer shall not be received, because he is named in the Writ, and the Court was of the same opinion then, but they said that he might plead speciall non tenure.

first he ought to save his default, for he commeth in upon the grand cape. Rodes by 33 H. 6. 2. he may plead non tenure before default saved by Prisot there.

Then I shall have judgement against the two which made default at the grand cape.Conusance

you had best be advised, lest the Writ should abate by non tenure of parcell.Cemurier

by my Conusance of non tenure of parcell,Difference. all shall abate, but if I de­murr upon his plea, then it shall abate but for one parcell.

13.

LEonard White brought a Formdon in Discender, and decla­red of a gift in tayl made to his father,Estoppell. who died, and the land descended to the elder brother of the Demandant, who also died without Issue, and so conveyed to himself as heir in tayl, &c. The Tenant pleaded that the elder brother had Issue a Daughter, who levied a fine to him, and he relied u­pon the fine and proclamation.Inducement doth [...] make a plea double.

this Plea is double, the one is the Issue, the other the fine.

forasmuch as he cannot come to the one without shewing the other, it shall not be double, & also here he relieth upon the Estopple, vide 18. E. 3. 25. Tit. Gard. per Wylly.

14.

A Formdon in descend by three brethren for lands in Gavelkind, they were at Issue upon Assetz descended to the Demandants,Assets in Gavelkind. And the Jury found a speciall Verdict, that the Father of the De­mandant was seised of those lands, and by his Testament devised them to his three sonnes now Demandants, and to their heires e­qually to be divided, And if this shall be said a descent to them or no was the question, because the Law would have done as much, and therefore it shall be said Assetz. But all the Court held the con­trary, and that they shall be joynt-Tenants or Tenants in common, and then they shall not be in by the descent, and so no Assetz; and Anderson said, that if a man devise to his sonne and heir in tayl, he shall not take it by descent.

if a man may have any more benefit by the Devise than by the descent, then he shall take by the Devise, Eadem lex per Curiam if he devise his lands to his two daugh­ters and heires, they shall be joynt-Tenants and no coparceners, è con­tra if he have but one son or one daughter only.

15.

IN the Exchequer Chamber all the Justices of the Common Pleas, and the Barons of the Exchequer,Venus. were assembled according to the Statute of 27. Eliz. to reform errors in the Kings bench. And Smaleman of the inner Temple shewed how an Action of Debt was brought upon an Obligation against one Cheney as administrator, who pleaded plenè administravit, and the action was laid in Barkshire at Newbery, and the Plaintif averred that the Defendant had Assetz at Westwood in the same County, and the venire facias was of Newberry, whereas it should have been of Westwood. And this he assigned [Page 89] for Error, And all the Court agreed una voce that it was Er­ror, and so the judgement was reversed, but the Assetz being tran­sitory might have been assigned at Newbery.

17.

ANother Writ of Error was there brought by the Lord Seymour against Sr. John Clifton upon a judgement given against him,Amendment. and assigned for error that the judgement was quod recuperet versus Edward. Seymour, and did not say praedict. Edward. Seymour. And all the Justices agreed that this was amendable, And so the first judge­ment was affirmed.

18.

ANother Writ of Error was there brought upon a judgement which Rawlyns had to recover lands in the Kings bench,Rent suspen­pended. and the Case was such. A man makes a lease of ten acres for ten yeares rendring rent upon a Condition; the Lessee grants 5. acres thereof to a stranger for five years; and after grants the residue of the years in the five acres to the Lessor. And after the Lessee broke the Condi­tion, whereby the Lessor re-entred; and if he may do so, or if the Con­dition was suspended, or no, was the question, because he accepted a future interest in parcell;Future interest. Tenant wayves for it was adjudged in the Kings bench that the Condition was not suspended, and now this was assigned for error, And all the Justices (except. Anderson and Peryam) held that it is not suspended before he had entred by force of his lease

If I make a lease (as here) upon Condition and waive the possession, this may be suspended before his entrie.

This is another case.

But the reason thereof commeth well to this case; And afterwards because the said two Justices dis-assented from the rest, it was adjourned over.

19.

ANother Writ of Error was there brought upon a judgment given in the Kings bench.Trover. And Cook the famous Utter-Barrester of the Inner-tem moved this question to the Justices. If a man lose his goods, which come to the hands of another, & he converteth them to his own use, and after the owner dye,Day and place of conversion. whether his Executors shall have an action of the Case for this Trover, and whether he ought to shew the place and the day of the Conversion, or no; And the Counsellours at the bar said that he ought to shew both, for so it was adjudged, where [Page 90] an Alderman of London brought an action upon the Case against oue Staynsham upon Trover of an Obligation, and it was found that he had broken the seales, &c. and because he did not shew the time and place of the Conversion, he could never get Judgement. And now the Justices were of the same opinion, but yet Anderson seemed to doubt.

Executors at the Common Law shall not have Tres­pass for a Trespass done in the life of their Testator, and the doubt is if they shall have an Action upon the Case.

if a man hath another in Execution for debt, and the Gaoler suffer him to escape, and after the Recoverer dyes, shall his Executors have an action a­gainst the Gaoler?

No.

So it seemeth. But Anderson Manwood and VVindam clearly to the contrary, and that they shall have debt upon this Escape.

But not an Action upon the Case at the Common Law; and here by his own shewing he might have Trespass vi & armis, and therefore not this action.

1.

RAlph Heidon brought a Writ of Right against Smethwick and his Wife,Droit. of two parts of forty Acres of Land in Surret, and they pleaded that one Ibgrave was seised, and devised it to his Wife, now one of the Tenants for term of her life, the remainder to Benjamin Ibgrave in fee,Praying ayd in an Assise. which was his heir, and dyed, and they prayed in ayd of B. I. who came and joyned to them, and thereupon they came and pleaded to the grand Assise, and the first day of this term the Assise appeared, and sixteen were sworn, whereof four were Knights, and the residue were Squires and Gentlemen, and the title was all one, as before in T. 28 Eliz. for this same Ibgrave was Tenant in that other Action for the third part. And the opinion of all the Court clearly, that it is not ayded by the Statute; for there is not any certainty in the Grant;Name certain. but if he had given it a certain name, as green Acre, then allthough he had mistaken the Parish, yet it had been good enough.

The Assise may goe their way, and they did so, and after they being agreed came again to the Bar, and the Demandant was called, and did not appear, whereby the Tenant prayed the Court to record the Nonsuit, and it was done.

All is one as if he had appeared;Non-suits. for this Non-suit is peremptory for ever; the issue [Page 91] being joyned upon the meer droit, aliter if the issue had been joyned upon any collaterall poynt.

2.

IN Trespass by Blunt and Lister against Delabere they were at Issue' and now the Inquest appeared ready to pass.Challenge.

This Inquest you ought not to take, for it is favourably made by the She­rif, which is within the distress of one of the Plaintifs, and shewed, how the Sherif held certain lands of a Mannor now in question, where­of Lister hath possession, and allso hath certain lands for term of years of him; and the Plaintifs moved that he ought to take one cause onely.1 Cause.

He may allege both; for the challenge is, that he is within the distress, and the allegations are but evidence to prove it; and then the Plaintif sayd, not within his distress, whereupon the Court appointed Tryers; and the Defendant sayd that all the Jury are favourable,Tryors refused. and prayed Tryers de circumstantibus.

That cannot be, but onely in an Assise, and cited 9 Edw. 4.

We cannot appoint other Tryers in this case but only of the Jurors, wherefore let the fourth and seventh be Tryers, but you may refuse them, and take others if you will,

and thereupon the Defendant re­fused the fourth whereby the third was appointed, and they found the Array favourably made, and therefore it was quashed.

3.

A Recovery was had by Arthur Mills against Sir Owen Hopton, of divers lands twelve years passed,Amendment and by the negligence of the Attorney,Warranty of Attorney. no Warrant of Attorney was entred for him, and now suit was made to the Justices that it might be entered; and they all consented thereunto, and so it was entered incontinently; but first the party made a corporall Oath, that he had retained an Attorney, and that this was the negligence of his Attorney.

4.

IN the Exchequer chamber Cook shewed that a Writ of Error was brought between Bedell and Moor, Arbitre­ment. and sayd that there was an Er­ror in the Record,Error not as­signed. which was not assigned, and prayed that it might be examined, allthough that it was not assigned, because that it ap­peared in the Record, which was agreed to by the Court. And then he shewed the case, that two had submitted themselves for all quar­rels ultimo die Novembris An. 24. to stand to the Arbitrement of two others, and they Arbitrated that the Plaintif in this Writ of Error, [Page 92] should release to the now Defendant all Actions which he might have against him untill the 24 of June then next following, which was half a year after, and because he had not performed this, an action upon an Assumpsit was brought, and Judgement given for the Plaintif, and all the Justices agreed that this was Error, because that this thing arbitrated was out of the submission, and so voyd; for they have no authority to arbitrate that which is not submit­ted unto them,Submission. and the submission is onely of things passed, and not to come; but because that the Defendant had not heard of this Error before, therefore they gave him day. Afterwards the case was moved again; and Anderson sayd that damages recovered doe not lye in arbitrement.Damages reco­vered.

Amongst other things they will lye well enough, quod Anderson non negavit. But they all sayd, that they may well assume upon consideration, and an Action will be maintainable for it.

5.

