THE REPORTS Of that late REVEREND and LEARNED JUDGE, THOMAS OWEN ESQUIRE; One of the JUSTICES of the COMMON PLEAS. WHEREIN Are many choice CASES, most of them throughly argued by the Learned Sergeants, and after argued and resolved by the grave JUDGES of those times. WITH Many Cases wherein the differences in the Year-books are reconciled and explained With two exact Alphabetical Tables, the one of the Cases, and the other of the Principal Matters therein contained. LONDON, Printed by T.R. for H. Twyford, T. Dring, and J. Place, and are to be sold at their Shops in Vine-Court Middle-Temple, at the George in Fleetstreet, near Clifford's Inn, and at Furnivals' Inn-gate in Holborn, 1656. TO THE READER: THis Learned and Reverend Judge, the Author of the Reports following, as he was highly honoured for his profound knowledge in the Laws of this Nation; and upon that account chosen one of the Queen's Sergeants at Law, by that Wise Princess, Queen Elizabeth: and not long after for his fidelity in that Service, preferred by her to be one of the Judges of the Court of Common Pleas; So he had the happiness to have his Name and Memory perpetuated in those Excellent Parts and Abilities of that accomplished Gentleman, Sir Roger Owen, his Son and Heir, an Eminent Patriot of his Country, who performed the office of a pious and dutiful Son, in Erecting a Monument to the Memory of his worthy Father, in the Abby-Church at Westminster; where you may see a short History of this Reverend Person. There yet remains one Monument more, Omni aere perenniu●. These excellent REPORTS drawn by his own hand in a Language then in use, and most expedititious for that purpose. The pains of an Industrious Gentleman hath translated them into another Language, more proper to the Meridian of this Nation; which Work thou shalt find faithfully performed, and so strictly and religiously, that even those very things that most required alteration, Viz. Such Cases as are misplaced in respect of order of time, keep still the same place and station that the Author left them in. The Work itself is a Miscellany and Collection of choice and select Cases in the Law, and bespeaks thy acceptance and entertainment, not only from the variety of the Subject and matter, which nevertheless is so comprehensive, that there is scarce any doubt or question in the Law can be raised, but it gives light towards the decision and resolution of it: but from the Authority of the Author's sage Wisdom and Prudence, which, like a precious Limbeck, derives unto thee the Spirit and Quintessence of those many learned Arguments that were made in these Cases, both at the Bar and Bench. If in natural Births and Productions it gives value and esteem to the Issue to be descended from wise and noble Parents, upon that common presumption, that Robora Parentum filii referunt. The consideration should much more take place in the Results and Emanations of the mind and brain, wherein those Tendeys and Traditions must necessarily be conceived to have the greatest authority, which are most heightened with Experience and Observation. Such are the Reports of this Reverend, Judge, from which I shall no longer detain Thee. THE NAMES OF THE PRINCIPAL CASES A. ALmeskey against Jackson, fol. 46 Arundel, Sir John fol. 49 Audley's Case fol. 17 Austin against Courtney fol. 93 Allens Case fol. 113 Air against joiner fol. 141 B. Brag against Brook fol. 4 Beverley against the Archbishop of Canterbury fol. 2 Bretts Case fol. 7 Bishop of Lincoln's Case fol. 5 Bucknels Case fol. 7 Bartues Case fol. 13 Bartwrights Case fol. 19 Barnard's Case fol. 22 brown's Case fol. 24 Bliss against Stafford fol. 37 Bindon Viscount fol. 37 Britman against Stamford fol. 41 Bond against Richardson fol. 45 Beaumont's Case fol. 46 Baldwin against Martin fol. 48 Bloss against Holman fol. 52 Brown against Brinckley fol. 58 Bagnall against Porter fol. 65 Brokesbies' Case fol. 85 Bretton against Barnet fol. 86 Bishop of Lincoln's case fol. 89 Bottenham against Herlakenden fol. 92 Beron ag st. Goodwin fol. 95 Beale against Carter fol. 98 Bedford against Hall fol. 104 Brown against Harvey fol. 115 Butler against Archer fol. 152 Butler against Rudsey fol. 118 Bishop of Rochester's Case fol. 73 Bethels case fol. 132 Brooks case fol. 132 Barnes case fol. 137 Bolton against Bolton fol. 149 C. CArters case fol. 13 Clere, Sir Edward fol. 24 Cousins case fol. 29 Caltons case fol. 38 Crawleys case fol. 126 Crisps case fol. 47 Cook against Balwin fol. 52 Carter against Low fol. 56 Castleman against Hobbs fol. 57 Clarentius against Dethick fol. 61 Chandler against Grils fol. 62 Carrel against Read fol. 65 Carter against Kunstead fol. 84 Cleygate against Batchelor fol. 143 Cuddington against Wilkin fol. 150 Carew against Warren fol. 157 D. Downinghams' case fol. 17 Duchess of Suffolk's case fol. 81 Dacres, Lord fol. 23 Dabridgcourt against Smalbrooke fol. 97 Doctor Lewin against Monday fol. 41 Dorothy Michel's case fol. 54 During against Kettle fol. 26 Damport against Symson fol. 158 Doggerel against Perks fol. 66 Day against Fynn fol. 133 Doggets case fol. 144 Day against Austin fol. 70 Drury against Waller fol. 151 Drinmock, Sir Henry fol. 149 Dixy, Sir Walston against Spencer fol. 81 E. EArl of Kent against Bryan fol. 54 Earl of Northumberlands case fol. 124 East against Harding fol. 63 Earl of Lincoln's case fol. 113 Earl of Rutland's case fol. 156 Elmer against Thatcher fol. 101 Escot against Lanreny fol. 109 Ewer against Henden fol. 7● F. Fulgeambs' case fol. 14 Fenners case fol. 25 Fitz-James fol. 33 Farmer, Sir George against Brook fol. 67 Farrington against Charrock fol. 67 Foster against maps fol. 100 Ford against Helborow fol. 104 Feners against Borough fol. 116 G. GOddards case fol. 10 Gaytons' case fol. 12 Greyes case fol. 20 Gibbs case fol. 27 Gorge, Sir Thomas fol. 53 Gowood against Binks fol. 56 Goosayes case fol. 146 Green against Wiseman fol. 86 Glover against Pipe fol. 92 H. HAles case fol. 6 Haveringtons case fol. 6 Haslewoods case fol. 13 Hambletons' case fol. 25 Higham against Deff fol. 74 Hunts case fol. 42 Holman against Collins fol. 50 House against Grindon fol. 53 Hund against Preston fol. 58 Higham against Beast fol. 58 Holt against Lister fol. 146 Hugo against Pain fol. 61 Hone against Clerk fol. 64 Henningham against Windham fol. 68 Holborn against Rawlins fol. 111 Haddon against Arrowsmith fol. 72 J. JElsey against Robinson fol. 88 Ireland against Higgins fol. 93 James against Portman fol. 102 Jordan against Atwood fol. 121 Information against West fol. 134 K. KEnt against Wichal fol. 48 Kinton against Hopton Knots against Everstead fol. 66 Kayre against Deurat fol. 91 Knowles against powel fol. 116 Kempe against Laurence fol. 134 The King against the Bishop of Canterbury fol. 755 L. LEonard against Stevens fol. 1 Leigh against Burley fol. 122 Leighs case fol. 15 Lane against Cotton fol. 127 Lily against Taylor fol. 148 Lewin against Monday fol. 153 Leyes case fol. 20 Lambert against Austin fol. 117 Lord Rich his case fol. 34 Lane against Coups fol. 64 Leek against the Bishop of Coventry fol. 131 Lassels case fol. 90 M. Michels' case fol. 8 Moss against Read fol. 47 Mercer against Sperks fol. 51 Moil against Moyle fol. 66 Mark Ives case fol. 108 Malloy against Jennings fol. 69 Moors against Conham fol. 123 Morris against Padget fol. 138 Mathewson against Trot fol. 141 Marsh his case fol. 147 N. NEwman against Berwood fol. 50 Norton against Jennet fol. 72 O. Owen's case fol. 24 Owe seleys case fol. 23 Oldfeild against Wilmor fol. 153 P. Palmer's Case fol. 17 Palmers case fol. 18 Pen against Merivall fol. 63 Powtrels case fol. 83 Perrin against Allen fol. 97 Pelling against Langden fol. 114 Pendigate against Audley fol. 118 Pecks case fol. 129 Q. THe Queen against Allen fol. 2 R. Richmonds' case fol. 9 Rouses case fol. 27 Rawley, Sir Robert fol. 44 Rainer against Grimston fol. 62 Rotheram against Crawley fol. 71 Rudd against Topsey fol. 142 S. Spitals case fol. 8 Smith's case fol. 29 Slander fol. 30 Stinkley against Chamberlain fol. 33 On the Statute of Recusancy fol. 37 Styles case fol. 39 Stephens against Leighton fol. 40 Sticklehornes case fol. 43 Saveries case fol. 51 Souths case fol. 145 Stephens case fol. 152 Smiths case fol. 87 Stones case fol. 94 Stantons case fol. 95 Suttons case fol. 96 Soles case fol. 99 Scarret against Tanner fol. 105 Sawyer against Hardy fol. 107 Sackford against Philip's fol. 109 Stroud against Willis fol. 110 Shopland against Radlen fol. 115 Sperk against Sperk fol. 125 Shaw against Sherwood fol. 127 Swan against Gateland fol. 127 Streetman against Eversley fol. 114 Smith against Jones fol. 133 T. Tauntons' case fol. 14 Thurstons case fol. 16 Totten against Bedingfeild fol. 35 Trussels case fol. 69 Tanfeild against Roger's fol. 119 Townsend against Waley fol. 155 W. Wakefeilds' case fol. 4 Wardfords' case fol. 11 Wisdoms case fol. 18 Welters case fol. 19 wright's case fol. 21 Webs case fol. 26 Watkins case fol. 137 Wood against Ash fol. 139 Winter agrinst Barnham fol. 33 Winter against Loveday fol. 34 Wentworth ag st. Wright fol. 144 Willis against Whitwood fol. 45 Willoughby against Grace fol. 59 Wentworth against Russell fol. 60 Woodward against Nelson fol. 103 Worsley against Charnock fol. ●6 Wiseman agaidst Balwin fol. 112 White against Gerish fol. 126 Walgrave against Skinner fol. 120 Waller against the Dean of Norwich fol. 136 Y. YArdley against Pescan fol. 43 G. GOodway against Michael fol. 71 Gibson against Mutes fol. 76 Gresham against Rag fol. 114 Goodrick against Cooper fol. 143 Goodrigde against Warberton fol. 154 H. HUnt against King fol. 75 Hall against Wood fol. 131 howard's case fol. 138 Forest against Ballard fol. 142 Halling against Command fol. 157 Errata. FOl. 8. for there was a remainder, read there was a demur. fol. 10. for will determine r. will not determine, f. 12. for assessionem r. assentionem, f. 19 for in the Judgement r. in the Indictment, f. 21. for the writ of Dower r. of the writ of Error, f. 23. for Littleburies' case r. Littleton's case, f. 25. for issued r. issue, f. 29. for when r. whereas, f. 40. for Washley r. Walmesley, f. 41. for grant adjudged r. grant adjudged good, f. 47. for buying tithes r. buying of tithes, f. 43. for non dierunt r. non dixerunt, f. 45. for the house r. a horse, f. 47. for is r. are, f. 59 for here r. where, f. 63. for after a copyholder r. & after a copyholder, f. 64. for per servantes r. per presents, f. 68 for action of error r. writ of error, f. 70. for before r. because, f. 70. for intent r. extent, f. 76. for and the same r. and he, f. 83. for inheritance r. disinheritance, f. 85. for least r. best, f 86. for baned r. barred, f. 89. for it the rent r. for if the rent, f. 90. for tenant r. tenancy, f. 92. for her r. per, f. 93. for promiseth that r. and it is covenanted that, f. 96 for donas r. donees, f. 96. for per r. sur, f. 99 for may the damage r. may not the damages, fo. 111. for his band r. bound, f. 112. for Pewis r. Newis, f. 19 for also of the Manor r. and also of the Manor, f. 123. for Court r. Count, f. 123. for nor damages r. but damages, f. 150. for hadhad issue r. had issue, f. 158. for those inform r. those who inform. THE REPORTS OF JUDGE OWEN. Termino Pasch. anno 26 Eliz. Leonard against Stephens. Rotulo. 1702. LEONARD chief Prothonotary, brought an Action of Trespass against Stephens; who justified, etc. for that Sir Christopher Heyden Knight, was seized in Fee, and enfeoffed the Defendant, and gave colour to the Plaintiff; The Plaintiff replied, that true it was that Sir Christopher Heydon was so seized, but he being so seized, died seized of the Premises, and that after his death, they did descend to his Son and Heir, who entered and was seized, and being so seized did enfeoff the Plaintiff: Without that, that the said Sir Christopher Heyden did enfeoff the Defendant, whereupon Issue was joined, and the jury gave an especial Verdict to this effect. That the said Christopher Heyden was seized as aforesaid, and made a Lease for years to the Defendant by Deed, containing these words, Dedi & concessi & confirmavi to the Defendant and his Heirs, with a Letter of Attorney to make Livery. The Question was, whether this was a Feoffment, or but a Confirmation. Walmsley Sergeant, It is but Confirmation being by Deed, and hath the word Confirmation. Anderson, By that reason he in the Reversion cannot enfeoff his Lessee for years by Deed as he may without Deed: but I conceive, that it is at the liberty and choice of the Lessee either to take it as a Feoffment or a Confirmation. Walmsley, As soon as the Lessee hath accepted the Deed, by that he hath declared his meaning to have it as a Confirmation. Anderson, And when the Lessee doth accept the Livery, doth not that show his express meaning to take it by the Livery, and shall the Livery signify nothing? And in Bracebridges Case, where the Tenant in tail made a Bargain and Sale, and made Livery, and the Deed was enrolled within the six months: this was adjudged to be a Discontinuance, and yet the Bargain and Sale makes no discontinuance, which little differs from the case in question. Walmsley, If Tenant in tail be disseised, and it is agreed between the Disseisor and the Disseisee, that the Disseisee shall make a Deed to the Disseisor, who makes a Deed accordingly, it is not in the election of the Disseisor to take this as a Feoffment. Anderson, The Cases differed, for the Disseisee hath no power to make a Feoffment. And adjudged by the Court that it was a good Feoffment, vide 17 Ass. 20.22 H. 6.43. Scire facias by the Queen against Allen. THe Case was, A man recovers damages in an Action on the case, and he assigns parcel of his debt to the Queen before execution, and the Queen thereupon brought a Scire facias. Manwood chief Baron, and all the Court held clearly, that parcel, or a Meyety of this debt could not be assigned over to the Queen. See 22 H. 6.47. where parcel of a debt upon an Obligation was attached by a foreign Attachment. Beverley against the Archbishop of Canterbury. Quare Impedit. THomas Beverley brought a Quare Impedit against John Archbishop of Canterbury, and Gabriel Cornwall, the case was, That the Queen being entitled to an Advowson by Lapse because that the Incumbent had two Benefices, each of them being of the value of eight pounds per annum, whereby the first by the Statute of 21 H. 8. became void, and after the said Incumbent died, and divers others were presented by the Patrons, who died also, whereby the Church becomes void again. If the Queen may now take her turn to present, in regard she took not her turn when the first Lapse happened immediately at the first avoidance, was the question. And after long and serious debate, all the justices of the Common Pleas did resolve. That the Queen shall not now have her Presentment, but the Patron, because the Queen hath such presentment by Lapse as the Bishop had, and no other, and could present but to the present avoidance then void: and although Nullum tempus occurrit Regi, yet we must distinguish it thus, for where the King is limited to a time certain, or to that which in its self is transitory, there the King must do it within the time limited, or in that time wherein the thing to be done hath essence or consistence, or while it remaineth, for otherwise he shall never do it. For if the Grantee of the next avoidance, or Lessee Per altar vie be attaint, here the King must take his interest and advantage during the time, viz. during the life of Cestui que vie, or within the years of the next avoidance, or otherwise he shall never have it: the same Law is where a second presentment is granted to the King, and he does not present, he shall not present after. Shuttleworth, we have an Outlawry against the Plaintiff, whereupon judgement was stayed: But after Hil. 29 Eliz. The Queen's Sergeants showing that the Plaintiff was outlawed; It was argued by Walmsley, that that could not now come into debate, for the plaintiff hath no bay in Court after judgement, and it is but a surmise that the plaintiff is the same party. Windham, In a debt upon an Obligation, the Sergeants may pray the debt for the Queen, and yet it is but a surmise. And the opinion of three justices was (for Anderson was absent) that the Writ to the Bishop ought to be stayed; but in what manner process should be made if the Scire facias shall issue against the Plaintiff, they said, they would advise concerning the Course: But Periam said, that a Scire facias might have issued against the ancient Incumbent, and then the Queen shall bring a Scire facias again, because she had no presentation. And the Scire facias was brought against Beverly. Walmsley, I conceive the Queen shall have no Presentation, for although we have acknowledged our Presentment, yet before execution we have but a right; As if a Disseisee be outlawed he shall not forfeit the profits of his Land; also he hath brought a Scire facias, and a Scire facias lies not but by him that is party or privy. Periam, After that we have this Chattel, it is forfeit by Outlawry. Anderson, The judgement that he shall recover, shall not remove the Incumbent, and then the Plaintiff hath but a right; to which Periam and Walmsley agreed: but as to the other point, that the Queen shall not have a Scire facias for default of privity, they saw no reason, for in many Cases she shall have a Scire facias upon a Record between strangers: Anderson, If I recover in debt and then I am outlawed, shall the Queen have this debt? Walmsley, If I recover in a Quare Impedit, and die, who shall have the Presentment my Executor or my Heir? To which no answer was made: But the Court would take advice for the rareness of the Case. And it was said to Walmsley that he might demur in Law, if he thought the matter insufficient, to which Walmsley agreed, and did demur, etc. Annuity to a woman who marries and dies. AN Annuity is granted to a woman for life, who after marries, the Arrears of the Annuity encur, and the wife dies, whereby the Annuity is determined. It was adjudged that the husband shall have an Action of Debt at the Common Law: for that an Annuity is more than a Chose in Action, and may be granted over. And it was agreed by the Court in this case, That if a man grant an annual Rent out of Land in which he hath no interest, yet this is a good Annuity to charge the person of the Grantor in a Writ of Annuity, 14 H. 4.29 A. Coke 4th. Rep. 51. A. Bragg against Brooke. Second deliverance. LUcas Bragg brought a Writ of second deliverance against Robert Brook, for taking his Cattles in a place called East Burlish in the County of Surrey, the Case was. That Sir Thomas Speck was seized of a Manor, containing in it several Copyholds, and the place where, etc. was Copyhold. And the said Sir Thomas being so seized, married, and then died, and the wife 5 Edw. 6. demands the third part of the Manor for her Dower. Per nomen centum Messuagium centum gardinum, tot. acr. terrae, prati, etc. And the wife had judgement to recover; and the Sheriff assigned to her part of the Demesnes and parcel of the Services and of the Freeholders and Copyholders. And it was resolved clearly that the Copy-holds did not pass by the assignment; and that she could not grant a Copyhold, for when she demanded her Dower it was at her election and liberty, to demand either a third part of the Manor, or of the Messages, and when she demanded Per nomen Messuagiorum, etc. she cannot then have the Manor, nor can a Manor be claimed unless by his name of Corporation, as Anderson termed it, and not otherwise. And the Lands and Acres cannot be called Manors, and then the grant of a Copyhold by one who hath no Manor cannot be good. And so was the opinion of the Court, and yet the Sheriff had assigned to her Demesnes and Services, and all things which make a Manor. And 29 Ed. 3.35. If a Manor to which an Advowson is appendent be delivered by the Sheriff in execution by the name of a Manor, cum pertinentiis, the Advowson passeth also; but it is otherwise if it be delivered in extent, by the name of Acres, Lands, Meadow, Wood, etc. Wakefeilds' Case, 28 Eliz. Rotulo 607. Replevin. WAkefeild brought a Replevin against Cassand, who avowed for Damage-feasant: And the Plaintiff prescribed that D. is an ancient Town, etc. and that all the Inhabitants within the said Town (except the Partion, Infants, and some particular houses) have used to have Common to their houses, etc. The Avowant shown that the house to which Common was claimed, was built within thirty years' last passed. And whether he shall have Common to this new erected house was the question on a Demurrer? Shuttleworth, he shall have this Common by prescription, but not of common right. Gawdy, the Prescription is against common reason that he should have Common time cut of mind, etc. to that which hath not been thirty years, and he hath excepted the Parson, Infants, and such particular houses, and by the same reason may exceptall, and therefore it is not good. But it was adjudged no good Prescription, for if this be a good Prescription, than any body may create a new house, so that in long space of time there will be no Common for the ancient Inhabitants. Periam, By such Prescription the Lord shall be barred to improve the Common, which is against reason. Anderson, The Common is entire, for if H. hath Common appendent to three Messages, and enfeoff one of one Message, another of the second, and another of the third, the Common in this case is gone: But all agreed that it is impossible to have a Common time out of mind, etc. for a house that is builded within the thirty years. Mich. 29, and 30 Eliz. Rot. 2299. Bishop of Lincoln's Case. Quare Impedit. THe Queen brought a Quare Impedit against the Bishop of Lincoln, and Thomas Leigh, to present to the Church of Chalsenut Saint Giles in the County of Bucks. The case was thus; H. being qualified took two Benefices which were above the value of eight pounds, and after took a third Benefice above the said value, whereby the first Benefice became void, and so remained for two years, whereby Title of Lapse accrued to the Queen, and (before presentment made by the Queen) the Patron did present one A. who being admitted, instituted, and inducted, did refuse to pay 38 l. 2 s. ob. due to the Queen for the Tenths, which matter was certified by the Bishop into the Exchequer, whereupon and by force of the Statute of the 26 H. 8. the Church is ipso facto void; wherefore the Bishop the now Defendant being Patron in right of his Bishopric, did present Thomas Leigh the other Defendant, against whom the Queen brought her Quare Impedit: And it was adjudged by the Court that the Quare Impedit very well lies; for the Recusancy to pay the Tenths was his own act, and is a Resignation, and by that reason she Church is void, and this shall not hinder the Queen of the Lapse: But if A. the Incumbent who was presented, dies, being presented by usurpation upon the Lapse to the Queen, yet afterwards the right Patron shall present again: But when A. the Incumbent doth resign and make the Church void by his own Act, viz. by Recusancy, as in this case is done, this may be done by Collusion, and by such means the Queen may be deprived of her Little by Lapse: for if this Collusion between the Bishop and the Incumbent be suffered, then may a stranger present upon the Title of the Queen, and presently such Recusancy and Certificate may be made, by which the Church shall become void, and so the Queen deprived of the Lapse. Fenner, this Lapse is given to the Queen by her Prerogative, but on condition that she take it in due time, for such is the nature of the thing Lapsed, as is in this case adjudged, viz. That when the Queen hath Title to present by Lapse, and doth not present, but the Patron presents, and after the Church becomes void by the death of the Incumbent: In this case (adjudged by the Court also) the Queen cannot present; but in this case, the avoidance being by privation and not by death, judgement was entered for the Queen. Trin. 19 Eliz. in Com. B. Hales Case. Debt on ● Bond. SAmuel Hales brought an Action of Debt on a Bond against Edward Bell, and the Condition of the Bond was, that if the said Bell should pay to the said Hales forty pounds within forty days next after the return of one Russell into England from the City of Venice beyond the Seas, that then the Obligation to be void: and the Defendant pleaded in Bar that the said Russell was not in Venice, upon which the Plaintiff demurred: And adjudged by all the justices that it was no good plea; for in such cases where parcel is to be done within the Realm, and parcel out of the Realm, the trial shall be within the Realm, 7 H: 7.9. Trin. 28 Eliz. in Com. Ban. Haveringtons Case. 1974. Debt by an Administrator. HAverington and his wife as Administratrix of one Isabella Oram, brought an Action of Debt against Rudyand and his wife, Executrix to one Laurence Kidnelly, the Case appeared to be thus. Farmer for thirty years did devise to his wife so long as she shall be sole and a Widow, the occupation and profits of his term: And after her Widowhood, the Residue of the term in the Lease and his interest in it to Reynald his Son, the Devisor dies, and the wife enters according to the Devise: And afterwards he in the Reversion by Indenture Dedit & concessit, vendidit & Barganizavit totum illud tenementum suum, to the wife and her Heirs, and did also covenant to make further assurance, and to discharge the said Tenement of all former Bargains, Sales, Rights, Jointures, Dowers, Mortgages, Statute-merchants, and of the Staple, Intrusions, Forfeitures, Condemnations, Executions, Arrearages of Rents; and of all other charges (except Rents Services which shall be hereafter due to the Lords Paramount) And then the Reversioner and his wife levied a Fine to the uses aforesaid; and after the Devisee takes husband, and thereupon the Son enters in the term. And the Administrator of the wife brought an action of debt upon an Obligation, for the performance of the Covenants of the Indenture against the Administrator of the Reversioner: And Judgement for the Plaintist. And it appeared by the Record that these points following were adjudged to be Law, although that the latter matter was only argued. 1. That the wife of the Reversioner who had Title of Dower in the Land, is concluded of her right of Dower, by the Declaration of the uses of the Fine by the husband only, which Fine is after levied by them jointly, because no contradiction of the woman appears that she doth not agree to the Uses which the husband selely by his Deed of Indenture had declared. 2. To Devise that the wife shall have the occupation and profits during her Widowhood is a good Devise of the Land itself, during such time. See Plow. 524. And that no Act which she can do in purchasing the Inheritance by which the Term is extinct, shall bar the possibility which Reynald the Son hath to come, upon the woman's marriage. 3. That a Lessee for years being in possession may take a Feoffment although it be by Deed, and may take Livery after the delivery of the Deed, and shall be deemed to be in by force of the Feoffment, as in this case is pleaded, although that the Lessee may take the Deed by way of confirmation, and then the Livery is but Surplusage and void. 4. It was resolved, that this possibility which was in Reynald the Son to have the residue of the term upon the inter-marriage, which at the time of the Feoffment and of the Fine, was but Dormant, shall be accounted a former charge and before the Covenant, because of the will which was before the Covenant, and shall awake, and have relation before the marriage. As if Tenant in tail of a Rent, purchaseth the Land out of which the Rent issueth, and makes a Feoffment, and covenants that the Land at that time is discharged of all former charges, although this charge is not in esse, but is in suspense, as it is said 3 H. 7.12, yet if the Tenant in tail die, his Issue may distrain for this Rent, and then is the Covenant broke, for now it shall be accounted a former charge before the Feoffment. Mich. 29, and 30 Eliz. in Com. Ban. Bretts Case. Debt on ● Bond. BRett brought an action of Debt on a Bond against Averden, and the Condition of the Bond was to stand to the Arbitrement of J.S. who did award that the Defendant should pay ten pounds to Brett, and no time was limited to pay it. The Defendant confessed the Arbitrement but pleaded in Bar that the Plaintiff hath not required him to pay the money: And the Plaintiff hereupon demurred. Adjudged by the Court, that it is no good plea, for the Defendant at his peril ought to pay the money, and the Plaintiff need not make any request. wherefore judgement was given for the Plaintiff. Trin. 29 Eliz. in Com. Ban. Bucknells' Case. Action for Robbery on the Statute of Winchestster. BUcknell was rob in a Hundred within the County of Bucks. and thereupon brought his Action upon the Statute of Winchester, because the Thiefs were not taken: And Not guilty being pleaded by the Inhabitants, the jury gave this special Verdict, viz. That he was rob the same day alleged in the Declaration, but in another place and within another Parish then that he hath alleged in the Declaration, but that both the Parishes were within the said Hundred: Upon which they prayed the judgement of the Court whether the Inhabitants were guilty. Adjudged by the Court for the Plaintiff, for it is not material in what Parish he was rob, so it were within the same Hundred. Hil. 30 Eliz. in Com. Banc. Rot. 904. Spitals Case. Replevin. SPittle brought a Replevin against Davis, the Case was this. Turk being seized of Land in Fee, did devise parcel thereof to his youngest Son. Proviso, and it is his intent, that if any of his Sons, or any of their Issues, shall alien or demise any of the said Lands devised, before they shall attain the age of thirty years, that then the other shall have the Estate, and does not limit any Estate: And then the eldest Son made a Lease before his age of thirty years; and the youngest Son enters, and afterwards, and before the age of thirty years he aliens the Land he entered into by reason of the limitation: the elder Brother reenters, and demised to Spittle the Plaintiff for three years, who put a Horse into the ground, and Davis by the commandment of the younger brother entered and took the Horse Damage-feasant; and Spittle brought a Replevin. And upon the whose matter there was a Remainder: It was resolved. 1. That this is a limitation, and that the Estate shall be to such use as by the Will is directed until there be an Alienation, and upon Alienation the Land shall go to the other Brother. 2. When the youngest Brother hath once entered for the Alienation, then is the Land discharged of all Limitations, for otherwise the Land shall go and come to one and the other upon every Alienation ad infinitum, wherefore all the judges agreed, that after the one Brother hath entered by reason of the limitation, the Land is then for ever discharged of the Limitation made by the Will: And judgement was given accordingly. Michaells' Case. Debt on a Bond: THomas Michael brought an Action of Debt on a Bond against Stockworth and Andrews; the jury gave this special Verdict: That the said Stockworth and Andrews did seal a Bond and delivered it to the Plaintiff as their Deed: and after Issue joined, and before the Nisi prius the Seal of Andrews was taken from the Bond. Shuttleworth, The Plaintiff shall be barred, for it is one entire Deed, and the Seal of one is wanting. And admit (in case it goes against us) the judgement be reversed by Writ of Error, the Plaintiff can have no Action on such Bond: But it was adjudged to be a good Bond; and judgement for the Plaintiff. See the like case in Dyer, Trin. 36 H. 8.59. A. Hillari 33 Eliz. in Com. Ban. Rot. 1315. Richmond's Case. Debt for rent. RIchmond brought an Action of Debt against Butcher, the case was; A man makes a Lease for years, reserving Rend to him and his Executors and Assigns, and during the term the Lessor dies, and his Heir, who hath the Reversion, brings an Action of Debt. And it was urged, that the Rent was incident to the Reversion, and the Heir having the Reversion shall have the Rent also as incident to it, as the case is in the 27 H. 8.16. If H. makes a Lease for years, rendering Rend, without saying any more words, the Heir shall have this part, because it shall go along with the Reversion: So in the fifth of Edw. 4.4. If two joint-tenants make a Lease for years, rendering Rend to one of them, yet the other shall have the Rent also, although no mention were made of him; so in the 7 H. 4.223. By the Court, If I make a Feoffment in Fee, rendering a Rent to me, my Heirs may distrain: And if I grant over this Rent, my Assignees in this case may distrain and avow: so in this case an Action will lie for the Heir, although he be not mentioned. But adjudged to the contrary by the Court; for when H. passeth Lands from himself, the Law gives him liverty to pass them in such way and manner as he himself will, and this liberty ought to take effect according to the express words, for the Law will not extend the words further, for the intent shall appear by the words, and then it cannot be here intended that his will was that his Heir shall have the Rent, because the words are not sufficient to give it to his Heirs: And therefore note a diversity when the Law makes a Tenure, and when the party; for if the Law makes a Tenure, the Heirs shall have the Rent: but otherwise where the party makes it, unless there be express words for the Heir, as in 10 Edw. 4.19. by Moil, If H. makes a Gift in T. and reserves no Rent: yet shall the Donee hold of the Donor and his Heirs, as the Denor holds over; but if he make a Lease for years, rendering Rend to the Lessor, the Heir shall not have this Rent, for it is a Tenure made by the act of the party. So in the Book of Assizes 86. If a man let's two acres of Land, rendering Rend ten shillings for one of them to himself by name, without naming his Heirs, it is adjudged that the Heir shall not have the Rent of this acre. And this is resembled to the case of 12 Edw. 2. Where a man made a Lease for years, rendering Rend to the Lessor and his Assigns, here none shall have the Rent but the Lessor, and it is void by his death, for his Assignee cannot be privy to the Reservation; and the words of the party shall not in any case be enlarged, unless there be great inconvenience to be avoided: and his intent and will is performed if he himself have the Rent. And if a man reserve such Rent to him and his Executors, this word Executors is to no purpose, for that the Rent cannot be reserved to them, but the Rent shall be extinct by his death: And if he reserve the Rent to his Heir, and not to himself he shall not have it, but his Heir, for he shall be estopped to claim it, against his own words and reservation. And if I make a Lease for years, rendering Rend to me during the term, if I die without Heir during the term, the Lord by Escheat shall not have the Rent: which case may be compared to the case of Warranty, 6 H. 7.2. That without mention of the Heirs, the Warranty shall not bind them: But if a Rent be reserved to his Assigns, and he grants over the Reversion, here because the Assigns were mentioned in the Reservation, and for that now there is a privity, the Assignees shall have the Rent, for it shall be intended that when he speaks of Assigns in the Reservation, he prefixeth thereby to whom he will. Assign the Reservation, wherefore it was adjudged for the Defendant, vide Dyer 2 Eliz. 180, 181. H. bargains and sells Land: Proviso, that if the Vendor shall pay a hundred pounds to the Vendes his Heirs or Assigns, that then the Bargain and Sale shall be void: by two justices. The Tendor shall not be made to the Executors, because the Law will determine to whom the Tendor shall be made, when the parties themselves are expressly agreed. Mich. 33, and 34 Eliz. in Com. Ban. Goddards Case. Confirmation by the Lessor to the Assignee of Tenant for years. H. makes a Lease for years of twenty acres, rendering Rend, the Lessee grants all his Estate in one of the acres to I.S. the Lessor confirms the Estate of I. S. Resolved by the Court, 1. That by this confirmation the entire Rent is gone in all the other acres, for being an entire contract and by his own act, there cannot be an occupation for part, and an extinguishment for the other part; and in this case there is no difference between a suspension in part, and an extinguishment. If A. makes a Lease for years of twenty acres, rendering Rend, upon condition that if he does not do such a thing, that then the Lease shall be void for ten acres; if he performs not the condition, and the Lessor enters, the entire rent is gone. And it was resolved that a Lease for years was not within the Statute of Quia emptores terrarum, for that Statute extends to an Estate in Land of Fee-simple. See the Report of Sergeant Benlowes in 14 H. 7. A Warren did extend into three Parishes. And a Lease was made for years rendering rend, and after the Reversion was granted to another of all the Warren in one of the Parishes, and the Lessee did attorne. The question was, if the Lessor should have any part of this rent during the term, so that the rent may be apportioned or not. And the justices said in this Case, that neither the Grantor nor the Grantee shall have any rent, for the Law is, that no Contract shall be apportioned. 2. It was resolved, that no Lessor shall avow for the arrearages of rent, before the time of Confirmation and extinguishment; for H. shall not avow for the rend determined; but he may defend himself by way of justification. See where a man may justify the taking by special evidence, 19 H. 6.41. by all the Court, except Askew. Mich 33, and 34 Eliz. in Ban. Reg. Rot. 471. Wardfords' Case. Error. HAddock brought a Writ of Error against Wardford upon a judgement given in the Common Pleas; the case was thus: Two Coparceners of a house, one of them lets her part to a stranger, and the other lets her part to a stranger also, and then both Leases come to the hands of one H. and then one of the Coparceners' bargains and sells her reversion to the other Coparcener. The Lessee commits Waste Permittendo dictum Messuagium cadere, and the grantee of the Reversion brought an action of Waste. The Errors assigned were, 1. That he brought but one action of Waste, although of several Demises by several Lessors, whereas he ought to have two actions of Waste. Godfrey, He cannot have an Action in other manner than his Grantor might have before the Grant, and when the reversion came to him, it can be in other plight than it was before. Gawdy, There is a diversity when the right is several, and when the possession is several; for although the possession be several, yet if the right be entire, but one action will lys, as appears F.N.B. fol. 2. Godfrey, There is difference between the Writ of Right in F.N.B. and this action, for there he was never entitled but only to the action, but in our case the action was once several, and is like the case in F.N.B. 60. where it is said, that a man may have one action of Waste, and declare upon divers Leases, but that is intended where the Leases are made by one person, and he cited the case in 21 H. 7.39. where it is agreed by all the justices, that if a man hold two acres of one H. by several Services, and dies without Heir, the Lord shall not have one Writ of Escheat, but aught to have two Writs. Popham chief justice did agree with Gawdy, for although that at first the Lessors were entitled to several Actions, yet by matter ex post facto, the Actions may be united: and said, that H. might have an action of Waste, and declare ex assignatione, and also ex dimissione. 2. Error was assigned, that he had assigned the Waste to be committed in the whole house, whereas he had but part of the house, and Waste may be brought for part of a house. 3. Error was, because the other Coparcener was not joined with him in the Action. But resolved that it was good enough: And the justices made this diversity, viz. When both the parties have an equal Estate and Inheritance, and when one of them hath but a particular Estate, as in the 27 H. 8.13. Lessee for life, and he in the remainder shall join in an Action of Waste, but where they had equal estate of Inheritance, as two Coparceners, or two Tenants in Common, and one makes a Lease, and the Lessee commits Waste, there the Writ of Waste shall be brought by the Lessor only, for it is not like to a personal injury done upon an Inheritance; for an action of Waste is now in the nature of the realty, although that at the Common Law (before the Statute of Gloucester) there was but a Prohibition, yet the Statute gives the place wasted, and damages, and therefore it is mixed, wherefore both of them shall not join, and the Writ says, to his disheritance that made the Lease, vide 22 H. 6 24. by the Court, and agreeing with this resolution. 4. Error was, that the Waste is a permissive Waste, and no such Waste lies between Coparceners, for each of them are bound to contribution and reparation: but the Court would take no notice of this. 5. Error was in the entering judgement, for judgement was entered by default, whereupon a Writ of Inquiry of damages issued out to the Sheriff, and the Sheriff went to the place wasted, which he needed not have done. And the judgement was Quod recuparet locum vastatum per visum Juratorum, which was nought, for the going to the place was Surplusage. But divers Precedents were produced to prove that, that was the course: as Hilar. Rot. 501. between the Earl of Bedford and William Smith, upon a Demurrer, and a Writ of inquiry of damages, and the judgement was, Quod recuparet locum vastatum per visum Juratorum, and Trin. 31 H. 8. Rot, 142. and the book of Entries, fol. 620. wherefore judgement was affirmed. 34 Eliz. in Com. Ban. Gaytons' Case. Resignation of a Benefice. RObert Gayton Parson of the Church of little Eyesingham in the County of Norfolk, did by Instrument in writing resign his Benefice before Edmund Langdon public Notary, and others, into the hands of the Bishop, and the resignation was absolute and voluntary, and to the use of Miles Moss, and Paul Britback, or either of them: And it was further inferred in the said Instrument of Resignation, Protestatione & sub conditione quod si aliqui eorum non admissi fuerant per assessionem Episcop. infra sex menses, quod tunc haec present. resignatio mea vacua & pro nulla habeatur, & nunc prout tunc, & tunc prout nunc: and Cestuy que use, came within the time limited to the Bishop, and did offer to resign to him, which the Bishop refused to except, etc. Crook for the Plaintiff, Forasmuch as the Plaintiff may resign on Condition as well as a particular Tenant may surrender upon condition: and two Parsons may exchange, and i● the estate be executed on the one part, and not on the other, that Parson whose part was not executed may have his Benefice again, as it is adjudged in the 46 Ed. 3. But Coke Solicitor, and Godfrey were on the contrary opinion: For that the Incumbent may not transfer his Benefice to another without presentation, as appears in the recited case of 46 Edw. 3. Also the resignation is not good, and the Condition void, because it is against the nature of a Resignation which must be Absolute, sponte, pure, & simpliciter and is not like to a Condition in Law, as in the said case of Exchange in 46 Edw. 3. for the Law doth annex a condition to it, but a collateral condition cannot be annexed by the parties themselves: Also this is an Act judicial to which a condition cannot be annexed, no more than an Ordinary may admit upon condition, or a judgement be confessed on Condition, which are judicial Acts. But admitting the Condition good, yet a new Induction ought to be made by the Ordinary, for the Church became one time void; and is not like to the case in 2 R. 2. Quare Impedit 143. where sentence of deprivation was given, and the sentence presently reversed by Appeal, there need no new Institution, for that the Church was never void. And after in Easter Term, 36 Eliz. upon Arguments given in writing by the civilians to the judges, the judgement was entered, Quod querens nihil capiat per billam. Hiliar. 35 Eliz. in the King's Bench. Rot. 56. Carters Case. Action on the case for words. WIlliam Crow brought an Action on the Case against Warham Carter for speaking of these words; The said William is forsworn and perjured in swearing at the common place Bar upon the Deeds which he then had in his hand. Harris Serjeant did move in Arrest of judgement, for that the words shall be construed according to the common and vulgar sense, viz. That he is forsworn upon the Deeds. But the Court was against him: For the vulgar sense is, that men do not use to swear but upon a Book, and the Plaintiff had judgement. Hil. 36 Eliz. in the King's Bench. William Bartues Case. Prohibition. WOodroffe and Cook brought a Prohibition against Bartue; the C se was thus. The Abbot of Langley did let Land to one Raston for ninety nine years, who let the same to Woodroff for sixty years, who granted parcel of the said Land to Cook during the whole term. And Bartue did libel against them both in the Spiritual Court for Tithes, and they joined in a Prohibition. Godfrey, They may not join in a Prohibition, for by the Statute of▪ 34 H. 6.13. If two men are sued in the Court Christian for slander, b●ttery, etc. which are several in themselves, there they cannot join in a Prohibition: but where they be sued for the finding of a Lamp, etc. by reason of their Land, there they shall join; but in this case the Tithes are several. But it was resolved, 1. That their joining in the Prohibition was good enough. 