THomas Mounson Esquire,Term extin­guished. sonne and heir apparent to Sir Iohn Mounson, Knight, brought an Action of Trespass against VVest, who pleaded not guilty, and upon Evidence it appeared, that Sir Iohn Mounson had an estate for years, the Remainder in tayl to the Plaintif, with divers Remainders over, and the Lessee made a Feoff­ment to divers, and a Letter of Attorney to others, with commission to enter into the lands, and to seal the Feoffment, and deliver it in his name to the use of the sayd Thomas and his heirs, and another by commandement, or Letter of Attorney of the sayd Thomas entred in his name. And the Court held this a good Feoffment, notwith­standing that both the Lessee and the Attorney were disseisors;Disseisors. for it is good between the Feoffor, and the Feoffee; for they sayd that by the Feoffment to the use of him in the remainder and his heirs, if he in remainder enter, he is remitted, and the estate for years is gone implicatively;Freehold joyned to the term. Morgage. for Peryam sayd, that in all cases where the Freehold cometh to the term, there the term is extinguished. And therefore if a man morgage his reversion to the Lessee for years, and after perform the condition, yet the Lease for years is utterly extinguished: And the Evidence on both parts was very long, and the chief matter was, whe­ther a Deed were forged by Rob. Mounson lately one of the Justices of the Common-pleas; by which Devise lands were conveighed to him by William Mounson his Father, whose heir at the Common Law Sir John Mounson is, viz. the Sonne of Roberts eldest brother, and the Deed was shewed by VVest, and it was perished with Mice, all the Seal, and part of every side; but yet by the last Will of the sayd VVilliam Mounson, and by divers other proofs, it was evident that [Page 93] the Deed was good, and but little in effect was shewed to prove the Deed forged;Misdemenour. yet the Jury went together, and tarryed there all night, and in the mean time some of them had victualls with them; for one had Cheese, and another had Pruens, another had Pippins, and another had an Orange, but he which had the Orange swore that he brought it onely for the smell, and therefore he was excused; and he which had Pruens, had given half a Pruen to one of his com­panions, which eat it, and he which had Cheese had eat thereof, therefore all those which had victuals,Fine and im­prisonment. were fined at 40 s. and they which had eaten at 5 l. every of them, and all committed to the Fleet; but because they were agreed, therefore the Verdict was taken, and the Verdict was given for the Plaintif, viz. that the Deed was forged by Justice Mounson, and the Verdict taken de bene esse, and all this matter commanded to be entred; for the Justices doubt­ed whether it were a good Verdict. This matter was moved divers Terms afterwards, and at the last adjudged a good Ver­dict.

6.

IN an Ejectione firme by Ashby against Laver for Lands in Westmin­ster, Counter­mand. it was sayd by all the Justices to the Jury, that if a man hath a Lease, and disposeth of it by his will, and after surrenders it, and takes a new Lease, and after dyeth, that the Devisee shall not have this last Lease, because this was a plain countermand of his Will.

7.

IN Trespass by Johnson against Astley, it was said by the Justices to the Jury, that if there were a Chauntery in reputation, allthough it be none in right (as if it be gone by disseisin) yet the Queen shall have the Lands.

8.

AT Serjeants-Inne in Fleet-street, Rent suspen­ded. the Justices of the Common Pleas, and Barons of the Exchequer, were assembled for divers Errors in the Kings-bench, and the case of Rawlins was moved again, and Anderson and Peryam retained their former opinions, and Peryam sayd, that he would differ from all the cases of collaterall conditions,Feoffment upon condition. which may be put; for he sayd that if a man make a Feoff­ment in fee of 20 Acres of land, upon condition, that if he pay to the Feoffee xx l. at Easter, that then it shall be lawfull for him to [Page 94] re-enter, allthough that he be re-enfeoffed of 10 Acres, yet he ought to perform the condition, because it is collaterall. But Cook the fa­mous Utter-barrister sayd, Truly it hath been adjudged to the con­trary, and I was privy to it; for when he took as high an estate a­gain as he had before, by that the condition is confounded, and the case of the Corody in 20 Ed. 4. will prove this case.

I see no diversity.

It is collaterall there, but so it is not here, but afterwards those two Judges changed their opinions, and so the first Judgement was affirmed.

9.

BRown recovered against Garbrey in an Assumpsit, Considera­tion. and thereupon Garbrey brought a Writ of Error, and assigned for Error, that there was no Consideration; for the Declaration was, that whereas there was a communication between Brown and a woman, for Ma­riage between them, that the Father of Brown had promised to the Wife, that if she would marry his Son, he would make a Feoffment of his land to the use of himself for life, and after to the use of them two in tayl, the remainder, &c. and that Garbrey assured to the Wife in consideratione praemissorum, that if the Father did not doe so, then he would give the Wife a hundred pound; ac licet, the Father did not give to them in tayl, secund. agreament. praedict. yet Garbrey refused, &c. And Cook moved that this should be no Consideration; for the communication of Mariage was not by him, but between strangers to him; but if the Father had assumed in consideration of Mariage, then that should have been good against the Father; but a­gainst Garbrey it is [...]o otherwise than as if one promise to you to Enteoff you, and I say that if he doe not so, then I will give you a hundred pound, this is without consideration, and so here. But the Justices held the contrary, and that the consideration is good; for in considerations praemissorum, is in consideration of the Mariage, as well as of the refusall of the Father; and allso it was alleged, that Garbrey was Cosen German to Brown, and therefore, &c.

If a communication be between two, and the Father promise to make a Joynture, and a stranger say that if the Father will not, then he will doe it, this is a good consideration; and there is no necessity to be so curious in the consideration; for that is not tra­versable. Consideration executory tra­versable. But Cook sayd, that if it be Executory, then it is travers­able.

Another Error Cook assigned, because they had not alle­ged a not performance in the Father; for the promise of the Father was to make a Feoffment to the use, &c. and they averre that allthough that he did not make a gift in tayl, which cannot be the same thing which the Father should doe; for an estate to use in tayl, [Page 95] and a gift in tayl is not all one. But the Justices held it good, for by the Statute of 27 H. 8. the use is executed, and so the estate executed. Also the Declaration was that he had not made a gift in tayl secun­dum agreamentum praedictum. But Cook moved that it should not be good, for if a man be bound to make an estate to another in the per, and he make it in the post, this is no performance, and here by the Sta­tute he is in, in the post, and the not performance is alleged to be, because he did it not in the per, and saith, that he which is in by the Statute, shall not vouch, for he is in, in the post, and he cited Winters case, which was not denyed; but Peryam said, that considerations in a­ctions upon the Case, and Conditions, are not all one.

9.

IN the Kings bench the case was such,Coppyhold. John Kipping being a Copi­holder, devised it to his Wife for life, the Remainder to VVilliam his son in Fee, and made a Surrender to that use, and the Wife is ad­mitted generally,Generall ad­mittance. now if this be an admittance of him in Remain­der also, was the question. And Godfrey argued that it was not, for it is not like to the case of descent, where the reversion should have descended, for in this case VVilliam cannot Surrender before admit­tance, but he agreed that one which hath it by discent may surrender before admittance for in that case it shall be said possessio fratris, Surrender. but when it is by purchase then that cannot be surrendred, whereof ad­mittance ought to be,Meseu. because the Lord ought to have a fine of him, & therefore he likened it to the case in 18 E. 4. where the Mesne graunts the Mesnality for life, the remainder in fee, and the Tenant attornes to the Tenant for life, if he had cause of acquittance against the Mesne this shall not be an attornment to him in remainder; so here, if this shall be good to him in remainder then is the Lord without remedy for his fine.Vesting of a remainder. But Cooke the famous Utter-Barrister argued to the contrary; for the Remainder vested when the particular estate vested, or els it shall never vest, but it shall not be void, ergo it is ex­cuted when the particular estate, &c. And therefore he said clearly that an admittance of the particular Tenant is an admittance of him in Remainder, and that the Lord cannot have his fine, if it be agreed that the Heir may surrender before admittance,Scire facias u­pon a fine. and yet the Lord ought to have a fine of him. And in 7 Ric. 2. Fitzherbert scire fa­cias 3. where Tenant for life sueth execution, this is an execution for him in Remainder.Audita quaerela And in Fitzherbert. Na. Br. fol. 201. where one deviseth for life, the Remainder in tayl, and an ex gravi querela was sued, this shall serve as well for Tenant in Remainder as for Tenant for life,Attornment. and 18 Ed. 4. 7. and the time of Ed. 4. Fitzherbert Attorn. 21. that attornment to the Tenant for life is good to him [Page 96] in Remainder and VVeldons case in the Commentaries,Assent to the Devisee. that assent to the Devisee for life, is an execution of the devise to him in the Remainder.

11.

THe case of the Resceit was moved again,Resceit. and Shuttleworth said, that he cannot be resceived because he is named in the Writ, And said, that he had searched all the books, and there is not one Case where he which is named in the Writ, may be resceived.

What of that?Reason. shall not we give judgement because it is notadjudged in the bookes before? wee will give judgement according to reason, and if there bee no reason in the bookes, I will not regard them.

Hee is at no mischief here, for in 33 H. 6. the Tenant came at the grand cape, and said that he had nothing,Nihil habet. and the Court said that it was no plea, for if he hath nothing he can lose nothing, And so here, if he be ousted where he hath good right,Reentrie. he may re-enter, and falsify the recoverie.

But he shall be put out of possession, which is a mischief and remedied by the Statute.

I hold clearly that a Termer cannot falsify at the Common Law, because a term was not regarded.

The books doubt thereof, but Anderson seemed to assent to Shuttleworth, and that the Covyn shall be traversable,

which Pery­am denyed clearly, and said that he ought to averr the Covyn.

12.

A Man was condemned in an action of Debt, and brought an Audita querela upon a release,Supersedeas. and had a supersedeas.

If the Sherif take him before that he hath notice of the Writ, although it be after the Teste, yet it is well done, but otherwise of an Utlary.

But Fenner and Walmisley held to the contrary, and Fenner said that he had seen a President to the contrary.

13.

AN Action upon the Case was brought against Mathew late Un­der-Sheriff of Hampshire, Declaration double. that where an Execution was directed to him, by vertue whereof he had taken goods to the value of the execution, and sold them for less, and that he hath not retorned the Writ; and upon this Declaration the Defendant demurred in law, because it was alleged to be double. But Fenner held the contrary, & said, that an Action upon the Case is like to an Action of Covenant, where a man may shew all the covenants broken.

If the one [Page 97] matter be depending upon the other, it shall not be double, and here all is,Dependance is not double. for not retourning of the same Writ.