2. That the death of one of them shall not abate the Writ of Prohibition, because nothing is by them to be recovered, but they are only to be discharged of Tithes. Pasch. 33 Eliz. in the King's Bench, Rot. 292. Haslewoods' Case. Error in Avowry. THe Lord of a Manor did avow on the taking of a Gelding as an Estrey within his Manor, and had judgement to have return and damage to twenty pounds: And hereupon a writ of Error was brought, and adjudged that no Damages shall be had in such case: For the Avowant cannot recover damages at the Common Law, and by the Statute of the 7 H. 8. and 4. no damages shall be given to the Avowant for Damage-feasant; but where he avows for Rents, Customs, or Services, and this is neither Rent, Custom, or Service, for that of common right the Estrey belongs to the King, and no common person may have it unless by grant, or by prescription, and the Statute is to be taken strictly: for the Avowant for Damage-feasant, or for Rend Charge should not recover Damage by this Statute, before the Statute of 21 H. 8.19. where the Plaintiff hath remedy, as it is holden in Dyer 141. B. But because divers Precedents were shown out of the Common Pleas from time to time since the making that Statute, that damages shall be recovered by the Avowant, who avows for Amercements, etc. it was said, that it would be very difficult to control so many Precedents. Gawdy, no great credit is to be given to such Precedents as pass sub silentio, without any exception taken to them. Another Error was assigned, because the judgement was to have return averiorum predictorum, whereas there was but one Gelding: wherefore judgement was reversed, and the Roll marked. Trin. 36 Eliz. in B. R. Fulgeambs' Case. Trespass against the Constables of Cambridge. FUlgeambe brought an Action of Trespass against the Constables of Cambridge; the Case was. The Plaintiffs horses estrayed into Cambridgeshire, and were thereupon Impounded in Cambridge, and then one A. came with a Commission from the Lord Hunsdon Captain of Barwick, to take Horses to ride to Barwick, and the Constables delivered to him the Plaintiffs Horses, and then one of the Horses died. And the opinion of all the justices was, that the Action did well lie, for the Constables cannot take Horses out of the Pound to deliver them to any by virtue of such a Commission. Trin. 36 Eliz. in B. R. Tauntons' Case. Lease on condition. Coals made a Lease to Taunton for ninety nine years, on condition ●hat if he demised it in other manner, then in such manner as he let the same to him, that then it should be lawful for him to re-enter; the Lessee devices it by his Will to his youngest Son. Resolved, that Rigore Juris, this is a breach of the Condition: for a Devise is an Alienation, as is holden 31 H. 8 Dyer 6. and although Conditions shall be taken strictly, yet not directly against the intent of the parties, and the reasonable disposition of the words; and therefore a Devise shall be intended to be within this word, Demise; yet it was said, that it was very hard according to equity that the Estate should be lost: For he intended by this Will to prefer one of his youngest Children, and not to break the Condition, and thought not it was any breach of the condition, and for this cause some doubt was made of the Case, but Hil. 38 Eliz. judgement was given as aforesaid. Pasch. 36 Eliz. in B. R. Rot. 41. Leighs Case. Ejectment. THe Queen being seized of lands as Duchess of Lancaster, did make a Lease thereof to the Plaintiff, the Lessee is outed by A. the Plaintiff makes a Lease to B. for years, and B. being outed brought an Ejectione firmae. 1. It was resolved, that the Queen as Duchess of Lancaster cannot be disseised, for although she be not seized in jure Coronae, yet is it in Seisin of the Queen, and cannot be taken away from her in respect of her person. 2. Gawdy, and Fenner held that the Lessee being outed, the term is turned into a Right. and therefore it hath been adjudged that an Ejectment will lie: as the case is in Dyer 29 H. 8. It Tenant in tail, the reversion in the King suffers a Recovery, although this shall not be to the prejudice of the King's Reversion, yet shall it bar the Estate-tail. So if a Parson makes a Lease for years, and the Patron and Ordinary confirm it, and the Parson dies, and during the Vacation the Lessee is outed, he is hereby outed of his term, yet is not the Franktenement touched. Clench on the contrary, That he who is outed hath an Estate but at sufferance, for he cannot have an Estate for years without a Lease, and it is agreed he shall not have an Estate of Freehold by reason of the Reversion in the Queen, and the possession of the Lessor, shall maintain the possession of the Lessee, as well as the possession of the Lessee shall keep the Freehold of the Lessor: and if he have but an Estate at sufferance, then cannot the Lease to B. he good: For if Tenant at sufferance of a common person makes a Lease for years, this is a Disseisin. And Popham was of opinion with Gawdy and Fenner, wherefore judgement was given for the Plaintiff. I have seen a Report 24 Eliz. in the King's Bench, upon a Demurrer between Edmund Frough and Henry Dixe, where the better opinion was, That if one enters on the term of the Queen, he shall not thereby gain any possession; but notwithstanding the Termor may grant over his Term: but it was agreed that he shall have an Ejectione firmae: for by Plawden an Assize will lie of a Mill, where the water is divers, for the possession of the Mill continues in him. But the Justices doubted whether it was an Ejectment, wherefore the parties did compound. In the 4. H. 6. Intrusion. If Lessee for life, the Remainder in the King be outed, he shall have an Assize. Trin. 36 Eliz. in C. B. Rot. 134. Thurstons' Case. Ejectment. GOffe brought an Ejectment against Thurston, the Case was this. The Abbot of Kingswold in Wiltshire, being seized of Land in the 28th year of H. 8. did (with consent of the Covent) make a Lease for years by Deed indented, and then the Abbey came into the hands of H. 8. and from him to Edw. 6 and from him to the present Queen. And it was pleaded that the Defendant hath the Lease, and that Henry Thin did intrude on the Defendant, and made a Lease to the Plaintiff, who being ejected by the Defendant brought this Action, and on this matter the parties demurred. 1. It was said that the Plaintiff cannot bring this Action, inasmuch as Henry Thin by his entry on Lessee for years, the Reversion being in the Queen cannot gain any possession, so that nothing passeth by his Lease to the Plaintiff. But the Court was against this, for he is a sufficient Lessee to maintain an Action of Ejectment: And it was adjudged in the Exchequer Chamber, that the Queen's Lessee for years being outed may have an Ejectione firmae, which proves that he is put out of possession of his term, and this very point was in a manner agreed the last term, in the case of Norris. Fenner, If H. enters on the possession of the Queen, and makes a Lease for years, nothing doth pass, and the Lessee cannot maintain an Ejectione firmae, for he gains no possession at all: but it is on the contrary he●e when he enters on the Queen's Lessee. Gawdy, That is no difference, for the Lessee for years of an Intrudor shall maintain at Ejectione firmae: And I have seen a Report 34 Eliz. between Badinton and Haul in the King's Bench, adjudged, that if the Queen's Copyholder be outed, and a Lease be made for years by the Intrudor, this Lessee shall not have an Ejectment if he be outed, but he shall have an Action of Trespass against any stranger. The second exception was taken to the pleading, because the Defendant pleaded in que estate del Lessee del Abbe, without showing how he came to the Estate. And by the Court a good exception, for he shall be compelled to show how he came to an Estate in the term, inasmuch as it cannot be by loyal means, vide 1. & 2 Eliz. Dyer 171. that a Que Estate of a particular Estate of a term is not good, and 7 Eliz. Dyer 238. where the Plea was of a que Estate of a Termor, and exception taken to it; and the difference between it and a Freehold, so in the 7 H. 6.440. it was agreed that H. could not convey an Interest by a que Estate of a particular Estate, as Entail for life, or years, without showing how he came by the Estate, be it on the part of the Plaintiff or the Defendant. The third exception was, that the Defendant pleaded a Lease made by the Abbot and Covent by Indenture as it ought to be, without saying Hic in curia prolat. which exception was also clearly allowed by the Court, for he is privy to it, and therefore he ought to show it. And for these two exceptions, but especially for the former. judgement was given for the Plaintiff. Mich. 36, and 37 Eliz. in C. B. Palmer's Case. Action on the case for words. PAlmer an utter Barrister of Lincolns-Inn, brought an Action on the Case against Boyer for these words; Palmer being Steward to I.S. the Defendant in discourse had with I.S. said; I marvel you will have such a paltry Lawyer for your Steward, for he hath as much Law as a Jack a Napes: And the Plaintiff shown all the matter in the Declaration, and that by reason of such words he was displaced of his Office. William's Sergeant did move, in that the words were not, That he hath no more Law then, etc. for then those words were actionable, but, that he hath as much Law as, etc. for which words no Action will lie. But resolved by the Court that the Action will lie, for the words are standerous and prejudicial to his credit, and by reason of them he was discharged of his Stewardship, also an Action will lie for saying. That he hath as much Law as a Jack an Apes, or my Horse, because they are unreasonable creatures, but if he had said, that he hath no more Law than I.S. that is not actionable, although I.S. be no Lawyer. And judgement was given for the Plaintiff. Pasch. 35 Eliz. in B. R. Audley's Case. A Man brought an Action of Debt on an Obligation made by the Father of the Defendant, in which Writ the Defendant was named Son and Heir apparent of the Obligor, & judgement was given against the Defendant, whereupon he brought a Writ of Error, for the Writ does imply that his Father was living, for he is his Heir in truth and in fact, if his Father be dead, and not apparent: To which was answered, that that was but Surplusage which shall not abate the Writ, as appears by the Book of the 10 Edw. 3. But the Court held that judgement should be reversed, for he ought to be named Heir, as in debt against Executors; he shall be named Executor. And judgement was reversed. Trin. 36 Eliz. in B. R. Downinghams' Case. Ejectment. THe Defendant in an Ejectione firmae pleaded that the Lord of the Manor did enter into the Land of a Copyholder by reason of forfeiture for Waste committed in suffering the houses to be uncovered, by which the timber is become rotten, and did not allege in facto that the Custom of the Manor is, that such Waste is a forfeiture, for it was said, that although other Waste by the Common Law is a forfeiture, yet this permissive Waste is not. Sed non allocatur: for all Waste done by a Coppholder is forfeitable. 2. It was resolved, that if a Coppholder made a Lease for years which is not according to the Custom of the Manor, yet this Lease is good; so that the Lessee may maintain an Ejectione firmoe; for between the Lessor and the Lessee, and all other, except the Lord of the Manor, the Lease is good, and so hath it been several times adjudged in this Court. Trin. 36 Eliz. in B. R. Wisdoms Case. Action on the case for words. Stitch brought an Action on the Case for slanderous words against Wisdom, the words were, There is many a truer and honester man hanged, and that there was a Robbery committed whereof he thought him to be one, and that he thought him to be a Horse-stealer. And it was moved in Arrest of judgement that these words were not actionable; for it is not said in facto, that he was in the Robbery, or that he was a a horse-stealer in fact, but only by imagination, that he thought he was such a one: but judgement was given for the Plaintiff. Trin. 36 Eliz. in B. R. Rot. 815. Palmer's Case. CHristopher Palmer brought an Ejectione firmae against John Humphrey, and declared that one George Hanger the eighteenth day of May, in the six and thirtieth year of Eliz. by his Indenture did demise unto him a certain piece of Land called the great Ashbroke, and other piece of Land called Stocking, and also divers other pieces of Land naming the pieces, and of one Garden called Muchins Garden, and of another piece of Meadow called Michins Meade, and of seven acres of arable Land, for the term of two years: by virtue whereof the said Christopher entered, until the Defendant by force and arms, etc. did eject him, and did set forth in his Declaration that the Defendant ejected him out of the said pieces of Land, and yet did not express the contents thereof in certainty: And upon not-guilty pleaded it was found for the Plaintiff, and for the seven arable acres of Land and the Garden, the Court gave their judgement that it was certain enough, but as to the other pieces of land, the Court was divided: For Popham & Gawdy held that it was certain enough being in an Ejectione firmae, which is but in the nature of an Action of Trespass, and the damages are the principal, and a man may bring an Action of Trespass for a piece of land, without any other certainty: But Clench and Fenner were on the contrary, for he ought to set forth his term in the land, and then to show the contents thereof, as well in an Ejectment, as in a Precipe quod reddat, by which land is demanded, and a man shall have an Ejectione firmae de una visgata terrae, but shall not have a Praecipe quod reddat of one portion of land, by Skeene and Hill, 7 H. 4.40. 9 H. 6.3. 5 H. 7.9. And afterwards vide Mich. 37, & 38 Eliz. It was adjudged that this was good enough in an Ejectione firmae, for there the damages are the principal; but otherwise in a Praecipe, for there aught to be a certainty; but in an Assize of Novel Disseisin it is good enough, but afterwards Mich. 38, & 39 Eliz. the case was debated in the Exchequer Chamber by Writ of Error, and the judgement was reversed. Hil. 36 Eliz. in B. R. Rot. 34. Welter's Case. LOve brought an Action of Debt against Wotton, who pleaded the Statute of Usury in Bar, and by reason of Mispleader, it was awarded by the Court, that the parties should plead De novo, and this Award was entered in this manner, viz. Et quia placitum illud in modo & forma placitat. est sufficiens in lege, the Court awarded that the parties should replead; and hereupon they pleaded, and judgement for the Plaintiff: and the Defendant brought a Writ of Error in the Exchequer Chamber, which was certified accordingly. And there Gawdy moved that the Record in this point might be amended, and to have the Record certified de novo into the Exchequer Chamber; for that the first Award is repugnant in itself, for it is awarded that they shall replead, because the Plea est sufficiens, whereas it ought to be that they shall replead, because est minus sufficiens, as the paper books are, and the opinion of the Court was that it could not be amended, because that the fault is in the judgement itself, which is the act of the Court, and therefore cannot be amended. Glanvill, It is no Error in the judgement, for the judgement is only that they shall replead, but the Error is in the judgement to the judgement, and may be well amended, and of the same opinion was Popham. Mich. 36, and 37 Eliz. in B. R. Rot. 579. Bartwrights Case BArtwright brought an Action of Debt upon a Bond against Harris, the Condition was, that if the Defendant did acquit, discharge, and save harmless the Plaintiff against an Obligation, in which he and the Defendant were bound to I.S. in 601 l. that then the Obligation should be void. The Defendant said, that Bartwright was sued on this Obligation by I. S. and upon default I.S. had judgement to recover, and that the Defendant before execution did deliver to the Plaintiff the 601 l. and hereupon the Plaintiff demurred. Humbert, It is no plea, for he confesseth that the Plaintiff was not yet taken in execution, yet inasmuch as he may be taken, therefore his body, goods, and lands are liable to the execution, and he hath not acquitted nor saved him harmless against the Bond of I.S. vide Dyer 186. And the Plaintiff had judgement, etc. Mich. 36, and 37 Eliz. in B. R. Rot. 25. Greyes' Case. GRey brought an action of Trespass against Bartholomew; the Case was: A man did purchase divers Fishes, viz. Carp, Tenches, Trout, etc. and put them into his Pond for store, and then died. The question was, whether the Heir or the Executors should have the Fish. Popham, The Heir shall have the Deer in the Park, and by the same reason, the Fish. Clench, If the Fish be stolen it is Felony, so that it appears there is a property in them, vide 18 Ed. 4. 10 Ed. 4.14. 22 Ass. 98. that stealing of Tench out of a Pool is Felony, by which it seems they are but Chattels. Popham, the Book is so, and so is the Law, but that is of stealing Fish out of a Trunk, or some narrow place where they are put to be taken at will and pleasure; but otherwise it is where they are put into a Pond. Fenner, He which hath the water shall have the Fish: And Popham ex assensu curiae gave judgement for the Heir. And in the principal case the Executors did take the Fish with Nets, and the Heir brought a Trespass and adjudged maintainable. See what Chattels Executors shall have, and what not, in 21 H. 7.26, 10 H. 7.6. & 30. an account will lie for Fish in a Fishpond, so in the 5 R. 2. Waste 97. an Action of waste did lie against Guardian in Chivalry for taking Fish out of a Pool by the Statute of Magna Charta; but quaere if it lies against a Termor or Guardian in So●age upon an Account for Fish. 36 Eliz. in B. R. Rot. 767. Leighs Case. LEigh brought an Ejectione firmae for a Chamber against Shaw, the Case was; A Lease was made of the Rectory of Chingford in Essex, and of the Glebe, excepting the Parsonage house, saving and allowing to the Lessee a Chamber over the Parlour next the Church. It was adjudged that the Lease of the Chamber was good, for as well as a man by his exception may except part of a thing, so as it shall be intended that it was never let or granted; so in this case when he says, except the Parsonage house, saving and allowing to the Lessee a Chamber, this saving makes the Chamber, as it were excepted out of it, as if it had been leased; so a saving out of a saving, is as much as there had been no saving at all, and then this Chamber not being excepted out of the Lease shall pass clearly by the Lease of the Rectory. And judgement was given for the Plaintiff. 37 Eliz. in B. R. Rot. 242. wright's Case. WRight brought a Writ of Error against the Mayor and Commonalty of Wickombe, to reverse a Fine levied by his Ancestor of twenty acres of Land, the Defendants in abatement of the Writ of Error did plead that the Plaintiff after the death of his Ancestor did disseise the Defendants of the Land, and made a Feoffment to a stranger. judgement, etc. The Plaintiff replied, that they did re-enter upon him, without that, that he did enfeoff a stranger modo & forma. The jury found, that there was a Fine of twenty acres, and that the Plaintiff being Disseisor of all, made a Feoffment of six of the acres to a stranger. Et si supra totam materiam, etc. And it was objected that the Record was entire, and the Error is a Chose in Action, and not a Chose in Droit, and therefore cannot be divided, but if it were a Chose in Droit, it is otherwise, as if a Disseisee of twenty acres releaseth all his right in five acres, this doth extinguish all his right in the five acres: so upon a Feoffment of parcel, yet the right remaineth as to the remnant: But of a Chose in Action which is merely entire, no apportionment can be, as in the 31 Eliz. in the King's Bench, between Charnock and Wrothesley, the case was; Husband and Wife levied a Fine of the Wife's Land, and after because the Wife was within age, they sued a Writ of Error to reverse the Fine. The question was, If this should be reversed as to the Wise only, or against the Husband according to the opinion of Belknap in the 50 Ed. 3. And after long debate it was resolved that it should be against both, for it is entire, and cannot be affirmed in part and disaffirmed in another part. And the Lord Norris case is very agreeable to this, where Tenant for life did levy an erroneous Fine, and then was attaint by Parliament, and all the right which he had to any Land was given to the Queen; and it was adjudged that there is no title of Error, nor was it given to the Queen by this word, Right, and then if it be so, the Title of Error is not of any right in the land, but only to the Suit, and if it be a Suit, it is a Suit entire, for he cannot have several Suits, as is agreed in Sir Richard Knightleys case. A man had judgement to recover 150 l. and did release 20 l. of it, and after sued execution, and the other brought an Audita querela upon the Releases, and defeated all the execution. But it is otherwise where such apportionment of such Suit is done by act in Law, as in 7 Ed. 4. fol. ultimo. The Sheriff levied parcel of the debt by Fieri facias, yet shall he have an Action of Debt for the Residue upon the Record: But in this case it is the act of the party himself that destroys his Suit for part of the Land, for which it shall destroy the other suit, for the Error is entire as to all the land and cannot be divided, as in the 38 Ed. 3. and 12 H 6. if a false Verdict be found, and the party grieved does make a Feoffment of parcel he shall not have an attaint for any part: So in the 19 H. 6. and the 39 Ass. If he who hath cause to bring a Writ of Error or Attaint, does take a Lease for years of parcel, he doth suspend his Action, and if he takes in fee, it is quite gone,. But it was resolved by the Court that the Feoffment does not destroy the Title of the Writ of Dower, for more than so much as a Feoffment was made of; and thereupon they first took a difference between suspension and extinguishment of an Action, for peradventure if he suspend his Action as to any part for any time, this is a suspension unto all, but extinguishment of part; is a Bar to that part only; and Gawdy cited the case in 9 H. 6. where judgement was reversed for part only, and it is not unusual to have a Fine reversed for part: as if a fine be levied of lands in ancient Demesne, 47 Ed. 3.9. a. there by Parsley, If there be Error in Law as to one parcel, and Error in Fact as to another parcel, the judgement as touching the matter of Law may be reversed. Fenner; He who hath Title to reverse a Fine, or recovery by Writ of Error, hath right in the Land, and if he release all his right in the land, the Error is extinct, and the reason of the Lord Norris Case was not that the Title to the Error was an Action in privity annexed to the party to the Record and his Heirs, and cannot be transferred over to another, no more than a Writ of partition between Coparceners, or a Nuper obiit. Popham, He who hath Title to have the Writ of Error hath no Title to the Land, although that thereby he be to be restored to the Land for if the Land descend to one who hath Title to have the Writ of Error, without doubt it shall not be accounted a remitter: But as to the matter now in question, he said, that if two men bring a Writ of Error in the Realty, and the Tenant plead the release of one, this is a good Bar against both, because the Error in the Record is released: But if one who hath Title to a Writ of Error, does make a Release of all his Right in one acre, this is a Bar but for so much, inasmuch as the Release is a Bar but as to the Restitution of the Land only, and no Release of Errors in the Record, for by the reversal of a Fine or Recovery, the party may annihilate the Record, and have Restitution of that which the Record before took from him, and therefore it shall bar the Plaintiff. And the opinion of all the Court was, that the Fine should be reversed for that part of the Land only, whereof no Feoffment was made, but for some defects in the Writ of Error, judgement was stayed. Mich. 37, and 38 Eliz. in B. R. Barnard's Case. SMith brought an Action of Debt upon a Bond against Barnard, the Defendant pleaded that the Plaintiff was outlawed, and a day was given him to bring in the Record, at which day he made default. Daniel moved that the judgement for the Plaintiff in this case should be that the Defendant should answer, for that the plea of Outlawry was but a dilatory Plea, and no Plea in Bar, as appears 21 Ed. 4 15. but this difference was taken by the Court. In an Action of Debt upon a Bond, Vtlary of the Plaintiff is a Plea in Bar, and the reason is, because all the Debts in specialties are forfeited to the Queen by reason of the Outlawry, and because the Queen is to have them, it is a good Plea in Bar: But in a Trespass or Debt upon a Contract, the Outlawry is but to the abatement of the Writ, and the Queen shall not have Debts upon simple Contracts, but after the Outlawry pardoned, the Plaintiff may have an Action for them again. And because he failed to bring the Record at his day appointed, the Plaintiff recovered. vide Dyer 6 Eliz. 227, 228. Hil. 32 Eliz. in C. B. Lord Dacres Case. GRegory Lord Dacres was summoned to answer Richard Gawton in a Plea of Debt for 26 l. 14 s. and did declare, that the Defendant did retain the Plaintiff to be his Bailiff of his Manor of Moreford, etc. and to receive the Defendants money for a certain time, and to do other businesses for the Defendant, and to render an account: and afterwards before one Lancelot Love, the Auditor assigned by the Defendant, the Plaintiff did account. Super quo computo praefatus Richardus pro diversis costagiis & expensis quae idem Richardus circa prosecutionem & executionem negotiorum praefati Gregorii in surplusagiis in praedict. 26 l. 14. s. erga ipsum Gregorium, ultra omnes denariorum summas per ipsum Richardum ad ipsum dicti Gregorii receipt. permansisset. And thereupon he brought his Action; and the Defendant pleaded Nil debet, and it was found for the Plaintiff, and yet he had not judgement. First, because the Declaration was insufficient, because the Plaintiff was not in Surplusage to the Defendant, but the Defendant to the Plaintiff, and so are all the Precedents directly; and he ought to allege he was in Service, and that he had received Goods, whereof no mention is made. Secondly. Because neither day nor place is alleged where the Auditor was assigned. Pasch. 33 Eliz. in C. B. Rot. 409. Owseleys Case ROger Owsely brought a Replevin against Edmund Brach and others, the Defendant made Conulance as Baily to John Levison; and said, that long time before the taking, etc. one William Coup was seized of a house and eight acres of Meadow, etc. whereof the place is parcel, in his Demesne as of Fee, and did demise the same to Richard Coup for one and twenty years, reserving Rend, and the Lessee died, and the Land came to his Wife as his Executrix, who married Roger Owseley, and that William Coup did levy a Fine of the Premises to Stephen Noke and others, to the use of Stephen and his Heirs, and after Stephen entered and outed the Termor, and enfeoffed John Leveson and his Heirs, and then the Termor reenters, claiming his Term, and for Rent arreare the Defendant made Counsans as aforesaid, and it was adjudged against the Defendant, because this entry and Feoffment by Noke to Leveson, and the reentry of the Termor is no Attornment, and this varies from Littleberries case, where the Lessor entered and made a Feoffment, and the Lessee reentered, for Noke the Lessor had not any Attornment, and can have no Distress, and his Feoffee cannot be in better case than he himself: And if the first Feoffee makes Feoffment to B. who enfeoffs C. and the Lessee reenters, that is Attornment but to the first Feoffee, and not the other, for he may be misconusant of it, because he was outed by the Lessor, but note judgement was not given till Trin. 36 Eliz. Pasch. 36 Eliz. in C. B. Owen's Case. EDward Owen brought an Action of Waste against Peerce for land in ancient Demesne, the Defendant made defence, and pleaded to the jurisdiction of the Court, because the land was ancient Demesne, and the Defendant was ruled to plead over, for it is but a personal Action, and the Statute is a beneficial Statute for the Commonwealth, and (by the opinion of all the Court, except Walmsley) does extent to ancient Demesne, & 40 Ed. 3.4. Ancient Demesne is a good plea in Replevin, 2 H. 7.17.21 Ed. 4.3. it is no good plea in an action upon the Statute or Gloucester. Mich. 33, and 34 Eliz. in C. B. Rot. 2122. Sir Edward Clears Case. SIr Edward Clear brought a Quare Impedit against the Bishop of Norwich, Edward Peacock, and Robert Hinston Clerk, to present to an Addowson holden in Capite. Anderson. A Devise of an Addowson in gross is void, because it is of annual value, whereof the King shall have the third part. But Owen, Beaumond, and Walmsley held the contrary, and so it it was adjudged. See the Case of the Earl of Huntingdon against the Lord of Montjoy, of a Devise of Liberties of Cramford, which were not of any annual value, and yet the opinion of Wray and Anderson justices was certified to some of the Council being Arbitrators, that the Devise was not good. Trin. 36 Eliz. in C. B. Rot. 2145. Brownes' Case. ANthony Brown brought an Action of Trespass against Richard Pease, the Case was this; John Warren was seized in fee of the Manor of Warners, and of the Manor of Cherchall, and demised his Manor of Warners to the youngest Son of Richard Foster his Cousin in fee. at which time Richard the Father had issue George Foster and John Foster. And he demised his Manor of Cherchall in haec verba. I will my Manor of Cherchall to Margery Water for her life, and if she die, and then any of my Cousin Foster's Sons then living, than I will my foresaid Manor of Cherchall unto him that shall have my Manner of Warners, and after the Devisor died without issue, and the Reversion of the Manor of Cherchall descended to Henry Warner as Brother and Heir of the Devisor. And after the said Henry Warner by Deed Enrolled, did bargain and sell the Manor of Cherchall to Anthony Browne, who devised it to the Plaintiff: And then George Foster dies without issue, and the Manor of Warners does descend to john Foster his Brother and Heir, who enters and enfeoffs the Lord Rich, and after marriage the Tenant for life of the Manor of Cherchall dies, and the Plaintiff enters, and the Defendant enters upon him as Servant to john Foster, whereupon the Plaintiff brought this Action: And judgement was given for the Plaintiff, because that the words and the intent of the Devise was, that the Manors of Warners and Cherchall should go together, and therefore the Manor of Warners was sold before the death of Margery, by John Foster, and after the death of Margery, John can take nothing by the Devise. Mich. 29, and 30 Eliz. Rot. 2325. or 2929. Hambletons' Case. JOhn Hambleton had issued four Sons, John the eldest, Robert the second, Richard the third, and Thomas the fourth, and devised to each of them a parcel of land, to them and the Heirs Males of their body begotten, and if it happen that any of their Heirs die without issue Male of his body lawfully begotten, than the Survivor to be each others Heir. If these words make a Remainder, or are void, was the question. And it was adjudged against the Plaintiff, for the Court held that all those that survived were joint-tenants, and one joint-tenant cannot have a Trespass against the other, for by the intent of the Will, it appears that the Survivors should have that part, and the survivority of each other Heir, each Survivor, that is, all that survive shall be each others Heir, and so the remainder should be to every one of them. 29 Eliz. Fenners Case, argued before the Lord Mayor of London at Guildhall. IN this Case it was adjudged, that if a man Covenants that his Son then within age, and infra annos nubiles, before such a day shall marry the Daughter of I.S. and he does marry her accordingly, and after at the age of consent he disagrees to the marriage, yet is the Covenant performed, for it is a marriage, and such a one as the Covenantee would have, until the disagreement, vide 7 H. 6.12. Dyer 143.313. & 369. 25 Eliz. Webbe against Potter. IN an Ejectione firmae by Webbe against Potter, the Case was; Harris gave Land in Frankmarriage to one White, and the Deed was Dedi & concessi johan. White in liberum maritagium Iohannae filiae meae habend. dictae joannae & heredibus in perpetuum tenend. de capitalibus Dominis feodi illius, with Warranty to john White and his Heirs. Periam, The usual words in Frankmarriage shall not be destroyed, for the words of Frankmarriage are, Liberum maritagium cum Ioanna filia mea, in the Ablative case, and although here it be in the Dative case, it is good. And of the same opinion were all the judges. Also a Gift in Frankmarriage made after the Espousals was held good by all the justices, 2 H. 3. Donor 199.4 Ed 3.8. Dyer 262 B. And a Gift in Frankmarriage before the Statute was a Fee-simple, but now special tail, and if it be not a Frankmarriage, he shall have an Estate for life, and to prove this his opinion, he relied upon the intention of the Donors which ought to be observed: For if the Habendum does cross the Premises it shall be void, but a Remainder is good for the benefit of a stranger, but a Rent cannot be reserved upon such a Gift, during the four degrees, but after the Reversion is good, if he do attorne to the G●…ntee of the Reversion. Windham, Frankmarriage is not an Estate in tail, for there wants the word, Heirs, Coke lib. 1.103. So a Gift to a man & semini suo, 10 Ass. 26. and after Meade ●gree● with Windham although the grounds of Frankmarriage were not observed, yet that it was good; for although there be no Tenure between the Donor and Donee, yet is it a good Frankmarriage. Dyer, It is no good Frankmarriage, because the usual words are not observed, and if the word Liberum be omitted, it is not Frankmarriage, neither is it good given to a man, but it must be to a woman, for a man cannot give land to a woman Causa matrimonii praelocuti: And in this case the party ought to be of the blood of the Donor, who by possibility may be inheritable to him, and there ought to be a Tenure between them, and an acquittal, and if any fail, it is no Frankmarriage, and he said further, that if it once takes effect as Frankmarriage, and then the Donor grants the Reversion, or the Reversion descends to the Donees, yet it shall not be destroyed, but shall remain as an Estate in tail, and not for life, because it once took effect in the Donees and their issues, and if land be given to a man in Frankmarriage, the remainder in tail, yet this shall not destroy the Frankmarriage, and the Donee shall hold of the Donor, and not of him in the remainder: And if one give land in Frankmarriage, the remainders to the Donees in tail, yet is this a good Frankmarriage, and if the Donor grants over his Services, yet doth the Frankmarriage continue, although the Donees attorn, for they are incident to the Reversion, and therefore the Grant is void, but if the Reversion be granted the Services will pass, and he concluded that the Husband had all, and the Wife nothing, because no Estate to her is mentioned in the Premises, and he could not construe the words to be the intent of the Donor, for here is an express limitation of the fee to the Husband and his Heirs, which cannot be controlled by intendment. And after 25 Eliz. It was adjudged to be no Frankmarriage, nor gift in tail, but a Fee-simple: And the justices said, that the ancient Books were that where it took not effect as a Frankmarriage, it should be in especial tail, yet those at this time are not Law: But they agreed, that this at one time took effect as Frankmarriage, and by matter ex post facto may be made an Estate in tail. Mich. 30 Eliz. Gibbs Case. GIbbs brought an Action of Trover against Basil, for a Gelding; the Case was. One Porter stole this Gelding from the Plaintiff, and sold him to the Defendant in open Market, by the name of Lister, and it was entered so in the Toll Book that Lister sold him. The question was, if this alteration of his name shall make any alteration of the property, although the sale was in open Market. Windham and Rhodes justices, held this no good sale to bar the Plaintiff, and grounded their opinion on the Statute of the 2, and 3 Phil. and Mar. cap. 7. which provides that no property of stolen Goods shall be altered that are sold, unless the name and surname of the parties to the sale be written in the Toll-book: And Shuttleworth moved, that it should be in the Market, and walked there for an hour together, which is not set forth by the Defendant in his Bar; but the justices said, that such special plea need not to be, but shall be intended. Rouses Case. IT was moved in this Case, that if Tenant for term Dauter vie, does continue and hold in his Estate, after the death of Cestuy que vie: If he be a Disseisor, and whether in pleading, the plea ought to be seized and not possessed, Shuttleworth, He was legally in at first, and therefore cannot be a Disseisor, 15 Ed. 4.41. A Freehold could not be gained where he came in by the agreement of the party, and 12 Ass. 22. Where the Husband and Wife were seized of a Freehold, and after were divorced by Suit, on the woman's part, whereby the woman is to have all the land, yet if the Husband continue possession and dies seized, this descent shall not take away entry, because he was no Disseisor. Gawdy, He is Tenant at sufferance and no Disseisor, and there it was moved, that if Tenant at sufferance, or a Disseisor makes Copies of Copyhold Lands, if they be good or voidable: And note that wild took here a diversity between a Termor that holds over, and a Tenant at sufferance; for in case of a Tenant at sufferance, there is no Freehold taken from the Lessor, which the continuance of possession doth not take from him, but where the Tenant holds over his term, there the Freehold is disturbed, and therefore there is a disseisin: But at that present it seemed to the judges that there was no diversity. But the next term Godfrey moved, that if Tenant for another's life held over his Estate he had Feesimple, and he granted that it was otherwise in some cases, for if he claim to be Tenant at the Will of the Lessor, he shall not gain a Fee-simple: For Littleton in his Chapter of releaseth. 108. saith, that Tenant at sufferance is where a man in his own wrong doth convey Lands and Tenements at the will of him that hath the Freehold, and such occupier claimeth nothing but at Will. But in this case the Tenant claims otherwise then at Will of the Lessor, he does not claim any thing but at the Will of the Lessor; as in the case of Littleton, but claims to hold over against the Will of the Lessor, which is no Tenant at sufferance, and 10 Ed. 4. If a man makes a Lease at Will, and the Lessor dies, and he continues possession and claims fee, the Heir shall have a Mortdancester, and 18 Ed. 4.25. If Cestuy que use dies, and the Tenant continues in, and the Tenant is impleaded, the Lessor shall not be received, and the reason is, because there is no reversion in him, but the Tenant hath it, and 22 Ed. 4.38. by Hussey justice, If a Termor holds over his Term, there an Estate in fee is confessed to be in him by matter of Law, but it is a deubt whether he be a Disseisor or not, but it seemeth not, for a Trespass doth not lie against him before Regress, and in the 7 H. 4.43. If a Guardian holds the possession at the full age of the Heir, or Tenant for years after his term expired, the Estate shall be judged in Fee. And in our case he hath not claimed to hold at Will, for he hath done contrary, for he hath made Copies. By all the justices, if Tenant at will, or for years, or at sufferance, make a Lease for years, this is a Disseisin, and a Tenant at will doth thereby gain a Freehold, and thereby doth claim a greater Estate than he ought, and so it is in this case. 2. Admitting him to be Tenant at sufferance, the question is, if he may grant Copies, and if whether they be good: and it seems he may, for no trespass lies against him, because he is Dominus pro tempore, and it is not like a Copy made by an Abator or Disseisor, for it hath been adjudged that Copies made by them are void, but in this case his act of making Copies agrees with the Custom; as in Grisbrooks' case, If an Administrator sells Goods, and pays debts with the money, and after he who is Executor proves the Will, he shall never avoid this sale, for that it was done according to the Will which the Executors were compelled to do: So in the 12 H. 6. If a Bailie cuts Trees and repairs an ancient Pale, this is good, and 6 R. 2. if he pays quitrents it is good. Coke, He comes in by right, and therefore is Tenant at sufferance, and like this case is Dyer 35 H. 8.57. Lord Zouches case, where Cestuy que use for life, the remainder over in tail, made a Lease for the term of the life of the Lessee, and dies, and the Lessee continues his Estate. And the opinions of the justices of both Benches were, that he is but Tenant at sufferance. Popham, If a Manor be devised to one, and the Devisee enters and makes Copies, and then the Devise is found to be void, yet the Copies of Surrender made by such Devisee are good; but contrary where new or voluntary Copies are made by him, 7 Eliz. and in the Lord arundel's case, a Feoffment in fee was made of a Manor upon condition, the Feoffee upon Condition grants voluntary Copies, those are good. Atkins, on the contrary: And he made a difference between a Tenant at will, and a Tenant at sufferance, for a Tenant at will shall have aid, but so shall not the other, as in the 2 H. 4. and a Release to one is good, to the other not, etc. and when he holds over he doth assume an Interest which shall not be thought wrongful, for he is neither Abator nor Disseisor, and therefore Dominus, and therefore the Copies made by him are good, 4 H. 7.3. Tenant at sufferance may justify for Damage-feasant. And all the justices held for the Plaintiff, and that he that made the Copy was but Tenant at sufferance, and not Disseisor, and that he had not Fee. And the judgement was to be entered, unless the Defendant shown better matter, Trin 28 Eliz. Rot. 329. Smith's Case. SMith assumed upon himself, that when I. N was indebted to I.D. in an Obligation of forty pounds, that if I.D. would not implead the said I.N. that then if the money were not paid at such a day, that then he, viz. the said Smith would pay the money: Upon which Assumpsit after the day I.D. brought his Action on the case, and did set forth in his Declaration that he did not implead I.N. and it was moved by Kingsmill, that he could not have this Action until I.N. be dead, for so long as he lives I.D. hath time to implead him. As if a man promiseth another that he will be named in his Action that he hath against a third person, and if the third person pays not the money at such a day, than he will, he cannot sue unless he shows he hath discharged the other of the Obligation. Clench, It is implied that he will never implead him. Shuttleworth justice, not so, for if hereafter he sue him contrary to his promise, than the other who made the Assumpsit shall have his Action on the case, and recover to the value of the sun●m in the Bond. And after the case was moved again, and the Plaintiff brought the Obligation in Court, and thereupon the Obligation was entered, so that now the Plaintiff could not implead I. N in posterum, for which judgement was entered for the Plaintiff. 29 Eliz. Cousin's Case. Cozen the Father had issue three Sons, John, George, and Thomas, John the eldest died in the life-time of his Father, his Wife Enseint with a Daughter, the Father makes a Devise in these words: That if it shall please God to take to his mercy my Son Richard, before he shall have issue of his body, so that my Lands shall descend to my Son George before he shall be of the age of one and twenty years, than my Overseers shall have my Land until George come to the age of one and twenty years. If Richard who is yet living had an Estate in tail by these words, was the question. And all the justices agreed that it was a plain implication to make an Estate-taile in Richard the second Son, 13 H. 7.17. 