Wherefore Fenner said, that he would not amend his Declaration, let the other De­mur if he would, (sed quaere) for the Declaration ought to agree with the Writ.

14.

A Writ of false Judgement was brought upon a Judgement given in a Court of the Deane and Chapter of Westminster, Admini­strators. in an Action upon the case brought against one as Administrator; And did not shew by whom the Administration was committed, which he ought to have done by 32 Hen. 6. & 35 Hen. 6. 50. a. and the Assumpsit was laid to be in consideration that Assets came to the hands of the Defendant, And whether this were a good consideration, was another doubt, and it was not averred that the Administrators had goods sufficient after the Debts and Legacies were paid. And at this day it was held, that when an Action is brought against an Ad­ministrator, it need not be shewed; but in an Action brought by them clearly, they ought to shew it. And for the other matter, whether the Plaintif needed to aver that they had Assets besides the Debts, &c. it was said, that this ought to come and be shewn on the other part. And for that Woodwards case in the Commentaries was cited. And the next morning Puckering shewed, that he had a report of a Judge­ment given in the Kings Bench, that it is not necessary to shew that they had Assets besides the Debts and Legacies, &c. And therefore he prayed that the Judgement may be affirmed. And so it was, for Rodes had seen the report of Puckering, according to his saying, and testified the same, whereby Judgement was here given against the Ad­ministrator, Anderson being in the Starchamber.

15.

IT was agreed by all the Justices,Herriot. that for a Herrio [...] service, the Lord cannot distrein out of his Fee, no more than for a Rent, but he may seise a Herriot Custom out of his Fee.

16.

A Man was outlawed,Vtlary. and the Sherif retourned the Proclamati­on (tali die omnes & singulas proclam. fieri feci) And did not shew that such a day he made the first, and such a day the second, &c. and this was assigned for Error, and prayed that the Utlary night be reversed, and so it was.

17.

FLeetwood shewed that this case came in pleading.Rent-ser­vice. A man had a Rent service payable at the Feast of St. Michael, And on Michaelmas day he died about ten of the clock in the morning; now he deman­ded whether his Heir or his Executor shall have the Rent?

Hath he not all the day to pay it? and upon condition to pay such a sum, he may tender it any time before Sun-set.

But if the party accept the payment in the morning, it is good.

If it be a case in this Court, you ought to demur as your case is, and not to be thus Politick.

18.

A Writ of Error was brought upon a Judgement in the Kings Bench,Abatement. and one of the parties died, hanging the Writ; And the Court held this to be an abatement of the Writ, and that he ought to purchase a new Writ.

1.

AFormdon was brought against Haselwood and Haselwood, Abatement. and the one took the Tenancy of the one Moity,Dier 3. & 4. Phil. & Mar. 134. Abs (que) hoc that the other had any thing therein, and pleaded in abatement of the Writ, and the other took the Tenancy of the other Moity, and vouched.

Shall I maintain my Writ, or answer to the Bar of the other?

You must needsmaintain your Writ.

Where the pleading is such, as your Writ cannot be good, there it is a ground that you ought to main­tain your Writ;Praecipe quod reddat. but if a praecipe quod reddat be brought against two, and the one plead Nontenure, and the other accepts the entire Te­nancy, Abs (que) hoc, &c. and doth plead in Bar, there you may answer to the Bar, because there peradventure the Writ is good, notwith­standing; As if a Writ be brought against the Feoffor and Feoffee up­on condition, or Morgagor and Morgagee; and so there is a diversity.

2.

IN a Quare impedit brought by the Queen against the Archbishop the disturber,Vtlary. and the Incumbent, the disturber pleaded, that long time before he had any thing in the Advowson, by whose Utlary the Queen is intitled, King Ed. 4. was seised of the Honor of Hast­stings, and granted it to the Lord Hastings in Fee. and further gran­ted omnia bona & catalla omnium teneutium ejusdem honoris sive mane­rii residentium & non residentium qui forent utlagati, &c. and so con­veyes the Honor by descent to the now Lord Hastings, and did not a­ver that he which was Utlawed,Averment. was a Tenant of the Honor.

It is not good without doubt, for otherwise he is not within com­pass of the Grant, and therefore a day was given, by which, if the Defendant did not shew better matter, the Queen should have Judgement.

3.

IN the Kings Bench Anne Bucher brought an Ejectione Firme against Auncell Samford, Devise. and other Defendants,Glocester. And upon not guilty plea­ded,Hit. 30. Eliz. rot. 188. the Jury found a speciall Verdict, viz. that William Samford was seised of the Mannor of Stone-house in the Parish of S. whereof the Tenements in demand were parcell, and of divers other Tenements within the same Parish, and within a place known in the same Pa­rish, which is neither Town nor Hamlet, called Ebney, in which Sam­ford had a Tenement, which hath Lands time out of mind perteining thereunto, lying as well in Ebney as in Stone-house, which Tenement is in the Tenure of one Bucher by Copy of Court-roll, according to the custom of the Mannor, Afterwards William Samford deviseth to his Brother, after the death of Bucher, all that my Tenement with the Appurtenances wherein Bucher dewlleth in Ebney, Now the question was, whether the Lands in Stone-house perteining thereunto shall pass or no? And the famous Cook argued that it should pass, for this word Tenement referreth to his dwelling which is in Ebney, and not to the place where the Lands lie, And therefore he said that words ought to have relation, ut ne impediatur sententia, sed ut res magis va­leat quam pereat, Quare impedit. and he cited 4 Ed. 3 in a Quare impedit quod permit­tat praesentare ad ecclesiam de Mourton Majorem, and the Defendant demanded Judgement of the Writ for false latin, because of Majo­rem, and yet it was adjudged good, for it shall be referred to ecclesi­am, and he cited 19 Ed. 3. & 3 Ed. 4. Allso it passeth by this word appurtenances; for there was such a Chambridgshire case here with­in this Twelve-month, where a man gave instructions to another to make his Will in this form, I will that B. shall have my House, with [Page 100] all my Lands thereto apperteining; And the other made it in these words, I devise to B. my house, with the Appurtenances; and it was adjudged that the Land should pass by this words Appurtenances. For allthough that in late Books, Lands shall not pass by this word Appurtenances, yet this is good authority to prove that they shall pass, as 7 Hen. 5. 41. & T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning, and here upon this devise 4. l. Rent is reserved, and the antient Rent is but 45. s. and if the Land should be racked, it is all worth but v. l. a year, and because they are held in Capite, therefore by the Statute we shall have but two parts. And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney, Valew. wich are not worth so much, therefore somtime the valew is considerable in a Will, and cited 4 Ed. 6. & 7 Ed. 6. and so he thought the Plaintif ought to recover. And at this time the Court seemed to be of the same opinion, for they gave day over to the De­fendant, at which day, if nothing were said, Judgement shall be gi­ven for the Plaintif.

4.

GAwdy prayed Judgement in an Action of Trespass by Hamble­don against Hambledon, Survivor. the case was such. H. was seised in Fee, and had issue,Mic. 29. & 30 three Sonnes,Eliz. r [...]t. 2325. John, VVilliam now Plaintif, and Rich­ard now Defendant, And by his last Will devised Lands to Iohn, and to the Heirs Males of his body ingendred, and devised other Lands to William in like sort, and other Lands to Richard in like sort, And that if any of his Sonnes died without issue Male, that then the Sur­vivor shall be each others Heir, Afterwards the eldest died without issue Male, And if William shall have all his part alone, or else he and Richard between them, was demurred in Law, and day was given o­ver to argue it.

5.

WAlmisley shewed how an Action was brought by Berdsley a­gainst Pilkington, Impounding. upon the Statute of 2 & 3 P. & Mary, for driving a Distress out of the County, And shewed the truth of his case, that the Distress was taken in the Hundred of Offlay in Stafford­shire, and the City of Lichfield was sometime within this Hundred, And by Letters Patents of 1 Mariae, the City was made a County of it self, and he which took the Distress impounded them within a pound in the County of the City of Lichfield; now whether he hath incurred the penalty of the Statute, or no, was the question? And be­cause the Court had not a Statute Book there, to see the Preamble, [Page 101] therefore they would give no resolution.

The meaning of the Statute was, because the Bailif of the Hundred might make deli­verance. Allso I think it is within the compass of the Statute, be­cause the City was a County severed before this Statute made.

And the Serjeants at the bar said,Same Hundred. that the party may drive the Distress as far as he will within the same Hundred, but he ought not to drive it above three miles without the Hundred.

6.

IOhn Slywright exhibited an information upon the Statute,Champerty. for buy­ing of Titles,Pasch. 30. Eliz. rot. 1532. against Page, and declared how Joane Wade demised to Page for 60 yeares; the Defendant pleaded not guilty; And now a Jury of Sussex appeared at the bar. And upon Evidence it was mo­ved, [...]if a man have a lawfull Title to enter into Lands,Lawfull title. but hath not been in Possession, and he entreth and makes a Lease for yeares there­of, if this be within compass of the Statute.

It is within the Statute, for the mischief was, that when a man had a Title to Land, he would let it to another, to have maintenance and imbra­cery, and make contentions, and Suites, for remedy whereof the Sta­tute was made. For if a man have a Title, he may recover according to his Title.Recovery.

The mischief hath been truly recited, and therfore it is reason to restrain such bargains. But if a man Recover by Formdon or Cessavit, and make a Lease, this is not within compass of the Statute,A pretended Right. allthough that he hath not been in Possession by a year; and in my opinion the Plaintif need not prove that it is a pretented Right, because the Statute expoundeth what is a pretented Right, viz. if he hath not been in possession. And so I have delivered my o­pinion before this time.

If a man hath not been in Possession, and cometh to me, and saith, that he will make me a Lease, and demands if I will take it, and I agree thereto, whereby he maketh me this Lease,Ignorance. if I do not know that he hath not been in possession, I am not within the Statute.

And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor, whereby he might take the Lease well enough. For Fleetwood cited 6 Ed. 3. if one brother maintain the other, this is not within the Statute of Champerty, which case the Court agreed, this is for speciall cause. vide statut. de articulis super cartas. Maintenance Champerty Difference,

One brother may tra­vell for another, and maintain him, but if he take a Lease of him, he is within the Statute of 32. Hen. 8. for this is a generall mischief, and the mischief is as great, if the brother take a Lease, as if another take it,The case.

quod Periam coucessit clearly, but because it was the case of the Defendant, the Jury found a speciall Verdict, viz. that the Lands were conveyed by the Husband of Joane Wade, to the use of himself [Page 102] and his Wife in Tail-speciall, the Remainder to the Husband in ge­nerall-Tail, the Remainder to the Wife in Fee, and after the Hus­band Enfeoffed diverse men thereof, and the Feoffees continued in Possession diverse years, After the Husband died, and then the Wife by indenture sealed and delivered, of the Land, made a Lease to Page which knew all this matter,Knowledge. from the fift day of Jenuary last past, for 60 years, if the Wife should live so long, and that the Wife was Sister to Page the Defendant by the Mother, and found the valew of the Land as if it should be sold, and they prayed the advise of the Court, &c.

And the morow after, the like information being brought against the woman being Lessor, the like Evidence was given, and the like case found.

7.

FEnner moved this case to the Court.Recovery. An Alien born purchaseth Lands in Tail, the Remainder to a stranger in Fee; The Alien suffereth a Common Recovery to his own use in Fee, And after an Office is found of all this matter, if the Remainder shall be to him which had it before or no was the question.

I think the Queen shall have a good Fee-simple,Tenant sufficient to the praecipe. for if there be a good Tenant to the praecipe, then is the Remainder gone, and you will not deny but that he is Tenant sufficient before Office found.

True, Sir, but when the Office is found, by relation thereof the Recovery is avoided.Relation.

Truely the Office hath relation for the Possessi­on of the Alien, but it hath no such relation to say that the Alien never had it, for then the Queen shall not have it; but if the Alien were Tenant sufficient at the time of the Writ brought against him, then the Remainder is utterly gone.

And all the Justices said that it is a strong case that the Queen shall have it, and that the Remainder is gone. And Rodes cited 27 Ass. fol. 50.

8.

PLympton brought an Action of Trespass against Dobynet, Copyhold. the Defen­dant pleaded, that the place in which, &c. is Copyhold, and pleaded a Grant to Southey, which granted it to him, &c. The Plain­tif replyed, that long time before the Grant pleaded by the Defendant, Alice Gooding was Lessee for life, secundum consuetudinem manerii. &c. and that the Custom is, that the Lord may grant Copies as well in Reversion as in Possession. And that in 5 Eliz. the Lord Morley being Lord of the Mannor,The Lord Mor­leys case. granted to him a Copy in Remainder before the grant made to Southey, which now came in Possession, and that [Page 103] he entered, untill, &c. The Defendant rejoyned that there is a cu­stom in the Mannor, that the Lord may grant Copies in reversion, with the agreement and consent of the Tenant in possession; and if any Copies be granted, without consent of the Tenant in possessi­on, that then there is such a custom, that such Grants shall be allto­gether voyd, abs (que) hoc, that they are devisable modo & forma, &c. whereupon the Plaintif demurred in Law.

This Plea of the Defendant is repugnant; for by these words, If any be granted, he implyeth, that there is such a custom; and then when he saith abs (que) hoc that there is such a custom, this traverse is voyd, and the Plaintif shall have Judgement, by 9 H. 6.

Allso he argued that this custom shall be voyd, and cited 19 Ass. the case of the command of St Johns, and 2 Hen. 4. & 19 Eliz. Custom what it is. the Ejectione firme by Bill anu Attorney; and he de­fined usage to be, Constitutio ex diversis actionibus saepius iteratis. Shuttelworth argued to the contrary, and cited 37 Hen. 6. the case of Common, and 26 Ed. 3.

9.

GAwdy the Queens Serjeant rehearsed the case of Beverley in this manner;Utlary. Thomas Beverley brought a Quare impedit against the Ordinary, and Gabriell Cornewell the Incumbent, which was in, of the presentation of the Queen; and upon pleading, there was a Demurrer entred up, and before that was discussed, Beverley was Outlawed at the suit of another,The Case. in an Action of Debt; then Corn­well resigned his Benefice, and the Queen presented him again, where­upon he was instituted and inducted; Then Beverley brought a Writ of Error in the Kings-bench, and reversed the Outlary, because that he was named of Hamby, where there were two Towns of the same name, and neither of them without an addition, and now he brought a Scire facias to execute his first judgement against Corn­well, who pleaded all the matter in bar, and it seemed to him that the Plaintif shall be barred; for by the Outlary of the Plaintif, the presentation was forfeited to the Queen, allthough that it was but a thing in action, and thereupon he cited 2 Hen. 5. where a man had a Patronage with his Wife,Patronage in right of his wife. and was Outlawed, &c. then, if by the reversall of the Outlary, he shall be restored to the presentation; and he sayd that he shall not, for that it was a thing once lawfully exe­cuted, and vested in the Queen, and he cited 4 Hen. 7. where a man is attainted by Act of Parliament, &c. Allso the opinion of Brian there, is a strong proof of this case. And further he sayd, that he was of counsell with a case in 26 Eliz. Restitution af­ter a Scire fa [...] where Debt was brought by Hanmer against Luddington, and the Defendant was condemned, and a Fieri facias issued to the Sherif, who by virtue thereof sold a term [Page 104] of the Defendants, and levyed the money thereupon, and afterward the Defendant brought a Writ of Error, and refused the Judgement, the question was if he shall be restored to his term; and it was ad­judged, that he shall not, but onely to the money for which it was fold, because the sale was once good, and so he thought that the Plaintif ought to be barred.

to the contrary: For in our case,Patronage. when the Queen presenteth, she hath gained a Patronage to her self, untill we recover it again, and this is the case of Ratcliffe, in 35. For so long as the Incumbent which is presented continueth by that Induction in possession, so long he which presented him is Patron,Possession. per Collow, in 20 Ed. 4. and by 46 Edw. 3. tit. Incumbent. & 19 Ed. 3. tit. Quare impedit. If the King bring a Quare impedit, and hath title to recover, yet the other is Patron untill his Clerk be re­moved, a fortiore where the Writ is brought against the Incumbent of the King, he is Patron untill he be removed, then if nothing shall be forfeit to the Queen, then it is to be considered, because the Queen hath presented the same Defendant of new, whether he shall be removed or no,Acts done hanging the Writ. and it seemeth clearly that he shall, because he claimeth under this estate, and this is done hanging the Writ; and no act done hanging the Writ shall extort the Plaintif from his ex­ecution, and surely the Writ is hanging untill execution be done; and he cited 31 Hen. 6.Attorney. If one make an Attorney, he shall be Attor­ney untill execution be done; and 21 Hen. 7. if the Defendant re­sign, and a stranger is presented, hanging the Writ, yet the Plaintif shall remove the stranger,Presentment. and 20 Eliz. in Dyer accordeth with that, notwithstanding that some there held the contrary:If he come in by title, by mony: And to the like purpose is the case in 11 Hen. 4. of traverse of an Office. Then for the Outlary that was avoydable by Plea,Plea by the Statute. by the Statute of 2 Hen. 5. per the Books, in 22 Hen. 6. and 38 Hen. 6. Then if by the Outlary reversed he shall be restored, and it seemeth that he shall; for a man shall see a great difference between this case and the cases put: For if a man in an Action deny his Deed, and therefore pay a Fine to the King, if after he reverse the Judgement, yet he shall not be restored to the Fine, because it is a by-thing, and a thing collaterall, and therefore he denyed the opinion of Brian, Collateral thing in 4 Hen. 7. for it cannot be Law: But if a man be indebted to me, and after I am Outlawed, and then the King releaseth this debt,Release of▪ the King of the debt of one outlawed. and then I bring a Writ of Error, and reverse this Outlary, I shall be restored to my action a­gain. And here he hath shewen to us a peece of cunning; for when he pleads the Outlary in us, he hath pleaded the Record specially, for otherwise we would have sayd,Speciall plead­ing. nul tiel record, and then it being reversed it should have been certified for us, as there is a case in Dyer. Then here, allthough that be in by a new presentation, yet all the words of our Writ are true in this Scire facias; but I grant that Exe­cutors [Page 105] shall have a Qnare impedit for a disturbance done to their Te­stator.Executors shal have a Quare impedit.

The case in Dyer is thus reported, That I when I was the Queens Serjeant, and Gerrard now Master of the Rolls, then being Attorney of the Queen, were of opinion that the Clerk of another shall not be removed, and concerning that matter, I held then, as I doe still, that in some cases the Clerk shall not be removed, and in some cases he shall; for if he come in under the title of the Plaintif,Title peramont. and since the same, then he shall be removed, but if he come in by title Paramont he shall not be removed; and here, for that this is done hanging the Writ, it seemeth that he shall be removed: For if a man bring a Praecipe, and hanging the Writ the Tenant alien, yet the recovery is good against him,Tenant in a Praecipe aliens. and shall allso bind every one under him.

That point is clear enough, but the question is if by the Outlary the Plaintif hath forfeited his presentation to the Queen? For if it be so, then this is a new title for the Queen.

What reason is there in that? when it was an apparent practise of the Defendant to resign; for otherwise she could not have presented,Plenarty. the Church being full before.

The practise is not good without doubt, but what is the Law?

The Law is, that the Defendant by his resignation, shall never extort the Plaintif from his execution.

The point is if by the Out­lary the Queen have a new title, by reason of the Plaintif, and I doubt much thereof, if by the judgement she shall have the presenta­tion.

I am resolved that there is not any colour in the case, but what say you?

Truly I hold that the Plaintif shall remove the Clerk.