29 Eliz. in C. B. Warrens Case. WIlliam Warren brought an Action of Debt for forty pounds, and in his Declaration confessed satisfaction of twenty pounds, and hereupon a Writ of Error was brought in the King's Bench, and the judgement reversed: For by his Declaration he had abated his own Writ, and he ought to have judgement according to his Writ, and not to his Count And Error was brought upon the Outlawry; for if the first Record was reversed, the Outlawry thereupon is reversed. 4, and 5 Phil. & Mar. Benlowes' Sergeant moved this case, a man seized of Lands and Te●ements in London, devices them by these words. I will and bequeath unto my Wife Alice my livelihood in London for term of her life. By this Will the lands in London pass to the Wife by this word, Livelihood. Nota, for Brook justice said, that it was in ancient time used in divers places of this Realm, and had been taken for an Inheritance: To which Dyer agreed. Case of Slander. BRook said, that if a man speak many slanderous words of another, he who is slandered may have an Action on the case for any one of these words, and may omit the others: But if a man write many slanderous things of another in a Letter to a friend, an action upon the case will not lie, for it shall not be intended that it is done to the intent to have it published. Mich. 1, and 2 Eliz. N. Archbishop of York, and I.B. Executors of the last Will and Testament of Thomas Duke of Norfolk, did bring a Writ of Ravishment de Guard, and then he was deprived by his own consent: The question is, if the Writ shall abate. Benlowes, It shall abate, for if a Dean and Parson of a Church bring an Action for such a Custom, and then resign, the Writ shall abate, because it is their own Act. Dyer, The Writ shall not abate; for the Action is not brought in their own persons, but in their Testators, and therefore the Action shall continue. And if a man be outlawed he may bring an Action as Executor, and the Writ shall not abate. Browne, If I make I.S. my Attorney, and he (the Warrant of Attorney still continuing) is made a Knight, yet is not the Warrant of Attorney determined, although the word Knight, which is now part of his name be not in the Warrant, therefore in this case the Writ is good. Mich. 7 Eliz. NOte, it was said by Browne, that if H. does let the Cite of his Manor, with all his Lands to the said Manor appurtenant, hereby all the Demesne lands do pass; but if it were with all the Lands appertaining to the said Cite, nothing passeth but the Mannor-place. Pasch. 6 Eliz. A Man seized of the Manor of Dale, doth let the same with all the Members and Appurtenances to the same, to have and to hold all the members of the said Manor to the Lessee, for term of years. Walsh and Weston were of opinion that this was a Lease for years of the Manor only, and that the limitation of the word, Members, being after the Habendum was void. But Dyer and Browne were of the contrary opinion: And Browne said, that when the Habendum is used by way of limitation, it shall not be void. As if he let his Manor of Dale, to have and to hold one acre parcel thereof for a term of years, the Lease is void for all, but if there had been no Habendum but the Lease for years had been limited in the Premises of the Lease, that is good enough: And if the Lease had been Habendum every part thereof, that had been a good Lease of the Manor, for all the parts comprehend all the Manor. And Dyer said, that the word, Members, shall be taken for the Towns and Hamblets wherein the Manor hath jurisdiction. Note, it was said by Dyer, that if partition be made by the Sheriff, although the Writ be not returned, yet it is good enough, and none of the parties shall except against it, and so was the better opinion concerning the Estate of Culpeper and Naval in the County of Kent. Sutton brought a Writ of Ravishment of a Ward against Robinson, wherein it was resolved by Dyer, Carus, Weston, and Benlowes, That if the Tenant enfeoff his Lord and others, all the Seignory is extinct: also if the Tenant does infeoff the Lord but of a Moiety, yet is all the Seignory extinct: And Dyer said, that if the Tenant does infeoff the Lord and a stranger to the use of another and his Heirs, and makes Livery to the stranger, this is no extinguishment of the Seignory, but if the Livery were made to the Lord, it is otherwise; and yet is the possession instantly carried away to the stranger by the Statute of 2 H. 7.13. A man seized of lands devices the same to his Wife, to dispose and employ them for herself and her Son, according to her will and pleasure. Dyer, Weston, and Walson held that the Wife had a Fee-simple by the Intendment of the Will, and the Estate is conditional, for ea intention will make a Condition in a Devise, but not in Grant, vide Dyer 2●. 6. A woman Tenant in tail makes a Lease for one and thirty years, and after takes a Husband, who have issue, the Husband (being Tenant by the Courtesy) surrenders, the Heirs doth oust the Lessee, and the Lessee brings an Ejectment: And it was held that the Surrender was good, and that the Privity was sufficient. Mich. 40 Eliz. IN an Action of the Case for calling one Bastard; Dyer and Walsh said an Action would lie, but Brown on the contrary, because it shall be tried in the Spiritual Court. And Dyer said, That at Barwick Assizes a Formedon in the Discender was brought, and one said, that his Father by whom he claimed was a Bastard, and thereupon he brought an Action against him for those words, and recovered. Catlin said, That if Lands be given to a man and to the Heirs, he shall engender on the body of an English woman, and he marries a French woman, and she dies, and then he marries an English woman, that now this is a good Estate in special tail. Pasch. 7 Eliz. THe Prior and Monks of the (before the dissolution) made a Lease for four years, reserving the ancient rent of twenty five Quarters of Wheat per annum, and then the house was surrendered into the hands of King Henry the eighth, and then the Lord Chancellor did let the said rend of twenty five Quarters of Wheat to I.S. for four and twenty years. And it came into question between I.S. and the Termor, if this was warranted by the 27 H 8.28 Harper and Portrell, it is not, for the Statute is, that they may make Leases of any Manors, Lands, Tenements, and Hereditaments for one and twenty years, etc. and this Wheat is neither Land, Tenement, nor Hereditament, but a Chattel, and shall be demanded in an Action of debt. But the opinion of all the Court was, that the Lease was good, and they did agree that it was directly within the word Hereditaments, for it may descend or escheat, and the wife shall be endowed thereof. Also upon a Lease of Corn a Rent may be referved, for a man may reserve a Rent upon a Lease of a Rent, and the Rent is not parcel of the Reversion, but only incident thereunto, and the Lessor hath the same inheritance therein as he hath in the Reversion. Trin. 7 Eliz. AN assurance was made to a woman, to the intent it should be for her jointure, but it was not so expressed in the Deed. And the opinion of the Court was, that it might be averred that it was for a jointure, and that such averment was not traversable; and so was it in the case between the Queen and Dame Beaumond. Winter brought an Action of the Case against Barnam for these words; viz. Thou Murderer: Dyer and Walsh said, that the Action would lie, for there are some words that cannot be qualified, as Murderer, Thief, Extortioner, false Knave, and in such Case an Action will lie, but contrary where such words are spoken in a jesting way. Note by Dyer, that the Lord Fitz-James, late Lord chief justice of England, did devise his land to Nicholas Fitz-James in tail, with divers remainders over, and in the same devise he devised divers jewels and pieces of Plate, viz. the use of them to the said Nicholas Fitz-James, and the Heirs Males of his body. In this case it was the opinion of the Court, that the said Nicholas had no property in the said plate, but only the use and occupation. And the same Law where the Devise was that his Wife should inhabit in one of his houses which he had for term of years, during her life, because the Wife takes no interest in the term, but only an occupation and usage, out of which the Executors cannot eject her during her life, but Walsh held the contrary. Hil. 8 Eliz. IF a Bishop make a Lease for years the second of May, and the Dean and Chapter confirm it the first of May, this is a good Lease after the Bishop's death by Catlin and Southcote. Wray, How can a Lease be confirmed before it be made. Catlin and Southcote, The assent before is a good confirmation after. Hil. 40 Eliz. AN Obligation wanted these words, In cujus rei Testimonium, and yet adjudged to be good, 7 H. 7.14. Dyer 19 A. It was said by Catlin in the Star Chamber, that if an Infant being a Feme Covert, or other Infant does levy a Fine by grant and render to her or him in tail, or for life, and the Husband die, the Wife shall not have a Writ of Error, because she is Tenant of the land, and she cannot have a Writ of Error against herself, so that she is without remedy, so in the case of the other Infant. Cardell, Master of the Rolls, in the case between Stinkley and Chamberlain said, that when Executors had Goods of their Testator, to dispose of to pious uses, they cannot forfeit them, for that they have them not to their own use, but their power is subject to the controlment of the Ordinary, and the Ordinary may make distribution of them to pious uses. And it was said at the Bar, that the Ordinary might make the Executors account before him, and to punish them according to the Law of the Church if they spoil the Goods, but cannot compel them to employ them to pious uses. Hil. 28 Eliz. IN an Action of Slander, the words were, Thou art an arrant Whore and hadst the French Pox. It was moved in Arrest of judgement, that the words were not actionable, because part of them relate to the time past, but by the Court adjudged that the action is well brought, because it is a discredit to the woman, and thereby others will shun her company. Trin. 31 Eliz. Inter Winter and Loveday. IN this Case which was put by Coke, it was agreed, that a stranger as Cornwall in this Case was, could not tender the money to be paid upon the Mortgage, for it ought to be one who hath interest in the land: and so was it in the 28 H. 8. between Whaydon and Ashford, where the Mother ought to have made the tender for her Son within age, and because it did not appear within the Verdict what age the Infant was, whether he was of the age of fourteen years, or more, so that his Mother could be Guardian to him by reason of his Nurture or not, It was awarded that she could not make a loyal tender. In an Assumpsit for a hundred pounds, the case was; That the Defendant in consideration of a French Crown given him by the Plaintiff, did assume and promise, that if he did not such an act before such a time, that then, etc. It was moved by Godfrey, that the Plaintiff can only recover so much as he is damnified by the French Crown: and the like case was before the Chancellor, where a Gentlewoman took the death of her Husband so heavily, that she said, she would never marry again; and her Son comforted her, and said, God will provide a new Husband, and said, that he would give her ten pounds to pay a hundred, when she should marry, which money she accepted of, and then the Son brought an Assumpsit for the hundred pounds within half a year after she married. And the matter was brought into the Chancery: And the Master of the Rolls awarded ten pounds only, and said, he would give never a penny more, because it was unreasonable to bar a Gentlewoman from marriage. The Lord Richardo was seized of Hadley Park, and of all the Tithes thereof, and paid for the Tithes but one Buck in the Summer, and a Do in the Winter for thirty years past. The Park was disparked and turned into arable land, and the Parson would not receive this Fee Buck and Do, but would have tithe Corn, and thereupon brought him into the Spiritual Court, and he brought a Prohibition. And Carus and Catlin said, that he need not pay other Tithes but Buck and Do, for although they be not tythable, yet may they be paid by composition, and he may not take them, but they are to be delivered to him: and in like manner Partridges and Pheasants in a Garden are not tythable, yet may they be paid in lieu of Tithes, and shall be brought dead to the Parson, and although there be no Park, yet may he give a Buck out of another Park, and perhaps it may be made a Park again. Mich. 13, and 14 Eliz. NOte▪ it was said by Dyer, that an Adminiscrator durante Minoritate, cannot bring an Action of debt, for he is but as a Servant or Bailiff in such cases. A Devise was made to the Major, Chamberlain, and Governors of the Hospital of Saint Bartholmews: whereas they were Incorporate by another name, yet the Devise held good by Dyer, Weston, and Manwood, for it shall be taken according to the intent of the Devisor: And Weston said, that a Devise to A.B. a man's eldest Son is good, although his name be not B. because the other words do make a sufficient certainty. It was said, That by the Grant Panagium Hogs may eat the grass, but if a man grant his Acorns, the Grantee must gather them; and where Panagium is granted the Grantee may put in his Hogs into the place granted. If Tenant for years hold over his term, he is Tenant at sufferance, and his descent shall not take away entry: But if Tenant for term of another's life holds over his term, he is an Intruder, and his descent shall take away entry. Quod fuit concessum per Dyer. A Court-Baron may be holden at any place within the Manor, but not out of the Manor, and so a Leete may be held in any place within the Liberty and Franchise, and although no Court hath time out of mind been holden within the Manor, yet it is not thereby lost, for it is incident to a Manor of common right, Coke L. 4.26.6.27. A. Mich. 14, and 15 Eliz. AN account was brought by Tottenham against Bedingfeild, who pleaded Ne unques son Baily pur account render. Gawdy prayed the opinion of the Court if the Action would lie. And the Case was thus. The Plaintiff had a Lease of a Parsonage, and the Defendant, not being Lessee, nor claiming any interest, took the Tithes being set forth, and carried them away. If the Lessor may have an account against such Trespassor, was the question. Manwood justice, An Account will not lie because there is no privity, and wrongs are always without privity, yet I will grant that if H. receive my Rents, I may have an account against him, for my assent to have him receive it makes a privity, and when he hath received the Rent, he hath not committed any wrong against me, because it is not my money till it is paid: and therefore in this case I may resort to my Tenant, and compel him to pay the Rent to me because the receipt is no wrong: But it is otherwise in the first case, for when the Tithes are set forth, they are presently in the possession of the Parson, so that when the Defendant takes them, he is a wrong Seisor of them, and therefore no account will lie against him. And so was it adjudged in a case of a Manor in London, where one under colour of a Devise did occupy the Land for twenty years, which Will afterwards was made void; and thereupon he to whom the right of the land belonged brought an account, and it was adjudged that it would not lie. Harper, An Account will lie against a Proctor, so that the Plaintiff may charge him as Procter, and it is no plea for him to say he is no Proctor, no more than it is for a Guardian in Socage to say, he is not Prochein amy. Dyer, there are three Actions of Account. One against a Bailie, another against a Receiver, the third against a Guardian in Socage. And if an Account be brought against a man as Receiver, he must be charged with the receipt of the money: but if the Defendant pretends he is Owner of it, it is contrary to the nature of an account, and therefore he is not chargeable in such Action, but he may plead Ne unque son Baily pur account render: for in an Account (as my Brother Manhood said) there must be privity: But an Abator or an Intruder shall not be charged in an Account, because they pretend to be Owners. But in this case the Lessee may have an Action of Trespass against him, for the Tithes were immediately upon the setting forth in the possession of the Lessee, and by the Statute of the 31 H. 8.7. he may have an Ejectione firmae: but an account will not lie in this case. Mich. 14 Eliz. TEnant in Dower commits Waste, and the Waste was assigned in this Case, that the Lessee had destroyed a hundred Does of the Plaintiffs, whether this was Waste or no, was the question. Dyer, I think it no Waste, unless she had destroyed all the Deer. Manwood, If a Lessee of a Pigeon house destroy all the old Pigeons, except one or two, yet it is a Waste, and so is this, although all be not destroyed. Mich. 15 Eliz. A Man is indebted by Obligation in a hundred pounds to a Testator, this Obligation is not Assets in the hands of the Executors until it be recovered by them, because it is but a Chose in Action; but if in such case the Executor release the Debt now he hath determined the Action, and hath made it Assets in his hands to the whole value of the Bond. Bliss against Stafford. MArgaret Bliss who was in Remainder after an Estate in tail, did bring an Action on the case against Edward Strafford, for standring her Title in affirming that A. had issue one B. who is alive, and the Defendant pleaded not guilty, and the Action adjudged good by all: But did abate for an exception to the Count Pasch. 13 Eliz. UPon the Statute of Recusancy made the 29. of Elizabeth, Thomas Salherd and Henry Evered being committed of Recusancy, for not paying twenty pounds for every month, a Commission was awarded to inquire of their Goods and Lands in Suffolk to levy the said Debt; and amongst other Lands certain Copyhold Lands were seized, and being returned, the parties came in, and by way of plea did set forth, that some of their Lands seized were Copyhold, and did pray Quod manus Dominae Reginae amoveantur, and hereupon the Queen's Attorney demurred; upon which the question was, if Copyhold Lands were within the said Statute of the 29 Eliz. Snag, The Lands and Hereditaments which the Statute speaks of, are such as are known by the Common Law, and not by Custom, for it I grant all my Lands & Hereditaments in D. my Copyhold lands will not pass: so that it seems to me Copyholds are not within the Statute. Popham contra. If Copyhold Lands are not within the Statute, some persons shall be free; and he held that Lands in ancient Demesne were within the meaning of the Statute, although not within the words: and he agreed, that where a Grant is made of all my Lands and Tenements in D. that Copyhold Lands pass not, because they cannot pass by such assurance, and that Copyhold Lands were not within the Statute of Bankrupts, if they be not particularly expressed, and a Copyhold cannot pass by grant but by surrender. But after great debate it was adjudged, that Copyhold Lands are not within the Statuto by reason of the prejudice that may come thereby to the Lord, who hath not committed any Offence, and therefore shall not lose his Customs and Services. Trin. 30 Eliz. IN the Case of Viscount Bindon, it was holden that if a man hath judgement in Debt upon an Obligation and no execution, yet he may commence another Action upon the same Obligation, but otherwise of Contract, 9 Ed. 4.51. A question was moved, that if a man grants Vesturam terrae what doth pass: and it was said by Clerk, that one man may have the Vesture & another the Soil. Lord chief Baron, he who hath Vesturan terrae cannot dig the Land: And if many have a Meadow together, viz. to be divided amongst them every year by lots how much every one shall have of grass in such a place, and how many in such a place, and so to change every year according to the lots, they have not a Freehold, but only vesturam terrae, Dyer 285.6.14. H. 7.4. & 6. 21 H. 7.37. Dyer 375.6. 13 H. 6.13. 14 H. 8.6. In the Case of a Dean and Chapter, the question was, that if Lessee for years be rendering Rend with clause of reentry for nonpayment, and then the Reversion or Rent be extended by a Statute, or seized into the hands of the King for debt, if the Lessee shall pay the Rent according to the extent, and no breach of the Condition although he pay not the Lessor. And the chief Baron held it was no breach of the Condition, because he is now compellable to pay it according to the extent. Caltons' Case. IT was moved by Sergeant Fenner, and agreed by all the Barons, that if the King make a Lease to A. rendering Rend, and there the Lessee lets parcel hereof, rendering Rend, in this case the second Lessee shall not have the privilege of the Exchequer to fly thither to be sued concerning this Land, because that by such means all the causes in England, may be brought into the Exchequer, and hereupon Fenner said, that he had demurred upon a Bill exhibited into the Exchequer Chamber by such a Lessee, and prayed the Court that he might not answer, and he was thereupon dismissed. Upon not guilty pleaded, the parties joined issue, and after evidence given, and the jury dismissed from the Bar, some of them had Apples, and Figgs, whereof the Court taking notice when they came to give their Verdict, did examine them upon their Oaths, and they who had eaten were fined five pounds, and committed to the Fleet. And some of the justices did doubt if the Verdict were good; and upon many Precedents had, it was adjudged good: and they relied much on the Precedent of the 12 H. 8. Rot. 102. where one of the jury did eat before they were agreed, and yet the Verdict was good: And after a Writ of Error was brought, and the judgement affirmed, 20 H. 7.3. 13 H 4.13. Pasch. 27 Eliz. A Man gives land to I.S. in the Premises, Habendum to him and three others for their lives, Et eorum diutius viventium successive: The question was, what Estate I.S. had, and whether there be any occupancy in the case. Coke h●ld, that I.S. had but an Estate for his own life, because he cannot have an Estate for his own and another's life, where the interest of both begin at one instant, and the Habendum by no means can make a Remainder; as if a Lease be made to one for life, habendum to him and his first begotten Son, this makes no remainder to the Son, although some have held to the contrary: so of a Lease to one for years, habendum to him and another, does not make any remainder to the other: also the word, Successive, will not make a remainder, as in the 30 H 8. Br. joint-tenant 53. Also one cannot have an Estate for life, and for another's life also in present interest, for the greater doth drown the less, but if the greater be present and the other future, as a Lease to him for life, the remainder to him for another's life, or a Lease for life and three years over, this is good; but if a Lease be made for life and for years, the Lease for years is drowned, 19 Ed. 3. Surrender 8. where Tenant for life of a Manor did surrender to him in the Reversion, etc. Gawdy, If a Lease be made to one for life, and so long as another shall live, quaere, what Estate he hath. And as to the second point, certainly there cannot be an Occupancy, for if the Estate be void, the Limitation is void; also the Occupancy is pleaded Que un tiel, and does not say, claimant comme occupant, etc. for if a man comes a hawking on Land, he is not an Occupant, and the Book of Entries is, that he ought to plead it. Clinch justice, every Occupant aught to be in possession at the time of the death of the Tenant, for otherwise the Law casts the Interest upon him in the Reversion. But Gawdy and Chute denied this: and after, viz. 29 Eliz. the Case was moved again by Popham, and he made three points. 1. If the other three had a joint Estate. 2. If they had a Remainder. 3. If there be an Occupancy. And he was of opinion that they had nothing by the habendum, for they were not named in the Premises, & they cannot have a Remainder for the incertainty, but if those three had been named in the Premises, habendum to them Successive, as they had been named, there they had a Remainder, for there the certainty appeared, 30 H. 8.8. Dyer 361. Also there can be no Occupancy during the lives of the other three: but he agreed to the Book of the 18 Ed. 3.34. that a Lease for life, the Remainder to him for another's life was good: And that if a Lease be made to I.S. and a Monk, it is void to the Monk, and the other hath all, and that during the life of the Monk there can be no Occupancy. And if I make a Lease to I. S. for the life of a Monk, it is a good Lease: And till the same term judgement was given, that they could take nothing in possession jointly, nor by way of Remainder, and that no Occupancy could be in the Case, and that I.S. had Estate for term of his own life only. Style against Miles. STile Parson did suggest that the Land was parcel of the Glebe of the Parsonage, and that the said Style did let the said Glebe, being four and twenty acres to Miles for years, rendering thirteen shillings four pence Rend; and in a Prohibition the case was, if Tithes were to be paid. And Wray said, that although it was parcel of the Glebe, yet when it was leased out Tithes ought to be paid, and if no Rent be reserved, Tithes ought to be paid without question: but there may be a doubt where the Rent is reserved to the true value of the Land; but here the Rent is of small value, wherefore Tithes shall be paid also. And the Reservation of the Rent was Pro omnibus exactionibus & demandis; yet the justices took no regard of those words. But Godfrey said, that those words would discharge him; but Wray on the contrary, for that this Tithe is not issuing out of the Land, but is a thing collateral, and if a Parson do release to his Parishioners all demands in the Land, yet Tithes are not thereby released, for such general words will not extend to such a special matter. And in the 15 of R. 2. Avowry 99 one held of another by ten shillings for all Services, Suits, and Demands; yet the Tenant shall pay Relief, because it is incident to the Rent, and 8 Ed. 3.26. Mich. 29 Eliz. Rot. 2574. or, 2375. Stephen's against Layton. IN an Ejectione firmae upon issue joined, the case in a special Verdict was, that a Lease by Indenture was made by William Beale to one William Pyle and Philip his Wife & primogenito habend. to them, & diutius eorum viventi successive for term of their lives, and then the Husband and Wife had issue a Daughter: The question was, if the Daughter had any Estate. And three justices held that she had no Estate, because she was not in being at the time of the Lease made, and a person that is not in esse cannot take any thing by Livery, for Livery ought to carry a present Estate, where the Estate is not limited by way of Remainder, 18 Ed. 3.3 17 Ed. 3.29, & 30. adjudged: but it was said at the Bar, that if the Estate had been conveyed by way of use, it is otherwise. And the said justices held clearly that the word Successive, would not alter the case: And the case was further found, that William Beale and Samson Beale did covenant with one Lendall, that if Tho. Beale Son of Samson Beale, should marry Margaret the Daughter of the said Lendall (if she would assent) and also that the said Lendall did covenant that the said Margaret should marry the said Thomas (if he would assent) Pro quo quidem Maritagio sic tum postea habendo, the said William Beale covenanted, that he would make, or cause to be made an Estate to the said Thomas and Margaret, and to the Heirs of their bodies for the jointure of the said Margaret, and it was further found, that afterward a Fine was levied between the said Thomas and Margaret Plaintiffs and Samson Beale and William Beale Deforceants, Qui quidem finis fuit ad usus & intentiones in Indentura praedict. specificat, by force whereof the said Thomas and Margaret were seized: but the jury found nothing of the Marriage, whether it took effect or not; and further found that William Pile and Philip his Wife had Primogenitam prolem a Daughter, and then died, and then Thomas Beale died, and his Wife inter married with one Lamock, who made a Lease to the Plaintiff, who was ousted by Layton the Lessee of Philip Pile. And hereupon it was moved by Gaudy Sergeant, that inasmuch as the Marriage took no effect between Thomas and Margaret, the uses cannot be in them, but the Fine shall be to the use of the Conusor, which was opposed by Walshey Sergeant, who said, that it was not like a Covenant in consideration of marriage to stand seized of such a Manor, for there if the considerations fail, the uses fail also, for the consideration only is the sole and entire cause that makes the uses to arise: but in this case the consideration is not material, but the Fine effectual, without consideration of money paid: and if a Feoffment be made to the use of I S. although no money be paid, yet I.S. shall have the Land. Windham, The Cases differ much, for here the Fine is not expressed to be levied to the use of Thomas and Margaret, but to the uses and consents contained in the Indenture: but he said, that the common course was to limit the use to the Conusor, until the Marriage took effect, and after, as before was urged by Walmsley. And the jury found that Thomas and Margaret, were seized accordingly. Winham, They are no judges to determine doubts in Law. Rhodes justice, Herein they have taken notice but of the matter in fact, and he affirmed the difference put by Walmsley. Windham, The case de matrimon: praelocut: is stronger than this Case, for the secret intention shall reduce the Land, if the marriage take no effect. And after (the Court being full) they all agreed to the difference put by Walmsley, and also that the sale afterwards was not good by reason of this Limitation. And judgement was given for the Plaintiff accordingly. Hil. 26 Eliz. Britman against Stanford. UPon a special Verdict, the Case was. A House, Stable, and Hayloft were demised to one for years, rendering four and twenty pounds' Rent per annum, and four and twenty pounds for an Income, quarterly by equal portions, upon Condition that if any of the Rent, or Income be behind at the time it ought to be paid, that then the Lease shall cease and determine. The Lessee makes a Lease of the Stable to the Lessor, and after part of the Income is behind and unpaid, and the Lessor enters for the Condition broken, into the house: And if this was a good entry, was the question. And judgement was given that the Condition was gone and void, by reason of the Lessors taking part of the thing demised, because a Condition is special and entire, and not to be severed. And in this Case Fenner said, that a Grantee of a Reversion cannot take benefit of a collateral Condition, as in case of a gross sum, but in case of a Rent, waste, etc. it was otherwise. Mich. 29, and 30 Eliz. Rot. 2529. Doctor Lewin against Monday. IN a Replevin by Lewin against Monday, it was found by Verdict, That a Fine was levied the 14th. of Elizabeth, between Lowla and Rutland, Plaintiffs, and Fook and seven others Deforceants of the Manors of Gollochall, whereby the Defendant did grant the Manor to the Plaintiffs, and the Heirs of one of them, who granted and rendered twenty pounds per annum to the said Fook and his Heirs, with a Distress for nonpayment. Fook seized of the Rent, makes a grant to a stranger in this manner; That whereas a Fine was levied the 14. of Eliz. of the Manor aforesaid, and divers other lands, etc. and mistook the Manor, for he put the names of the Conusees in place of the Conusors', and so e contra, and that it was levied of the Manor, and divers other lands, whereas the Fine was levied of the Manor solely; and that he did grant the said Rent granted unto him to the said stranger and his Heirs: And this grant was adjudged by Anderson who said, that if one recite that he hath ten pounds of the grant of I.S. whereas it was of the grant of I.D. yet it is good. Hil. 30 Eliz. Rot. 17.32. Hunt's Case. HUnt brought an Action on the Case against Torney, and declared that he being seized of lands in Swainton in Norfolk in fee, Secundum consuetudinem Mannerii; the Defendant did promise to the Plaintiff, in consideration the Plaintiff would permit him to occupy the same for the space of five years, that he would pay him at the Feast of All-Saints next coming, and so yearly twenty pounds at the Feasts of the Annunciation, and All-Saints by equal Portions, during the term aforesaid, and alleged that he had enjoyed the lands by the space of a year and half, and so brought his Action on the Assumpsit. And Anderson was of opinion that until the five years were expired, no money was to be paid, because the Contract was entire. But all the other justices on the contrary, for the consideration was to pay a certain sum yearly, which made several duties and so several Actions. For by Periam, if a man be bound to pay I.S. twenty pounds in manner and form following, viz. ten pounds at such a day, and ten pounds at such a day, in this case the Obligee cannot have an Action of Debt for the first, before the day of payment of the last ten pounds be past, because the duty in itself is an entire duty, but if a man be bound to pay I.S. ten pounds at such a day, and ten pounds at such a day, here the Obligee shall have his Action for the first, because the duty was in itself several. Anderson at another day said, that if a man makes a Lease for ten years, rendering Rend, in that case he may have an Assumpsit for the Rent due every year: So if I covenant with you to build you twenty houses, the Covenantee shall have a several action for each default. Periam, That Case of the Assumpsit is much to the purpose, for an Assumpsit is in the nature of a Covenant, and is indeed a Covenant without writing. Rhodes cited this Case. Gascoigne promised in consideration of a marriage of his Daughter with such a man's Son, to give seven hundred marks, and to pay a hundred marks every year, until all the sunun were paid, and it was held clearly in this Court, that a several action might be brought upon every hindered pounds, but because the action was brought for all the seven hundred marks before the seven years were out, judgement was given against him, for if a man be bound in a Bond of a hundred pounds to pay twenty pounds for so many years, he shall not have an Action of Debt until the last year expired. And after judgement was given for the Plaintiff. viz. Mich. 29. Eliz. Rot. 2248. 28 Eliz. Between Sticklehorne and Hatchman. ADjudged by the Court, that if for not scouring of a Ditch or Mote, the groundsels of the house are putrified, or Trees cut down which are in defence of the house, whereby the house by tempests is blown down, Waste shall be assigned in Domibus pro non Scourando, etc. IN an Ejectione firmae, Broker Prothenotary said, that where the title of him in the Reversion is not disclosed in pleading, nor cometh in question, aid shall not be granted. Pasch. 28 Eliz. in C. B. Yardley against Pescan. THe Queen seized of an Advowson being void, the Ancestor of Pescan presented, and so gained it by usurpation, and then the Church being void, he presented again, and his Clerk is now dead, and then the Queen grants the Advowson to Yardley the Plaintiff, and he brings a Quare Impedit in the name of the Queen, supposing that this usurpation did not put the Queen out of possession, and it was argued that the Grant could not pass without special words, because it is of the nature of a Chose in Action, and this was moved the last term, and then Dyer, Meade, and Windham held that this usurpation did gain possession out of the Queen, and that she should be put to her Writ of Right of Advowson, and now this term Fenner moved the case again, and the opinion of Anderson that was the chief justice of the Common Pleas, was clearly, that the Queen was not out of possession, for he said, that it was a rule in our Books, that of a thing which is of Inheritance, the act of a common person will not put the Queen out of possession, but if she had but a Chattel, as the next Advowson, than perhaps it is otherwise: But Meade, and Windham held very earnestly the contrary, and they relied on the Book of 18 Ed. 3.15. where Shared said, that if the King had an Advowson in his own right, and a stranger who had no right did happen to present, that put the King out of possession. And the King shall be put to his Writ of Right, as others shall. vide 47 Ed. 3.14 B. 18 Ed. 3.16. The Defendant there did allege two Presentments in his Ancestor after the Title of the King, and demanded judgement if the King should have a Writ of possession, and the plea was admitted to be good; but after Pasch. 25 Eliz. judgement was given for the Queen, for that she might very well maintain a Quare Impedit, and the two Presentments did not put her out of possession. 31 Eliz. Rot. 211. SIr Robert Rowley made the Lord Keeper Sir Robert Catlin, and the Master of the Rolls, his Executors, and did devise a term to Sir Robert Catlin, and died: and they writ their Letters to the Ordinary, certifying that they were made Executors, but that they could not attend the executing of the Executorship, and therefore they required him to commit the Administration to the next of kin, ut lex postulat. The Ordinary enters in the Register, Quia Executors praedicti per testamentum praedictum distulerunt, etc. and thereupon committed the Administration over: Afterwards the Lord Catlin received the Rent of the Farm, and after granted it to a stranger; The Administrator ousted the Lessee, and he brings an Ejectment. And if this writing was a refusal in the Executors, or not, was the question: And it was said by Ford Doctor of the Civil Law, that it was a refusal, and he said, that if Legatees being Executors do refuse to prove the Will, yet by the Civil Law they shall have their Legacies. But adjudged by the Court, that if Legatees do refuse to prove the Testament, that by the Common Law they have no remedy for their Legacies, for by the refusal there is a dying Intestate, and then nothing could be devised; and also, said, that this Writing was a refusal of the Executors, so that the Ordinary might presently commit Administration, and therefore Sir Robert Catlin could take nothing as Legatee. Pasch. 31 Eliz. THe Array of a Pannell was challenged, because the Sheriff was Cousin to the Plaintiff, and upon a Traverse it was found that they were Cousins, but not in such manner as the Defendant had alleged; and per curiam the Array was quashed, for the manner is not material, but whether he be a Cousin, or not, 18 H. 6.18. Pasch. 31 Eliz. IT was resolved in the case of Miles against Snowball, that if the Sheriff return one who hath no Freehold, yet he shall be sworn in the jury, if he be not challenged by the parties: And after upon the evidence it was moved, If a woman make a Deed of Feoffment to several persons, of a house and land, wherein she herself inhabiteth, and is seized, and delivers the Deed to the Feoffers, without saying any thing, if this be a good Feoffment: of which Periam doubted, because she did inhabit there all the time, but if it were of other lands on which she did not dwell, and she comes there to make Libery, and delivers the Deed upon the land and says no words, yet is this a good Feoffment, because she comes thither to malt Livery. Anderson, The Feoffment in this case is good, for if she hath an intent to make Livery, the delivery of the Deed is good Livery, Quod Periam & tota Curia concesserunt, if she had intended to make Livery, vide Co. lib. 6 26. & lib. 9.136. Dyer 192. Pasch. 31 Eliz. A Woman brought an Action of Debt as Administratrix to another, the Defendant pleaded that the Plaintiff was an Alien born in Gaunt, under the obedience or Philip King of Spain, the Queen's enemy. And Walmsley moved for the Plaintiff that this was no plea, because that the recovery is to another's use: but the Court was against him, for the Court will not suffer that any enemy shall take advantage of our Law; and then he moved that that King was no enemy, because Wars were not proclaimed. But Anderson said, that a more open enemy then King Philip cannot be, who had conspired the death of the Queen, and had endeavoured to invade the Realm, and subvert the State: which Windham granted; but Periam haerebat aliquantulum whether he could be called enemy in law before such proclamation. But Walmsley said, that the plea was that the woman was born under the obedience of the Emperor, who was in amity with the Queen, and the Court replied, Plead as you will abide by it. Pasch. 13 Eliz. IN a trespass of Assault and Battery, the Plaintiff declared to his damages of twenty pounds, and the jury found for the Plaintiff, and gave thirty pounds damages, And by the Court the Plaintiff shall recover no more than he hath declared for, and this aught to be done of course by the Clarks, 2 H. 6.7.8 H. 6.4.42. Ed. 3.7. Mich. 30. and 31 Eliz. Rot. 610. Bond against Richardson. In Debt, the Defendant pleaded payment at the day, and gave in evidence payment at another day, before the day of payment, and so was it found by the jury in a special Verdict. And Anderson said, We are all agreed that judgement shall be given against the Plaintiff, for payment before the day, is payment at the day, and judgement was given that the Plaintiff should be barred. Willis against Whitewood. A Man was seized of lands in Socage, and made a Lease for years by Paroll, and died, & his wife was Guardian in Socage to his Son, and the Lessee accepted of a new Lease by Deed of the Guardian in Socage, and then the Guardian died, and a new Guardian entered, and outed the Lessee; and if the second Guardian could do this, was the question. Anderson, It cannot be a surrender, for a Guardian, hath no Estate that may be surrendered, but it is an extinguishment of the Lease; and if a Woman Guardian in Socage takes Husband's, and dies, the Husband shall not be Guardian in Socage. Almeskey against Johnson. JOhnson had a second deliverance returned, which was returned Averia eloigniata, etc. whereupon he prayed a Withernam of the Cattle of the Plaintiff, and it was granted; and then came the Plaintiff and satisfied the Defendant, his damages and charges, and prayed a Writ of Restitution to have his Cattle again taken in Withernam. Fleetwood, Cattle taken in Withernam are not repleiditable, how then can you have your Cattle, and then we shall not be paid for the meat. And the Court held, that the Cattle were not repleivisable, but for satisfaction of damages he shall have restitution of the Cattle, and so is the course, which was confirmed by the Clarks. And Walmesley cited 16 H. 6. Replevi●… to warrant this: And as to the meat, he had the use of the Cattle, whereby it was reason he should sustain them: And a Writ of Restitution was granied. Mich. 31, and 32 Eliz. IN case of a Farmer of Dame Lineux Manwood, it was said, that the Order called the Cistrenses Order, have a privilege that they should pay no Tithes for the lands that Proprils' manibus excolunt: but if they let it to Farmers, than they were to pay Tithes, and now comes the Statute of Monasteries 31 H. 8. If the Queen should pay Tithes, was the question. And it was said, that the Queen, and her Farmers also should hold the land discharged of Tithes, as well as the particular persons of the Order should, for the King cannot be a Husband, and therefore his Farmers shall hold the land discharged, so long as the King hath the Freehold in him, although he make a Lease thereof for years, at will, but to if the King sell the land to another, or the reversion to another, than the Farmers shall pay Tithes. Mich. 31 Eliz. IT was said by the Barons in the case of one Beaumond, that a Debt which is not naturally a Debt in itself, but a Debt only by circumstance may be assigned to the Queen. As where a man is bound in a Bond to save another harmless, and fails thereof, the Obligation may be assigned to the Queen. But in such case a present extent shall not be awarded but the Process shall be only a Scire facias against the party, to see if he hath any thing to plead against it, which note well. And where a man recovers damages in an Action on the case, parcel of the damages cannot be assigned to the King before execution, for he must bring a Scire facias upon such Record. And Manwood chief Baron held clearly that a moyely hereof could not be assigned over, 22 H. 6.47. One was indicted of Treason at S. Edmundsbury, Coram Justiciariis ad diversas felonias, etc. audiendas, and after the Indictment made mention of Bury, and did not say praedict. and by the opinion of the justices the judgement was quashed. Trin. 30 Eliz. AN Action of the Case was brought against one Gilbert, for saying that the Plaintiff was a Suitor to a Widow in Southwark, and that he cozened her of her money in procuring false witnesses to consen her: And a Verdict found for the Plaintiff. And in Arrest of judgement it was said, that in the case of Kerby it was adjudged that Cozener will not bear Action, and so was it adjudged in this case. Moss against Reade. THe Defendant called him Thief, and thou forgest a Deed; and a Verdict was found for the Plaintiff: and in Arrest of judgement, it was said, that Thief generally, without saying of what nature specially, will not bear Action. But Wray chief justice denied that, and said that it had of late been adjudged to the contrary; and Gaudy against him. But as to the words, that he had forged a Deed, adjudged that the Action will lie, although it be not specially alleged what manner of Deed was forged. Pasch. 