And in my opinion it is clear e­nough, that by the reversall of the Outlary the Plaintif shall have his presentation.Reversal.

Then let Judgement be entred for the Plaintif.

In the name of God, if you be agreed against me.

10.

A Writ of Partition was brought by Henry Tannworth, Partition. and Chri­stian Tannworth, against John Tannworth their elder brother; for lands in Hawlesteed, alias, Elsted in Leicester-shire, because that Halsteed is parcel of the Soak of Rothelay, wherein there is such a custom,Members of a Mann [...]r. that the lands shall equally descend to all the heirs males, and in giving of evidence, Walmisley sayd that the members of a Mannor are other Towns in which the Mannor extends, and Pucker­ing sayd,Soak quid. that at this day the Queen may make a Soak: For it is no­thing else but a Precinct, to which divers Mannors come to doe suit; and as a great Leet containing divers other Courts; and the Evi­dence [Page 106] was strong for the Tenant; for he shewed by plain proof, that this was never parcell of the Soak, allthough that it was within the ancient Demeasne of Rothelay, Domesday. as it was proved by the Book of Domes­day, which was there shewen, and a Clerk of the Exchequer read it (for other Clerks could not) and he sayd, and so sayd the Serjeants; and the Tenant delivered to Anderson and Peryam an ancient Book of the time of Ed. 2. for their remembrance, wherein, in 4 Ed. 2. in a nuper obiit, it is sayd, that if the Lands which have been departible and departed, come into the Lords hands by Escheat, they shall not be departible in his hands,Partible lands Escheat. vel in manibus alicujus alius perquisitoris non possunt partiri. And he sayd that such was the opinion of Sir Thomas Bromley the last Lord Chancellor upon hearing of the matter there; whereby when the Jury came to give their Verdict the Plain­tif was Non-suit.

11.

SHuttelworth shewed how Robert Hughson brought an Action of Debt against B. Office of the Court. as Administrator of F. and declared upon a simple contract made by the Intestate,Pasch. 30 El. rot. 421. and the Defendant pleaded plene ad­ministravit, and it was found by Verdict against him. And now in arrest of Judgement the Defendant alleged, that the Action is not maintainable against him upon a simple contract. And Shuttelworth thought that now he is past that advantage, because he did not shew it in pelading, and cited the opinion of Cottesmore in 13 H. 6. And whether the Court ex officio ought to bar the Plaintif or no was the question.

It appeareth to us judicially that no acti­on will lie upon a simple contract against Executors or Admini­strators, wherefore then ought the Plaintif to have Judgement?

Because by his Plea he took upon him notice of the contract, and by 46 Ed. 3. where the Administrator was privy to the retainer of a servant, he was charged by a simple contract.

Here he did not take notice, and in 15 Edw. 4. The Court ex officio, abated the Writ.

This is by Littleton onely.

The case is ruled, and Littleton gave Judgement; so is the case in 11 Hen. 4. where an Action upon the case is brought against an Inne-keeper,A common Ianholder. if he be not named Hospitator, allthough he plead in bar, yet we ex officio ought to abate the VVrit.

If he be no Hosteler, the Action lyeth not against him. And if an Action of Debt be brought, and doe not shew the place of the Obligation, if the other plead a release, this is good enough.

So is 18 Edw. 4.A De [...]d not shewed in Court.

If a man bring an Action, and the Defendant plead in bar by Deed, and do not shew the Deed, and the other pleads in bar, and doth not except thereun­to, [Page 107] but they were at Issue, this is Error; for we ex officio ought to have adjudged it evill; and so is the Book in 22 Hen. 6. or 28 Hen. 6. and I can shew the case.

Then Shuttelworth sayd privily to his Client, I doubt we shall doe no good by our Action. (Anderson being then in the Star-chamber.) After at another day Anderson rehearsed the case, and sayd, it appeareth to us, that Executor or Administrator cannot be charged upon a simple contract, and the Court ex officio ought to stay the Judgement, and the VVrit at the first ought to have been abated, and this is reason, and so is the Book in 15 Edw. 4. and then by the assent of the other Judges he gave Judgement ac­cordingly.

12.

RObert Johnson is Plaintif against Jonathan Carlile in an Ejecti­one firme; Fine. and upon not guilty pleaded the Jury found a spe­ciall Verdict,Hil. 29 El. rot. 824. that William Grant was seised in fee of the Lands now in question being held in Socage, and devised them to his Wife for term of her life; and when John his sonne came to the age of 25 years, then he sho [...]ld have those Lands to him and to his heirs of his body ingendred, and dyed; afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee, and after came to 25 years, and had issue a Daughter, and dyed, and after the Wife dyed, then the Daughter entered, and made a Lease to the Plaintif; the question was no more, but whether this Fine levyed by the Father before any thing was in him, shall be a bar to the Daughter.

The question is if the Daughter may say that her Father had nothing in the Land at the time of the Fine levyed? and so by this means Fines shall be of small force.

We have adjudged it lately in Zouches case, that the Issue shall not have this averment.Parties and privies shall have no aver­ment.

If it were in Pleading, I grant it well, but here it is found by Verdict.

This will not help you; for by the Fine the Right is extinct.

When my Lord Anderson cometh, you shall have a short rule in the case.

Too short, I doubt, for us.

After at a­nother day Shuttelworth moved the case again.

May he which levyed this Fine avoyd it by this way?

No Sir.

How then can he which is privy avoyd it?

By Plea he cannot.

The Verdict will not amend the matter.

If I make a Feoffment upon condition,Feoffment upon condition. and after levy a Fine of the same land to a stranger, and after I re-enter for the condition broken, the stranger shall not have the land.

VVe have given Judgement clearly to the contrary in the case of Zouch. And your opinion is no authority.

13.

A Writ of Dower was brought by John Hunt and Ioan his Wife, late the Wife of Austin, Dower. for the third part of Lands in Wolwich; the Defendant pleaded that the Lands are Gavelkind,Trin. 30. E­liz. rot. 156. And that the Custom of Gavelkind within the County of Kent is, that the Wife▪ shall have the Moity during her Widowhood, according to the Custom, and not any third part according to the Common Law; upon which Plea the Defendant demurred in Law;Negative pre­ [...]cription. And one question was, whether this Prescription in the Negative be good with the Affirmative; And the other doubt was, if the Wife may wave her Dower by the Custom, and take it according to the Common Law. And the Justices held the Prescription good enough, being in the Negative with the Affirmative.I [...]eritance.

This Custom shall bind the Heir and his Inheritance, and by the same reason it shall bind the Wife and her Dower;

which Peryam granted expresly. Rodes was ab­sent, and Anderson spake not to that second point. But all the Court agreed clearly that as this Custom is alleged, she shall be barred of her Dower. And so they commanded to enter Judgement according­ly; but if the pleading had been in the Affirmative onely without the Negative, then the second point had come in question.

14.

WAlmisley prayed the opinion of the Court in this case.Extent. The Sherif extendeth Lands upon a Statute Staple, and whether the Conusee shall b [...] said to be in Possession thereof, before they be delivered to him or no?

Allthough that they be exten­ded, Refusall. yet the Conusee may refuse to receive them.

True Sir.

Then hath he nothing in them, before he have re­ceived them, for he may pray, that the Lands may be delivered to the Praisors, according to the Statute of Acton Burnell.

Your meaning is to know, if the Rent incurres when the Land is in the Sherifs hands, if you shall have it?

True Sir, that is our very case.

Then this is the matter, whether you shall have the Rent, or the Conusor, or the Queen, but how can you claim it?

The Lands are in the Queens hands.

The Writ is, Cape in manum nostram.

This is like to the case of disceit, where he shall not have the mean issues. So as it seemed to them,Disceit. the Conusee shall not have it, but they did not say expressly who should have it.

15.

TRespass quare clausum fregit, was broug [...]t' against two, the one ap­peared, Simul cum Dyer 239. and the other was outlawed, and the Plaintif declared against the one onely, who by Verdict was found guilty, and now Walmisley spake in arrest of Judgement, that he should have declared against them both, or against the one simuleum, &c. But the Court thought that this was helped by the Statute of Jeofailes, but at this time they were not resolved.

16.

A Speciall Verdict was found,Disability of the Devi­sor at the time of his death. that a Woman sole was seised of certain Lands held in Socage, and by her last Will devised them to I. S. in Fee, and after she did take the devisee to Husband, and du­ring the Coverture she Countermanded her Will, saying that her Husband should not have the Land, nor any other advantage by her Will, and then died. Now whether this be a sufficient Countermand, so that the Husband shall not have the Land, was the question.

For as much as she was Covert-Baron at the time of her death, therefore the Will was void, for a Feme-Covert cannot make a Will, and a Will hath no perfection, untill after the death of the Devisor.

In Wills, the time of the making is as we [...]l to be respected,Taking a Hus­band is no Countermand of the Wife. as the death of the Devisor; And then she being sole at the time of the making, allthough that▪ afterwards she took a Husband, yet this is no Countermand, and so is Bret. and Rigdens case in the Commentaries.

If a man make his Will, and then be­come non compos mentis, Not of sound mind. yet the Will is good, for it is Common that a man a little before his death, hath no good memory.

I do not agree the Law to be so,

and so Rodes seemed to a­gree, but Anderson affirmed as before.

I doe not doubt but such a Will shall be good.

If a man make his Will, and af­ter do become non compos mentis, and then live three or four years after,Long life ma­keth difference. it is no reason that such a Will shall be good, and he cited 3 Edw. 3. it in. Northt. for this case.

If the Proviso in the Statute of Wills had not been, then every Will made by a Feme-Co­vert should have been good.

That is nothing so, for all­though the Proviso had not been,Reasonable construction. yet the Statute should have had a reasonable construction.

But for the principall case, the Court was not yet resolved. After at another day, Gawdy moved the case again, and held strongly, that by taking of a Husband; this is not Counter­manded, and cited 2 R. 2. and then during the Coverture, she hath s [...]bmitted her Will to her Hu [...]band; For by 3 Ed. 3. it in. Roteland she [Page 110] cannot devise to her Husband, whereby he concluded that the VVill is good. Shuttleworth to the contrary, because she hath no ability at the time when it should take perfection, and every Will ought to have three things, Inception, Progression, and Consummation. And he cited Bret. and Rigdens case.

I am of my first opinion that this VVill is not good, for I think this Countermand by the Wife is sufficient, [...]u [...]termand by one not of found mind.▪ and if non compos mentis say that he doth revoke his Will, this is a sufficient Countermand. And whereas it hath been said, that a Feme-Covert hath no VVill; Sir that is not so, for she hath a Will in many cases,Wills of fe [...]e [...] as if she be Executrix she may make a gift, &c. So if I be bound to do such an Act, if such a Feme-Covert will consent, in this case if the Husband onely consent, it is not sufficient, but the Wife ought to assent allso. And if this Will shall be good, then this mischief will ensue, that after a Will is once made, the partie shall have no power to controll it,Controlement. therefore I think the Will is not good.

I am of the same opinion. For a Will is not perfect untill after the death of the Devisor,No countermand and when she is disabled at the time of her death, the Law saith, that such a Will is void. But I think that a Feme-Covert cannot Countermand her Will, for the same reason which doth disable her to make a Will, doth allso disable her to Countermand that which is made before; for by 3 Edw. 3.Consummation. which was cited before, she cannot devise to her Husband, and by the same reason she cannot Countermand that which is devised to her Husband; but because the Wife was not a person a­ble at the time of the Consummation thereof, therefore it is not good.Mar [...]iage no countermand. Peryam to the same intent. First the Mariage is not any Coun­termand, and for the case in 2 R. 2 I think it good Law. And I have allwaies taken this diversity, that if a woman grant the Reversion af­ter Tenant for years,Reversion. and before Attornment had she take a Husband, that this is a Countermand, but if that it be a Reversion after Te­nant for life, then it is no Countermand, For in the first case his Ti­tle of Tenant by the Curtesie begun by the intermariage, Allthough that it was not consummate before issue had; And it seemeth a clear case that a Feme-Covert cannot Countermand a Will, for she cannot make a Will. And whereas it hath been said by my Lord, that a wo­man hath a will,Will by custom [...] or by some by-matter. true it is; but that is either by custom, or by rea­son of some by-matter, as in the cases put. But VVills ought to take effect at the time of the death, and if then she be disabled, it is not good; for it is not consummate before; as if there be Husband and VVife, and the Husband be seised of Lands in Fee, and levy a Fine thereof, and then dye, and after the levying of the Fine five yeares pass, yet she shall not be Barred; but if after the death of the Husband five yeares pass, she is barred by a Fine, because her title was not conmsumate untill after the death of the Husband, whereby &c. [Page 111] Rodes to the same intent, for if I devise the Mannor of Dale as it is iu the Com. for &c. and then have nothing in it, but afterwards purchase it,Perfection. now it shall pass, which proveth that the perfection of a Will is at the time of the death, and in 39 H. 6. a man devised lands, and before his death was disseised,Disseisin after Will. nothing passed by the Will, because it was no Will, untill death; and here in our case because she was disabled at the time of her death, it is void.

Then let judge­ment be entred accordingly.

17.

A Proclamation was directed to the Sherif of Cheshire against John Hockenhall, Proclamati­on. and the Writ was retorned, Tale die ad comitat. meum tent in le Shirehall &c. Dyer fol. 206. proclamationem feci, ac eodem die ad gene­ralem Sessionem &c. proclamationem feci &c. And now this matter was pleaded in avoidance of the Utlary to reverse it, because those proclamations were made one day, whereas the Writ was (tribus seperalibus diebus &c. And the Sherif was amerced to forty shillings for his evill retorn. And at another day he was amer­ced to other forty shillings because he had retorned divers Writs in Secretary hand,Secretary hand. And commandment was then given to the Custos brevium, to receive no Writs retorned in Secretary hand, for the Court said that writing in Secretary hand would be so worn in a do­zen yeares that no man can read it.

18.

HOcker brought debt upon an Obligation against Gomersale and his Wife Executrix of the last will of Henry Gooderd [...]perdict. Common in­tendment. Hen. Gooderd de London Tayler, Trin. 30. Eliz. And they pleaded in bar a recoverie had against them in the Kings bench as Executor testamenti H. G. nuper di­cti H. G de Lond. Rot. 2 [...]03. Barber Chirurgeon, whereupon the Plaintif demur­red, And the Defendant did not aver that the said G. Tayler & G. Bar­ber Chirurgeon was allone person, and they also omitted this word praedictum, And whether this were good or no was the doubt, And it seemed to the Justices that it was not good, although it was alleged that it shall be intended all one person▪ and then if a plea in bar be good to common intent, it is good enough. And therupon John Pa­stons case was cited in 21 H. 7. Where it was Westmonasteriu [...], & doth not say praedictum, Common intent what it is. yet it shall be intended the same VVestm. mentioned before. Whereunto the Court answered▪ that here by common intent he shall not be intended the same person, but rather to the contrary, For common intent is that which shall be intended more strong than any other, and not that which resteth indifferent, As if a man [Page 112] Plead a Feoffment in fee, it shall be intended that the Feoffer was of full age, but here common intent is that he was another person, be­cause Barber Chirurgeon, and Tayler, are divers functions by com­mon intent, And as to the case put, by common intent it shall be in­tended the same Westm. because the place is so notorious, that com­mon intent will nor intend any other. But Peryam would not grant that case of 21 H. 7.

At another day Gawdy said that they have a President in 16. Eliz. where an action was brought here against the Administrator of Francis Fitzherbert Mercer, And they pleaded likewise a Recovery in the Kings bench against them as Administrator of F. F. Grocer, and allowed for good, and in 10 H. 7. wast is brought and doth not say, praedict. and yet good

For the cases in 10. H. 7. & 21 H. 7. It was all in one Plea, but it is not so here.

And for his President Anderson and Peryam said that they would not regard it, if it do not appear that Exception was taken thereunto if the Presidents be shewen for matter,Matter [...] Form [...] Presidents. but if they be shewen for form then otherwise it is.

If I. S. bring a Praecipe against me, and I vouch I. S. it shall not be intended the same person, [...]oucher. if he do not say expresly that he is the same person, therefore a Fortiori here it shall not be inten­ded the same person.

Afterwards the next Term Shuttleworth argued again that it shall be intended the same person, but all the Court was against him, and so they gave judgement for the Plaintif.

19

FEnner shewed how Bartholmew Brooksbie hath brought a Quare impedit, A thing in action relea­sed. and declared how A. was seised of the advowson in fee, and graunted to him and another the next avoidance, and after the church became void, and the other released to him all his right &c. and the Defendant disturbed him. And after they pleaded to issue which was found with the Plaintif, and this matter alleged in arrest of judgement, that the Release was void, and then he hath no cause of action, for when the Church became void, then it was a thing in action or actionary, and therefore could not be granted over by 28 H. 8.Interest shall survive. and by the same reason it cannot be released, as 1 and 2 P. and M. and 2 and 3 P. and M. in Dyer.

If it be an interest it shall survive, and by the same reason it may be released, And it shall goe to his Executors, wherefore then may it not be released?

Et adjornatur.

1.

TIsdale, Maintai­nance. one of the Attorneyes of the Common pleas, brought an Action upon the Statute of Maintainance a­gainst John al Tree in Chancery lane, for Maintainance in a Spirituall Court; and by all the Court, an Action is not Maintainable for Maintainance in an inferiour Court; for this word, alibi, being in the Statute, was expounded to be meant of the Kings Court onely, and in the argument of the same case, Drew remembred the Court of a Judgement given there in the like case for one Constantine of Wiltshire.

2.

BEtween Brown and Lother an Action was brought in the Spiritual Court,Consulta­tion. for these words, Thou art a forsworn Knave▪ for thou madest a false account when thou wert Churchwarden, and thereupon the Defendant brought a Prohibition, supposing the discussing of Perjury to belong to the Temporall Court, and upon the opening of the matter to the Court, the Plaintif had a consultation, because the Perjury was supposed to be committed, about the execution of his Office of Churchwarden, which doth belong to the Spirituall jurisdiction: But otherwise it had been if the Perjury had been sup­posed to have been committed concerning a Feoffment or other Tem­porall act, per Walmisley & Owen.

3.

BRoughton against Flood, Amendment the originall Writ was returned by Needham, Esquire, Sherif, and his Christian name left out. Wil­liams moved the Court to have the Christian name of the Sherif put into the Writ, but the Court denyed it, because the Record was made up, and likewise by this means they should make an Outlary good, which was now erroneous.

4.

IN an Advowry the Defendant saith,Venue. that locus in quo, &c. is par­cell of the Manner of Dale, and avows for suit of Court, the Plaintif by replication saith, that locus in quo, &c. is parcell of the Mannor of Sale, and maketh to himself a title, abs (que) hoc that it is parcell of the Mannor of Dale, and the Venire facia [...] was of Dale onely, and upon motion all the Court adjudged that it ought to have been of both Mannors, and made a rule for stay of Judge­ment after Verdict. This was the case of Atwood of the Middle-Temple.

5.

IT was sayd by Anderson and Owen, Prohibition. that a Prohibition will not lye after a sentence in the Spirituall Court, and that if the Libell be for such a matter as may be determined in the Spiritu­all Court, no Prohibition will lye, unless some Plea be pleaded by the Defendant in that Court, which the Judge will not allow: For if a Suit be in the Court of Admiralty upon a contract made upon the Sea, and the Defendant pleaded a release, or a gift, after the coming to Land, that Court may enquire and try this issue; the like for Tythes, 2 Rich. 3.

6.