32 Eliz. COllings informed upon the Statute of buying of Tithes against Robert Davyes and Stock: And it was said by Periam, that although the words of the Statute be Pro termino diversorum annorum, yet if a Lease be made but for one year, yet is it within the penalty of the Statute. Mich. 31, and 32 Eliz. CRipps brought a Quare Impedit against the Bishop of Canterbury, and others, and declared upon a Grant of the next avoidance, and the Defendant demanded Oyer of the Deed, and the Plaintiff shown a Letter which was written by his Father to the true Patron, by which he had writ to his Father that he had given to his Son that was the Plaintiff the next avoidance; and upon this there was a Demur. And the whole Court for the Demur, for that such Letter was a mockery, for the Grant was not good without Deed: and judgement was given accordingly. In Tymbermans' Case it was said, that if a Sheriff took one in Execution by force of a Capias, although he return not the Writ, yet an Action of Debt will lie against him upon an escape; and Periam said it had been so adjudged. Katherine Gilham brought an Ejectment as Administratrix to her Husband, Quare determino eject. & bona & catalla sua ibidem inventa cepit etc. and a Verdict for the Plaintiff, and it was alleged in Arrest of judgement, that this word Sua shall not be intended her own Goods, and not the Testators. And the Court was of opinion that Sua shall be intended in such manner as Administrator, and no otherwise. And therefore judgement was affirmed. Mich. 31, and 32 Eliz. Baldwin against Mortin. USe to the Husband and Wife, habendum to the Husband for thirty years, the Wife shall take nothing thereby, and this case was argued at the Bar and Bench, and was called the Earl of Cumberlands case. Fleetwood moved that an Action was brought against the Husband and his Wife, and dit declare a trover of the Goods of the Plaintiff, by the Wife, which she converted to her own use, and prayed that the Action might be against the Husband only, because that the woman could not convert them to his own use during the Coverture, but only to the Husband's use. And the opinion of the Court was, that the Writ was good against them both, and that the conversion was in nature of a Trespass, and so the Action would well lie. Mich. 32. and 33 Eliz. Kent against Wichall. IN a Trespass Quare clausum fregit & herbam conculcavit, the Defendant pleaded that he tendied sufficient amends to the Plaintiff. and he refused the same, and demanded judgement, etc. And upon a Demurrer, the opinion of the Court was, that this is no plea in Trespass, but in a Replevin it is a good plea, Sed non dierunt causam diversitatis, 21 H. 7.30.9 H. 7.22. F.N.B. 69. G. 31 H. 4.17. Drew demanded of the Court, that whereas Edmund Leusage had bound himself in an Obligation by the name of Edward Leusage, if this was good or not; and it seemed to the Court Quod non est factum, and Anderson and Walmesley said expressly that it was void, 34 H. 6.19 6. Dyer 279, 21 H. 7.8. Sir John Arrundell and his Wife, brought a Quare Impedit against the Bishop of Gloucester and others, who pleaded in Bar that William Sturton was seized of a Manor to which the Advowson was appendent, and bound himself in a Statute-merchant of two hundred pounds to one Long, and the Statute was extended, and conveyed the interest of the Statute to one of the Defendants, and then the Church became void: And by the Court the Advowson may be extended, and if it become void during the Conusees Estate, the Conusee may present. Note, it was said by the justices of the Common Pleas, that if a man promise another that he shall have a Lease in his land for eight years, or it is agreed amongst themselves that one shall have a Lease of the others land for eight years, that is no lease of the land, but only a Contract and Agreement; but if one promise another that he shall have his land for eight years, or openly agree that one shall have the others land for eight years, this is a good lease for eight years by force of the agreement. A. came before the Major of Lincoln, and acknowledged a Statute-merchant, and the Seal of the Major was not put to it: and it was adjudged that the Statute was not good, but a man may sue upon it as an Obligation, because the Seal of the party is to it. Pasch. 36 Eliz. IN a Waste the Case was, that a Lessee for years purchased Trees growing upon the land, and had liberty to cut them within eighty years, and after the said Lessee purchased the inheritance of the land and devised it to his Wife for life, the Remainder to the Plaintiff in see, and made his Wife Executrix, and died, who after married with the Defendant, who cuts the Trees, whereupon the Action is brought. And by opinion of all the Court the Action was maintainable, for although the Trees were once Chattels, yet by the purchase of the Inheritance they were united to the land: and judgement was given for the Plaintiff accordingly. Pasch. 36 Eliz. UPon an Exigent, the Sheriff returned, that after Divine Service he made proclamation, and did not say, that there was no Sermon: and therefore the judges held that the return was not good; for by the Statute, if there be a Sermon in the Church, the Sheriff shall make his proclamations after the Sermon, and if there be no Sermon, then after Divine Service: and because it did not appear whether there were any Sermon or not, the opinion of the Court was ut supra. It was said that a man shall not aver against a Postea in the King's Bench, or the Common Pleas, to say that it was contrary to the Verdict, nor shall he be received to say, that the judges gave a judgement, and the Clarks have entered it contrary to their judgement: but otherwise is it in Court Barons, or other base Courts, not Courts of Record, 10 Ed. 3.40. 35, and 36 Eliz. Newman against Beaumond. IF the Ordinary grants the Administration of the Goods of B. to A. and after grants the Administration to R. this second Grant is an appeal of the first, without any further sentence of repeal, for the Administrator is but a servant to the Ordinary, whom he may charge at any time. In an Action of Debt on a Bond bearing date the nineth of July, the Defendant pleaed a Release of all Actions the same day, usque diem dati ejusdem scripti, and it was adjudged that the Obligation was not discharged, because the Release does exclude the nineth day on which it was made. Mich. 37, and 38 Eliz. Rot. 211. Holman against Collins. HOlman brought a Writ of Error against Collins, upon a judgement given in the Court of Plymmouth, in the County of Devon, the case was; Collins was possessed of a piece of Ordnance, and in Consideration that he would tender this to Holman for to put into his Ship which was then going to Sea, and that Collins would stand to the hazard of losing it: The said Holman did assume upon himself, and did promise to give Collins certain Goods which he should gain by the Voyage, and after the said Ship did return laden with certain Goods, and for non-satisfaction the said Collins brought his Action on the Assumpsit, and had Judgement to recover. And Crook assigned these Errors; 1. That the Style of the Court was not good, for it was Curia Dominae Reginae Burgi praedict. tent. coram Majori de Plymmouth, without saying, secundum consuetudinem villae predict. and he who is judge of the Court, aught to be either by Patent or Prescription, and then for not expressing the stile of the Court, nor by what authority they held their Court, it is error; and he cited the case in the Lord Dyer 262. and a judgement, 30 Eliz. Rot. 32. given in the very point: Another Error was, that no day was prefixed for the Defendant to appear, but generally ad proximam curiam, which is Error, although it be held every monday. And for these Errors judgement was reversed. Trin. 28 Eliz. Rot. 948. Mercer against Sparks. MErcer had judgement to recover against Sparks in the Common Pleas, upon an Action of the Case for words; and Sparks brought a Writ of Error in the King's Bench, and assigned for Error, that the Plaintiff did not express in the Declaration that the Defendant spoke the words malitiose, but it was adjudged, that it was no Error, because the words themselves were malicious and slanderous, wherefore judgement was affirmed. Savacres Case. IT was adjudged in the Common Pleas, that if a Baron, or others mentioned in the Statute of 21 H 8. take divers Chaplains which have many benefices, and after they discharge their. Chaplains from their Service, they shall retain their Benefices during their lives, and if the Baron takes others to be his Chaplains, they cannot take many Benefices during the lives of the others, which are beneficed and discharged of their Services; for if the Law were otherwise, the Lords might make any capable of holding Benefices by admitting them to be their Chaplains. In an Action of false Imprisonment brought against the Mayor, Citizens, Sheriffs and Commonalty of Norwich; it was moved where the Issue should be tried: And by the Court the Issue shall not be tried there; and in the same case it was moved, whether the Sheriff could summon himself, and it was answered by the Court that he could not: and Periam said that so it had been after adjudged. Mich. 29. and 30 Eliz. IN an Avowry adjudged by the Court (Anderson being absent) that in an Avowry it is sufficient for the Avowant to say, Son Franktenement, but if the Plaintiff traverse it, it is no plea without he makes to him a Title, & that is the difference of pleading Son Franktenement, on the part of the Avowant, and on the part of the Plaintiff. And Welson said, that so were all the Precedents, that it is no plea to traverse the Bar in the Avowry, without making Title: And Periam said, that it is no Title to plead De son seisin demesne, but he must make out his Title Paramount, his Seisin Demesue. Mich. 29, and 30 Eliz. Bloss against Holman. JOhn Bloss brought an Action of Trespass Quare vi & armis for taking of his Goods, against Holman, and the Defendant pleaded not guilty, and the jury gave a special Verdict, viz. That the Plaintiff at the time of the Trespass was of the Mystery of the Mercers, and that at that time the Defendant was his Servant, and put in trust to sell his Goods and Merchandizes in Shopa sua, ibidem de tempore in tempus, and that he took the Goods of the Plaintiff named in the Declaration, and carried them away, and prayed the advice of the Court, if the Defendant were culpable or not; and upon the Postea returned, Shuttleworth prayed judgement for the Plaintiff. And the doubt was because the Declaration was Quare vi & armis, because it appeared that the Defendant had custody of the Goods: but Shuttleworth doubted whether he had Custody, and cited the case of Littleton, viz. If I give my Sheep to Compasture, etc. and he kills them, an Action of trespass lies: and the justices held that in this case the Action did well lie; and Periam said, that the Defendant had only an authority, and not custody or possession, and judgement was given for the Plaintiff, 3 H. 7.12.21 H. 7.14. And Windham said, that if he had imbezelld his Master's Goods, without question it was felony. Quod fuit concessum, (Anderson absent) and the Law will not presume that the goods were out of the possession of the Plaintiff; and the next day came the Lord Anderson and rehearsed the case, and said, that the Defendant had neither general nor special property in the Goods, for it is plain, he could have no general property, and special he had not, for he could not have an action of Trespass if they were taken away, then if he had no property, a trespass lies against him, if he take them; so if a Shepherd steal Sheep, it is felony, for he hath no property in them, wherefore he gave judgement accordingly. Mich. 29, and 30 Eliz. Rot. 1410. Cook against Baldwin. A Lease was mate for one and twenty years, to one Truepenny and Elizabeth, if she, and he, or any Child, or Children between them lawfully begotten, should so long live, and then they were married, and the Wise died without Issue. If the Lease be determined or not, was the question. And it was moved that it was determined, because it is conjunctive, if he and she, etc. and now one of them is dead without issue, and it is not like the case of Chapman, where a man covenants to enfeoff one and his Heirs, for it is impossible to enfeoff his Heirs, he living, and therefore in that case it shall be taken for a disjunctive: and if I make a Lease for years to two, if one of them die, the other shall have all, because they take by way of interest; but it a Lease be made to two, during the life of one of them, if one die, the Lease is gone. Quod fuit concessum: And here the meaning is, that the Lease shall be determined if one of them die. Rhodes justice, The meaning is against you, for by the word (or) which comes after, it appears that they are to have their lives in it. Anderson, By the words it is plain, that after the death of one the Lease is determined, and that which moves me to think it was so intended, is, because it was intended (as it seems to me) to be a jointure for the wife, which was made by them before marriage; and than if by the death of one it should be gone, and she have nothing, could not be the meaning; To which the other justices assented. And all the judges agreed that the Lease was not determined by the death of one; and judgement given accordingly. Mich. 29, and 30 Eliz. IN a Quare Impedit by Sir Thomas Gorge Knight, against the Bishop of Lincoln, and Dalton Incumbent, the Case was; That a Manor with the Advowson appendent was in the hands of the King, and the Church became void, and the King grants the Manor with the Advowson: If the Grantee shall have the Presentation; or the King, was the question. And all the justices held clearly that the avoidance would not pass, because it was a Chatiell vested. And Periam said, that in case of a common person without question an Advowson appendent would not pass by such Grant; for if the Father die, it shall go to his Executor, but if it be an Advowson in gross in case of a common person, there is some doubt: But in the principal case all the judges held ut supra, and said, that so it was in 9 Ed. 3.26. Quare Impedit 31. And in Dyer in the case of the Church of Westminster, but F.N.B. is contrary, 33 N. Mich. 29, and 30 Eliz. Rot. 728. HOuse and Elkin brought an Action of Debt upon an Obligation made to them, against Roger Grindon, as Sheriffs of London, upon condition of appearance at a certain day in the King's Bench: The Defendant pleaded that he being arrested by a Precept out of the King's Bench appeared at the day: And upon this they were at issue to be tried by the Country: And a Repleader was awarded, because it was triable by Record, for although the Sheriff do not return the Process, yet the Defendant ought to come into the Court at the day, and there special entry shall be made of his appearance. And so was it adjudged this term in the Case between Bret and Shepheard: But Bradford Prothonotary said it was well enough, for it may be that he appeared there, and there was no Record of it, To which it was answered, that it was no appearance unless there were a Record: But the Case in Court was ut supra. Hil. 30. Eliz. IN an Ejectment by Dorothy Michael against Edmund Dunton, the Case was; A woman makes a Lease for years, rendering Rend, with a Covenant that the Lessee should repair the house, with other Covenants, and then devised the same lands to the same Lessee for divers years more, yielding the like rent, and under such Covenants as were in the first Lease, the Remainder over in fee, and dies, and then the first Lease for years does expire, and the Lessee continues in by force of the second Lease by vesture of the devise, and repairs not the houses, so that if the first Lease had been in being, he had broke the Covenant. If this shall be such condition as he in the remainder may enter, was the question. Shuttleworth, It is a Condition, for he cannot have a Covenant, and then it shall be intended that i● is conditional: But by all the Court. There appears no such intent, for it appears that he holds under like Covenants. Anderson, The nature of a Covenant is to have an Action, but not an entry, and therefore there shall be no entry. Shuttleworth, To what end then serves these words (under like Covenants) Periam, They are void. And at last it was resolved by all the justices, that the Will expressing that the first Lessee should have the Land observing the first Covenants, it shall not be now taken to be a Condition by any intent that may be collected out of the Will: for a Covenant and Condition are of several natures, the one giving Action, the other entry, and here the intent of the Will was, that although the Covenants were not performed, yet the Lessee should not forfeit his term, but is only bound to such pain as he was at the beginning, and that was to render damages in an Action of Covenant. And judgement was given that the Plaintiff should be barred. Mich, 29, and 30 Eliz. Rot. 2449. THe Earl of Kent brought an Action of Debt upon a Bond against William Bryan, which was endorsed with a Condition, That if the Defendant did permit the Plaintiff, his Executors or Assigns, not only to thresh Corn in the Defendants Barn, but also to carry it away from time to time, and at all times hereafter convenient, with free egress and regress, or else to pay eight pounds upon request, etc. that then, etc. And in truth the Defendant permitted the Corn to lie there two years, in which time the Mice and Rats had devoured a great part of it, and then the Defendant thresht it, and the Earl therefore brought this Action: And upon Demur it seemed to Walmsley that there was no forfeiture of the Bond, because the Earl took not the Corn away in convenient time, for convenient time is such as shall prejudice no person (Quod fuit negatum per Justitiar.) and here is great prejudice to the Detendant, because the Plaintiff did not carry away the Corn: And he put many cases, where things ought to be done in convenient time, as in the 21 Ed. 4. where an Arbitrement ought to be performed in convenient time. But the opinion of the Court was, that he might come in convenient time, although he comes long after, and the words are not within convenient time. Windham said, That if the words had been within convenient time, it would have made a difference. Anderson, If the words of the Condition had been, that he should suffer the Plaintiff in time convenient to come, and thresh and take away his Corn, than perhaps he ought to send within a year according to Walmsleys saying, but the words here are at all convenient times, and that day that the Servant came was a convenient day to thresh and carry away; and the words, At all convenient times shall be construed, that at any time when it pleaseth the Earl he may come, unless it be night, or Sabbath day, and if the word, convenient, had not been mentioned, then by the words, from time to time, and at all times after, than the Earl may come at any time either in the day or night, and that a hundred years after as he pleaseth, and then the word, convenient, does restrain him that he cannot come but in the working days, but does not restrain any time in which he shall come, but only in conveniency of time, which is at times of labouring and watching. And so was the opinion of the Court. ut supra. An Action of Debt was brought upon a Lease for years, the Defendant pleaded Nihil debet per patriam, and did intent to give in evidence an entry of the Plaintiff before any Rent behind. And by the Court he could not do it, for it is contrary to the issue. Hil. 30 Eliz. Rot. 904. Between Spittle and Davis. IN a Replevin, the case was; One Turk seized of lands in fee, devised parcel thereof to his eldest Son in tail, and the other parcel to his youngest Son in fee. Provided, and his intent was, that if any of his Sons or any of their Issues, do alien or demise any of the said lands, before any of them comes to the age of thirty years, that then the other shall have the Estate, and does not limit what Estate, and then one of the Sons makes a Lease for years before such age, whereupon the other enters, and before he comes to the age of thirty years, he aliens that part into which he made entry, and the other brother being the eldest enters and makes a Lease to Spittle the Plaintiff for three years, and Davies by commandment of the younger brother enters, and takes the house Damage-feasant, and Spittle brought a Replevin: And upon Demur, it seemed to the Court, that this was a limitation, and by virtue of the Will the Estate devised to them until they aliened, and upon the alienation to go to the other, & upon such alienation the land is discharged of all limitations, for otherwise the land upon one alienation shall go to one, and upon another alienation shall go back again, and so to and fro ad infinitum, vide Dyer 14. & 29. And afterwards all the judges agreed, that after one brother had entered into the land by reason of the alienation, that land was discharged forever of the limitation by the Will; And judgement was given accordingly. Trin. 27 Eliz. Rot. 190. Carter against Lowe. IN an Ejectment, the Case was; A Termor devised his term to I.S. and made his Wife Executrix and died, the Woman enters and proves the Will, and taketh Husband, who takes a Lease of the Lessor, and after the Devisee enters and grants all his Estate to the Husband and wife, and herein two questions were moved. 1. If by this acceptance of the new Lease by the Husband, the term which the woman had to another use, viz. to the use of the Testator shall be deemed a surrender: And the opinion of the Court was clearly without argument, that it was a surrender. But admitting it was no surrender, but the first term continues, than the second question is, 2. If when the Devisee enters into the term devised to him, without consent of the Executor, by which entry he is a wrongful Seisor, and a Disseisor, and after he grants his right and interest to the Executor; if this Grant be good or no, because he had not any term in him, but only a right to the term suspended in the land, and to be revived by the entry of the Executor, And adjudged that it was a good Grant, and it shall inure first as the agreement of the Executor by the acceptance of the Grant, that the Devisee had a term in him as a Legacy. And secondly the Deed shall have operation by way of Grant to pass the Estate of the Devisee to the Executor, and so no wrong, and the case was resembled to the case of surrender to the grantee of a Reversion, which first shall inure as attornment, and after as surrender, and so was it adjudged. Trin. 37 Eliz. IN an Action on the Case for these words; Carter is a prigging pilfering Merchant, and hath pilfered away my Corn and my Goods from my Wife and my Servants, and this I will stand to: And the Action was commenced in a base Court in the Country, and judgement given and the Record removed by Writ of Error: And it seemed to the Court that the words were not actionable, wherefore judgement was reversed. Sed quaere rationem. Gowood against Binkes. A Man did assume and promise to I.S. in consideration that he would forbear a Debt due to him until such a time: That he would pay the Debt if A.B. did not pay it, and he that made the promise died, and the money was not paid, and therefore an Action was brought against his Executors, who traversed the Assumpsit, and a Verdict found against them; and in Arrest of judgement it was moved, that an Action grounded on a simple Contract. lies not against Executors unless upon an Assumpsit for a Debt or Duty owing by the Testator himself, and not of such a collateral matter as the forbearance of the Debt of another: but by Gawdy, judgement was given for the Plaintiff; whereupon Popham said, that he believed this judgement would be reversed by Writ of Error in the Exchequer Chamber, and the same day at Serjeants-Inn such a case was depending in the Exchequer Chamber to be argued, and reversed for the cause ut supra. And the case was between Jordan and Harvey, and entered Trin. 36 Eliz. Rot. 384. Hil. 37 Eliz. Rot. 34. Castleman against Hobbs. IN an Action of the Case for saying, Thou hast stolen half an acre of Corn, (innuendo) Corn severed, the Defendant demurred upon the Declaration. Fenner, It is not Felong to move Grain and take it away. Popham agreed to it, and that the word Innuendo would not alter the Case, unless the precedent words had vehement presumption, the Corn was severed; and in this case no man can think that the Corn was severed, when the words are, half an acre of Corn: on the contrary, if the words had been, that he had stolen so many loads, or bushels of Corn; And Gawdy was of the same opinion: and judgement against the Plaintiff, etc. Hil. 38 Eliz. IN an Account the Plaintiff declared, that he delivered Goods to the Defendant to Merchandise for him, the Defend▪ said, that the Goods with divers other of his own proper goods wer● taken at Sea, where he was rob of them. And it was moved that this was no plea in Bar of an Account, but if it be any plea, it shall be a plea before Auditors in discharge: But admitting it be a good Bar, yet it is not well pleaded, for the Plaintiff as it is pleaded cannot traverse the robbing and try it, for things done super altum mare is not tryable here, wherefore the Defendant ought to have pleaded that he was rob at London, or any other certain place upon the Land, and maintain it by proofs that he was rob on the Sea. Gawdy, It is no good plea, for he hath confessed himself to be accountable by the receipt, 9 Ed. 4., and it is no plea before Auditors, no more than the Case was in 9 Ed. 4. for a Carrier to say, that he was rob. Popham, It is a good plea before Auditors, and there is a difference between Carriers and other Servants and Factors; for Carriers are paid for their carriage, and take upon them safely to carry and deliver the things received. Gawdy, If Rebels break a Prison, whereby the Prisoners escape, yet the Gaoler shall be responsible for them, as it is in the 33 H. 6. Popham. In that case the Gaoler hath remedy over against the Rebels, but there is no remedy over in our case. Gawdy, Then the diversity is when the Factor is rob by Pirates, and when by enemies. Popham, There is no difference. Hil. 38 Eliz. Rot. 40. IN a Writ of Error upon a judgement given in Nottingham, the Error assigned was; because the Defendant had no addition, for it appeared the Action was in Debt; and the Record was, that H. Hund complained against Richard Preston of, etc. in the County of Nottingham, Husbandman, the which addition is not in his first name, but in the alias, and that could not be good, and therefore it was prayed that judgement might he reversed. But by the Court, the Court of Nottingham had no authority to outlaw any man, so that addition is not requisite, wherefore it is no Error: and judgement was affirmed. Trin. 37 Eliz. Rot. 553. Browne against Brinkley. IN an Action of the Case for words; the Declaration was, That the Plaintiff was produced as a Witness before the justices at the Assizes at Derby, where he deposed in a certain cause, and the Defendant said, Browne was disproved before the justices of Assize at Derby, before Mr. Kingsley (Innuendo) that he was disproved in his Oath, that he took before the justices: And adjudged against the Plaintiff; for although he was disproved in his Oath, yet it is not actionable in this case, for that disproof might be in any collateral matter, or any circumstance; but otherwise if the words had been, that he was perjured, and the (Innuendo) will not help the matter, and so was it adjudged. The chief justice and Fenner being only in the Court. Trin. 36 Eliz. Higham against Beast. IN an Action of Trespass by the Parson of Wickhambrooke in the County of Suffolk, against the Vicar of the same place, for taking of Tithes, and on the general issue the jury gave this special Verdict: That the place where, etc. was a place called B. the Freehold of I.S. and parcel of the Manor of Badmanshall, and found that the Pope as supreme Ordinary heretofore made such an Endowment to the Vicarage in these words; Volumus quod Vicarius, etc. habebit tertiam partem decimarum Bladorum & Foeni quomodocunque pervenientem de maneriis de Badmanshall; and the question was, If the Vitar by this Endowment shall have the third part of the Tithes growing upon the ●and of the Freeholders within the Manor, or not. And it was said, by the Court, that a Manor cannot be without Freeholders, and inasmuch as they are to be charged with the payment of Tithes, one and the other together shall be said to be the Tithes of the Manor, and so it was adjudged that the Vicar should have Tithes of the third part of the land of the Freeholders, as well of the Demesnes, and Copyholders. Trin. 37 Eliz. Rot. 438. Willoughby against Grace. A Venire facias did bear Teste out of the Term, and also there was no place mentioned in the Writ, here the Visne should be impaunelled, and after the Writ said Coram Justiciariis, and did not say, apud Westmonasterium, and a trial was had hereupon, and judgement given which was prayed might be reversed for these causes. But it seemed to the Court, that notwithstanding all that was alleged, it was good enough, for although the Venirefacias was not good, yet if the Distringas had a certain return and place therein: And the jury appeared and gave their Verdict, so that a Verdict was had, the Statute will aid the other defects: as in the case adjudged between Marsh and Bulford, where the Venire bore Teste out of the Term. But Fenner said, that the Teste was in the Term but on the Sabbath day, which was not Dies Juridicus. Trin. 38 Eliz. Rot. 622. KInton brought an Appeal of Mayhem, against Hopton, Flame, and Williams; Hopton pleaded, not guilty; Flame pleaded that he was misnamed, and demanded judgement, etc. Et quoad feloniam & mahemium, not guilt●, & de hoc ponit se super patriam, & praedict. Kinton similiter: And Williams pleaded, no such man in rerum natura, as Flame, and demanded judgement of the Writ, and as to the Mayhem and Felony, not guilty, Et de hoc ponit se super patriam, etc. And as to the other two pleas to the Writ Kinton demurred, & prayed that the Writ might be awarded him, and a Venire facias to try the issue. For Tanfeild urged, that by pleading over to the felony, he waved the plea to the Writ, for there was a diversity between an appeal of Murder, and of Mayhem, for in Murder, as it is 7 Ed. 4. and 3 Ed. 6. although he plead to the Writ of appeal, yet of necessity he must plead over to the Murder, because it is in favorem vitae, or else if he will join in Demurrer upon the plea to the Writ, he doth confess thereupon the Felony, and therefore he must plead over, not guilty. But in Mayhem it is otherwise for although the Declaration was for Felony, yet is a Mayhem but a Trespass only, and all are pru●cipalls, and the life of the Defendant is not questioned, but he shall only render damages, and therefore it he plead over to the Felony that is a waver of the plea, and so a Venire facial aught to issue out, to try if he be culpable or not, and of this opinion were Popham Fenner, and Gawdy clearly, and agreed to the diversity between the appeal of Mayhem and Murder. Mich. 38, and 39 Eliz. King against Brain. A Man sells Sheep, and warrants that the you're sound, and that they shall be sound for the space of a year, upon which Warrant an Action of the Case was brought, and it was moved that the Action did not lie, because the Warranty is impossible to be performed by the party, because it is only the act of God to make them sound for a year. But Clench and Fenner on the contrary; for it is not impossible, no more than if I warrant that such a Ship shall return safe to Bruges, and it is the usual course between Merchants to warrant the safe return of their Ships. Mich. 38, and 39 Eliz. Wentworth and Savell against Russell. IN a Writ of Parco fracto, the Plaintiffs declared that they were Tenants pro indiviso, of a Manor in Yorkshire, and that the Defendant held of them certain lands as of their Manor, rendering Rend, which Rent was behind, and for which they distrained and impounded the Distress, and the Defendant broke the Pound and rescued the distress, and thereupon they brought this Action; and the Defendant demurred on the Declaration, because the Plaintiffs did not show how they were Tenants pro indiviso, or Tenants in Common, or Coparceners. But the Court ruled the Declaration to be good: And Gawdy said, that a Tenant in Common alone, without his companion, may have an Action De parco fracto. And judgement was given for the Plaintiff. Hil. 39 Eliz. POphamsaid, that in Lancashire there is a Parish called Standish, within which are many Towns, and one of the Towns is called Standish: And if a man seized of lands in the Town of Standish, and also of land in the other Towns, do let all his land in Standish only, his land within the Town of Standish doth pass, and not all his land within the Parish of Standish in the other Towns. For where a man speaks of Standish or of Dale, it shall be intended to be a Town and not a Parish, unless there be express mention of the Parish of Standish, or of Dale. Gawdy and Fenner on the contrary, for the Grant of every man shall be taken strongest against himself, and therefore all the land as well within the Parish of Standish, as within the Town of Standish shall pass: And Fenner said, that when Dale is mentioned in any Praecipe, it shall be intended the Town of Dale, because Towns are noted at the Common Law, and not Parishes, for Parishes were ordained by the Council of Lions, but notwithstanding in Grants, there shall be no such intendment, but the intendment shall be according to the common usage and understanding of the Country, and Countrymen in favour of the Grantee: and when a man speak of Standish, or any such place, it shall as well be intended to be a Parish as a Town. Hil. 29, Eliz. Clarentius against Dethick. CLarentius brought an Action of the Case against Dethick, by the name of Dethick, alias Garter: The Defendant demanded judgement of the Writ, for the Queen by her Letters Patents had created him King at Arms, Et quod nuncuparetur Garter principalis Rex armorum, and that he should sue and be sued by such name, and because he was not sued according to his creation, he demanded judgement, etc. Tanfeild prayed that the Writ might abate, for this case had been here in the Court in question before, where Dethick was indided by the name of Dithick only, and because he was not named according to his creation, he pleaded that matter, and the Indictment was quashed. Gawdy, I remember the case very well, and it was adjudged at my first coming to this Court, and in truth the judgement passed against my opinion, which then and still is, that when he is sued as King at arms, in such case wherein his Office or other thing belonging to his Office comes in question, than he ought to be named according to his Patent, but when he is sued as I.S. than it is sufficient to name him by his proper name. Popham, Upon the creation of any Deanery which is ordained and granted by Patent of the King; the Dean shall sue and be sued by the name of Dean of such a place, yet if such Dean doth sue or is sued about any matter concerning his natural capacity, it is not necessary to name him Dean. Fenner. But this is a name of dignity, and by his installation is made parcel of his name, and if a man be made a Knight, in all Actions he shall be so named; wherefore it seemed to him that the Writ ought to abate. Et Adjournetur. Hil. 37 Eliz. Hugo against Paine. HUgo brought a Writ of Error against Pain, upon a judgement given in the Common Pleas upon a Verdict, the Error assigned was, That one Tippet was returned in the Venire facias, but in the Habeas Corpus and the Distringas he was named Tipper, and so another person than was named in the Venire tried the issue. Curia, Examine what person was sworn, and what was his true name, to which it was answered that his name was Tippet according to the Venire facias, and that he was summoned to appear to be of the jury, and he inhabits in the same place where Tipper was named, and that no such man as Tipper inhabited there, and therefore it was awarded by the Court that the Habeas Corpus and Distringas should be amended, and his true name put in, and judgement was affirmed, etc. Hil. 38 Eliz. Rot. 944. Rainer against Grimston. RAiner brought an Action of the case against Grimston in the King's Bench, for these words, He was perjured, and I will prove him so by two Witnesses; without speaking in what Court he was perjured, and the Plaintiff had judgement, and upon Error brought by the Defendant, it was moved that the words were not actionable: But in the Exchequer Chamber, the first judgement was affirmed. Hil. 39, Eliz. Rot. 859. Chandler against Grills. IN a Trespass, the parties were at issue, and a Venire facias was awarded on the Roll returnable Octabis Trinitat. and the Venire was made six days after the day of Octabis returnable at a day out of the term, and the Distringas was made, and the jury Impanelled, and a Verdict and judgement for the Plaintiff: And in a Writ of Error brought this matter was assigned. And the first judgement affirmed, for this is aided by the Statute, being it is the default of the Clerk: and the case was cited between Thorn and Fulshaw in the Exchequer Chamber, Mich. 38, & 39 Eliz. where the Roll being viewed, and the Venire not good, it was mended and made according to the Roll, being that which warrants it and is the act of the Court, and the other matter but the mistake of the Clarks. But if the Roll were naught than it is erroneous, because the Venire is without warrant, and no Record to uphold it, and so was it held in the case of Water Hungerford and Besie. Hil. 39 Eliz. During against Kettle. DUring brought an Action against Kettle after a Trial by Verdict in London, and in Arrest of judgement, it was alleged, that the Venire facias is, Regina vicecomit. London salut. praecipimus tibi quod, etc. where it should be praecipimus vobis, etc. But ruled by the Court that this Venire being as it were a judicial Writ that ought to ensue the other proceed, it was holden to be amendable, and so it was accordingly. Pasch. 39 Eliz. East against Harding. IT was moved, Whether if a Lord of a Manor makes a Lease for years, after a Copyholder commits a Forfeiture, the Lessee for years shall take advantage hereof: and it was said by Popham, that the Feoffee or Lessee shall have advantage of all Forfeitures belonging to Land, as in case of Feoffment, and the like, but on the contrary for not doing of Fealty. Mich. 39 Eliz. Collins against wiles. THe Father makes a promise to wiles, that if he would marry his Daughter, to pay him 80 l. for her portion, but wiles demanded a 100 l. or else did refuse to marry her, whereupon the daughter prayed her Father to pay the 100 l. and in consideration thereof she did assure him to pay him 20 l. back again. The 100 l. is paid, and the marriage took effect. And the Father brought his Action on the case against the Husband and Wife, for the 20 l. Gawdy, and Fenner said, that the Action would lie: but Popham held the consideration void. Mich. 39, and 40 Eliz. Penn against Merivall. IN an Ejectment the Case was, If a Copyholder makes a Lease for years which is a forfeiture at the Common Law, and after the Lord of a Manor makes a Feoffment, or a Lease for years of the Freehold of this Copyhold to another; if the Feoffee or Lessee shall take advantage hereof was the question. Popham, He shall not, for the lease of the Freehold made by the Lord before entry, is an assent that the Lessee of the Copyholder shall continue his Estate, and so is in nature of an affirmance and confirmation of the Lease: to which Clench and Fenner agreed; and therefore upon motion made by Yeluerton Sergeant, and Speaker of the Parliament, judgement was given, Quod querens nihil caplat per Billam. Mich. 6 Eliz. ONe enters a plaint in a base Court to pursue in the nature of a writ of entry in the Post, and had Summons against the party until such a day, at which time, and after Sunset, the Steward came and held the Court, and the Summons was returned served, and the party made default, and judgement given: the question was, If the judgement was good. Dyer, Welch, and Benlowes held the judgement good, although the Court was held at night: and Dyer said, that if it were erroneous, he could have no remedy by Writ of false judgement, nor otherwise, but only by way of petition to the Lord, and he ought in such case to do right according to conscience, for he hath power as a Chancellor within his own Court. Lane against Coups. IN an Ejectment by John Lane against Coup, and the Plaintiff declared on a Lease made by William Humpheston, the Case was; William Humpheston being seized of land in see, suffered a common recovery to the use of himself and his wife for life, the remainder Seniori puero de corpore Gulielmi Humpheston, and to the Heirs Males of the body dicti senioris pueri. Plowden, One point is, that when a remainder is limited Seniori puero in tail, if Puer shall be intended a Son, or a Daughter also; and methinks it shall be intended a Son only, for so are the words in common and usual speech, and words in Deeds ought to be expounded as they are commonly taken, and not to go to any strict construction of the words as (Heirs) in the Latin is used also for goods by the Civil Law, but we use it only for lands, and so Libra in Latin signifies a Weight; and yet if I am bound in Vigint. Libris. if I forfeit my Bond, I must pay money, and not Led, or the like. And so the word Puer is sometimes taken for a servant Claudite jam rivos pueri, etc. and the same reason that it may be intended for a Daughter, may be for a Servant also. Gawdy. I suppose the Son shall have it and not the Daughter, for although Pueri was taken for Male and Female, yet now it is taken for Male in any Modern Author, but to omit curiosity of words, we ought to consider rather the intent of the parties, and there are many circumstances to prove that he intended this to his Son, and not to his Daughter, for he made it for settling his Inheritance, and it shall not be supposed that he intended his Daughter should have it. Also where the case may be taken two ways, the most usual shall be intended; as in case of a reservation of a Rent at Michaelmas, that shall be intended at the chiefest Feast: also in this case it shall be intended that he would advance the most worthy of his blood, and therefore to that purpose the conveyance shall be expounded; for if there be two I. S. and I give land to I.S. it shall be intended to my next Neighbour, but if one be my Cousin, although he dwells forty miles from me, yet he shall have the land: And to this Southcote accorded. 31 Eliz. in B. R. Hone against Clerk. A Woman Lessee for life takes Husband, who by Indenture makes a Feoffment of the land to I.S. for these words; Sciant per Servantes Richardum How & Katherine. uxor. ejus dedisse I.S. unum messuagium habendum praedict. I.S. heredibus suis ad solum opus & usum of the said I.S. and his Heirs, during the life of Katherine. The question was, if this was a forfeiture because the wife was Tenant for life; and the Attorney argued that it was, for the words Pro termino vitae Katherine. are referred to the use only and not to the estate; for by these words habendum to him and his Heirs the estate is limited, and therefore it is a forfeiture: but after comes the limitation of the use, ad usum I.S. and his Heirs during the life of the woman, and after the death of the woman the use remains in the Feoffor: and he cited the Lord Sturtons' case, in the beginning of the Queen's Reign; The Lord Sturton gave land to Clerk and his Heirs, to the use of Clerk and the Heirs of his body, and adjudged that it was not an estate in tail, for the limitation of the estate was before in the Premises. Coke, on the contrary, and said, that those words, For life of the wife, are to be referred to the limitation of the Estate, for if a double sense be in words, such sense shall be taken as shall avoid all wrong, and therefore it shall not be so expounded, as that the Grant shall not take effect, and that a forfeiture shall ensue, 4 Ed. 2. and see a notable case for exposition of words, and for relation of words and sentences, 34 Ed. 3. Avowry 58.28 H. 8. Dyer. Gawdy, It is a forfeiture. Clench said he would advise; but afterwards it was adjudged a forfeiture: for as Wray said, the estate given was forfeit. Mich. 36, & 37 Eliz. Bagnall against Porter in B. R. Rot. 353. A Man by Indenture bargains and sells his land, and if the Bargainor pay 100 l. at such a day, that then he shall be seized to the use of the Bargainor and his heirs, and did assume to make such assurance for the security of the land as should be advised by the Council of the Bargainor, and the Bargainee bound himself in a Recognizance to perform the said Covenants. And in debt upon the Recognizance, it was shown that the Bargainor paid the money at the day, and had tendered to the Bargainee a Deed in which was comprised an acquittance of payment of the money, and also a release of all his right, and the Bargainee refused to seal it. Coke was of clear opinion that he ought to have sealed it, for it is necessary to have the Deed to mention payment of the money, for otherwise the Bargainee and his heirs may claim the land for default of payment. Gawdy of the same opinion, and cited 19 Ed. 4. Popham, The case is not so clear, for if he had tendered an acquittance only, there is no doubt but the Bargainee might refuse to seal it, and by the same reason he may refuse when it is joined to a thing that he is bound not to do, viz. to seal the release: but at last the matter was referred to Arbitration. Hillar. 37 Eliz. COke demanded this question, A man having two Daughters his Heirs, does demise his Land to them in Fee; What estate had they by this Demise? For if a man deviseth Land to his eldest Son, it is void, and he is in by descent. That it was holden by the Court, that they shall hold by the Devise, because that he gives another estate to them then descended, for by the descent each of them had a distinct moiety, but by the Devise they are Joyn-renants, and the survivor shall have all. And Fenner said, If a man had Land in Burrow-English and Guildable Lands, and devised all his Land to his two Sons, and dies, both of them shall take jointly, and the younger shall not have a distinct moiety in the Burrow-English, nor the elder in the Guildable Land, but they are both Joyntenants. Pasch. 37 Eliz. carrel against Read, in B. R. Rot. 270. A Lease for years was made of divers Fenny grounds in Cambridge ss. and the Lessee covenanted to defend the ground, for being surrounded with water, and to drain the water out of other lands that were demised to him in the said County. And upon an Action of Covenant for not performing, the Defendant pleaded that the Plaintiff had entered in the land demised. And adjudged no plea by the Court, because the Covenant was not in respect that the Lessee should enjoy the land, nor was it a Covenant abhering to the land, but to a collateral thing; but if it had been in respect of enjoying the land, there it is a good plea to say that the Plaintiff had entered but where the thing to be done is collateral, it is otherwise, and also if he did plead such plea, yet it is not a bar, unless he holds him out of possession, Coke lib. 3.221. 4 Ed. 3.29. the Lord shall not have a Cessavit after entry in parcel, 10 Ed. 4.11.35 H. 6. Bar 162.19 Ed. 4.2. Trin. 37 Eliz. in B. R. Rot. 1076. Doggerel against Perks. IN an Action of Covenant, The Defendant pleaded, that it was enacted by the Major of London, and common Council, that if any Citizen takes the Son of an Alien to be his Apprentice. that the Covenants and Obligations shall be void, and he shown that he was the Son of an Alien, and became an Apprentice to the Plaintiff who is a Citizen, and made the Covenants with him for his Apprenticeship: And demanded judgement. And it was held no Bar; for notwithstanding the Act, the Covenant is good, for it is the Act of the Defendant, although the Act of the Common Council be against it: but the said Act may inflict punishment on any Citizen that breaks it. And judgement was given for the Plaintiff. Trin. 41 Eliz. in B. R. knots against Everstead. LEssee for life, the remainder for life, the remainder in tail, he in the reversion who had the fee does enter and enfooffs the Lessee for years; and adjudged that by this Feoffment Nihil operatur. Popham said, that he who hath a term cannot licence another that hath nothing in the land to make a Feoffment, for he who hath the Freehold wants nothing but possession to make a good Livery: but in this case he who makes the Livery had not the Freehold, and therefore the licence is void. But Tanfeild said, that if Lessee for life gives leave to a stranger to make Livery, it is void, but if he consent that the stranger shall make a Feoffment, it shall amount to a Disseisin, and the Feoffment is good. Which was denied by the Court. And Clench said, if a Lessee for ten years makes a Lease for one year to him in reversion, there he in the reversion who hath the land for a year, may make a Feoffment to the Lessee for ten years, and it is good. Trin. 41 Eliz. Moyle against Mail. Moil brought an Action of Waste against Mail, and declared that he had leased to him a Manor and a Warren, and that he had destroyed a Coney-burrow and subverted it, and assigned otherwastes in cutting down certain Thorns. Williams, The Action of waste will well lie, and said that a Warren consisted or two things, of a place of Game, and of liberty, and to prove that a waste did lie for a liberty, he cited the Statute of Magna Charta, Cap. 5. in which a Warren is intended, also the Statute of Marlebridge, cap. 24. and the Statute Articuli super Chartas, cap. 18. by which Statutes it is evident that a waste does lie for Warrens, and a Warren is more than a liberty, for a Writ lies Quare warrenam suam intravit, and by the 12 H. 8. if Lessee of a Warren does break the Pale, it is a waste, also if Lessee of a Pigeon-house stop the holes, so that the Pigeons cannot build, a waste doth lie, as it hath been adjudged. Also if Lessee of a Hop yard ploweth it up and sows Grain there, it is waste, as it hath been adjudged. Also the breaking a Wear is waste, and so of the Banks of a Fishpond, so that the water and fish run out: To all which cases the Court agreed, except to the principal. For the Court held it was not waste to destroy Cony-boroughs, for waist will not lie for Coneys, because a man hath not inheritance in them, and a man can have no property in them but only possession, and although by a special Law, Keepers are to preserve the land they keep, in the same plight they found it, yet thi● does not bind every Lessee of land. Walmsley. The subversion of Cony-boroughs is not waste, and it was usual to have a waste against those who made holes in land, but not against those who stop them up, because thereby the land is made better: And it was said, that to dig for stones was a waste, unless in an ancient Quarry, although the Lessee fill it up again. And Walmsley said, that in Lancashire it is waste to dig Marle, unless it be employed upon the land: And said it was not waste to cut thorns, unless they be in a Wood stubbed and digged up by the roots; but if they grow upon the land than they may be stubbed, and it is no waste: But to cut down Thorne-trees that have stood sixty or a hundred years, it is waste. Hil. 32 Eliz. in B. R. Sir George Farmer against Brook. IN an Action of the Case the Plaintiff claimeth such a Custom in the Town of B. that he and his Ancestors had a bakehouse within the Town to bake white bread and household-bread, and that he had served all the Town, with bread, & that no other could use the Trade without his licence, and that the Defendant had used the Trade without his licence upon which the Defendant demu●'d. Morgan, This is a good Prescription, and it is reason that a Prescription should bind a stranger, vide 11 H. 6.13. A. prescribed to have a Market, and that none should sell but in a Stall, which A. had made, and was to pay for the Stall, and held there a good Prescription. And the Archbishop of Yorks Case in the Register. 186. is a good case. A man prescribed that he had a Mill, and he found a horse to carry the Corn thither, and that therefore they ought to grind there, and because they did not, he borough his Action on the case. Buckley contra. It cannot be intended to have any commencement by any Tenure, 11 H 4. A. procured a Patent that none should sell any thing in London without paying him a penny, adjudged not good, and the case of the Archbishop was good, because he had it ratione dominii & tenuri. And adjudged the principal case, that the action will not lie. 23 Eliz. in C. B. Farrington against Charnock. KIng Henry the 8 granted Turbariam suam in D. at Farrington rendering rend sur 21. years and then the Lessee employed part of it in arable land, and relinquished part of it in Turbary: and then Q. Mary grants Totam illam Turbarian before demised to Farrington; and adjudged that that passed only which was Turbary, and the other part, that was converted into Tillage did not pass. Mich. 18 Eliz. in B. R. SIr Arthur Henningham brought an Action of Error against Francis Windham to reverse a common recovery had against Henry Henningham his brother: and the Error assigned was, that there was no warrant of Attorney of the Record. And it was agreed by the Bar and Bench, and adjudged error. But the great point was, if the Plaintiff could have a writ of Error? The Case was; Henry the Father had Henry his Son and three Daughters by one Venture, and the Plaintiff by another Venture, and died seized of the land entailed to him, and the Heirs Males of his body. Henry enters and makes a Feoffment, the Feoffee is impleaded, and voucheth Henry, who looseth by default in the recovery, and dies without issue, and whether the Daughters which are Heirs general, or the Plaintiff which is Heir in tail shall have the Error. Gawdy and Baker for the Defendant, who said, that the Plaintiff could not have the Error, but the Daughters who were the Heirs to Henry, for an Action always descends according to the right of land, and it seems that the Heir in Burrow English shall have Error or Attaint, and not the Heir at the Common Law, which was agreed by all on both sides: but it was said, that this varies much from the present case, for two reasons; One, because he came in as Vouchee which is to recover a Fee-simple, and he shall render a Fee-simple in value, which is discendable to the Heirs at the Common Law. Secondly, he hath no Estate-tail. Bromley Solicitor, and Plowden contra, and laid this ground, that in all cases where a recovery is had against one by erroneous process, or false verdict, he which is grieved shall have redress of it, although he be not party or privy to the first judgement, and therefore at the Common Law if a Recovery be had against Tenant for life, he in the Reversion shall have Error of Attaint after his death, and now by the Statute of R 2. in his life, so in a Praecipe, if the Tenant vouches, and the Vouchee looseth by default, the Tenant shall have Error, for the judgement was against him, and he looseth his term: and in the 44 Ed: 4.6. in a Trespass of Battery against two, one pleads, and it is found against him, and the plea of the other not determined, damages by the principal Verdict is given against them both, which (if they be excessive) the other shall have an Attaint. And Bromley said, there could not be a case put, but where he that hath the loss by the recovery should have also the remedy; and Baker cited 9 H. 7.24.6. that if a Recovery be had against a man that hath land on the part of the Mother, and he dies without issue, the Heir of the part of the Father shall have the Error. But Bromley and Plowden denied this case, and that 3 H 4.9. it was adjudged to the contrary: And Wray said to Baker, that he ought not much to rely on that case, for it was not Law, and said, that if Tenant for life makes a Feoffment, and a Recovery is had against the Feoffee, the first Lessor shall not avoid this. Bromley there is no use, for he may enter by forfeiture; but in our case, of whatsoever estate it be at the time of the recovery, the right of the Estate-tail is bound, and therefore it is reason that the Heir in tail shall avoid it. Jeffrey of the same opinion, and cited 17. Ass. A Conusor makes a Feoffment, and then execution is sued against the Feoffee by erroneous process, the Feoffee shall have the Writ of Error, although he be not party to the first Record, but the reason is, because of his interest in the land. And Bromley and Plowden said further, that notwithstanding the Feoffee recovers against the Vouchee, and the Vouchees recover over the land, yet this recovery shall go to the Estate-tail. And judgement was given for the Plaintiff. Trin. 32 Eliz. in B. R. TRussell was attainted of Felony by Outlawry, and after an Execution is sued against him at the suit of a common person, and he is taken by force thereof, and after he takes a Habeas Corpus out of the King's Bench, and Coke prayed that he might be discharged of this execution, for where a man is attaint of Felony he hath neither Goods nor Lands, and his body is at the King's disposal, and so is not subject to the execution of a common person, 4 Ed. 4. But Harris Serjeant and Glanvill on the contrary, For although he be attaint of Felony, yet may he be in execution, for his own offence shall not aid him: and so was it in Crofs case in the Common Pleas; where a man being attaint of Felony was taken in execution at the suit of a common person, and he escaped out of Prison, and an escape was brought against the Sheriffs of London, and a Recovery against him. And at last by advice of the Court, because he was indebted to many persons, and to discharge himself from his Creditors, intended to have a pardon for his life, and so deceive them, therefore he was committed to the marshalsea upon this execution. Trin. 42 Eliz. Malloy against Jennings. Rot. 1037. IN a Replevin the Case was; A man seized of land in fee, is bound in a Recognizance of 100 l. and then bargains and sells all his land to the Plaintiff, and then the Recognizance is forfeit, and the Conuzee sues out a Scire facias against the Conuzor before the Deed was enrolled, and had judgement to have Execution. And the question was, if the Bargainor was a sufficient Tenant against whom the Execution was sued. William's Sergeant, The Bargainor was Tenant at the time of the Scire facias before enrolment, and although it was enrolled after, shall have relation to the first livery to prevent any grant or charge: And if an Action be brought against an Executor, as in his own wrong, and the Suit depending he takes Letters of Administration, this shall not abate the Writ. So▪ in our case, the Bargainor was seized of the land when the Scrie facias was brought; and if a man makes a Lease for life, rendering Rend, and then the Lessor bargains and sells the Reversion, and before the Enrolment the Rent is behind, and the Bargainer demands the Rent which was not paid, and then the Deed is enrolled, yet he cannot enter for the forfeiture, which I have seen adjudged: & in the 28 H. 8. Dyer. Disseisee of one acre makes a Release to the Disseisor of all his lands, and delivers it as an Escroll to be delivered to the Disseisor, and then he disseiseth him of another acre, and then the Deed is delivered to the Disseisor, yet the right in the second acre shall not pass. And he much rolled on Sir Richard Brochets case, 26 Eliz. who made a Recognizance to Morgan upon condition to convey unto him all his lands whereof he was seized the first day of May, and it happened that one Corbet had sold him land by Indenture the 24. day of April, but the Deed was not enrolled until the 24. day of May after: And the question was, if the Conuzor was bound to convey these lands, or not, and adjudged that he was not, for inasmuch as the Deed was not enrolled the ffrst day of May, he was not seized, and great mischief would ensue if the Law should be otherwise: for no man will know against whom to bring his Action, for a Bargain and Sale before Enrolment may be done secretly. Herne Sergeant, The Bargainee is seized before Enrolment, and by the Statute of 5 Eliz. which wills, that none shall convert land used to tillage, unless he puts other land to tillage within six months, yet none will say that it is a breach of the Statute, although Pasture be presently converted to tillage, and he cited Chilburns case, 6 Eliz. Dyer 229. that proves that before the Enrolment land passeth to the Bargainee, and the Bargainee hath a Freehold in him before the Enrolment, and whereof his wife shall be endowed, and if the Bargainor levies a Fine, or acknowledge of Statute, the Bargainee shall avoid them, and deased the case of Morgan, cited by the other side, and cited the case of 6 Ed 6. where were two joint-tenants, and one of them bargained and sold his Moiety, and then the other joint-tenant died, and then the Deed was enrolled, there nothing passed but a Moiety, but it seems in that case that by the Bargain and Sale the jointure is severed before the Enrolment, so that there is no Survivorship, but the Book speaks not of it; and if a Bargainee be of lands held of the King without licence of a alienation, there the forfeiture to the King shall relate to the first delivery of the Deed. Warberton contra. Before the Enrolment there is but a commencement of the Bargain, and before all circumstances in the Deed mentioned, are performed, it is no Bargain; and I hold the Deed shall have relation to the delivery to prevent all Charges, & Contracts, but as to strangers it shall not have such relation. If Tenant for life bargains and sells his land to another and his Heirs, and then makes a Feoffment in fee to another before enrolment, this is no forfeiture. Anderson, A release made to a Bargainee before enrolment is void, then if this Scire facias be well brought, no Act of the Bargainee shall avoid it. Walmsley, If there be a Bargainee, and before the Enrolment the Bargainor enfeoffs him, he is in by the Feoffment and not by the Bargain, which proves that no estate is really in the Bargainee before Enrolment, Kingsmill, The reason of that is, because it is out of the Statute, for the Bargain and Sale was only delivered, and he said that the wife of the Bargainee in such case shall be endowed: But the Court denied that, and all agreed that the wife of the Bargainee before Enrolment shall not be endowed. Kingsmill said. that it was a usual course in a Recovery to make the Bargainee Tenant of the Praecipe. And it was said by all the justices, that if Tenant for life be impleaded, the Bargainee of the Reversion after Enrolment shall be received, and yet (if hanging the Writ) he purchase the Reversion, he shall not. And after many arguments it was adjudged that the Scire facias was not well awarded: And judgement given for the Plaintiff. 37 Eliz. in C. B. Day against Austin. IN a Trespass, the Defendant justified the taking of a Furnace fixed to the earth; because the Sheriff upon an intent sold it to him. And by the Court it was held a good discharge: for if a stranger takes my Horse, and sells him, a Trespass will not lie against the Vendee, but a Detinue. But if one sells my Horse, and a stranger takes him, he is a Trespassor. Walmesley and Beaumond, Although such Furnace be fixed by the Termor, yet he may take it away within the term, but the Sheriff cannot attach it; and the Termor may pull down a Wall made by him, and it is not waste. And at another day the case was recited to be thus. The Lessee made a Furnace for the use of a Dyer, and fixed it to the wall of his house, and the Lessee being condemned in debt, the Sheriff came to the Furnace, and put his hands upon it, and delivered it to the Defendant; and the Lessee brought a Trespass. Glanvill, A Furnace may be delivered in execution, and the house never the worse, but otherwise of the doors, because the Lessee cannot be without them, 42 Ed. 3.6. it is not waste to take away a Furnace, 21 H. 6.26. said there that the Heir shall have such Furnace, but this does not prove that it is not a Chattel, but the cause wherefore the Heir shall have it, it is because it is annexed to the land, as in the case of writings which are mere Chattels. Beaumound, It is doubly fixed, to the land and to the wall; and it is clear that the Sheriff cannot take it from the wall. Dyer, The diversity is when the Furnace is fixed to the middle of the house, and when to the wall, for the Termor may take it from the middle of the house, but not from the wall, for the wall is worse for taking it away, and therefore it is waste: And to this Owen agreed. Pasch. 35 Eliz. in B. R. Rotheram against Crawley. Rot. 332. IN debt upon a Bond, the case was; Divers questions were made between the Plaintiff Lord, and the Defendant Tenant, concerning Relief, whereupon they referred themselves to the Arbitrement of I.S. who did award, that the Plaintiff should make a Release to the Defendant (which was done) of all Actions, Duties, and Amercements: and then upon this Action brought by the Plaintiff for a collatterall thing, the Release was pleaded in Bar. Coke Attorney, The Plaintiff shall not be barred by this Release, for Deeds ought to be expounded according to the intent of the parties, and the intent of the party was to release no Duty but the Relief, which was only in question, & this word, Duties, being interposed between Reliefs and Amercements, shall be intended Duties of such nature as Reliefs and Amercements, and no otherwise, as it is in Dyer 23 Eliz. A man grants and to farm lets such land with wood, this is no grant of the wood, and yet there are words sufficient to pass the wood, but being conjoined with the words, And to farm let, it shall be expounded that it was not intended to have it be an absolute Grant. But adjudged that it was a good Bar, and judgement was given accordingly. Hil. 37 Eliz. Goodway against Michael GOodway brought a trespass against divers persons, Quare clausum fregerunt & duas Ramas' & perches of hedge, fregerunt The Defendant by way of justification said, that the place was in the Parish of Hadnam in Ely, and that all the Parishioners time out of mind, have used to have passage through the said Close in Rogation week, to make their Perambulation of the Parish, & because that the Plaintiff hindered the Defendants as Parishioners, Ramas' & sepes fregerunt, whereupon the Plaintiff demurred. Sperling, The justification is not good, for although Parishioners may justify the having a way over my ground, yet they cannot break the Hedges; Also they have broken two Perches, and two Gates, which is excessive for a footpath. 15 H. 9.10.6. A Commoner cannot break all the hedge upon the land where he hath Common. Savile count. All the Parishioners ought to go their Perambulation, and being a great number they may well enough justify, for they are not compelled to keep the footpath. 6 Ed. 2. F.N.B. 185. b. Parishioners may pull down a wall that hinders them in their way to the Church: and in the book of Entries, there is a Precedent where the Vicar and Parishiones did justify an entry for this very cause, & prescribed as we do in this case; so they may prescribe in a way, or other thing of easement or pleasure, 7 Ed. 4.26 a. 15 Ed. 4.29. a. Anderson, There is no question but Parishioners may justify their going over any body's land in their Perambulation. Warberton, Parishioners shall not prescribe in an easement, as in ●y way to the Church. Owen, The books make a difference between things of interest, as in common, for in such things Parishioners cannot prescribe, and things of easement, as a waste, for in such things a man may prescribe. Anderson. It is plain that Parishioners cannot prescribe, for none may prescribe but those that have perpetual continuance, and therefore Tenant for years or for life, or Parishioners cannot prescribe, but must be aided by custom. Walmsley of the said opinion, for there is no descent or succession in Parishioners. And judgement was given for the Plaintiff. Trin. 37 Eliz. in B. R. Norton and Sharp against Jennet. Rot. 178. A Prohibition was sued by the Plaintiff as Executors to I.S. who surmised that the Defendant sued them in the Court Christian for a Legacy of 200 l. and that the Testator had goods but to the vale of 350 l. and set forth how he was Keeper of the Prison of Ludgate, & that he was bound to A. and M. Sheriffs of London, to discharge and save harmless the same Sheriffs from all escapes, which bond was to the value of a 1000 l. And shown that one Holmes was taken by a Capias utlegatum at the suit of a stranger, and how the Testator suffered him to escape, whereupon an action of debt was brought against the Sheriffs, and a judgement, whereby the Obligation made to them by their Testator is forfeit, and pleaded riens intermaines, and because the Court Christian would not allow this plea, they prayed a Prohibition, upon which Coke Attorney-general demurred. And it was agreed by Gaudy justice, Coke, and Tanfeild, that if the Bond to the Sheriff be not forfeit, then is the Surmise good, and the Legacy shall be paid: But Fenner said to Coke, Quomodo probas? Who answered, The difference is when a bond is made by the Testator for payment of money in a Suit at the Court Christian for a Legacy, such a bond is a good plea, although the bond be not forfeit, as in the 9 Ed. 4.12, & 13. for the Condition of the Bond is part of the Bond, and a duty, but otherwise it is where the Condition is collateral for the performance of Covenants: but in our case the Condition is not broken as is supposed, for the Capias utlegatum issued the 25 of Eliz. and so the Arrest merely void, for every Capias ought to be returned the next term after the Teste, 21 H. 7.16.6, & 8 Ed. 4.4. & 6. Sed alii contra. But after a Consultation was moved for, if a Recovery was afterwards had against the Executors: And it was answered, that it was not the course to make a Bond to the party but to the Court. But Fenner said, that it such course be allowed, no Legacy would be paid. And judgement was given that a Consultation should be awarded if the Legatee would enter into a Bond to the Executor to make restitution if, etc. or otherwise not. Hil. 38 Eliz. in B. R. Haddon against Arrowsmith. IN an Ejectment, the case was; The Queen being Lady of the Manor of Winterburne in the County of Berks, by her Steward did licence a Copyholder for life to make a Lease for three years, if he should so long live, the Copyholder did make a Lease generally to the plaintiff for three years, who being ejected brought this Action. Stephen. The Action will not lie because the Copyholder hath not pursued his licence, for licence or authority must be pursued very strictly as well in form as substance, 10 H. 7. licence to enfeoff by Deed, or licence to impark 300. acres, he cannot enfeoff by paroll, or impark but 100 acres, and it was resolved the last Term in the Exchequer, that if the King licence his Tenant to alien, he cannot alien to one in tail, the remainder to the Donor in fee: And so in our case where he makes a Lease for 3. years absolutely, he hath not performed his licence. Gawdy contra, for when his licence is to make a Lease for years, if he so long live, these words (If he so long live) are but Surplusage; for the Law says, that if Copyholder for life makes a Lease for years, and dies, the Lease is determined, and therefore the clause in the Licence is no more than the Law says, and so is void. Quod suit concessum per totam curiam. Fenner, The Condition in the Licence is merely void, for the Lord gives nothing by the Licence, but only doth dispense with the forfeiture, and the Lessee is in by the Copyholder and not by the Lord, for the Lord cannot condition with him in his Licence. Clench, The Lord may licence on Condition, as where the Lord doth licence his Copyholder on condition that the Lessee shall repair the house, or shall not cut Trees, for otherwise the Copyholder may cut them, and the Lord hath no remedy, for his Licence is a dispensation of the forfeiture. Popham contra, A Condition to a Licence is void, as a Licence to make a Lease for years, on condition that he pay 20 l. the second year, this is void for the reason given by my brother Fenner, for the licence does not give a right, but only executes it, as a Livery, or Attornment; but a Limitation to such Licence is good, as licence to alien for two years, he cannot alien for three, but in our case the Condition & the Limitation made by the Lord is void: and the difference is between a Copyholder in fee, and a Copyholder for life, for if the Lord doth licence his Copyholder in fee to make a Lease for three years if he so long live, and he makes a Lease absolutely, this is no forfeiture, for this Lease shall be a good interest against the Heir of the Copyholder, but otherwise of a Copyholder for life. And judgement was given for the Plaintiff. Pasch 38 Eliz. in C. B. Bishop of Rochester's Case. THe Bishop of Rochester brought a Writ of Annuity against the Dean and Chapter of Rochester, and declared of an Annuity by Prescription, from the Prior of S. Andrew's of Rochester, which Priory was dissolved the 28 H. 8. & 31 H. 8. their possessions were committed by the King to the Dean & Chapter of Rochest. Anderson, The Annuity does not remain, for an Annuity chargeth the party and not the possession, and therefore when the Corporation is dissolved which is the person, the Annuity is gone. Walmesley, But in 2 H. 6 9 it is said there, If a Priory be charged with an Annuity, the Annuity shall continue, although it be charged to an Abbey. Anderson, That is true, for there the Corporation is changed only, but here it is dissolved. Williams, But that is saved by the 3● H. 8 for Annuities are expressed in the saving. Anderson, But this is an Annuity or Rent with which the land is charged. Beaumond, If it be any thing wherewith the land is charged, it is saved, but the person is only charged with this Annuity. Walmsley, But the 21 H. 7. is, that an Annuity out of a Parsonage is not a mere personal charge, but chargeth the Parson only in respect of the land. And the Court would consider on the case. Pasch. 38 Eliz. in B. R. The Case of the Dean and Chapter of Norwich. THe Case was, A Church in which there had been a Parson and a Vicar time out of mind, and the Parson used to have the great Tithes, and the Vicar the small, and for the space of forty years last passed, it was proved that the Parson had Tithes paid him out of a field of twenty acres of Corn, and now the field is sowed with Saffron, and the Vicar sued for the Tithes of Saffron in the Court Christian, and the Parson had a Prohibition. Coke. I conceive the Parson shall have the Tithes, for by the Statute of 2 H. 6. it is enacted that Tithes shall be paid as hath been used the last forty years, and this hath been always tythable to the Parson, and although the ground be otherwise employed, yet the Parson shall have the Tithes; and so was it in Norfolk, in the Case of a Park, where the Parson proscribed Pro modo decimandi, to be paid three shillings fours pence, for all Tithes rising out of the said Park, and although the Park was after converted to arable, yet no other Tithes shall be paid. Popham, It hath been adjudged otherwise in Wroths Case of the Inner Temple in the Exchequer. But the Law is clearly as hath been said; and the difference is, when the Prescription is to pay so much money for all Tithes, or when the Prescription is to pay a shoulder of every Buck, or a Do at Christmas, for there if the Park be disparkt, Tithes shall be paid, for Tithes are not due for Venison, and therefore they are not Tithes in Specie. And I conceive that Tithes of Saffron-heads shall be comprehended under small Tithes, and although the Tithes of this Field have been paid to the Parson, yet it being converted to another use, whereof no gross Tithes do come, the Vicar shall have the tithes: and so if arable land be converted into an Orchard, the Wicar shall have tithe of the Apples; and so if the Orchard be changed to arable, the Parson shall have tithes. Quod Fenner concessit. 36 Eliz. Higham against Deff. IN a Trespass, the Case was, That a Vicarage by composition was endowed of the third part, Omnium Bladorum decimarum, of the Manor of D. If he shall have tithes of the Freeholders of the Manor, was the question. Johnson, He shall not have them, for a Manor consisteth of two things, viz. of Demesns and Services, & the Freeholders are neither parcel of the Demesnes nor the Services, and therefore no parcel of the Manor, and this is proved in 12 Ass. 40. a Rent-charge was granted out of a Manor, the Tenancy escheats, it shall not be charged with the Rent. Tanfeild contra, For this word, Manor, does extend to the Precincts of the Manor, and not to the Demesnes and Services only, and therefore if a Venire facias be awarded De viceneto Manerii de D. the Freeholders shall be returned; also a survey of a Manor shall be as well of the Freehold lands, as of the Demesnes, and if the King grants a Leet within the Manor of D. all the Freeholders are bound to appear. Fenner, Grants ought not to be restrained to their strict words, but are to be construed according to the intent of the parties. Trin. 38 Eliz. in B. R. Ewer against Henden. Rot. 339. IN an Ejectment the jury found that I.S. being seized of a Capital Message in the County of Oxford, and also of a house and land in Walter, in the County of Hartford, makes a Lease for years of his house and land in the County of Hartford, and then by Will does demise his house in the County of Oxon, Together with all other his Lands, Meadows, Pastures, with all and singular their Appurtenances in Walter in the County of Hartford, to John Ewer: and whether the house in Walter, in the County of Hartford does pass, or not, was the question. Tanfeild, The houses shall pass, for if a man builds a house upon Black acre, and makes a Feoffment of the acre, the house shall pass, and so if a man does devise una jugata terrae of Copyhold Land, the house of the Copyhold does pass also, for so is the common phrase in the Country; and so if a man be rated in a 100 l. subsidy, that does include houses, and by the grant of a Tenement the house passeth, but if a man demand a house in a Praecipe, there the house ought to be named. Whistler contra, It is true that if a man generally does devise his Land, the houses pass: but in this case the Devisee hath particularised his Land, his Meadow, and his Pasture, and if he intended to have passed, his houses he would have mentioned them as well as his Land. Fenner, I am of the same opinion, for this special numbering of particulars, does exclude the general intendment; and if the Devisor had a Wood there, that would dot pass by these words. Popham contra, For if a man sells all his Lands in D. his houses and woods pass by this word, Lands, and so was it agreed in a case which was referred to Dyer and Wray chief Justice, and there reason was, because that a Warrant of Attorney in a Praecipe of a House, Woods, and Land, is only of Land, which proves that land does comprehend all of them, and therefore I conceive, if a man does devise, or bargain and sell all his lands in D. the Rents there shall pass, for they were issuing out of the land: But if a man be seized of three houses and three acres, and he deviseth all his land in D. and one of his houses, the other houses will not pass, for his express meaning is apparent, but here the words are in general as to the lands in Walter, and therefore the houses do pass. But afterwards it was adjudged that the house did not pass, for by the particular mentioning of all his Lands, Meadows and Pastures, the house is excluded. Pasch. 4 Eliz. Hunt against King. IN a Writ of Error upon a judgement given in the Common Pleas in a Formedon brought there; the Case was, Tenant in tail enfeoffs his Son, and then disseiseth his Son, and levies a Fine to a stranger, and before the Proclamations pass, the Son enters and makes a Feoffment to a stranger, the Father dies, and the Son dies, and the Issue brings a Formedon. The question was, Whether by the entry of the Son the Fine was so defeated that the Estate-tail was not barred. Dyer, The Estate tail is barred, and made a difference where the Fine is defeated by entry, by reason of the Estate-tail, and where it is defeated by entry by reason of another estate-tail, as in 40 Eliz. Tenant in tail discontinues, and disseiseth the Discontinuee, and levies a Fine to a stranger, and retakes an Estate in Fee, before the Proclamations pass, the Discontinuee enters, and then the Tenant in tail dies seized, and adjudged that the Issue is not remitted, for the Statute 32 H. 8. says, That a Fine levied of lands any way entailed by the party that levies the Fine shall bind him, and so it is not material whether he were seized by force of the Estate-tail, or by reason of another Estate, or whether he have no Estate. And all the justices were of opinion that the Estate was barred, for although the discontinue had avoided the Fine by the possession, yet the Estate-tail remains concluded, and the same shall not enter by force of the Estate-tail, but by force of the Fee which he had by discontinuance. Popham, Avoidance of a Fine at this day differs much from avoidance of a Fine at the Common Law, for it appears by the 16 Ed: 3. that if a Fine at the Common Law be defeated by one who hath right, it is defeated against all, but at this day the Law is contrary, for if a man be disseised, and the Disseisor die seized his Heir within age, and he is disseised by a stranger who levies a Fine, and then five years pass, the Heir shall avoid this by his nonage, yet the first Disseisee is bound for ever, for the Infant shall not avoid the Fine against all, but only to restore the possession. And therefore it was adjudged in the Lord Sturtons' Case, 24 Eliz. where Lands were given to him and his Wife, and the Heirs of him, and he died, and his Issue entered and levied a Fine to a stranger, and before the Proclamations passed, the Mother enters, it was adjudged that the Issue was barred, for the Wife shall not avoid this but for her own Estate: And so if a stranger enters to the use of him who hath right, this shall not avoid the Fine. Fenner did agree to this, and said that it had been so adjudged; but all the justices agreed, that the Estate-taile being barred, the entry shall go to the benefit of him who hath most right to the possession, and that is the discontinue; and therefore the Plaintiff in the Formedon hath good Title to the Land, but only to the Fee, and not to the Entail, for that is barred by the Fine. 28 Eliz. in C. B. Rot. 2130. Gibson against Mutess. IN a Replevin the Case was; John Winchfeild was seized of Lands in Fee, and by his Will did devise all his Lands and Tenements to Anthony Winchfeild and his Heirs, and before his death made a Deed of Feoffment of the same Lands, and when he sealed the Feoffment, he asked, If this Feoffment will not hurt this last Will, & if it will not, I will seal it? And then he sealed it, and made a Letter of Attorney to make Livery in any of the said Lands, the Attorney made Livery, but not of the Lands which were in question, and then the Testator died. And the question was, if the Devisee or Heir of the Devisor should have the Land. And it was said in behalf of the Heir, that if the Testator had said, It shall not be my Will, than it is a Revocation. Quod curia concessit: But it was the opoinion of the Court, that it appears that it was the intent of the Testator that his Will should stand, and if it be not a Feoffment it is not a Revocation in Law, although that the Attorney made a Livery in part, so that the Feoffment was perfect in part, yet as concerning the Land in question, whereof no Livery was made, the Will is good; and the jury found accordingly that the Land does not descend to the Heir. Fenner cited a Case of Serjeant Jeffereys, where it was adjudged, that where one had made his Will, and being demanded if he will make his Will, doth say, he will not, that this is no Revocation. Sir Wolston Dixy against Alderman Spencer, 20 Eliz. in C. B. IN a Writ of Error brought upon a judgement given in an Assize of Fresh-force in London. The case was, Sir Wolston Dixy brought an Action of Debt for rend arrear against Spencer upon a Lease for years made to him by one Bacchus, who afterwards granted the reversion to Dixy, and the Tenant attorned, and for rend arrear Dixy brought an action, etc. The Defendant pleaded in Bar that before the Grant made to Dixy, the said Bacchus granted it to him by parole, according to the custom of London; whereupon he demanded judgement, if▪ etc. and the Plea was entered on Record, and hanging the suit, Doxy brought an assize of fresh force in London, and all this matter was here pleaded, and it was adjudged a forfeiture of the Land; and hereupon Spencer brought a Writ of Error, and assigned this for error, that it was no forfeiture. Shuttleworth. It is no forfeiture until a Trial be had whether the reversion be granted, or not; as in waist: the Defendant pleads that the Plaintiff had granted over his estate, this is no forfeiture; and in the 26 Eliz. in a Quid Juris clamat, the Defendant pleaded that he had an estate Tail, and when he came to have it tried, he acknowledged he had an estate but for life, and that was no forfeiture: But the Court said, they could remember no such Case. Walmesley, It was so adjudged, and I can show you the names of the parties. Periam Justice. If there be such a Case, we would doubt of it, for there are Authorities to the contrary, as the 8 Eliz. and 6 Rich. 2. Anderson. If the Defendant in a Trespass prays in aid of an estranger, this is a forfeiture; and if it be counterpleaded, it is a forfeiture, and the denial altars not the Case. Walmesley. The Books in 15 Ed. 2. Judgement 237. and 15 Ed. 1. that judgement in a Quid Juris clamat, shall be given before the forfeiture. And●rson. In my opinion he may take advantage before judgement as well as after, if the Plea be upon Record. And so was the opinion of the Court. The Duchess of Suffolk's Case. Pasch. 4 & 5 Ph. & Mary, in C. B. IN a Quare impedit against the Bishop of Exeter, the Writ was ad respondendum Andrew Stoke & Dennisae Franciscae de Suffolk Uxori e●u●. Benlowes demanded judgement of the Writ, etc. because she lost her name of dignity by marriage with a base man, as it was adjudged, 7 Ed. 6. Dyer 79. where Madam Powes and her husband brought a Writ of Dower, and the Writ abated, because she called herself Dame Powes, whereas she had lost her dignity by marrying with her husband. Stanford agreed, for Mulier nobilis, si nupserit ignobili, desinit esse nobilis. Brooks. There is a difference where a noble woman marries a noble man of less noble degree than she is, and when she marries one that is not at all noble; for in the first case the shall hold the dignity of her second husband, but in the last case she shall retain her ancient dignity. And so it was observed, where the Marquis of Dor●e● had two daughters, the elder was married to the Lord Audley, and the youngest to a Gentleman, and the eldest took place always, as wife to a Baron, but the youngest kept her place as a Marquess' daughter. Dyer. I was a Counsel in the Case of the Lady Powes already mentioned, and she would by no means lose her dignity, and an Herald was brought into Court, that said she had such dignity, although it was held clearly on the contrary by our Law by Montague and Hales, and the Writ did abate. Stanford. A noble man loseth his honour by his own act, as by attaint, and so hath the woman here by taking such husband, and the nobility of such woman is lost also by attainder. Brooks said, That he knew where the sons of a Duke and Marquiz had a trespass brought against them for hunting a Park by the name of Squires, and it was good; wherefore it was said to Benlows, that he must plead to the Writ. Pasch. 