IT was sayd by Drew in the Argument of the case between R [...]the [...] and Green, Common. that if a Commoner take a Lease of one Acre, out of which his Common is issuing, that his whole Common is sus­pended; Rent. allso where a Lease for years is, rendring Rent, and for de­fault of payment a re-entry, if the Lessor grant the reversion of one Acre,Condition. the whole condition is gone: Also that an entry by the Lessor into any parcel, suspends the whole rent during his occupation, and Anderson sayd, that there is no Common by common right, but Common appendant.

7.

ADams brought an Action of Debt upon an Obligation against Oglethorp, Restitution. the Defendant pleaded that after the making of the Obligation,Trin. 39 Eliz. [...]. 1803. the Plaintif was attainted of Treason for Coyning, and pleads the Attainder at length; the Plaintif confesseth the Attainder, and saith, that afterwards the Queen by Letters Patents did par­don him, and did restore unto him omnia bona & cattella sua, [Page 115] and thereupon the Defendant did demur in Law, the question was, whether Debts by specialty be included in those words.

8.

EVeling against Leveson Executor of the Testament of Walton, Assets. in effect the case was this; The Queen was indebted to Walton in a hundred pound for Muskets and Callivers delivered into the Tow­er, for which money Walton took a Debenter from the Queen in the name of a stranger, and afterwards dyed, and made Leveson Execu­tor, who procured the stranger to release and surrender the former Debenter to the Queen, and took a new Debenter for the same hun­dred pound to himself, this was adjudged no Assets, nor devastav [...]t in the hands of the Executor Leveson upon a speciall Verdict, but o­therwise it should have been if the first Debenter had been taken in VValtons own name, for then it had been a devastavit by the Exe­cutor.

9.

BAcon Plaintif against Selling in an Ejectione firme, Assets de judgement. the originall bare teste 13 Aprilis An. 39. and the Plaintif declared upon a Lease made to him 22 Apr. An. 39.Trin. 39 Eliz. rot. 1345. so that it appeared to the Court, that the Plaintif brought his Action before he had an interest in the Land, and by all the Court a Rule was given for stay of Judgement after a Verdict; but afterwards the Plaintif came, and shewed that af­ter Improlance he filed a new originall.

10.

HEnry Earl of Lincoln brought a Scandalum magnatum against one Michelborn for these words,Scandalum magnatum. viz. The Earl of Lincolns men by his commandement did take the Goodt of one Hoskins by a forged War­rant, &c. And the Earl recovered great damages by Verdict, and now it was spoken in arrest of Judgement, that the words were not sufficient to maintain the Action, because it was not averred that the Earl knew the Warrant to be forged, and of the same mind was the Court at this time.

11.

WIlloughby brought an Action of Debt against Milward, Debt. and declared that the Defendant bought Timber of him for ten pound, solvend. modo & forma sequenti, viz. five pound ad festum Pasch. proxime sequentem, and saith nothing when the other five pound should be payed, and the Plaintif recovered the whole ten pound by Verdict; and now it was spoken in arrest of Judgement for the cause aforesaid, but yet by all the Court it was good e­nough; for the Law intendeth the other part of the money to be due presently, if no certain day of payment bee alleged.

12.

KItchin brought an Action of Debt against Dixson, Debt. Executor of Craven, Mich. 36 & 37 El. rot. 1028. or 1021. the Defendant pleaded (ne unques Executor.) and the Jury found a speciall Verdict, viz. That Craven in his life time made a Deed of Gift of all his Goods to Dixson, and they found likewise that this Deed was to defraud Creditors, against the form of the Statute, and that the Defendant by colour of this Deed did take the Goods after the death of Craven, and if this Deed vvas good, then they found for the Defendant, if not, then they found the Defendant was Executor of his own wrong, and so for the Plaintif, and by all the Court Judgement was given for the Plaintif.

13.

IT was sayd by Drew (arguendo) That if the Grantee of a Rent charge release parcell of the Rent to the Grantor or his heires,Rent charge the residue may be apportioned, and the Land shall remain charge­able still for that residue, but if he release in one Acre parcell of the Land charged, then all the Rent is gone.

14.

IT was said by Glanvile in the argument of the case▪ between Crom­well and Andrews, Provis [...]. that a Proviso in a conveiance to be performed on the part of the Lessee, implies a re-entry, allthough there be no speciall words of re-entry, but otherwise it is when it ariseth on the part of the Lessor, and Vouched bendlowes case, where there was a Covenant going between the Habendum and Proviso. But where the Proviso standeth substantively, as where I grant a Rent charge, Provi­so [Page 117] that he shall not charge my person,Condition. this is no Condition but a Qualification. Allso where a Feoffment is made upon Condition to grant me a Rent Charge payable at Easter and Christmas, if the grant be not made before the first Feast which shall next happen, the Con­dition is broken, and he put a difference where the Condition must be performed by none but himself, and where it may as well be per­formed by his Executors, as himself. And Drew said then, that if there be a Feoffment upon Condition to Re-enfeoff the Feoffer, there ought the Feoffor to make a request, otherwise if it be to enfeoff another.

15.

SMith against Bonsall, Common. in effect the case was such; In an Action of Trespass the Defendant pleaded his Freehold,Hil. 39. Eliz. rot. 1753. and the Plaintif re­plyed that A. was seised of a Yard-land, to which he had Com­mon of Pasture for all maner of Beasts Levant and Couchant upon the same Yard-land, and of the Moity thereof did enfeoff the Plaintif; the question was, whether this Common may be apportio­ned, or else it be extinct alltogether. In the argument whereof Drew said, that Common sans number cannot be granted over, because if it should be granted to a rich man, he may surcharge the Common then, and leave none for the rest of the Commoners, so of estovers uncertain, for so the Grantee may burn all the Wood, (quod Wal­misley concessit) and he vouched 17 Eliz. in Dyer, that a Commoner may purchase parcell of the Land▪ out of which his Common is issu­ing, Purchase, after that it be improved by the Lord, and not extinguish his Common thereby. And he said, that if parcell of the Common be inclosed,Inclosure. a Commoner ought to make but one gap to put in Cat­tell; but Anderson said, that he may make as many gapes as he will. And it was said by Anderson and Beamont, Appendant may be apportioned. that Common appendant cannot be for all manner of Cattell, but onely for such [...]attell as compass the Land, and that such Common may be apportioned into twenty parts,Append. quid. as any Common certain may be.

If my Land to which I claim Common belonging, can yield me stover to find a hundred Cattell in Winter, then shall I have Common in Summer for a hundred Cattell, in the Land out of which I claim Common, and so for more or fewer proporitionably, which they did expound to be the meaning of pertinen. Moity of a Mannor. levan, and cuban.

If I grant away the moity of my Mannor, we shall both keep Courts, so if I be disseised of a Moity, or that the Moity be in Exe­cution by elegit, and we shall both have Common, and in apportion­ment of Common respect ought allwaies to be had to the quality of the Land unto w [...]ich it is alloted.Copiholder. And a Copyholder may pre­scribe [Page 118] for Common in the Lords Land within the same Mannor by usitatum fuit, but, if he claim any other Common, he must lay the prescription in the Lord.

1.

WAlter Ascough prisoner in the Fleet,Appearance. was brought to the Common place bar by hab [...]as corpus, to the intent to have him appear to an Originall in debt brought against him; And being demanded by Goldesburg Clark, whether he were the same party against whom the Originall was brought, confessed it, but denied to appear to the Action: Br [...]ke [...] Prothonotary said, the Court ought to record his appearance, con­fessing himself to be the same person; but the whole Court said this was no appearance, whereby he was remanded to the Fleet; And Tam­worth the Plaintif proceeded to the outlary against him.

2.

PRice brought an Action of Trover against Sir Walter Sands; Frandulent deeds. Trin. xxxviii. Eli. And this was for finding of Corn. And the first point of the case was, That a man had a Lease in Reversion, and granted it to another by fraud, and his Grantee granted that over to Sir Walter Sands, bona fide. And if this Grant over bona fide being derived out of a Fraudu­lent Estate shall be void, per the Statute of 27 Eliz. or not, was the question.

It seemeth the Grant to Sir Walter Sands to be good; And not within the Statute of 27 Eliz. For 33 He [...]. 6. 28. If a man make a Feoffment in Fee by Collusion, to the intent to defraud the Lord of the Wardship; And after this Feoffee by Collu­sion make a Feoffment over, bona fide, Now the Lord is without remedy, for the Collusion is gone. And in this case there is an igno­rance in Sir Walter Sands, the which is not willfull, and for that it is not punishable:Notice. But if the other had taken the profits, so that the pur­chaser might have notice, there it should be otherwise. The [...] cause was, non constat whether the Grant were before the Statute of 27 Eliz. or not. For if it were before, then the party shall not answer the mean profits. Allso a third matter is, ten yeares of the Term was [Page 119] granted for money; But when he granted the Residue of the Term and no Consideration expressed,Consideration expressed. then there shall be no, consideration in­tended. And if there were no Consideration given, he is not holpen by the Statute: For that helpeth a Frandulent Conveyance against pur­chasers for Consideration given or paid, Et non constat that any thing was paid by the Plaintif. Allso it appeareth that Sir VValter Sands was in possession at the making of the Statute. Allso here the party is charged with a speciall fraud; And the other saith, that it was made bona fide. And this is a good course of pleading without any Traverse, per 4 Ed. 4. 24.

3.

HUgh Hall brought an Action upon his case for words, and decla­red, Slander. that where he himself was robbed of divers parcels of Cloth, per quendam ignotum; and made his integrity and indeavour to ap­prehend the said thief, praedictns tamen defendens praemissorum non igna­rus dixit de praefato Hugone, viz. Hugh Hall hath received three par­cells of his Cloth again of the thief; And if I receive any hurt hence­forth, I will charge him with it. And by Judgement of the Court the words are not actionable.

4.