4 & 5 Ph. & Mary in C. B. A Feme sole having the custody of the land, and body of an Infant took husband, and she and her husband did tender convenient marriage to the Infant, which he refused, and married himself elsewhere, and at his full age entered into the land; if it be necessary that both shall join in a Writ of forfeiture upon the marriage, or that the husband alone shall have it, was the question. Brown Justice. Both shall join, and so is it ruled in a Book. Dyer contr. The husband alone shall have this Writ, for he may discharge it, or release it; and by the 5 Ed. 3.14 & 6. the husband alone may have a Writ of Trespass; and if the wife have an advouson, and a stranger present, the husband alone shall have a Quare impedit; and the same Law is, where the woman hath a Rent, and the husband distreyns, and Rescous is made, the husband alone shall have a Rescous. Prideaux. The Wardship of a Ward and Land is a thing real, and the Survivor shall have it, and not the Executors of the Baron; and if an Action be accrued before marriage, as if a Bond be made to her before marriage, she shall join with her husband in the Action upon the Bond: but if a right to an Action does accrue after marriage, there she shall not join, as here the right of the husband does not accrue until marriage: for the Action is not in respect of the Wardship, but of the tender and refusal, and his marriage elsewhere, all which do accrue after the Coverture. Stanford. If a man bring a Quare impedit for an Advowson which he hath in right of his wife, and hath judgement to recover, and dies, the wife shall present, and not the Executors of the husband; so if he recover in a Trespass, the wife shall have execution for the damages. Prideaux. If a Lease be made to a woman, and a Rent reserved ●…mine poenae, and she takes husband, and the Rent is behind, both shall join in the Action for the pain. Dyer. This Action is grounded upon a real Covenant. Stanford. Damages recovered in a Trespass are not real, yet the wife shall have them, if the husband die before Execution. Dyer. The Trespass is done to the inheritance of the wife, and therefore she shall have damages; and in 43 Ed. 1. Statham. The husband alone brought a ravishment of a Ward, for a Ward he had in right of his wife and the Writ held to be good; but there it is said, that otherwise it is in right of a Ward; and if they join in a Writ of ravishment of Ward, and recover, and the husband die before Execution, his Executors shall have Execution, and not the wife: but it is said there (Quaere) and at last it was agreed that the Action should be allowed: but the surest way is to have bosh join. Pasch. 6 Eliz. Powtrells' Case in C. B. IN an Ejectment the case was, a woman-tenant in Tail did make a Lease for 31 years, and took husband, and had issue; the wife dies, and the husband is tenant by the courtesy, and surrenders to the heir, who puts out the Lessee, who brings this Action. Dyer. I doubt whether this surrender be good, for tenant by the courtesy is but in reversion, and hath nothing in possession, and it is dubious how he can surrender. Weston and Brown. He may surrender for a term▪ or franktenement may be surrendered to him that hath the estate in reversion or remainder, if it be not a mean estate, as tenant for life, the remainder for life, the remainder in fee, the first tenant for life cannot surrender to him that hath the fee. But the great point of the Case was, if the issue could avoid the Lease during the life of the tenant by courtesy; and the Court held he could not, for the tenant is in as a purchaser. And by Walsh and Carus. If tenant by the courtesy grants over his estate, and then enters into religion, the Grantee shall have his estate during the tenants natural life, Quod omnes concesserunt; and it was said also, that if the heir had been impleaded during the life of the tenant by courtesy, he shall not have his age, quod fuit concessum. Mich. 14 & 15 Eliz. Tottenham against Bedingfield. IN an Account the Defendant pleaded he was never his Bailie for to render account. Gawdy prayed the opinion of the Court if the Action would lie, for otherwise he would not trouble the Court. The Case was, the Plaintiff had a Lease of a Parsonage, and the Defendant being no Lessee, nor claiming any interest, takes the Tithes being set forth, and carries them away, if the Plaintiff could have this Action was the question. Manwood. It will not lie; for an account lies where there is privity, but wrongs are always without privity; but I agree, that it one receive my rents, I shall have an account against him, for by my consent afterwards I do make a privity; for although that he hath received the Rent, he hath not done wrong to me inasmuch as it is not my money until it be paid to me▪ but otherwise it is where a man disseiseth me of land, for that is merely a wrong, and so is it in this case; for when the Tithes were set forth by the Parishioners, the Law says they are in the possession of the Parson; and therefore when the Defendant took them away, he does it wrongfully, and therefore no account will lie against him; and so was it adjudged in Lond●… in the Case of one Monax, who under colour of a Devise, did occupy land for 20 years, and after the Devise was adjudged void, he that had right to the land, brought an account against him, and adjudged that it does not lie. Harper contr. For an account does lie against a Proctor, and the Plaintiff may charge him as Proctor, and it is no Plea for him to say that he did not occupy as Proctor, no more than it is a Plea for him who occupies as Guardian, to say he was not the prochein amy. Dyer. There are three Actions of Account. 1. Against a Bailie. 2. Against a Receiver. 3. Against a Guardian in socage; and if an Account be brought against one as Receiver, he ought to charge him with the receipt of money, and I conceive that there ought to be a privity to charge one with the receipt of money: but if one claim as Baily▪ or as Guardian in socage, he is chargeable in account: but an Abator or a Disseisor is not, because they pretend to be owners and in this case, because by the setting forth the Tithes the property is in the Parson, therefore he being Lessee for years, he shall have an ejectione firma, and not an Account. Hillar. 32 & 34 Eliz. Carter against Kungstead, in C. B. Rotulo 120. IN a Trespass the jury gave this special Verdict. John Berry was seizing of the Manor of Stapeley in Odiam, and of other lands in Odiam, and the 32 H. 8. suffered a common recovery of all his lands in Odiam, Stapeley and Winkfield, to the use of himself and his wife for life, the remainder to the heirs males of his body, & quod ●lterius starent of the Manor of Stapeley, with the appurtenances, to the use of himself for life, the remainder to the heirs males of his body, whereby they were seized prout Lex postulat. The husband dies, the wife makes a Lease for 19 years, and whether the Manor of Stapeley were conveyed or not, was the question. Harris. She shall have all; for when the whole estate is limited at the beginning of a Deed, it shall not be abridged afterwards. Periam. The estate is by way of use, which shall be expounded according to the intent and will of the Limiter; and if this had been done by will, it is clear the woman should not have the Manor of Stapeley. Anderson. If I devise my land to J.S. and afterwards by the same Will I devise it to J.D. now J.S. shall have nothing, because it was my last Will that J.D. should have it: But otherwise it is of a use; for if I do limit an estate to the use of J.S. and in the last clause do limit the same estate to J.D. the limitation to J.D. is void for the repugnancy. Periam. As to the case of the Will, I conceive it is void to both, because it cannot be known who shall have it. Anderson. I am sure the Law hath been taken as I have said; and there was a Case in the Upper Bench, where a man one day made part of his Will, and another day made another part, which was repugnant to the first part, and adjudged that the last was good, and the first void. Periam. I agree to this Case, for here is a difference in time. Anderson. So is there in my Case; for when I am writing my Will, I am thinking how I shall dispose of my estate, and it shall be intended that I have least advised concerning that which I have done last. Walmesley. A Use is not to be compared to a Will, for the Statute of 27 H. 8. hath made it an estate and then by the 19 of Edw. 3. If a man limits an estate at the beginning of a Deed, he cannot after abridge it. Periam. I put this Case: If a man covenants upon consideration to be seized to the use of himself for life, and after to the use of his son: but he further says, that his meaning is, his wife shall have it for her life, this is not a void Clause, but good to the wife; and the Case was adjourned till next Term. And Harris argued again, and said, that a Use was but matter of trust, and for that it is apparent that the intention was that the wife should have nothing, there is no reason that another construction should be made. Walmesley. The limitation of the Use is but a declaration how the Use shall be, and does not give any thing; and the opinion of the Court was against the Plaintiff who was Lessee of the woman, and that the last Clause does countermand the first, as to the Manor of Stapeley. Michael. 31 & 32 Eliz. Brokesbyes' Case, in C. B. Rot. 18.15. BArtholomew Brokesby brought a Quare impedit, and it appeared by his Declaration, that the next avoidance was granted to him, and one Humphrey Brokesby, and then the Church became void, and Humphrey did release to Bartholomew totum statum & titulum, etc. and then Bartholomew being disturbed, brought a Quare impedit in his name alone. Harris. The Plaintiff shall be barred, for the other shall be named with him, for the Release is void; for when the Church becomes void, it is a thing in action, and of privity and confidence, and cannot be released nor transferred. Dyer 283. a. 28 H. 8.26. a. Where it is said, that it cannot be granted over, no more than an Executor may release his Executorship to his companion. Beaumond. In my opinion it is not a Chose in action, but an interest which the Executors have; and by the 14 H. 4. and 14 H. 6. If a man be seized of an Advowson in the right of his wife, and the Church is void, and the wife dies, yet the husband shall present, which proves it is not a Chose in action; for in the 49 Edw. 3.23. the husband shall not have an obligation that was made to his wife; and in our case by this avoidance the Church is become an interest and a Chattel: and therefore one joint-tenant may release to another by reason of their privity: although they have no possession. Fenner. The release is Totum Statum jus & titulum, but here he hath no estate nor possession, and therefore the release is void. And to prove that there is no estate nor possession, it is proved by the plead of the grant of the next avoidance, for he shows that the Church became void, and that ea ratione pertinet ad ipsum presentare, and not by force, whereof he was possessed, and if none hath the advowson which becomes void, and the Lord claims the advowson, yet he shall not have the present avoidance, and as to the case of the joint-tenants, one cannot release to the other for default of possession for the release inanes by reason of their joint, possession which is out of them, but release of the Demandant to the Vouchee is good by reason of the privity of Law that is betwixt them; and in 11 H. 4. He who hath right after the Incumbent is instituted and inducted, may confirm his estate, and therefore the Release here is good. Anderson. We are all agreed that the Release is void, and gave judgement that the Plaintiff should be baned. Bretton against Barnet. Mich. 41. & 42. Eliz. A Man delivers money to J.S. to be redelivered to him when he should be required: which J.S. refused, and therefore an action of debt was brought, and the defendant demurred, for that an action of debt would not lie, but an account, as in the 41 Ed. 3.31. & 33. Walmesley. An action of debt will very well lie. And he took a difference between goods and money: for if a horse be delivered to be redelivered, there the property is not altered, and therefore a Detinue lies, for they are goods known: but if money be delivered, it cannot be known, and therefore the property is altered, and therefore a Debt will lie. And if Portugall's or other money that may be known be delivered to be redelivered, a Detinue lies. Owen and Glanvill agreed to this, and Glanvill cited a judgement given in Hilary Term, wherein he was of Council, which was that a man delivers money to another to buy certain things for him, and he does not buy them, the party may bring an action of debt, but he said that the Plaintiff ought to aver that the Defendant had not redeliverd them. And judgement was given for the Plaintiff. Mich. 41. & 42. Eliz. Green against Wiseman. in C. B. IN an Ejectment. The Defendant pleaded, that a Feoffment was made to the use of J.S. the Lessor of the Defendant, who by force thereof, and of the Statute, was seized, and made a lease to the Defendant; and that one Green entered and made a Lease to the Plaintiff, and did not say that he entered upon J.S. And all the Question was, whither when a feoffment is made to the use of another, if he have such a seisin before his entry, whereof he may be disseised. Glanvill. He hath no freehold, neither in Deed nor in Law before entry. Walmesley. This is contrary to all the Books: for a possession in Law is so translated from the Feoffee to Cestuy que use, that the wife of the feoffee shall not be endowed. Owen. He ought to have alleged a Disseisin. Anderson. As he might have possession by force of a Devise at Common Law, so he shall have possession of the land here by force of the Statute, and it is in Cestuy que use, before agreement or entry, but if he disagree, than it shall be out of him presently, but not before he disagree. And after viz. Hillar. 42. Eliz. William's moved the case again, and Walmesley said then, that he might be disseised before his entry or agreement, and the pleading shall be that he did enter, and did disseise him, but he shall not have a trespass without actual entry, for that is grounded on a possession: Glanvill agreed to this, and advised Williams to adventure the case thereupon. Hillar. 41 Eliza. Smith's Case in C. B. THe Patron of an advouson before the Statute of 31 Eliz. For Simony, doth sell Proximam advocationem, for a sum of money, to one Smith, and he sells this to Smith the Incumbent: After which comes the general pardon of the Queen, whereby the punishment of Smith the Incumbent is pardoned, and of Smith the Patron also. If the Incumbent may be removed was the Question: Williams said, that the Doctors of the Civil Law informed him, that the Law Spiritual was that for Simony the Patron lost his presentment, and the Ordinary shall present, and if he present not within six months, than the Metropolitan, and then the King. Spurling Serjeant. This punishment cannot discharge the forfeiture, although it dischargeth the punishment. Glanvill contra. And said that this point was in question, when the Lord Keeper was Attorney, and then both of them consulted thereupon, and they made this diversity viz. between a thing void and voidable, and for Simony the Church is not void until sentence declaratory, and therefore they held, that by the pardon before the sentence all is pardoned, as where a man commits Felony, and before conviction the King pardons him, by this pardon the Lord shall lose his Escheat, for the Lord can have no Escheat before there be an attaindor, but that is prevented before by the pardon, and so here this pardon prevents the sentence Declaratory, and so no title can accrue to the Ordinary. Walmesley count. If the patron be charged by the sentence, he may plead the pardon. But if a Quare Impedit be brought by a third person, the pardon of the King shall be no bar to him, for the title appears not to him, but only the punishment. Anderson. They may proceed to sentence Declaratory, notwithstanding the pardon; for the pardon is of the punishment, but the sentence does not extend to that, but only to declare that the Church is void. Glanvill in 16 Eliz. a man was deprived of his Benefice for incontinency, and after he was pardoned and restored. Walmsley. I doubt much whither the King can pardon Simony: And Williams said, that the Doctors of Civil Law said, that neither the Pope nor the King could pardon Simony, quoad culpam, but only quoad poenam they may. And the Court at last said that if the parties would not demur, they would hear the Doctors upon this matter. Jelsey against Robinson. Trinit. 25. Eliz. continued until Pasch. 28 Eliz. in C. B. Rot. 704. & 1544. UPon a special verdict upon an Ejectment, the jury gave this special verdict. That the King was seized of the Manor of Freemington, and of the hundred there, and granted this to H●…pton to hold of the Manor of East-Greenwich by fealty, and 13 l. Rent, and then the King being seized of the Manor of Crankford, of which the place in Question was parcel, does grant his Manor of Crankford, and his Manor of Freemington, to the Marquis of Exeter and his heirs, who by his Will does devise Legacies to his servants, and does devise that all his Legacies shall be paid out of the Manors of Freem ngton Uplaing and Crankford. All which Manors I give to my Cousin Blunt and his heirs. And the Defendant, as servant to Baker who was heir to the Marquis, did eject the Plaintiff; the question was, if by the Devise of the Manor of Freemington the Rent of 13 l. did pass or not. if it does not pass, then by the Statute of 32 H. 8. the 3. part of the Manor of Crankford does not go to the devisee, but descends to the heir at the Common Law. Shuttleworth for the Plaintiff. The signory does not pass by the devise of the Manor, for the intent thereof shall be collected, by the words of the Will. 15 H. 7.12. a. 19 H. 8.9. & 6. but here he limits a distress out of a Lordship, which cannot be 3 H. 6. Also it is doubtful if the signory being entire, may be divided by force of the Statute of the 32 H. 8. And I think not; for when the Statute says that the lands devised shall be devised into three parts, and that is to be understood of such an estate as may be divided, but so cannot a Seignory: For put the case that the Lord held by a Hawk, the whole Manor shall descend and cannot be divided, and so de catalla Fellonum. Fenner contra. For it seems to me that the signory passeth, and so it shall be, if he held but a mesualty 7 Ed. 4. A man held by Frankalmoigne, he shall say, infra feodum suum, and in reputation amongst men, a signory is a Manor: for if a man makes a feoffment of a Manor, with livery where he hath no Manor, yet shall it pass, 7 E. 3. Where a Manor passeth by the name of Knights Fee. And as to the entireness of the signory it is easily answered for although the rent were entire, yet it may be severed, for a Rend Charge is entire, yet a proportionment may be made thereof 44 Ed. 3. To which the Court agreed that the Rent without doubt might be severed. Walmesley. For the Plaintiff, the Question is if the Rent passeth by the name of a Manor to the Devisees. If a Grandmother deviseth land to her daughter J.S. Whereas she is her daughter's daughter, yet this is good, because in common speaking she is so called, but here the words are not apt, nor used in common speaking, viz. That Rent should be taken for a Manor, and therefore it is void, as a gift to the right heirs of J.S. who is attaint 19 H. 8. And he concluded with this difference: that where the words have any affinity or likelihood to the Manor, than it will pass by the name of a Manor. As if a man deviseth his house and land by the name of a Manor it shall pass. But here being but a service, it is otherwise. Gaudy cont. For if it the Rent pass not nothing shall pass, which is a hard construction on a Will. For 21 Rich. 2. Devise 27. a Devise Ecclesiae sancti Andreae is a good devise to the Parson of the Church. And in Brett and Rigdens Casea man devised a Manor in which he had nothing, and after purchased the Manor, the devise is good. And in 26 H. 6. feoffment 12. Land will not pass by deed by the name of a house, but land will pass by the name of a Carve, and a Carve by the name of a Manor, and I hold that the Rent in this case will pass by the name of the Manor, for a Manor does consist of Demesnes services, and rent may be called a Manor aswell as a Carve, and and the King gives it by the name of a Manor to the Devisor, and that is the reason that the Devisor calls it a Manor: And if you grant to me an Advowson by the name of the Church and Rectory, and I devise the Rectory, the Advowson and the Church will pass by the name of Rectory: And in Plouden. 194. A man did let his house and great demesnes rendering Rend, and did devise to another all his Farm; there the Devisee shall have all the Rent and the Reversion also. Michaelm. 29. & 30. Bishop of Lincoln's Case. Rot. 1528. & 2200. IN a quare impedit, brought by the King, against the Bishop of Lincoln and Leigh, the Incumbent: The Case was. The Bishop had an Advowson in gross, and presented J.S. who took a second Benefice with cure, whereby the first became void, and continued so until Lapse fallen to the Queen, and after the title of Lapse fallen to the Queen, the Bishop presented one J. who was inducted, and by reason of Recusancy to pay Tithes, was deprived, and by the Statute 26 H. 8. the Church became void ipso facto, whereupon the Bishop presented one Leigh within six months, and now the Queen would present. Fenner. This Case is the same with Bosherulls, lately adjudged. But the Court said, that here was a privation for Recusancy; and therefore it would make a difference. And afterwards Pasch. 30 Eliz. Walmesley. For the Queen said. That if a Lapse be fallen to the Ordinary, if the Patron doth present before the Bishop hath Collated, he ought to receive his Clerk, but where it is divolved to the King, the Patron by no means can defeat the King, but he may remove his Clerk at his pleasure, but if such Incumbent be present after such Lapse, and die, than the title of the King is gone, and his time passed by the act of God: but in our Case the avoidance which does oust the King from his Lapse, is avoidance by reason of Recusancy to pay Tithes, which is the proper act of the Incumbent, as is a resignation, and no such avoidance being by the act of the party himself shall oust the King of his Presentation. for in the 2 H. 9 In annuity against an Abbot, who resigns the Writ shall not abate, for then the Plaintiff shall never have a good Writ. So in our case, if the King be outed of his Lapse by such devises, he shall never have a Lapse, for every one will usurp upon the King's Lapse, and will presently resign or misdemesn himself whereby to avoid the Lapse. And in the 18 Ed. 4. the 19 By Pigot. A writ brought against a Prior shall not abate, although the Prior be not deposed, for it is his own fault. Fenner. This Lapse is given the King by his prerogative, but on this Condition, that he take it in due time: for so is the nature of things lapsed, for if after a title accrued to the King he suffer usurpation, and the Incumbent die, his Lapse is lost, for the nature of the Lapse is such that it must be taken at its time, and where the title of the King is limited to a time, there he shall not have his prerogative: for a prerogative cannot alter estates. As if the King grant a signory in gross rendering Rent, and the Tenant to the Lord dies without heir, whereby the tenant escheates, the signory is extinct, and the Rent of the King is gone, aswell as it is in the case of a Common person. And so if the King have a Rend feck for life out of my land, if I die he cannot distrain in my land for the arrearages as he may in my life time. And so where the Statute gives Annum diem & vastum to the King, yet he shall not have it after the death of the Tenant for life, so if the King reserve a Rent upon a Lease to an Estranger, and the stranger enters in respect of the land, whereby his entire rent is suspended, now the condition as to the King also is suspended during that time, for the nature thereof is to be attendant upon the rent 22 H. 3. If a man grant a Rent upon condition to cease during the minority of his heir, and after this Rent comes to the King, and the Grantee dies, the Rent shall cease during the minority of his heir: so that by all these cases the reason appears that the nature of the Lapse is to be taken hac vice, and the King must take it then, or not at all: and where it is objected that by this means every Lapse may be taken from the King: I conceive that far greater inconvenience will be to the Patrons on the other side: for when a Lapse is devolded to the King, and a stranger presents, if then the true Patron may not present until the death of such Incumbent, perhaps the Incumbent will resign, or be deprived, and a stranger shall be presented again and again in like manner, and so by this means the Patron shall never continue his advowson, for by the Covin between the stranger, and the neglect of the King to take his Lapse, the Inc●mbent shall never die. And afterwards in this term, it was adjudged that such usurpation shall not take away the Lapse from the King, because the avoidance accrued by the act of the Incumbent. Cook ib. 7.27. a. Hillary. 29 Eliz. Lassell's Case. LAssell brought an action of debt upon an obligation, the Defendant pleads, that the condition was, that he should personally appear before the justices, and set forth, how he was taken by a Latitat by the Plaintiff who was Shiriff, who took this obligation upon his deliverance: and urged the Statute of 23 H. 6. and said that the obligation was not according to the Statute. And by the Opinion of three justices (Anderson being absent) If it were in such an action wherein a man may appear by Attorney, than it is void. And the Plaintiff shown a judgement given in the King's Bench, wherein in such case judgement was given for the Sheriffs, and it was between Seekford and Cutts 27. & 28. Eliz. Rot. 373. And the next Term it was moved again. Anderson. The Obligation is void; for when an express form is limited by the Statute, no variance ought to be from it. But the other three justices were against him, for they held that he ought to appear in his proper person in case of a Latitat. Anderson. I deny that, for Latitats have not been of above 60 years' continuance; Vid. Cook, lib. 10. Beufages' Case; and his first Institutes, 225. a. Pasch. 25 Eliz. Kayre against Deurat, in C. B. Rot. 603. IN a Waste, the Plaintiff declared how the Defendant was seized in Fee, and made a Feoffment to the use of himself for life, the remainder to the Plaintiff in Fee, after which he committed waste. The Tenant said, that he was seized in Fee, without that he made a Feoffment as the Plaintiff declared; and upon issue joined, it was found that the Defendant was seized in Fee, and that he made a Feoffment to the use of himself for life of J.S. without impeachment of waste, the remainder ut supra; and whether this was the Feoffment which the Plaintiff alleged, they prayed the advice of the Court. Anderson, Chief Justice. If the impeachment of waste be not part of their issue, than the Verdict is void for that point, and that which is found more than their issue is void, 33 H. 6. the Defendant pleaded that he was not Tenant of the , and the jury found that he held jointly with another there the Plaintiff shall recover. And then at another day it was said by the justices, that the jury had found such an estate as was alleged by the Plaintiff; and although that they further found this privilege to be dispunisht of waste, which upon the matter proves that the Plaintiff hath no cause of action, yet because the Tenant may choose whether he would take hold of this privilege or not, the jury cannot find a thing that is out of their Verdict, and whereof the Defendant will not take advantage by pleading, and for this cause their Verdict was void. 7 H. 6.33. 21 H. 7.12. where one pleaded in Bar a Feoffment, and traversed the Feoffment, and hereupon they were at issue, and the jury found that he had enfeoffed the Tenant after the Fine levied to the Plaintiff: this cannot be found because it is out of their issue, 31 Assi. 12. and judgement was given for the Demandant. Hillar. 29 Eliz. Michael against Donton, in C. B. Rot, 639. IN an Ejectment a man makes a Lease, rendering Rend, with a Covenant that the Lessee shall repair the houses, with other Covenants and Conditions of reentry for not performance, and then he devised the same land to the same Lessee for divers years after the first years expired, yielding the same Rent, and under the same Covenants, as in the former Lease, and he devised the remainder in fee to the Plaintiff, and the first Lease expires, and the Defendant being possessed by force of his second Lease, doth not repair the houses; and if the Plaintiff might enter, was the question. Shuttleworth. In as much as he devised the land under the same Covenants as the first Lease was, and the first was with Covenants and Conditions, the second shall be so also, the rather because he deviseth the remainder over, so that the Devisee cannot take advantage of the Covenants, but of the Conditions he may, and the second Lease is conditional. But the whole Court was against him. Shuttleworth. To what purpose then are these words in the Devise, Under the same Covenants. Periam. They shall be void. And by all the justices the intent of the Will was not that the Lease should be conditional, for Covenants and Conditions differ much, for the one gives an action, but not the other; but the intent was, that he should perform the Covenants upon pain to render damages in a Writ of Covenant. Bottenham against Herlakenden, 29 & 30 Eliz. in C. B. Rot. 1620. HErlakenden was seized of land, and devised the same to the Plaintiff for years, the remainder to his wife for life, Proviso, that the Plaintiff should pay to the woman 20 l. per annum; and if he failed of his payment, etc. wherefore the woman entered, and if this shall be called reservation or reversion, was the question. Anderson. A man cannot make a Reservation on a Devise. Periam. A man may to himself and his heirs, but not to a stranger. Anderson. Every Devisee is in, in the sire by the Devisor, and why shall not this then be a reservation to the Devisor, and a grant of the reversion to the woman. Gawdy. Wherefore cannot a man devise land, reserving rend, when by the Statute 32 H. 8. he may devise at his pleasure? Periam. Because his pleasure must correspond with the Law. Anderson. If I devise land to another, reserving rend to me and my heirs and then devise the reversion, he shall have the rent as incident to the reversion, and the judges were divided, wherefore, etc. 29 Eliz. Glover against Pipe, in B. R. Rot. 838. IN debt upon a Bond the Condition was, that where Glover the Plaintiff had a Copyhold of inheritance, and had leased it to the Defendant, if the Defendant should not commit any manner of waste, and should do no other thing that should be forfeiture of the Copyhold, that then, etc. The Defendant pleaded conditions performed; the Plaintiff replied, and alleged waste committed in a shop that fell down during the term for want of reparation: but the Defendant in rejoinder alleged, that the shop was ruinous at the time of the Lease, and by reason thereof fell down. Tanfield. It is no waste, as the Books are, 42 Ed. 3. 19 Ed. 3. 2 H. 7.3. a. 12 H. 8.11. a. If a house be ruinous at the time of the Lease, and fall during the term, it is no waste: yet the Book in 7 H. 6. is otherwise. And in the 12 H. 4. a man lets his house, promiseth that the Lessee shall not suffer any voluntary waste, if the timber be so good as it will endure the whole term, although it be not covered, yet is the Lessee bound to reserve it during the term. Godfrey for the Plaintiff, and agreed to all the cases aforesaid. But here the Defendant is bound by his obligation, and therefore it differs from the case in 42 Ed. 3.6. and of Perkins 142. where a diversity is between a waste and a covenant; for if a man makes a Lease for years, and by sudden chance waste is committed, this shall excuse the Lessee: but if he covenant to leave the house in as good a condition as he found it, if the house fall down by tempest, yet he ought to re-edify it. Also in this case it is a waste in Law, although the house were ruinous at the beginning of the Lease; for in a waste brought in such case, if he pleads nul waste fait, he shall not give such matter in evidence, but it is only to excuse him. And with him agreed all the Court, and judgement was given for the Plaintiff. Austin against Courtney, 30 Eliz. in B. R. Rot. 165. AUstin and his wife, as daughter and heir of one Webb, brought a Writ of Error against Thomas Courtney to reverse a Fine levied in a base Court by the said Webb to himself. Cook assigned these errors, 1. Because the Fine was levied de uno tenemento, which is not good for the generality, for it may be land, or common, or rend. And in 3 Ed. 4. a Plea in Bar was rejected, because it was pleaded that one was seized de uno tenemento, for this is uncertain. And in 38 H. 6. an Action is brought upon the Statute of 8 H. 6. for entry into certain tenements, that is not good, for it ought to be brought of so many acres. The second error was, because Webb the Conusor did acknowledge the land to be his right, whereas it ought to be the right of Courtney the Conusee. The third error was, because the Fine was levied in a base Court, which prescribes to hold Pleas but they cannot levy Fines there, for then the King shall lose his silver 50. Assi●. And so was it adjudged between Bambury and Peres, that a Fine levied in Chester which had such prescription, is not good; wherefore judgement was given that the Fine should be reversed. Trinit. 30 Eliz. Ireland against Higgins. Rot. 403, vel 43. IN an Action of the Case the Plaintiff declared, that whereas a dog came to the hands of the Defendant which belonged to the Plaintiff, the Defendant did assume to deliver the said dog to the Plaintiff upon request, and that the Plaintiff had requested him, and he did not deliver the dog, ad damnum, etc. and hereupon the Defendant demurred. Leigh for the Defendant. Here is no consideration; for when the Plaintiff is out of the possession of his dog, he hath lost his interest in him, for a dog is ferae naturae, and therefore when he is out of possession, he hath no remedy. 22 H. 6. 10 H. 7. ●. 6 Ed. 4. and he cited Fyne● and Sir Joh● Spencer's Case in Dyer, where a Trespass will not lie for a hawk. Also, by the Grant of omnia bona & catalla, dogs do not pass, nor are tithable nor are Assets. T●…field contra. Horses, cows, and all which are most profitable for service of man, were at first ferae naturae, and so were dogs also: but since by use nothing is so familiar and domestic to man than is a dog, and then he cannot be ferae naturae; and therefore a Trespass will lie for a dog, if he declare his dog, for that word does imply it is his domestic dog; and he much relied on a Book, the Roll whereof he had seen, Tr●n●t. 15 H. 7. R. 35. where a man justified in a Trespass of Battery in defence of his dog. And in 2 Ed. 2. Avowry 182. a Replevin was brought of a Ferret. And in 23 El●z. Leeks Case, where one had judgement to recover great damages for a bloodhound And as to the Case of F●ne● and S●e●ce the reason why the Plaintiff had not judgement was, because he did not show that the hawk was reclaimed, but after he brought a new Action, and had great damages. And at last it was adjudged by all the Court that the Action is maintainable, and judgement commanded to be entered, nisi, etc. Trinit. 30 Eliz. Stone against Withepoole, in B. R. Rot. 771. IN an Action of the Case the Plaintiff declared, that J. S. won indebted to him for velvet and other things to such a value, and was bound in a Bond to pay money for them, and that afterwards the Defendant (being his Executor) did assume and promise to pay the money. The Defendant pleaded that the Testator was within age at the time of the making the Bond, and hereupon the Plaintiff demurred. Egerton S ll citor for the Plaintiff. A Contract made by an Infant is not void, but voidable; and if the Infant at his full age had assumed as the Defendant hath, it had been good, and by the same reason the Executors assumsion is good, 9 Eliz. 13. where the Lord Gra●, being heir to the former Lord Grace, although he was not bound to pay the debts of his father upon simple contract, yet in regard he did assume to pay them, he was made chargeable. And in 15 and 16 E iz. it is a good consideration where an Administrator undertakes to pay debts upon a simple contract: but admitting the Executor be not chargeable by Law, yet in equity and conscience he is chargeable in Chancery; and when he promiseth in consideration that the Plaintiff will not sue him, that is a good consideration. Cook. The consideration is the ground of every Action on the Case, and it ought to be either a charge to the Plaintiff▪ or a benefit to the Defendant, 17 E●. 4 5. where a man promised and assumed to a Chyrurgean money for curing a poor man: that was a good consideration; for although it is no benefit to the Defendant, yet it is a charge to the Plaintiff▪ and where there is no consideration▪ there can be no good action; as where a man promiseth a debt that he never owed, this is void. And after, viz. 31 Eliz. It seemed to all the justices, that the consideration was not good, and therefore the contract void: But if goods he delivered to an Infant to be re-delivered, if Afterwards his Executor assumeth to redeliver them, this is good. Gawdy, in the 13 H. 6. If a man be indebted in a simple Contract, and die, and his Executors assume to pay the debt, it is good: but ●his seems to be contrary to the Law, for it is contrary to that which hath been lately adjudged in the Common Pleas. And Egerton cited a Ca●e, 10 H 6. where an Infant brought an Action of Trespass, and submitted himself to an arbitrement, this shall bind him at his full age; and this was agreed by the Court, but differs much from the Case at Bar; for when an Infant commits a Trespass, he is chargeable in an Action of Trespass, and shall lose damages: but it is not so here. Wherefore judgement was given, that the Plaintiff should be barred. Mich. 30 Eliz. Stanton against Chamberlain. Rot. IN an Action of Debt upon a Bond, upon non est factum pleaded, the jury found, that the Defendant sealed the Bond, and cast it on the Table, and the Plaintiff came and took up the Bond, and carried it away without saying any thing; and if this shall amount to a Delivery by the Defendant to the Plaintiff, was the question. And it was resolved by all the justices, that if the jury had found that he had sealed the Bond, and cast it on the table towards the Plaintiff, to the intent that the Plaintiff should take it as his Deed, who took the Bond and went away, that had been a good delivery; or that the Plaintiff, after the sealing and casting on the table, had taken it by the commandment or consent of the Defendant: but because it is found that the Defendant only sealed it, and cast it on the table, and the Plaintiff took it and went away with it, this is not a sufficient delivery, for it may be that he sealed it to the intent to reserve it to himself until other things were agreed, and then if the Plaintiff take it, and go away with it without the Defendants consent, that will not make it the Descendants Deed. But it was said, that it might be accounted to be the Defendants Deed, because it is found that he sealed it, and cast it on the table, and the Plaintiff took it, etc. and it is not found that the Defendant said any thing, and therefore because he did not say any thing, it will amount to his consent, Nam qui tacet consentire videtur. But to this it was answered, that it is not found that the Defendant was present when the Plaintiff took it; and if the Defendant had sealed, and cast the Bond on the Table when the Plaintiff was not there, and then the Defendant went away, and then the Plaintiff came and took it away, then clearly it is not the Deed of the Defendant. Hill. 31 Eliz. Beron against Goodyne. IN an Ejectment the Case was, the King was seized of lands in Fee, and a stranger intruded, and the King grants this land to J. S. in Fee, and the Intruder continues possession, and dies seized: The question was, if this descent shall take away the entry of I.S. Johnson. It shall not; for none will affirm that an Intruder shall gain any thing out of the King, but that the land shall pass to the Patentee, and the continuance of the Intruder in possession, and his dying seized, shall not take away the entry; for he cannot be a Disseisor. because he gained no estate at the beginning; as if a Guardian continues possession after the heir is of full age, he is no Disseisor, nor shall gain any estate. And 10 Ed. 3.2. where a tenant of the King dies, his heir within age, and a stranger enters, and after the heir is of full age dies seized, this shall not take away the entry of the heir. Cook contr. By his continuance of possession he shall be accounted a Disseisor, and the out of the Patentee, for another estate he cannot have, for tenant at sufferance be is not, for he comes in at first by a title, as in the 12 Assi. The Dona's in Frankmarriage are divorced, and the husband continues the possession; and so where a Lessee continues possession after the death of the tenant for life, these are tenants at sufferance; and the Patentee hath a in Law, which is taken away by descent, and denied there was any such case as was vouched in the 10 Ed. 3. but compared the case to the 21 Ed. 3.2. where a Fine was levied per conusans de droit come ceo, etc. if before the Conusee enters, a stranger enters, and dies seized, the entry of the Conusee is barred. So is it where an Advowson is granted to J.S. and his heirs, and a stranger usurps, the Grantee hath no remedy. And if a man deviseth land to J.S. and before he enters, a stranger doth enter, and dies seized, the entry of the Disseisee is taken away; and so it is in our case. But a further day was given Cook to show cause why judgement should not be given against him. Hillar. 31 Eliz. Suttons' Case, in C. B. Rot. 533. IN an Ejectment, the jury gave a special Verdict, that the Defendant (nihil habens in terra) did make a Lease thereof to the Plaintiff by Indenture, according as the Plaintiff had declared, and then the Defendant entered on the Plaintiff; and whether this entry be good, was the question. Walmesley for the Defendant. jurors are sworn ad veritatem dicendum, and therefore they shall not inquire of Estoppels, because it is not in evidence. But the whole Court was against him, who held that the jury might find a matter that is not showed in evidence; for by Anderson, in an Assize they may find a Release, although it be not given in evidence; and he and Periam held, that the Plaintiff ought to have judgement, for that there was a good Lease between the parties, and if Rend were reserved, an Action of Debt would lie. Windham contr. For it is only an Estoppell between the parties: but the Court is at liberty, and are not estopped, when the truth appears to them; and it is a Maxim in Law, that he who hath nothing in the land cannot make a Lease. and then the Plaintiff hath no cause of Action. And afterwards, viz. 32 Eliz. Anderson and Periam were expressly for the Plaintiff; for whereas it hath been said that it was a Lease by Estoppell, they held it was not so, for that in Debt the Rent should be recovered. And Anderson said, If I levy a Fine of your land to you for years, if you be put out, I shall have an Assize: but Windham was of opinion with Walmesley: wherefore Periam said, we will have the opinion of the other justices in the Exchequer Chamber; wherefore, etc. Trinit 30 Eliz. Perryn against Allen in C. B. Rot. 611. & 612. IN a debt upon a Lease for years, It was found that on Gibson was seized of Land in Lease for thirty years, and he let the Land to Perryn for 19 years rendering 10. l. rent, and that afterwards, it was articled and agreed between Gibson and one J.S. that P●rryn should have and hold the Lands which he had, and also other lands which he had, for term of 3. years rendering a greater rent, to which Articles Perryn at another time and place afterwards agreed, but the intent of the articles and agreement betwixt them, was not that the first Term to Perryn should be extinct. That afterwards Perryn letted this Land to the Defendant Allen for 17. years rendering Rend, and then the three years expired, and Gibson grants his term to J.S. who enters, etc. If this agreement amounts to a surrender, was the question. Hanam, for the Plaintiff. It is not: for to a surrender three things are incident. First, an actual possession in him who surrenders. Secondly, an actual remainder or reversion in him, to whom the surrender is made. Thirdly, consent and agreement between the parties: But to all these, the Plaintiff was a stranger, and therefore no surrender. For if I let land to you for so many years as J.S. shall name, if he names the years, it shall be good from that time, and not before: but if I let land for so many years as my Executors shall name, this is not good, for I cannot have Executors in my life time, and when I am dead I cannot assent, so in this case there ought to be a mutual assent between the Lessor and Lessee. H●…i● Cont. It is a surrender, for if he concluded and agreed at another time, or accepted a new Lease, it is a surrender. 37 H. 6. 22 Ed. 4. 14 H 7. and then when a stranger does agree that he shall have other lands and pay a greater Rent, this is a surrender. Anderson. If I covenant with you that J.S. shall have my land for ten years, this is only a Covenant and no Lease, quod Wa●m●sl●y concessit. And so if I covenant that your Executors shall have my land for a term of years after your death, this is no Lease. And all the Court held, that this was not a good Lease, for the act of a stranger cannot make a surrender of the Term. Peryam. You at the Bar have forgotten to argue one point material in the Case, videlicet. If Lessee for 20. years makes a Lease for ten years if the Lessee for ten years may surrender to the Lessee for 20. years. And Hanam said privately, that he could not surrender, for one Term cannot merge in the other. And Anderson said, that by opinion of them all, that the Lessee for 10. years cannot surrender. But to the other point. All the judges agreed that it was no surrender. And judgement was given for the Plaintiff. Dabridgecourt against Smallbrooke. IN an action of the Case, the Plaintiff declared that he was Sheriff of the County of Warwick, and that a writ came down to him to arrest J.S. at the suit of the Defendant, who requested the Plaintiff to make Russell, who was the Defendants friend, his special Bailie, in consideration of which the Defendant did assume, that if the said J.S. did escape, that he would take no advantage against the Plaintiff, whereupon he made Russell his Bailiff, who arrested the said J.S. who afterwards escaped from him, and that notwithstanding the Defendant had charged the Plaintiff for this. And a verdict was found for the Plaintiff. And in this case it was agreed, that where a Sheriff did make a Bailiff upon request of any one, it is reason that the party should not charge the Sheriff for an escape, by reason of the negligence of such Bailiff: for the Sheriff hath security from every one of his Bailiffs to save him harmless: wherefore it is great reason that if upon request he makes a special Bailiff, that the party should not take advantage of such an escape, but that the Sheriff may have his action against him again, upon his promise. And judgement was given for the Plaintiff. Hillar. 31 Eliz. Beale. against Carter. Rot. 331. IN an action of false imprisonment. The Defendant justified the imprisonment for two hours, because the Plaintiff brought a little infant with him to the Church intending to leave it there, and to have the Parish keep it: and the Defendant (being Constable of the Parish) because the Plaintiff would not carry the child away with him again, carried the Defendant to prison, all the said time, until he took the child away with him. And hereupon the Plaintiff demurred. And it seemed to the justices that it was no good plea: for although the Constable at the Common Law is keeper of the Peace, yet this does not belong to his Office, but if he had justified as Officer, than perhaps it had been good. And afterwards, viz. Hillar. 33 Eliz. the Case was argued again, and then Glanvill said. That it was a good justification, for any person may do it. For if I see A. ready to kill B. I ought to hinder him of his purpose. And in the 22 Ass. 50. the Defendant justified because the Plaintiff was mad and did a great deal of mischief, wherefore he imprisoned him. And in 10 Eliz. which case I have heard in this Court. The Constable took a mad man, and put him in prison. where he died, and the Constable was indicted of this, but was discharged: for the act was legal, and so here in this Case, if the infant had died for want of meat, it had been murder in the Plaintiff. For it was held in 20 Eliz. at Winchester before the Lord Bacon, if one brings an infant to a desert place, where it dies for want of nourishment, it is murder. Gawdy. It was ill done of the Plaintiff, but that aught to be reform by due course of Law, for a Constable cannot imprison at his pleasure, but he may stay the party, and carry him to a justice of Peace to be examined. Wray. Then such matter ought to be pleaded. Quod Gaudie concessit. Fenner. If he had pleaded that he refused to carry the infant away, than it had been a good justification, for a Constable is Conservator of the peace, but because it was not so pleaded the Plea is naught; But the judges would not give judgement, for the ill Examples sake, and therefore they moved the parties to compound. Pasch. 31 Eliz. Sale against the Bishop of Lichfield in C. B. SAle Executor of J.S. who was Grantee of the nomination and presentation to the Archdeaconary in the County of Derby, brought a Quare impedit against the Bishop of Lichfield, and declared of a presentment and disturbance in vita Testatoris, & quod Ecclesia vacavit & adhuc vacata est. The Defendant pleaded Plain d'Incumbent, before the writ purchased, and judgement was given for the Plaintiff. And it was moved, If a Quare Impedit does lie of an Archdeaconary, for it is but a function or dignity, and therefore a Quare Impedit will not lie of an office of a Commissary, but the 24 Ed. 3.42. is express in the point. And 30 Edw. 3.21. a Qure Impedit did lie of a Priory. And therefore notwithstanding this exception, judgement was given for the the Plaintiff. But there were two other doubts in the Case. First, If a Quare Impedit will lie for an Executor for disturbance done in vita Testatoris, and that by the Statute of 4 Ed. 3.7. Snigge. The action will lie by the Executors, for in all Cases where damages are to be recovered, they shall have an action by that Statute. 11 H. 7.2. An action of trespass was brought for taking of goods in the life of the Testator, but no action will lie for entry into land in the life of the Testator, for it ought to be such an action as will survive in damages, and may be a damage to the Executor 7 H. 42. An ejectement lies for Executors, upon an ejectment in the life of the Testator. And if an ejectment be maintenable in which a Term shall be recovered, it shall be also maintenable in a Quare Impedit, in which a presentment may be recovered. Drew cont. At the Common Law Executors have no remedy for a personal wrong, quia moritur cum persona: for upon the death of the Testator, Executors have no remedy for arrears of Rent at the Common Law, but only the Statute of 32 H. 8. And it cannot be that the Executors in this case are within the Statute of 4 Ed. 3. For that Statute intends only to remedy such things as are available to the Testator, and are assets to pay debts: and although Executors may have a Quare Impedit, that is intended of a disturbance, fait al eux, but contra, if it be done in vita Testatoris. Walmesley. I conceive no actions will lie. For the Statute gives an action for the taking of goods and such like things, but here is no taking, but only a disturbance, which may be done by Parol. Perryam's Justice count. For the Statute, says that they shall have an action of trespass for a trespass done to their Testator, and not for taking goods, so that the taking of goods is but by way of resemblance, and not that they shall have an action of trespass for taking of goods only. Windham, and Anderson. agreed with Perryam, and whereas it hath been said, that this cannot be Assetts. Put the case that the Testator had judgement to recover damages, shall not that be Assetts? and why may the damages here recovered be Assetts, and why shall not the grant of the Advowson be Assetts in the hands of the Executor aswell as in the hands of the issue. And so was the opinion of the Court. 32 Eliz. Foster and Wilson against maps. in B. R. Rot. 71. THe Case on a special verdict was thus, maps the Defendant made a Lease of the Parsonage of Broncaster by Indenture, and Covenanted by the same Deed, to save the Plaintiff harmless and indemnified: and also all the profits thereof and premises, against Philip Blount, the Parson of Broncaster; and hereupon a writ of Covenant was brought against maps, and the breach assigned was, that Blount had entered and ejected the Plaintiff. And one point was, if this shall be accounted the Deed of the Defendant, because the Defedant delivered his part of the Indenture to the Plaintiff as his Deed, but the Plaintiff did not deliver the counterpart to him. But the opinion of the Court was, that this was a good Deed of the Defendants, and Gawdy said, that the safest way had been to deliver his part as an Escroll to be his Deed, when the Plaintiff delivered the Counterpane: But a great doubt was made in this case, because it was not showed that Blount entered by a Title, and then he shall be taken to have entered by wrong, and so the Covenant not broken, for to save harmless is only from legal harms, as it is in Swettenhams Case Dyer 306. Where the Warden of the Fleet suffered a prisoner to escape, and took a bond of him to save him harmless, and then the Warden was sued upon an escape, and thereupon he sued the Obligation, and adjudged that the bond was not forfeit, because the party was not legally in execution, and therefore the Warden could not be damnified for the escape. Padsy cont. The Diversity is where the Covenant is general, and where it is special, for in this case it being special to save harmless from Blount, he ought to defend against him his entry, be it by good title or by wrong, and so is Catesbies' Ease. Dyer. 3.28. Where the Lessor covenanted, that the Lessee should enjoy his term sine ejectione vel interruptione alicujus, the Lessee brought an action of Covenant because a stranger entered, and did not say he had any title, and judgement was given for the Plaintiff. Gawdy. The Covenant is broke. For if Blount disturb him so that he cannot take the profits, this is a breach of the Covenant, for hereby the Plaintiff is damnified. 2 Ed. 4.15. where the Condition of a Bond was, that the Obliger should warrant and defend the Obliged for ever, and against all, and the Defendant pleaded, that he had such a Warrant, and there it was held by Danby to be no plea, because he cannot warrant unless the other be impleaded. And there it was said by Danby and Needham, that if the obligee be outed by a stranger, who hath no title, the Obligation is forfeit by reason of this word defend. Wray agreed, and said, that this case was not like to the Ease of 26 H. 8.3. where the Lessor Covenanted to warrant the land to the Lessee, for there he shall not have a Covenant, if he be wrongfully outed; but our case is to save harmless, which is of greater force than to warrant, for to warrant Land is only upon the title, but here, be the Lessee outed by wrong or by title, yet is the Covenant broken, to which the other justices agreed. Fenner Vouchf. 18 Ed. 4.27. where a man is obliged to save J.S. harmless against me, if I do arrest J.S. although wrongfully, the obligation is forfeit, which the other justice denied, And at last judgement was given for the Plaintiff. Pasch. 33 Eliz. Elmer and his wife against Thatcher in C. B. Rot. 1125. And Cooks 1. Inst. 355. IN a Quod ei deforceat of a third part of an acre of Land whereof the wife was tenant in Dower: The defendant confesed she was tenant in Dower, but shown how she committed waste, Statut Westm. 2. cap. 4. wherefore he brought his action of waste, to which she appeared and pleaded nothing, for which he had judgement to recover. The Plaintiff said that no waste was committed, and the Defendant Demurred. Owen for the Defendant. a Quod ei deforceat, lies not in this case, for such Writ is grounded upon a recovery by default in a real action, but a waste is a mere personal action. And therefore in the 2 H. 4. in a waste against the husband and wife, the wife shall not be received: also it will not lie in this case, because here is no default within the intent of the Statute, for the Statute intends to relieve defaults after appearance, and therefore all the judgement in this Writ is that the recovery was by default, and if there was a default in pleading, it is a default, but not within the Statute. Glanvill count. No waste is committed, and so the recovery shall not bind, for it appears in the 8 Ed. 4. by West. That this action was provided instead of a Writ of right, and there is no question but a Writ of right will lie here, and this Writ is of the same nature. And Mr Plowden in his Reading said, that this action will lie upon a recovery upon a Writ of waste, aswell as in other actions, for the recovery is not upon the Inquiry of the jury, but upon default. And it is also a real action 7 Ed. 3. 28 Ed. 3.30. If the husband make default herein, the wife shall be received. Anderson. There is no question but this action lies upon a recovery in waste, but if this be a default within the Statute is a doubt, for if this should be suffer d, it were very mischievous: for then contempts shall be favoured, which was never the intention of the Statute, and therefore it will not lie where there is a default after appearance. Walmesley. of the same opinion, for this case differs much from the Statute of Gloucester, for this Statute gives remedy to a third person upon default of the particular Tenant, and therefore upon this Statute, the intent of the party, who makes default, is more regarded, than the manner of the default, and therefore it shall be taken largely. But here is default in the party himself, and he shall have no favour against his wilful default, for every nihil dicit, is a confession of itself, for thereupon it is supposed that nothing can be said. Windham. I hold that a Quod ei deforceat will not lie in a Writ of waste, for the inquiry of the jury is the cause of the judgement. But he agreed that default within the Statute is intended such default, that in itself is the cause of the judgement, but here the judgement is given upon contempt and refusal of the party and therefore no favour. Perryam. This action cannot be compared to a writ of right which is grounded upon the right, and not on the judgement, but the form in the Quod ei deforceat is set down in the Statute which ought to be observed, and the Statute gives this action upon a default, and here is no default, for it cannot be a default where the party appears and hath no day in Court, but he doubted much if it lay in awrit of waste, because the damages are the principal: but as the case is here, it will not lie. And to prove that a nihil dicit is a confession he cited Pepyss Ease in the Commentaries 438. And at last judgement was given that the Writ would not lie. Pasch. 35 Elizab. James against Portman. WIlliam James and Thomas James joint-tenants for life of a lease made by Portman, William James doth assent, covenant and agree that Thomas James occupy all the land alone, and sow it with his own Corn: After the land is sowed Thomas James dies, William James the survivor grants the Corn to Portman, who takes it, and the Plaintiff as executor to Thomas brought an action of trespass. Ewens, for the Defendant, one joint-tenant cannot make a Lease to his companion, no more than one may infeof the other, by reason they have joint possession 10 Ed. 4.3. 2 R. 2. Extinguishment 3. Also the words here are not sufficient to make a Lease, but admitting this, yet the survivor shall have the corn of that part which belongs to him, for by this Lease the jointure is severed, and then the Survivor shall have that which grows on his part: For it two joint-tenants sow their land, and one of them let's his moiety for years; and he, who did not let, dies, the other shall have the corn as Survivor. Pyne cont. Although one joyntenant cannot inteof another, because he cannot make livery, because he hath possession before, yet may he Release to his companion, and so may he make a Lease for years, for there is no need of any livery, and by the 22 H. 6.43. If one joyntenant infeofs another, this shall enure by way of confirmation. And 14 H. 6.10. One joint-tenant may put out his companion by this means, for he may claim a Lease from him, and then a Release, and if it be a good Lease, than the Executors shall have it. Popham. The action is good, for one joint-tenant may make a Lease to the other, although he cannot infeof, for a Lease is but a contract. And 11 H. 6.33. one joint-tenant commanded the other to occapy all, and in a trespass he was compelled to plead this as a Lease, and then if one joyntenant does sow all and dies, the other shall have the Corn by Survivor: and it is not as in case where a man hath an estate determinable upon uncertainty, for there his Executors shall have the Corn, but in our case, the Survivor had contracted with his companion, and thereby had bound himself not to meddle with the land, and the other bestowed great costs in manuring and sowing the Land, and therefore the Executors shall have the Corn. Fenner agreed, but doubted whether one joint-tenant could make a Lease to the other: but said, that by the contract he had excluded himself from the profits; and by the 39 Ed. 3.27. one joint-tenant may have an account against the other. And he said, that if I agree that you shall sow my Land with me, you shall gain no interest in the land, and yet you shall have the corn. And one joint-tenant may distreyn for himself, and as Bayly for the other. And the Cause was adjourned: and afterwards viz. Hillary 36 Eliz. the case was repeated. And Gawdy said. That if there be two joint-tenants, and one grants to the other that he may sow the Land, yet may the other occupy with him, for these words do not transfer any sole interest, but if he says that he shall occupy all the Land, and shall sow it solely, this does exclude him from having any interest with him. Popham. Agreed, because this is but a contract, and so of a Lease for years. Gawdy. If one joyntenant says to the other, that he will not occupy the Land with him, or that he will not put in his Cattle, this does not transfer any interest, but that he may occupy with him, and so in this case, if it had not been said that he should occupy solely. Popham of the same opinion: for where he says he will not occupy, the words are in the negative, which will not exclude him of his interest, but in the Case at Bar they will, because they are in the affirmative so. That he shall occupy the Land solely. And judgement was given for the Plaintiff. Pasch. 3. Eliz. Woodward against Nelson in B. R. WOodward, Parson of Wotton in consideration, of 120 l. paid by Bretman, one of his Parishioners, did accord and agree with him, that he and his assigns should be discharged of Tithes during the time that he should be Parson. Bretman made a Lease to Nelson, Woodward did libel against him for Tithes and Nelson prayed a prohibition upon the said contract. And it this was sufficient matter for a prohibition was the Question, because it was by word only, and without writing, which amounts only to a cause of action upon a promise for Bretman, but no action for his lessees, neither can this amount to a Release of Tithes, for as Tithes cannot be leased without Deed, so they cannot be released or discharged without Deed. Gaudy Justice. Tithes cannot be discharged without Deed, unless by way of contract for a sum of money, and he cited the 21 H. 6.43. Fenner: for that year in which the discharge was made, it was good by way of discharge without Deed, because the Parson for that year had as it were an Interest, but such discharge can have no continuance for another year, for default of a Deed; and so a promise being no discharge, it is no cause of a prohibition. But Gawdy, held as afore. And about this time Wray Chief justice died, and Popham succeeded, and the same day he was sworn, Cook moved this Case again. And the Court held that the agreement being by parol was not good: And Fenner, then, said that without writing the agreement could not be good between the parties but for one year. And the Court awarded a consultation. But upon search made, no judgement was entered in the Roll. Trinit. 35 Eliz. Dr. Ford against Holborrow, in B. R. Rot. 367. IN an Action of Debt upon a Bond, the case was, Dr. Drury (to whom the Plaintiff was Executor) made a Lease to Holborrow of the Manor of Golding for years, and Holborrow the Lessee entered into a Bond, that if he, his Executors or Assigns, did pay to Anne Goldingham, widow, the sum of 20 l. for 17 years, if the said Goldingham should so long live, and so long as Holborrow the Lessee, or any claiming by or under the said Holborrow shall or may occupy or enjoy the said Manor of Goldingham; and than Holborrow surreudred his Lease to the Obliges, praecextu cujus the Defendant pleaded, quod non occupavit, nec potuit occupare, etc. wherefore he did not pay the said sum to Anne Goldingham, and the Executor of the Obligee brought an Action of Debt upon this Obligation. Johnson for the Defendant. The term is gone, for he cannot occupy after the surrender, and also the Obligee is a party to the cause why it is not performed, and therefore he shall take no advantage, 4 ●. 7.2. But the whole Court was against him, for he to whom the surrender is made, cometh in quodammodo by him, and is his Assignee, for he shall be subject to the charge that was before the surrender; and also the Defendant shall be bound by these words in the Obligation, viz. so long as he shall or may: and although these words were not inserted, yet he shall pay the annuity: for where the first Cause does commence in himself, he shall not have advantage thereby: but otherwise, where he is not party to the first Cause. As if two joint-tenants with Warranty make a partition, the Warranty is gone, because they are parties to the act which made the extinguishment: but if one makes a Feoffment of his part, the Warranty as to the other remains, 11 Ed. 4.8. and in the Case at Bar, the Obligor made the surrender, and therefore he is party, and the first cause: and there is a diversity when the thing to be done is collateral, and when not: for if a Lessee does oblige himself to do a collateral thing, as payment of money, there he ought to do it, although that he surrender: for although the Obligee do accept of the surrender, yet no act is done by him to hinder the performance of the condition: but where the Obligee does any act to hinder the performance of the Condition, the Condition is saved: as if the Lessee be bound to the Lessor to suffer J.S. to enter into a Chamber during the Lease, and he surrenders to the Obligee, who will not suffer J.S. to enter, the Obligation is saved, and judgement was given for the Plaintiff. 36 Eliz. Bedford against Hall, in B. R. IN an Action of Covenant, wherein the Plaintiff declared, that the Defendant did devise and grant to him certain land, with all his goods contained in a certain Inventory for 20 years, and said, that in the Inventory, amongst other things, were five Cows, which the Defendant seized and that one J.S. took them away as his proper goods, as indeed they were, and hereupon he brought this Action. Fenner The Action will not lie, for no interest in the Cows doth pass to the Lessee by this Lease▪ neither was there any right to them in the Lessor: As if I demise to you the land of J. S. by these words, Dem si & concessi and you enter, and I S. reenters, no Covenant lies against me. And so in the 11 H. 4. a Prebend made a Lease for years, and resigned, now is the term of the Lessee quite destroyed; and if after he be outed by a new Prebend, yet he shall have no Action of Covenant. And so is it, 9 Eliz. Dyer ●57. Lessee for life makes a Lease for years, and dies, the Lessee shall not have a Covenant if he be outed by him in the reversion, because he is not in as a Termor at the time of the disturbance. But if in the principal Case the Lessor had been possessed of the goods although by a wrong title and the Owner had seized them, than a Covenant would lie. And so if a Disseisor makes a Lease, and the Disseisee reenters, the Lessee shall have a Covenant. Gawdy. If a man lets lands wherein he hath no estate together with his goods although the land will not pass, yet the goods do and if a man lets goods for a year, and re takes them within the year, no Covenant will lie, for the property was never in the Lessee C●…c●. If a man lets another's goods to me by Deed if I seize them and the Owner retakes them a Covenant will lie and so will an Action on the Case, if it be without Deed, 42 Assi. 8. If I be in possession of another's goods, and sell them, a deceit lies against me by the Vendee; and so is the Book of Ass. 42.8. con●ra, where the Vendor hath not possession at the time of the sale. And if I sell goods by Deed which are in my possession, and they are evicted by the right Owner a Covenant will lie: contra if I have not possession at the time of the letting them, and if I let land and J.S. enter before the Lessee, the Lessee cannot have a Covenant, Quod nota. Et ad journe●ur. 35 Eliz. Scarret against Tanner, in C. B. Rot 1458. IN a false Imprisonment, the Defendant justified, that he was High Constable of the Hundred of E. in the County of ●…p, and that the Plaintiff made an affray within the said Hundred upon one Walm, who came presently to the Defendant, and told him of it, and took his oath that he was in fear of his life: whereupon the Defendant came to the Plaintiff, and arrested him and carried him to Prison until he could find sufficient Sureties of peace. Glanvill A Constable cannot arrest one to find surety of the peace upon a complaint made to him, unless he himself sees the peace broken, 7 Ed. 4. Kingsmill contr. For he is at Common Law Conservator pacis, 12 H. 7.18. And how can he keep the peace, if he may not compel them to find surety. 44 Ed. 3. Barr. 2●2. If a man that is threatened complain to the Constable, he may compel the party to find surety for his good behaviour, and may justify the imprisoning him, or putting him in the Stocks, 22 Ed. 4.35. 10 Ed. 4.18. where a Constable in such case may take a Bond. Anderson. I grant that Constables are keepers of the peace at the Common Law, and are to keep the peace as much as in them lies; and that is, to take men that they find breaking the peace, and to carry them to a justice of peace to find surety: but the Constable cannot take security, nor recognizance, nor bail, for he is not an Officer upon Record; and if he do take a Bond, how shall he certify it, and unto what Court? Walmesley contr. Who said, that the Constable might take security by bond, although not by recognizance or bail. Beaumond. A Constable may put him that breaks the peace within the Stocks, but it must be where the breach of peace is committed in his view, for he hath no authority to take an oath that a man is in fear of his life, and then the foundation of his justification doth fail. Owen. The oath is not material; for although he cannot take such oath, yet his taking of surety is good; and before justices of peace were made, the peace was preserved by Constables; and the Statute that creates justices, does not take away the power of Constables, and therefore he may justify. Sed adjournatur. Pasch. 38 Eliz. Worsley against Charnock, in C. B. IN an audita quaerela the Case was thus, The father and son were bound in a Statute-Merchant to Charnock, who sued out an Execution against them, and their lands were severally extended; and they supposing that the Statute was not good, because it was not sealed with both their seals, according to the Statute, they both brought a joint audita querela; and whether they could join in this Action, or not, was the question. Warburton. They shall not join; for in all cases a man must make his complaint according to his grief; and here their grief is several, as it two men be imprisoned, they shall not join in a false imprisonment. The same Law in a Battery, 8 Ed. 4. 18 H. 6. 10 Ed. 4. It J.S. hath goods of divers men, they shall not join in a Replevin; and 33 H. 6. two men shall not join in an audita quaerela, unless the land in execution is in them jointly; and 29 Ed. 3. two joint-tenants Infants alien, they shall have several Writs of Cum fuit infra ae●atem: But he confessed the Case in 30 Ed. 3. Fitzherbert, audita quaerela, where two men were in Execution, and the Conusor did release to one, and then to another by another Release, yet both shall join in an audita quaerela: but this is not Law: and besides, they cannot recover damages jointly, by reason of their several vexations; and this Action being personal, damages cannot be severed. Vid. 2 Ed. 3. Execution 45. 9 Ed. 4.31. 12 Ed. 4.6. Harris contra. And as to the last reason, the Book in the 20 of Elizabeth is, that no damages shall be recovered in an audita quaerela, which (if it be Law) then is the doubt at an end. And whereas it hath been said, that they shall not join because their griefs are several, methinks there is no reason, but that if he that survives shall be charged with the whole, that they shall join also in their discharge; for if their charge be joint, their discharge shall be joint also. And in the 34 H. 6. and 30 Ed. 3. where an audita quaerela may be brought jointly; and he resembled this to the Case of a Monstraverunt, where if a Tenant in ancient demesn be distreyned, all the Tenants shall join, because the grievance to one may be a grievance to all the rest. Yeluerton of the same opinion. Tho suing of the Execution was the cause of the audita quaerela, but not the ground, for the ground was the Statute-merchant, and therefore it is here brought according to the Statute. Anderson. If two men do me several Trespasses, yet I may have a joint Action against them, and the death of one of them shall not abate the Writ: but if two are Plaintiffs in a personal Action, the nonsuit of one shall be the nonsuit of the other; and in our case the Statute was joint, and also the Execution: then if all the Writs are so, the audita quaerela which is to discharge them, shall be joint also, especially in this Writ where they are as it were Defendants; and therefore he resembled this Case to a Writ of Error, or an Attaint brought by two jointly, and one is non-sued, yet this shall not abate the Writ, because they are in a manner Defendants. Walmesley contr. The Action ought to be brought according to the cause of the wrong, and the wrong begun in suing the Execution, and that was several, and therefore the audita quaerela ought to be several also: but if this Statute had been good, and had been discharged by release or defeasance, than the audita quaerela might be brought jointly, for then the ground of the execution was joint: but here is but a colourable Statute, and the cause of the Action is not begun before the Execution sued. Owen and Beaumond agreed: and after by assent of Anderson, judgement was given that they ought to have several Writs. Note, Pasch. 36 Eliz. in B. R. & Rot. 323. or 521. between Curteise and Overscot. If A. did recover against B. by two several judgements, whereby B. is in Execution, it was adjudged that he shall not have one audita quaerela, but two several Writs. Pasch. 37 Eliz. Sawer against Hardy, in B. R. Rot. 254. IN an Ejectment, the Case was this; A woman was Lessee for forty years, sub hac conditione, si vixerit vidua & inhabitaret super pr●m ssos: the woman died before the Lease expired, and her Executors entered, and being outed, they brought this Action; and the question was, if the Lease were determined by the death of the woman, by limitation, or by condition, or if it yet remain. Gawdy. It cannot be a condition, because the sentence is imperfect; for if a man makes a Lease for life, rendering rend, sub hac conditione, that if the rent be behind, without any further words, this cannot be a condition, by reason of the imperfection of the sentence; and without doubt, if a Lease for years be made to a woman, if she so long live, and inhabit the premises, this is a limitation, so that the term is ended by her death. Clench. It is neither condition nor limitation; for a condition ought always to be a full and perfect sentence, and not uncertain. As a Lease for years, upon condition that the Lessee shall pay 181. at the house of the Lessor, this is a full sentence: but a Lease made, rendering rend, and if it be behind, (and no more said) this is no condition. And in all cases where these words, quod si, do make a condition, it is requisite that these words, quod tunc, do ensue. Neither can it be a limitation, because the words, quod si, spoil the sentence. And Popham was also of opinion, that it was neither condition nor limitation: but if the words had been sub conditione quod tamdiu vixerit & inhabitaret, etc. this is a perfect sentence, and by her death, or not inhabiting, the estate might be determined; and he put this difference, that if a Lease had been for 20 years, si tamdiu vixerit super praemissos, the Lease had been determined by her death: but if a Lease had been for 20 years, si tamdiu inhabitaret, quamdiu vixerit, vel durante vita super praemissos; there if she dies within the term, yet the term continues, for in the first case the limitation goes to the interest, and in the other to the time; and judgement was given, that the Plaintiff should recover, for that the term continued. Michaelm. 37 & 38 Eliz. Mark Ives Case, in B. R. IN a Debt upon a Bond the Condition was, that if the Obligee should go to Rome, and return from thence again before the 5. of July after the date of the Bond, that the Obligor should pay to him 20 l. upon the 20. day of July at Paul's. And it was moved by William's Sergeant, that if the Obligee returned within the time, whether he ought to give notice of his return to the Obligor, for otherwise by his secret return he may make a forfeiture of the Obligation; for if the Obligor of necessity be to tender this money without notice of his return, inconvenience would ensue; for perhaps the Obligee is not returned at the time the money is due, and then the tender is in vain, and the Law will not compel a man to make a tender, unless it be to some purpose, and therefore the Obligee ought to give notice, to the intent that the Obligor may know whether the money he due to him or not. And it is like a Mortgage upon condition, that if the Mortgager does pay 20 l. before Michaelmas at Paul's, that the●, etc. here the Mortgager ought to give notice at what day before Michaelmas he will tender the money, or otherwise he cannot enter for the time that the Law prescribes to make the tender, is the last instant before Michaelmas; and if the Mortgager will make his election to tender it before the day, he ought to give the Mortgagee notice thereof. And the Case of one Gurney was cited by Cook, Adjudge 27 Eliz. where a Lease was made for years, and the Lessor made another Lease for years, to commence after the surrender, determination, etc. of the first Lease, and then a private surrender is made to the Lessor of the first Lease, the second Lease shall not begin until the Lessee hath notice of the surrender of the first Lease. But Tanfield said, that the Case was ruled contrary, and that the Lease did begin presently without notice. (ideo quaere) and as to the principal point, the Court was divided. But Fenner said, that if the Obliges should give notice, perhaps the Obligor will not be found, and therefore good reason that the Obligor should make tender to the Obligee at his peril. Trinit 36 Eliz. Escot against Lanreny. in B. R. IN an action on the Case the Plaintiff declared that the Lord Barkley by his Indenture, dimisit & ad firmam tradidit totam firmam suam tolnetum & proficuum nundinarum & dierum Faerialium infra manerium & Bergum de Thetbury. for 21. years, and that the Defendant had disturbed and hindered him, from taking of divers pieces of Wool infra manerium & Burgum, praedict. etc. and after Issue joined, exception was taken to the Declaration: because he declared of a demise made by the Lord Barkley, and did not set forth, that the Lord Barkley was seized at the time of the Demise 7 H. 7.3.34 H. 6.48. But the exception disallowed by all the Court, because the Plaintiff in this action is to recover damages only, and the right or title of Land does not come in debate, but contra, if it were in such action where the right of the Toll did come in debate, and to prove this Glanvill cited 20 A sis. 3.47 E●. 3. and 33 H. 6. and upon this reason he said that the Plaintiff of necessity is not bound to set forth the Market day▪ nor the quantity of the Toll. 34 H. 6.48. Where it was pleaded that J.S. made a Lease to him and did not show that he was seized, and yet held good. Clench took another exception, because he did not set forth that Toll was to be paid by common usage for no Toll is due for Hens or Geese, or for many other things of such nature, and so it might be that Toll was not due for wool. Fenner was of the same opinion, but Popham Contra, who said that the Plaintiff had declared that the Defendant had disturbed him from the Toll of divers pieces of Wool, and by that is employed, that Toll ought to be paid for Wool. And at another day judgement was given for the Plaintiff. Pasch. 36 Eliz. Sackford against Philipps. in Camera Scaccarii. Rot. 484. IN a debt, this Case was moved by William's Sergeant. A. is indebted to B. in 10 l. upon a Bond, and R. did promise to B. that if he would forbear A, that if A. did not pay him, he would, B. for nonpayment by A. does recover so much in damages upon the assumpsit against R. If in Debt upon this obligation against A, A. may plead this recovery in Bar. Walmsley, he cannot, for he is a stranger to the recovery (ideo Quaere:) And it was assigned for error that it was alleged in the Declaration, that the Defendant did promise to pay the 10 l. before Michaelmass, in consideration the Plaintiff would forbear to sue A. and that he hath forborn & adhuc absti●et, and does not say that he made request as he ought to have done▪ But the Court held it was well enough, and there is a difference when the Defendant does promise to pay generally and at a certain day named, there the Plaintiff ought precisely to allege a request made in certain: but when the Defendant promiseth to pay at a day certain, he is bound to pay it at his peril without request, and therefore to allege quod saepius requisitus, is sufficient without alleging a special request, otherwise it is if the Defendant assume to pay it upon request, for there it ought to be specially pleaded. Another error was because the consideration was that the Plaintiff should forbear to sue A. and does not set forth for how long time, for perhaps the forbearance was but for a quarter of an hour. Peryam. The consideration upon which an assumpsit is grounded aught to be of value, but of what value is it, where the forbearance is but for half an hour? Fleming. By his promising not to sue, he is engaged never to sue. Peryam. There is great difference between a promise not to sue, and a promise to forbear to sue, for a promise not to sue excludes him from suing at all, but a promise to forbear to sue, is only to forbear for a time; so that notwithstanding such promise he may sue after; and it being not here expressed how long he will forbear, there is no consideration. Walmesley. There is a difference when the Defendant s●eaks the words, and when the Plaintiff. For if the Plaintiff says I will forbear to sue you, so you will promise to pay me▪ and upon this the Defendant makes a promise accordingly, the Plaintiff in this Case ought to forbear to sue him for ever: But if the Defendant only speaks the words, as here he does. If you will forbeace to sue, I will promise to pay you, and the Plaintiff agrees and forbears a certain time, yet he may have his action afterward, sed adjournatur. Pasch. 38. Eliz. Stroud against Willis in B. R. Rot. 66. IN Debt upon a Bond, the Condition was: If the Obligor shall well and truly pay the Rent, or sum of 37 l. yearly at two feasts according to the tenure and true intent of certain articles of agreement indented and made between the Obligor and Obligee during the term therein mentioned, that then etc. The Defend int●…e●ded that these articles ut supra, contain that the said Stroud the Obligee, Dumisit & ad firmam tradidit to the Defendant, Omnia talia do●…s tenementa & terras in Parochia de Petminster, de & in quibus, the said Stroud hath an estate for life by Copy according to the Customs of the Manor. Habendum to the Defendant for 21 years, if Stroud should so long live, rendering to the said Stroud during the said term 37 〈◊〉. to be paid at the Castle of Canton; and pleaded further that at the time of the making the said Articles, the said Stroud had not any estate in any Lands, houses etc. in Petminster aforesaid▪ for the term of his life or by Copy. And upon this plea the Plaintiff demurred, and judgement was given for the Plaintif in the Common Pleas and now was removed by Vrit of Error. And in this Case were two questions. First If nothing pass by these Articles, and so the reservation of the Rent is also void. Secondly, If the Obligation for payment of the said sum be also void; and it was said, that this could not be payable as a Rent upon the 14 H. 4. & 4. 20 Ed. 4. 20 H. 6.23. for no Rent is reserved, because there is no land out of which it can come, and then the obligation is also discharged. 2. Admitting the Rent is not vayable as Rent, then whether it be an ●stoppell to plead (as here is done) against the Articles, and therefore, they took a difference where the recital is general, and where not; as if A. be bound to infeof me of all his lands of the part of his Mother, and he hath no lands of the part of his Mother: but otherwise if it were to infeof me of Black acre, for he shall be estopped to say that he had not Black acre, and so here he shall be estopped to say, that there are no Articles: but he may plead that he hath no land by Copy: Cook 2. Rep. 33.6. Fenner. When a man makes a void Lease, rendering Rend, the Reservation is also void, because the land is the consideration and recompense for the Rent: but where a man reserves Rend upon a grant or Lease, which grant and Lease are good, but the thing out of which the Rent is issuing cannot be charged with the Rent, there the reservation is good, as where a Rent is reserved out of an advowson or menaltie, but in the Case at Bar the Lease did never begin, and therefore Rent shall not, then is it to be considered whether the Rent is to be paid by reason of the bond, as a sum in gross or not, and as to that matter the condition of the bond is to pay the Rent according to the true meaning of the Articles, which is, that if the Lessee have not the Land, the Lessor shall not have the Rent, therefore it shall not be paid as a sum in gross. Popham count. But he agreed that the reservation was void, for if no Land do pass, no Rent is reserved, and the reservation only does not make any estoppel, and he took a difference upon the 14 Ed. 4. A man makes a Lease generally, and the Lessee is bound to pay the Rent in such manner as it was reserved, there such Rent ought to be demanded, otherwise the Obligation is not forfeit, and the demand ought to be upon the Land; but if such Lessee for years do oblige himself to pay the Rent at a Collateral place out of the land, there he ought to pay it at his peril without any demand, for now he pays it in another nature than as Rent; so here if the payment had been limited at a place out of the Land, the Obligor is bound to pay it, although nothing were demised to him, for by the bond he hath made it a sum in gross. And it is altered from the nature of Rent upon the first reservation, and he is bound also to pay the Rent or sum, and if this be any of them, he must pay it: As to the second point: he made this difference. A his bound to J.S. to Release to him all his right which he hath in the Land descended to him, on the part of his Mother; there, in Debt upon this bond, the Obligee cannot plead that he hath no right descended to him on the part of his mother, but must Release at his peril. But if he binds himself to infeof the Obligee of all the Land which he hath by descent of his Father, there he may plead that he hath no Land from his Father: for all may be Released, although the Releasor hath no right: but a feoffment cannot be made of land which a man hath not. Pasch. 38 Elizab. Holcombe against Rawlins. in B. R. Rot. 401. IN a trespass Quare Clausum fregit, with a continuando from the 31 Elizab. to the 36. the Defendant pleaded that J.S. was seized in Fee and made a Lease to him etc. The Plaintiff replied, that long time before J.S. was seized, he himself was seized, until the said J.S. did disseise him; and J.S. being so seized did make the Lease to the Defendant for years, whereupon the Plaintiff re-entered. Tanfield. It appears by the Plaintiffs Replication that the Defendant was in under the title of J.S. viz. the Lessee of the Disseisor of the plaintiff, and therefore he cannot be a Trespassor to the Plaintiff, notwithstanding his regress. 34 H. 6, 30. 37 H. 6, 35. 2 Edw. 4, 17. 13 H. 7.15. Atkinson contra. At the Common Law the Disseisee being out of possession shall not recover any damages, but only against the Disseisor, and not against any other that comes to the land afterwards, and for this cause the Statute of Gloceste● was made. But at the Common Law when the Disseisee reenters, he is remitted, as if he had not been out of possession at all, and he shall have a trespass against the mean occupiers as in the 4 H. 7. A man was restored to his land by Parliament, as if he had never been out of possession at all, and he shall have a trespass against the occupiers that are in by title, aswell as here he had against the Kings Patentee. G●wdy. If a Disseisor be disseised, and the first disseisee enter, he shall have a trespass against the second Disseisor. And Popham and Fenner agreed, but Clench cont. But at last adjudged for the Plaintiff. vid. Cook. 11. Rep. fol. 57 Lyfords' Case, to the contrary. Pasch. 