THe Lady VVilloughby Wife to the late Sir Francis VVilloughby, Caveat. su­ed in the Chancery as Administratrix of her said Husband, a­gainst Percivall Willoughby, which had maried one of the Daughters of the said Sir Francis; And the Defendant pleaded, that before any Administration commited to the said Plaintif, he himself put in a Caveat in the Spirituall Court, hanging which Caveat she hath attained these Letters of Administration,Appeal. whereby the Defendant hath appealed, [...] which appeal is not yet determined, for which he demanded Judgement if hanging this appeal the said Plaintif shall be received to sue in this Court as Administratrix. And it see­med to Egerton then Lord Keeper of the great Seal, that the Defen­dants plea is good to stay the suit untill the appeal be determined; But not to be dismissed out of the Court,Appeal, Er [...] ▪ Difference. no more than an excom­munication. And he said there is difference between an appleal in Spirituall Law, and a Writ of Error in our Law: For by the pur­chasing of a Writ of Error the Judgement is not impeached untill the Record be rehearsed; But the very bringing of an appeal is a suspensi­on of the first Judgement in the Spirituall Court for the principall matter, but not for the costs, and for to prove that he cited 2 R. 2. Quare impedit 143. & vide 27 H. 6. Gaud. 118. &. 2 M. 105. & Dyer 7 Eliz. 240.

5.

IN the Chauncery a speciall Verdict was retorned upon an extent,Execution u [...]on an ex­te [...]t of a Re­mainder. And the case was this; that there was Tenant for li [...]e, the Remain­der in Tail, and the Tenant in Remainder in Tail made a Statute Staple, and after granted his Remainder. And after the Tenant for life died, [...] Bull [...]. and the Grantee of the Remainder entered; And whether Execution shall be sued of this land upon the said Statute, insomuch that the said land was never in Demeasne in the hands of the Co­ [...]so [...], [...] [...]ames [...]. and so not extendable in his hands, was the question. And Sr. Thomas Egerton Lord Keeper of the great seal said, that before that time there had been a difference taken between a Remainder and a Reversion depending upon an estate for life: For to a Remainder are no services due nor incident, and for that it is termed Seck; But a Reversion hath services incident, and those may be extended, and by consequence the Reversion when it commeth in possession. B [...]t it seemed unto him that all was one, for one may charge a Remainder when it happeneth, aswell as a Reversion; and a Statute is in the na­ture of a charge. Cook the Queenes Attourney said there was no que­stion in the Case; for albeit there was some scruple made in 33 H. 8. B. 227. yet the Case is without question: for if he in the Remainder make a lease for yeares, to commence at a day to come; Yet if he grant o­ver his Remainder, the Grantee shall hold that charged with his lease; And every Statute is a charge Executory. By which the said Lord Keeper awarded that there should be a liberate made to the Conusee, upon the retorn above.

6.

OVerton brought an action of Debt against Sydall. Debt by a Successor a­gainst an Executor af­ter assign­ment. And the case was, that Prebendary made a lease for yeares rendring rent, and the Lessee died, and the Executors of the Lessee assigned over the Term, and the Successor of the Prebend brought an action of Debt against the Executors for rent due after that they had assigned the estate over, and the opinion of three Justices was that the action would not lye. But Popham the chief Justice held the contrary: For the Successor is privie to the Contract of the predecessor; And so the Executor to the contract of the Testator.

7.

SHerborn against Lewis, Trin. 39. E­liz. The case was that the Hospitall of Doning­ton was founded by the name of Minister Dei pauperis domus de Donington; The name of a Corporation mistaken in a lease. And they made a lease in English by these words, Mini­ster [Page 121] of the Almes-house of God of Donington besides Newbery. And whether there be such variance between the name of the Foundation, and this name by which the lease is made, to make the lease void, or not, is the question.

Cook Attourney generall seemeth that the misnomer in this case makes the lease void, for the place of the Foundation is misnamed, and the place is the most materiall thing in the Foundation that may be, and for that if that be mistaken all is void. And yet he agreed that small variances in such Corporations shall not hurt.Small var­iances. For Almes­houseand poor-house doth not make any materiall variance, for they are all one in substance. But it may be that this addition de juxta Newbery is of substance, For there may be two Doningtons, viz. the one by himself, and the other juxta Newbery, without averment that it is not another; also in the Foundation this word Dei hath rela­tion to Minister, and pauperis shall go to domus, and that appeareth plainly by the Kings licence of creation, and then the Foundation that explaineth it, and the ordinances also, and if the Corporation be not according to the licence, then it is void, also it cannot be inten­ded that this word (Minister) [...]hall be referred to domus, for the words which give them auctority to elect one that he may be President above the others, and he may not precede the others, if he shall be a servant. And now to prove that a materiall difference, in 17 E. 3. Friars Carme­lites would have purchased land, & for that they had no place of Foun­dation they might not. And also the Dean and Chapiter of Chester made a lease, and this word (Cestria) was omitted, and for that it was adjudged void, and so here. Atkinson all co [...]tr. For here there is no misnomer of the Corporation, but an interposition of words one for another; And they ought to be reasonably construed, and howbe­it they are placed one before another, yet they may be construed according to the Foundation, having a favourable construction, the which ought to be in every grant.

It seemeth that the lease is good, for there is no materi­all variance, for variance in letter and not in substance shall not hurt, and here in substance they agree, as if one say that one is Bayly of I. S. of the Hundred of D. It may be properly said that he is Bay­ly of I. S. So here if he be Minister pauperis Dei de Donington▪ he is the Minister of God. For if the house be the house of God, and he the Minister of that, then he is the Minister of God, and in the case of the Savoy-after judgement given in the Exchequer, Error was brought in the Exchequer chamber, according to the Statute of 31 E. 3. ca. 12. And there it was agreed by the Barons before all the Judges of England, that the lease was good, notwithstanding the mis­nomer of the Foundation. And in some case variance in name of [Page 122] the Corporation should never hurt, where such variance in name of Baptism shall hurt. And to prove that, he cited 11 H. 4. and also he said that the other variance juxta Newbery is not materiall, for in 9 E. 4. that warranteth it, and it may be Donington is juxta New­bery.

I am of the same opinion, but yet I will be advised.

I am resolved, and I think that the argument of my brother Gawdie had need to be well answered; and after in Termino Mich. 39. & 40. Eliz. this case was argued again, and it was said that in 24. Eliz. inter Wilgate & Hall, the case was, that the Dean and Chapiter of VVindsor were founded by the name of Decanus Reginae capella de VVindsor, And they made a lease by the name Decanus Regina capelle de VVindsor, and for that this word Reginae was added to the lease, which was not in the Foundation, therefore the lease was adjudged void.

It seemeth the lease is good, and that the variance shall not hurt, for we ought to make suck construction if we may, that the lease should be good, and for that 11 Eliz. 278. Incorporation per name de Dean & Chapter Ecclesiae cathedralis sanct [...]e & indivi­due Trinitatis Carlill made a lease for yeares by name Decanus Eccle­siae cathedralis sanctae Trinitatis in Carlill, et totum capitalium de Ec­clesia praedicta, and the better opinion was that the lease was good, notwithstanding the variance, because it is not in substance of name, and 5 Ed. 4. 20. Obligation was made Abbati Monasterii de M [...] extra mur [...] Eborum. And in debt brought the Writ was quod reddat Ab­bati Monasterii de M. Ebor. leaving out these words extra muros, and holden good, notwithstanding the variance, and yet then the par­ty might have had a new Writ; Et a fotiori in this case, for here he can never have a new lease, and if a lease agree in effect and Substance with the Foundation, albeit there be variance in words between the grant and the Foundation, yet the lease is good. As if one said that T. K. is Executor, of the Testament of I. S. It may be said that that T. K. is I. S. Executor, and in this case if it had been Minister Dei p [...]peris domus Dei de Donington, there the Addition of this word Dei, after the word domus, shall never hurt. Fenner Justice said it should hurt, for it cannot be intended the same Corporation, and for that it is a materiall variance, for there are two Genitive cases, & the last of them may not be governed by the first Substantive, for in construction it may never be so construed. And when the King puts a name upon a Corporation, this name ought to be strictly observed: For they have no other capacity than by this name. And every Corporation consisteth of two parts,Two parts of e­very Corporati­on. That is to say of Persons, and of the place of their Foundation, and here Minister Dei is the Person, and pauperis domus de D. is the Foundation; by which, when part of the name of the Person is omitted, viz. this word Dei, and added to the Foundation, there is a materiall variance. Clynch said the [Page 123] Lease was good, for sayd he the Minister of God of the poor house of D. and the Minister of Gods poor house of D. are all one; for when our Saviour Christ came to Jerusalem, and there saw the buy­ing in the Temple, he sayd to the buyers, you have made the house of God the den of Theeves; for the house of God is the place where God is served.

For if the Corporation had been Minister domus Dei de D. and a Lease had been made by name de Mi­nister domus de D. omitting this word Dei, every one will agree that this is voyd; but if a further addition be made to the Corporation, the Lease is true,Addition super­fluous shall not hurt. allbeit that it be varying, as if the Lease had been Minister Dei omnipotentis, the addition of this word omnipotent, shall not hurt, & sic de similibus.

And allbeit that it be not agreeing in words, yet if it agree in common understanding,Common under­standing▪ it is good; but if in common understand­ing, the grant may not be taken according to the Foundation, if it be not wrested to an unexpected understanding, there it is not good; and if the Foundation had been in English words, Mi­nister of God of the poor house of Donington, and the Lease by name of Minister of the poor house of God of Donington, every one will agree that this is palpable variance, and the Lease not good. And I doubt of the case of Everwick, for there the Prior beat [...] Mariae brought an action by name of Prior beat [...] Mariae extramu­res civitatis Ebor▪ and if this case were now to be adjudged, that would be variance, as the case of Bristoll, Prior beatae Maria de Bri­stoll, made a Lease by name of Prior beatae Maria juxta Bristoll; and this Lease was adjudged voyd; but if the case had been de Everwick juxta mures civitatis Ebor. this had been no materiall variance, for it had been but an explanation, which will never hurt;

and for that the Court was so divided in opinion, that is to say, two against two, and the case concerned a poor house, They moved the parties to comprimise.