37. Eliza. Wiseman against Baldwin. in B. R. Rot. 341. IN a writ of error to reverse a judgement given in the Common Pleas, the Case was thus. R●chard Baldwin did demise his land in Tail upon condition, that the Devisee, should pay to J.S. 20. l. and if he failed of the payment, that then the land should remain to J.S. and his heirs for ever, and whether this be a Condition in Law, that the heir shall take advantage of, or a limitation of the estate, so that J.S. shall take advantage, was the Question. Gawdy. It is a limitation and not a condition as is apparent in Dyer, Wilfo●ds Case 7.128 and Pewis and Scholasticas Case in the Commentaries, and there is great diversity between an estate in Law, and a devise, in which the intent of the Devisor is to be observed, and here if this shall be taken for a condition, the intent of the Devisor is defrauded. Clench agreed. For this should be as a new devise to J.S. and not as a remainder, as a devise to a Monk, the remainder to J.S. the remainder is not good, as a remainder, but as a new devise. Fenner of the same opinion, and said, it had been so adjudged in this Court in an Attorneys Case of Devonshire, and also in Sir Edward Clears Case. Gawdy. The received opinion of all learned Lawyers hath been such as hath been said, viz. that to the end the intent of the Devisor should be observed, it shall be a limitation. Then I put this Case. A man deviseth his Land to J.S. upon condition, and for nonpayment, be devises that his Executors shall sell the Land, if J.S. fail of the payment, it is clear that the Executors may sell the Land. Godfrey. I agree, because the Executors have nothing devised to them, but only an authority given them by the Will to sell. Gawdy. But when the Executors have sold, the Vendee is in by the Devisor, and then it is no other than a devise to one in Fee on condition of payment, etc. and if he fail, then to another. And the three justices agreed; but because the Chief justice was absent, it was adjourned to another day, at which time Fenner said, that he had spoken with ●…wen, one of the justices of the Common Pleas, who said, he never agreed to the judgement, but in case of a perpetuity. And therefore the judgement in the Common Pleas was reversed. The Earl of Lincoln against Fisher. THe Steward of the Leete being in Court, did say in Fisher who was resident within the precinct of the Leet, that he must be sworn for the Queen to make presentments at the said Court. To which Fisher replied, in saying I ought to be sworn, you lie. For which Fisher was fined at the Court 20 l. And the Earl who had the Leet brought his action for the same. Yeluerton. The action will not lie, for he is not finable for such words, for they are no disturbance to the Court, nor hindrance of justice: for this word, you lie in ancient speaking is no more than to say, you do not say true. Gawdy agreed that the action would not lie. But Fenner, Clench, and Popham count. For this is a misdemeanour for which the defendant is finable: for every Leet is the Queen's Court, and a Court of justice, to which respect and reverence ought to he given, and these words are in great contempt to the Court, and the authority thereof, which is supreme: And Posito, that he should here say to the judge of a Court when he delivered his opinion in any Case. Mr. judge, you lie, without question he may be fined and imprisoned; and as it is of a judge here, so is it of a judge of any inferior Court, because it is a Court of justice. And Popham said, That if any misdemeaned himself in the Leet in any outrageous manner, the Steward may commit him. And Gaw●y changed his opinion, Wherefore the Plaintiff had judgement to recover. Pasch. 36. Eliz. Allens Case. A Scire facias issued out in the name of the Queen, to show cause why execution of a debt which is come to the Queen by the attainder of J.S. should not be had: The Defendant pleaded that the Queen had granted over this debt by the name of a debt which came to her by the attainder of J.S. and all actions & demands, etc. upon which the Plaintiff demurred. And the question was, if the Patentee might sue for this in the name of the Queen, without special words. And two precedents were cited, that he may. 1 Pasch. 30 Eliz. rot. 191. in the Exchequer, where Green to whom a debt was due, was attainted and the Queen granted over this debt, and all actions and demands, and a ●c●re facias was sued for him in the name of the Queen; also in the 32 El●z. rot. 219. Mabb of London was indebted by bond, and the debt came to the Qu. by the attainder, and she granted it to Bones, and all actions & demands, and a scire facias was issued out in the name of the Queen. And the principal case was adjourned: but the Patentee had express words to sue in the name of the Queen, although it was not so pleaded. 43 Eliz. Pelling against Langden. in B. R. Rot. 438. IN a trespass for breaking his Close, and killing 100 Coneys. The Defendant justified, because he had common time out of mind, and because the Coneys were damage Feasant in the place where he killed them. The Plaintiff demurred, and judgement given for the Plaintiff: for Coneys are beasts of Warren, and profitable as Deer, and are not to be compared to Foxes and vermin which may be killed, but the Owner of the soil may keep Coneys where the Common is aswell as other cattle, also he may make Fishponds in the Common, and the Commoner cannot destroy them Cook 5. Rep. 104. 22 H. 6.59. & so it was adjudged. Trinit. 43 Eliz. Gresham against Rag. in B. R. Rot. 1295. IN trepass for entering into a house. The Defendant pleaded that the Plaintiff was indebted to the Defendant in 100 l. and that he by the permission of the Plaintiffs servant, (the doors being open) did enter to demand his debt: Upon which the Plaintiff demurred. And adjudged for the Plaintiff. For the servant of the Plaintiff could not licence any to enter into the house of his Mr. also a man cannot enter into another's house to demand money, unless the debtor be within the house. Gawdy. If it had been averred, that the Plaintiff had been then in the house, the Plea had been good. Hillar. 44. Eliz. Streetman against Eversley. in B. R. IN an ejectment, the Case was, a Lessee for 80. years upon condition, that if the Lessee his Executors or Assigns did not repairo the house within six weeks after warning, that the Lease should be void the Lessee made a Lease for ten years, who suffered J.S. to occupy the house, and then the Lessor came to the said occupation of the house, and at the house gave notice, and said, that the house was defective in reparations and did show in what, and so gave warning to have it repaired, and after for default of reparations he entered, and the Defendant as servant to the Lessee reentered: And his entry adjudged lawful, for notice given to J.S. who was but an Occupier of the house, and not Lessee or Assignee of any interest of the term, was not sufficient; but it ought to be to the person interessed in the term, who is liable to reparations. Vid. Cooks 6. Rep. Green's case. Also the notice at the house is not sufficient, but it ought to be to the person of the Lessee, and Popham agreed to this. Trinit. 1 Jacobi. Shopland against Radlen, in C. B. Rot. 853. IN a Replevin the question was, when a Guardian in socage holds a Court in his own name, and does grant Copies in reversion; if this be a good Grant or not, and adjudged to be good against the Heir. Walmesley. Dominus pro tempore of a Manor may hold a Court, and make a Grant of Copyholds, but this is to be understood of perfect Lords, which a Guardian is not, but only ad commodum haere●is, and is rather a servant to the Lord, than Dominus pro tempore: and he cannot be called Dominus, because he can neither grant nor forfeit his estate, and hath nothing to do to meddle in the Manor, but to account for the profits: and a Writ of Ward does not lie for the land, but only for the body. Gawdy chief Justice. Warburton and Daniel Justices to the contrary. Who held, that a Guardian in socage is Dominus pro tempore, and that he hath interest in the land, and may make a Lease thereof for years, Commentar. 293. and may avow in his own name, 29 Ed. 3. Avowry 298. But a Guardian in socage cannot present to an Advowson, because he cannot be accountable. But Daniel justice said, that the Guardian may present where the heir is not of years of discretion, and a Guardian in socage shall have a Trespass, and a ravishment of Ward, 24 Ed. 3.52. and he hath the Ward by reason of looking to him, and therefore he hath interest sufficient to keep Court, and admit Copyholders, who are not in by him, but by the custom, But a Bailiff of a Manor hath no interest, and therefore cannot make Grants and Copies: but a Guardian hath interest provisione legis, although it be such interest as cannot be forfeit, and the heir cannot be at any prejudice, for he shall have an account made to him of such Fines; for the heir himself cannot grant them, and the Law cannot compel the Guardian to occupy them; neither can the Court be held in the name of the heir, but the Guardian, and therefore he may grant Copies. And if a Guardian in socage hath such interest that he can make a Lease for years and his Lessee shall maintain an Ejectment a f●r ●…oti, he may grant Copies. Neither is it any argument at all to say that a Guardian in socage hath no interest, because he cannot grant or forfeit his estase; for the reason is, because these things are annexed to his person. And after, Mich. 3 Jacob. it was adjudged, that the Grant was good, and shall bind the heir. Vid. Keloway, 46.6. 37 Eliz. Brown against Hercey, in C. B. Rot. 620. IT was found by office, that J.S. who held the Manor of D. of the King, did die without heir; whereupon W.S. as heir to him, did traverse the said Office, and hereupon was at issue with the Queen, if he were heir or not: (and depending this suit) he made a Feoffment in Fee, with a Letter of Attorney to make Livery, and after it was found for him against the Queen, and judgement given against the Queen: but before the Writ of Amoveas manum, the Attorney made Livery, and adjudged good, for it cannot be said that the heir at the time of the Feoffment had nothing, or that the Queen at the time of the Livery was in possession, for by the judgement given, the possession of the Queen was utterly defeated, and possession in the party before any amoveas manum sued out, for that serves but to compel the Eschaetor to avoid the possession, it he hold the land after judgement. Vid. Stanford, praerogat. 78. 10 Ass. 2. 10 Ed. 3. and the difference is where the King is seized by title, and where without title; for when the King is seized by title, and his title is determined, he ought to make Livery to him that hath right: but when he is seized without title, and he who hath right hath judgement against him, he may enter without Livery, 5 Ed. 5. Quare impedit 34. But it was here said by Owen justice, that if a man makes a Feoffment of White-acre, with a Letter of Attorney to make Livery, and then he purchase White-acre, this is not a good Feoffment for White-acre. Michaelm. 29. & 30. Eliz. Knowles against powel, in Scaccario. THe Queen seized in Fee, made a Lease for years to one who was outlawed at the time of the Lease, rendering rend; and after he was outlawed again, and before seizure, comes out the general pardon of all Goods and Chattels forfeited; and in this Case it was agreed, that a man outlawed was capable of a Lease from the Queen, as Farmer to the Queen. And Manwood said, that the pardon with restitution is sufficient to revive the term forfeited by the second out-lawry; and it was also agreed, that a man outlawed and pardoned, had property in his goods. Egerton Solicitor said, that in the 4 Eliz. it was adjudged in the Common Pleas, that if the Queen made a Lease under the Exchequer-seal to begin immediately after forfeiture, surrender, or expiration of a former term, and the Lessee is outlawed, shalt the second Lease shall not commence, for it is a Royal forfeiture. Trinit. 41 Elizab. Ferrer against Borough, in B. R. Rot. 185. UPon a special Verdict the Case was thus, A man makes a Lease for years, upon condition that if he paid 10 l. before Michaelmas, that it should be lawful for him to re-enter; and before Michaelmas, he lets the land to another by Indenture for years, and then performed the Condition, and entered; the first Lessee brought a Trespass, and it was adjudged that it does not lie. Trinit. 35 Elizab. Lambert against Austen, in B. R. Rot. 185. IN a Replevin the Case was thus; A man seized of land in Fee, grants a Rent-charge out of it to A. for life, with a Clause of Distress, and then makes a Lease to B. for years, and grants the reversion for life to J.S. the Rent becomes behind the 15 of Eliz. until the 18 of Eliz. and the Grantee makes the Defendant his Executor, and dies, the term of B. ends in the 33 Eliz. and then J.S. enters, and makes a Lease to the Plaintiff; the Executor of A. distreyns for the arrearages, and the Plaintiff brings a Replevin. Gawdy and Fenner. This Distress is well taken for the arrearages upon the Statute of the 32 H. 8. cap. 37. for the Rent doth not issue out of the term for years, but out of the ; and upon grant thereof, as Littleton saith, the Tenant of the aught to attorn, and not the Termor; and so is it, 9 H. 6. and if an Assize be brought for this Rent, it ought to be brought against the Tenant of the , and all the Tenants of the aught to be named in a Rent-charge, by Cook, 6 Rep. 58. but otherwise for a Rent-service, for that is against the Termor only, and a Termor cannot give seizing of the Rent to maintain an Assize, by Cook, 6 Rep. 57 and for the same reason Executors shall have an Action of Debt at the Common Law for arrearages, because the estate is determined, Cook, 4 Rep. 49. but an Avowry is given by this Statute, Only so long as the land shall continue in the seisin and possession of the said Tenant in demesn And they much relied on this word (demesn) which ought to be intended of a ; and of a Reversion upon a Lease for years, it is pleaded, quod seisitus in dominico suo, etc. and so cannot a Tenant for years say; for which reasons it seemed to them that the Distress was well taken. Clench contr. For the Termor ought to pay it, for he takes the profits of the land: as if a Lease be made to a woman, rendering Rend, who takes husband, and dies, the husband shall pay the Rent, by the 10 H. 6. for he hath taken the profits; and by the words of the Statute, they are (in the possession or seisin) and seisin refers to the Tenant of the , and possession to the Tenant for years; and the words are, (which ought immediately to pay the Rent) and so ought the Termor in our Case, who is chargeable to the Distress of the Testator. Popham chief justice, of the same opinion. The Distress is not well taken; for he who hath the profits of the land, aught to answer for the Rent. Gawdy. Although the of the Lessee be distreynable by the Testator, that is only because they are upon his land; as a stranger's may be so distreyned, and therefore this proves not that the Lessee should pay the Rent. And if a man grants a Rent-charge, and lets the land at will afterwards, the Rent is behind, and the Grantee dies, and the Lease at will determines, without question in that Case the Lessor is subject to the Distress of the Executor. And in our Case, if the Grantee had released to the Tenant for life, this had extinguished the Rent, otherwise of a Release to Tenant for years. Fenner. If Tenant in Tail granta a Rent-charge, and after makes a Lease for 21 years according to the Statute, and dies, the Rent by the death of the Tenant in Tail is determined. To which Gawdy agreed; which proves, that the Rent issues out of the Freehold. Vid. Cook, 5 Rep. 118. Hillar. 37 Eliz. Butler against Ruddisley. IN a Trespass, the Defendant pleaded the of Edward Devereux, and so justified as his Bailiff, without saying (at his commandment) the Plaintiff replied, that the said Edward was seized in Fee, and made a Lease to him, by virtue whereof he was possessed absque hoc, that the Lessor made the Defendant his Bailiff post dimissionem; and hereupon the Defendant demurred. Crook. By this Lease a passeth to the Plaintiff, and then the Plaintiffs traverse is naught, for he hath now traversed that the Defendant is Bailiff, whereas he ought to traverse the in the Lessor, for that would have destroyed the justification of the Defendant. And to prove that the doth pass, he cited the Case of Littleton, where if a Lease be made to the husband and wife during Coverture, they are joint-tenants for life. So in the 30 H. 6. a Lease to a woman, dum sola vixer●t. And 14 Ed. 2. a Grant to a man till he be promoted to such a Benefice, or dummodo se bene gesserit, all these are Free-holds. And it is clear, that a Tenant at will cannot assign over. And also an estate at will is an estate at the will of both parties: but here it is at the will of the Lessor only, when he will make a Bailiff. Haughton contr. An estate at will doth pass, and not a ; for here he hath not pleaded that Livery was made; and Livery shall not be intended in this case, unless it be specially alleged: but if Livery had been made, than he agreed that a conditional had passed; and for the pleading of a Livery, he took a difference, that where an express estate either in fee or for life be pleaded, there Livery shall be intended: but where a passeth by implication or operation of Law, and not by express words, there Livery ought to be pleaded, as a Lease to one for years, the remainder to another for life, there Livery ought to be pleaded. So in the 21 Assi. If a man pleads a Feoffment and Livery within the view, he must plead Livery within the view expressly; and so upon Grant of a reversion, attornment ought to be pleaded. And whereas it was said, that it cannot be an estate by will, because it was not the will of both parties. Vid. 9 Ed. 4.1. and 15 Ed. 4. But Gawdy and Fenner denied the diversity put by Haughton, for in pleading of an estate for life, all necessary circumstances in pleading shall be intended. And so it was agreed, that an estate for life should pass, for Livery shall be intended. Sed adjournatur. Pasch. 35 Eliz. Pendigate against Audley, in B. R. Rot. 242. IN a Writ of Error upon recovery of a Debt, the Error was assigned, because the Action of Debt upon the Obligation was brought against the Father of the Plaintiff, and in the Writ he was named the Son and Heir apparent of the Obligor, for this implies that the Father was alive; for if he were dead, then is the Plaintiff Heir in facto, and not apparent. Gawdy. It is but Surplusage; and in the 11 Ed. 3. the Writ was good, although he was not named Son and Heir omnino. But this was denied, and agreed, that he ought to be named Heir; and judgement was reversed. Hillary 37 Eliz. Tanfield against Rogers, in B. R. IN a Replevin, the Case was thus; Tenant in Tail seized of a Manor with 3 Acres thereof in Demesn, makes a Lease of the three Acres also of the Manor, habendum the three Acres, and the Manor for 21 years, rendering Rend for the 3 Acres, and all other the premises, therewith demised 5 l. The question was, if this be a good Lease within the Statute of the 32 H. 8. Stephens. This Lease is not within the Statute, for this Lease of 3 Acres, and of the Manor whereof they are parcel, is an entire Demise, and not several, as in 13 H. 4. Grants 88 A man seized of a Manor, with an Advowson appendent, makes Feoffment of one Acre of the Manor; and then in the same Deed he grants the Advowson appendent, and not in gross, and yet they are in several clauses. Vid. 48 Ed. 3.41. 33 H. 8. Dyer 48. Gawdy and Clench. When the Lease is of three Acres, and of the Manor, although the Manor comprehends the three Acres, yet in construction of Law they shall be taken as several Demises. Fenner. I am of the fame opinion; and as I remember, in the 10 Assis. is this Case; A Lease is made of the Grist, and also of the Mill, reserving by the year 5 s. and for the other 10 s. they are several Leases; and so is it here. Note, that Popham was absent. But after in the same term he declared, that he agreed with the other justices; and judgement was given, that the Lease was good for the three Acres. Pasch. 37 Eliz. Carus Case. PEter Carus was indicted for drawing his Sword in Westminster-hall, the Court then sitting, in resisting the Sheriff who was making an Arrest; and being found guilty upon his Arraignment, it did appear that this fact was done upon the stairs of the Court of requests, out of the view of the Courts; yet it was held, that being in the Hall, it was as much as if it had been in view of the Court. But because the Indictment was not good, for it was not coram Regina. as it ought to be, the judgement was only to have perpetual Imprisonment, and to pay 1000 l. Fine to the Queen. But if the Indictment had been as we have seen a precedent in 1 Ed. 4. then the judgement ought to be, to have his hand cut off, and to forfeit all his lands and goods, and to have perpetual Imprisonment. 22 Ed. 3.13. Cromptons' Justice, 246. Mich. 3 Jacob. Walgrave against Skinner, in B. R. Rot. 174; IN a Trespass, the Plaintiff declared that he was rob of 20 l. and that he pursued the Felon with hue and cry to such a Town, where he discovered the Felon to the Defendant, who was Constable of the said Town; wherefore he apprehended the Felon, and found the 20 l. about him, which sum the Defendant fook, and detained in his own possession. The Defendant confessed the taking the 20 l. ut supra: but because the Town was of no strength, he carried the 20 l. to the next Town, and as he was going upon the Highway, he was robbed of it; and so he concluded that he ought not to be charged in this Action. Johnson for the Plaintiff. It appears in 4 H. 7. that the Thief hath no property in the money which is found in his possession: and in the 15 Ed. 4. it is resolved, that if A robs B, and C robs A, yet C hath not gained any property; and if the Constable takes this out of his possession, he cannot seize it to any other use than to the use of the King; and therefore if he takes Felons goods, and does not keep them safe, the first Owner shall have a Trespass against him; for by the 21 H. 7. If a man does carry the Parson's tithe to the Parson's barn because it is like to perish, yet the Parson may have a Trespass against him. And by the opinion of Stanford, 44 Assi. If goods are taken from a Felon, and he will give sufficient surety, he himself shall have the keeping of them, or else the Town, and therefore the ●o●stable hath no authority to meddle with them. Erby contr. For a Constable is Conservator ●acis, and 〈…〉 the peace does consist as much in keeping of goods, as of 〈…〉 a Felon. And here the Constable doubting of the 〈…〉 Town by reason of the Inhabitants who were riotous, 〈…〉 he thought it the best course to carry them to the next Town, and so no default was in him, for his taking and meoling with them was lawful. And 22 Assi. 96. If a Felon flying be taken in any Village, the Bailiff thereof may take the custody of the goods; and I suppose that a Constable may keep goods as well as a Bailiff, for he is a Minister of the Law; and if they be taken from him, he is no more chargeable than if goods were taken out of the possession of my servant. William's justice, Pasch. 2 H. 7. Common same is enough to apprehend any man; but if you arrest a person who is possessed of money, and he die, you are chargeable with the money. And so here, although the taking of the Felon by the Constable be justiciable, yet he is to keep safe the money at his peril; and because he hath not, he is liable to this Action. Popham. He might have pleaded not guilty; for he said, that if a Town hath the possession of my goods a Detinue lies, und not a Trespass; but if a stranger takes them out of their possession, there a Trespass lies; and therefore he conceived in this Case, that the Plaintiff should have brought a Trover and Conversion, and not a Trespass, quod ●li Justicia●… con esserun; and therefore the Case was deferred till next term, to be argued upon the general issue. Mich. 3 Jacob. Jorden against Atwood, in B. R. Rot. 561. THe Case upon the whole pleading appeared to be thus, A seized of a Message called Bodsw●en, had a way appendent to it in the land of J.S. in a Close called B●ac●e; after A purchased the said Close, and enfeoffed the Plaintiff thereof; and this Action was brought by the Feoffee against the Feoffor for using the said way; and the question was, if the way were extinguished, or not; and it was argued at the Bar, that unity of possession doth make no extinguishment 3 H. 6.31. where 〈◊〉 prescribed to have a way to a Wood in a place called England; against which was pleaded, that time out of mind ●. S. was seized of the said place, and of the said Wood, and held not plea. 2● Ed. 3.2. 11 H. 7.25. it was argued on the other side, that the Case of 31 H. 6. was a quaere; and because the Feoffor had not reserved a way it did pass by the Feoffment. Tanfield justice. Unity of possession does not confound a way; and he cited 19 Ed. 2. 21 Ed. 3.2. A way was appendent to a Mill which was allotted to one partner, who assigned over her interest, and the Assignee brought an Assize of nasance, and unity of possession was pleaded in Bar, but not allowed. Yeluerton justice coner. For the 21 Ed. 3.2. confirms my opinion; for Brook in his abridgement of the Case saith, that the partners have that as in case of ane o● Brant, which proves if they had it as heir, it should be gone. And the Case of Gutter in 1 H. 7. is only by reason of the Custom. But here the Feoffor might have reserved his way upon the Feoffment, and it was his folly he did not. Williams of the same opinion. And he took a difference between the Case of Gutter which is preserved by Custom, and the Case of a way or Common which are extinguished by way of unity of possession, according to the 35 H. 6. Fenner contr. For the case of a Way differs from the case of a Common, for unity will extinguish a Common, but not a Way, for than he shall lose the profit of all the land to which the Way is appurtenant, for without the Way he cannot use the Close, and therefore there is no reason that the Law should extinguish it. Popham accorded and took a difference between a Common appendent, which is of necessity, and a Common in gross; for in case of a Common appendent, if one Tenant of the Manor doth purchase the Seignory, and then grants over the Tenancy, the Common which he had before shall be still appendent, for it is not extinguished by the unity, but shall pass with the Tenancy: but otherwise of a Common in gross: and so he said was the same difference in this Case; for if the way be a way of ease or pleasure, there it shall be extinguished by unity: but if it be a way of necessity there it is otherwise, for without it a man shall lose the benefit of his land or house. And he compared this ad viam Regiam, which lies by my house: yet if I do make a Feoffment of the land. I shall have a passage also. And he said, that if a man had three Fields adjoining, and makes a Feoffment of the middle Field, the Feoffee shall have a way to this through the other Close. where it shall be most easy and beneficial for him. And at last, because the two justices agreed, although others were of the contrary opinion, judgement was given, Quod quaerens ●il capiat per billam, and that the way is not extinguished. Vid. 11 H. 4, 5. Michaelm. 7 Jacob. Leigh against Burley. LEigh sued Burley and Cradock in the Court of Admiralty, whereupon a Prohibition was prayed. The Case was thus: Burley, Master of a Ship, gave money to Cradock to buy Sailors for him; Cradock bought such for him of Leigh in the Parish of Saint Katherine's near the Tower in London, whereby Leigh delivered the to Burley in his ●…ip that was in the ●hames adjoining to Saint Katherine's; and because the money was not paid, he sued Burley in the Admiralty Court; and a Prohibition was awarded for two causes; 1. because the Contract was made on land, and infra corpus comitatus, and therefore the Admiral can have no jurisdiction; for the Statutes of the 13 and 15 of Rich. 2. and 2 H. 4. cap. 11. are, that the Admiral shall not have conusance but of things done super altum mare. V●d. Cook, 5 Re●. 107. And so was it resolved by the justices; and then said, that the 15 of Richard the 2. is misprinted, viz. that the Admiral shall have jurisdiction to the Bridges: for the Translator mistook Bridges for Points, that is to say, the Lande-end. And Cook said, that the Admiral should have no jurisdiction where a man may see from one side to the other: but the Coroner of the County shall inquire of Felonies committed there; which was held to be good by all the other justices; And he gave this difference, that where the place was covered over with salt-water and out of any County or Town, there est altum mare: but where it is within any County, there it is not altum mare, but the Trial shall be par vicenetum of the Town; Doderidge sergeant demanded this Question. The Isle of Lunday is de Corpore Comitatus of Devonshire and lies twenty miles within the Sea. Whether is that within the County. Foster. If the Sea there be not of any County, the Admiral hath jurisdiction or else not. And note Cook and Foster said, that the Statute 25 H. 8. cap. 15. for criminal offences upon the Sea is to be intended if Felony be super altum Mare, for if it be committed in a Creek or a place where the Admiral hath not jurisdiction, the Commissioners have nothing to do to meddle with it. And the Prohibition was granted. Michaelm. 7 Jacob. Moor's against Conham in C. B. IN an action on the Case upon an assumpsit, the Plaintiff declared that Lover was indebted to him in a certain sum, for which he pawned to the Plaintiff certain goods to the value of 100 l. and the Defendant promised the Plaintiff to pay the debt, if he would deliver the pawn, and hereupon the Defendant demurred. And two points were moved, one to the form, and the other to the matter. First, the Plaintiff declared that the assumpsi: was pro diversis bonis & Catallis delivered to Lover without showing what goods or of what kind, for this is the consideration of the contract, and therefore aught to be pleaded in certainty. But resolved by the Court that the plea was good: for the goods themselves are not to be recovered in this action nor damages for them, and so they are but collateral to the action, as in 10 Edw. 3.30. In a Rescous: the Court was for taking of Cattle, without showing what Cattle, and the jury found them to be two horses; and the Plaintiff had judgement; where note that a verdict did help an insufficient Court, and 22 A●si 21 Ed. 3. a trespass was brought for taking away of Writings concerning land, without showing what they were, or the quality of the land: But otherwise in a detinue for Charters, for there the Writings themselves are to be recovered. The second and great doubt was, when a man doth promise to another that if he will deliver the pawn, he will pay the debt, if this be a sufficient consideration to maintain an Assumpsit. Foster Justice, It is not: for he that hath the pawn hath not such an interest in it as he may deliver it over to another, or make a legal contract for it, and that his delivery being illegal, he cannot by his own wrong raise an action to himself, and a man shall never maintain any action, where the consideration is illegal and not valuable. 9 Ed. 4. In an action on the Case the Defendant pleaded an accord, and that he delivered the writing to the Plaintiff which concerned the land, and it was held no plea, because the Plaintiff having land, the writings belonged to it. And cited Reynolds Case: where a man promised another 100 l. to solicit his business, and it was holden that no action would lie for the money, because the soliciting his business was illegal, he being no man of Law. Dier 355, 356. Cook, Warburton and Daniel count. Who said, that the consideration was good, legal and profitable, and sufficient to maintain an assumpsit: for he who hath goods at pawn hath a special property in them, so that he may work such pawn, if it be a Horse or Ox, or may take the Cow's milk, and may use it in such manner as the owner would: but if he misuseth the pawn, an action lies, also he hath such interest in the pawn as he may assign over, and the assignee shall be subject to a detinue, if he detains it upon payment of the money by the owner as in the 2. assize. Land was leased until he had raised 100 l. he hath such interest as is grantable over. And Foster agreed to this, because he had power to satisfy himself out of the profits. And it was agreed by the Court, that if a man takes a distress, he cannot work the distress, for it is only the act of the Law that gives power to the distress, for he hath no property in the distress, nor possession in jure as in the 21 H. 7. Replevin. A man hath return Irreplevisable, he cannot work them, for the judgement is to remit them to the pound, ibid. remansurum. vid. 13 R. 2 Brook. 20 H. 7, 1, a. 34 H. 8. B●. pledges 28.22 Edw. 4, 11. goods pawned shall not be put into execution until the debt be satisfied. And it was agreed by Cook and Warburton, that when a man hath a special interest in a thing by act in Law, that he cannot work it, or otherwise use it: but contrary upon a special interest by the act of the party as in case of a pawn. Daniel. There is difference between pawns, which are chargeable to the parties as Cows and Horses, and things that are not chargeable, and also there is a difference between pawns that will be the worse by usage as Clothes, etc. For if the pawn be the worse by usage an action of the Case will lie against him that hath them pawned to him: But contra of goods that are not the worse for usage. Cook. If I deliver goods to you, until you are promoted to a benefice, you may use them, which Foster denied. And judgement was given for the Plaintiff, and that they may be granted over, and so a good assumpsit will lie. 26 Eliz. Earl of Northumberlands Case. THis case was privately argued before the Lord Treasurer, because the parties agreed to refer themselves to the opinion of Wray and Anderson. And the case was this, the Earl of Northumberland devised by his will, his jewels to his wife. And died possessed of a Collar of Esses, and of a Garter of gold and of a Buckle annexed to his bonnet, and also of many other buttons of gold and precious stones annexed to his robes, and of many other chains, bracelets and rings of gold and precious stones. The question was if all these should pass by the devise, under the name of jewels. And both justices did Resolve that the Garter and Collar of Esses did not pass, because they were not properly jewels but ensigns of Honour and State, and that the Buckle in his bonnet, and the buttons did not pass, because they were annexed to his Robes, and were therefore no jewels. But for all the other chains, rings, bracelets and jewels, they passed by virtue of the said Will. Michaelm. 40 & 41 Eliz. Sperke against Sperke. in C. R. Rot. 2215. IN an ejectment, the Case was this. M. Sperke made a Lease of the land in question to William Sperke for 89. years if William should so long live, the remainder after his death to the Executors or Assigns of the said William for 40. years: afterwards William dies Intestate and administration is committed to Grace Sperke his wife, who entered claiming the 40. years, and the Defendant claiming by another Lease entered upon him and he brought this action. A●d●…on. Executor is as good a name of purchase as Heir is. And I conceive the points in this case are two. First, if the Administrator be an assignee. Secondly, If the lease for 40. years, be a Chattel vested in the Intestate in his life, for if it be, than his Administrator shall have it. And as to the first. I conceive that she is not assignee to take these 40 years. For in the 19 Ed. 3. It is there said that Administrators are not assignees, for administration is appointed by the ordinary and assignees must be in by the party himself and not by a stranger, and therefore an Administrator cannot be an assignee, as an Executor that comes in by the party, or as a husband for his wife. Walmesley and Glany●… accorded. But Kingsmill count. for he said, that although one could not be assignee in Deed without the act of the party, yet one may be assignee in Law by the act of the law. And so the opinion of the ●. justices to the first point was, that the Administrator could not have it as assignee, and as to the second point. Anderson said, that it could not vest: for if a man have a Lease for life, the remainder for 40. years, the remainder is void, because there is no person named to whom it is limited: but if a man make a Lease for life, and after his death to his lessee for 21. years, that is good, and the Executor shall have it as in right of his Testator. But where a man makes a Lease for years or life, the remainder after his death for 40. years to his Executors, the Executors shall have it as purchasers, for this word remainder divides it from the Testator, and makes the Executors purchasers. Walmesley, Glanvill and Kingsmill count. And their chief reason was from the intent of the parties, and their intent was that the Lessee should have an estate during life, for it is to him for 89. years, if he so long live, and because by common intendment he cannot survive those years, their intent was that his Executors should have it after his death, and that the certainty of the time might be known it was limited for 40. years. And W lmsley said, that the Administrator could not have this by purchase, for when a man takes by purchase, he must be named by an apt name of purchase by which he may be known; as if there be tenant for life, the remainder to the right heirs males of J.S. and J.S. hath issue two sons, and the eldest hath issue a daughter, and J.S. dies, this daughter shall never take any estate, because she is not heir male, she hath no name of purchase; and therefore here the Administrator cannot take by purchase, for the Administrator comes in by the ordinary, and therefore cannot be an assignee. And at last. judgement was given. That the Administrator should hold it, as a thing vested in the Intestate. Michaelm. 41 & 42 Eliza. White against Gerish. in C. B. Rot. 366. IN a Replevin the Defendant avowd for Rent. The case was this. Two persons did join in levying a fine to J. S in Fee ●ur co●…ns de droit come ceo, etc. J.S. by the same Fine renders the Lands to one of the Conusors' in tail, reserving Rent and further would quod tenementa pre●…cta remanerent to the other who is the avovee. Walmesley. The Rent shall pass: as if a man grants land for life, and also grants quod tenementa predicta remane●unt to another, these words (Quod tenementa predicta) do make a grant of the reversion: and also these renders are as several Fines, and so it shall be taken as a grant in Taile rendering Rend, and after a grant of the reversion. Glanvill accorded. Warburton. If a man makes a gift in Taile rendering rend, the remainder over in Fee, the Donor shall have the Rent and not he in the remainder. Walmesley. That is true in a grant, but not in a Fine. Anderson. If a man makes a gift in Taile rendering rend, and at the same instant grants the Reversion, and the Deeds are delivered, accordingly, this shall pass as a reversion. And after it was adjudged to be a grant of the reversion, and that the rent passeth. Crawleys Case. IN Replevin the case was thus. A Rent is granted to two during the life of J.S. to the use of J.S. the grantee dieth, and if the Rent were determined was the Question. Walmsley. The rent remains to J.S. for the grantees have an estate during the life of J.S. and by the Statute of the 27. l. 8. the use is raised and conjoined with the possession, whereby the Rent itself is carried to J.S. whereby J.S. hath an absolute estate for his life, and the life of the grantees is not material: as if Rent be granted to two for the life of J.S. if he does not grant over the rent, their lives are not material. And if they grant over and dse, the Rent shall not cease, but the grantee shall have it during the life of J.S. And here the Statute 27 l. 8. vests this in cestuy que vie, otherwise if it were before the Statute of use. quod fuit concessum per curiam. Pasch. 41 Eliz. Shaw against Sherwood. Rot. 2504. THe Executors of Shaw brought an Action of Debt for 20 l. upon a Bill, and the Bill was thus, I William Shaw have received of Thomas Pret 40 l. to the use of Robert Shaw and Eliz●beth Shaw, equally to be divided: which said sum I acknowledge myself to have received to the use aforesaid, and the same to re deliver again at such time as shall be most fit for the profit and commodity of the said Robert Shaw and E●…zabeth. Walmesley. Two points are here; First, if this be a Debt to cestuy que use, or to him who gave it. Secondly, if it be divided, so that each of them shall have an Action for 20 l. And as to the first, he held, that it was a debt to him for whose use the money was delivered; and as to the second that they shall have a debt as of several debts, by reason of these words equally to be divided. K●…g●…m. Here is no Obligation, for the words are not obligatory, but only an acknowledgement of the receipt. Glany●ll accorded. Walmesley. When he acknowledged the receipt to both their uses, without question such Receiver is a Debtor. And agreed by the Court, that admitting it was a Debt, that then it shall be a divided Debt, and not joint. Quod nota. Lane against Cotton. IN Debt upon a Bond, on condition to pay 20 l. within a month after, the Obligee had a son, that did or could speak the Lords P●…er in English, that he could be understood; the Plaintiff pleaded, that he had a son, qui loqui potui● praecationem Domini, u●intellig● potuerit; and the Defendant demurred, because it was pleaded that he had a son qui loqui potui, for that is a secret ability that cannot be known. Kingsmill. The plea is good, and shall be tried, as in case of a Writ of non com●…s mentis. Glanvill accorded: for it may be proved by the testimony of those who have heard him speak; and if he ever spoke it, it is good evidence that he had ability to speak. Walmesley contr. Because it is a secret thing it cannot be tried. Kingsmill. A man is bound in a Bond to give me 20 l. when the River of Var● is novigable, it is a good plea to say that the River is navigable, without saying that some have navigated upon it. Her● Serjeant cited a Case adjudged in a Quare impedit by the Patron against the Bishop, who had pleaded that the Parishioners were Welshmen, and that they could not understand English, and that the Clerk he presented could not understand Welsh; and the Patron pleaded, that the Clerk could speak Welsh; and upon Demur it was adjudged a good issue, and that such matter might be tried. Anderson. The issue is good, and it is at the election of the party to plead quod loqui potuit, vel locutus est. And if I am obliged to you to give you a 100 l. when I am able to go to Paul's, this may ●e tried, although in facto I never went to Paul's; and if I am able, I shall pay the money. And he cited Broughtons' Case, where in Maintenance the Defendant pleaded that he was peritus in legibus Angliae, and that he was retained to he of Council, and adjudged no good plea, for he should allege that he was Student for a certain time, and was elected by the Benchers to be a Barrister. And judgement was given for the Plaintiff. Michaelm. 41 & 42 Eliz. Swan against Gateland. Rot. 3267, or 3667. IN a ravishment of Ward, the Plaintiff demurred, that T. B. was seized of land in socage, and died, and I B his son is of the age of two years, and that the Guardianship belongs to him, because he is next friend 〈◊〉 par●… ma●…s J.B. viz. the brother of E.B. the infant's mother. The Defendant pleaded, that E.B. the infant's mother was his mother also, and that he was begotten by one Gateland on the said E.B. and the said Gatela●e died, and the said E.B. did marry the said T.B. and had issue the infant▪ and so concluded, quod erat propinquior am cousin absque hoc, that the Plaintiff is propinquior amicus; and upon this was a Demur. Hern for the Plaintiff. The question is, whether the uncle shall be Guardian in socage, or the brother of the half blood▪ and he said, the uncle should have the Wardship because there is a more natural affection between the uncle and the infant, than between the infant and the brother of the half blood; and if there be not love, he cannot be the procheme amy, although in judgement of Law he be the next of kin. 31 Ed. 3. Gawdy 157. In a Writ of Ward, the Plaintiff declared that he was next of kin of the Plaintiff the mother of the infant, and it was pleaded against him, that the infant's mother was alive; but he replied, that the mother had made a Charter of Feoffment to the disherison of the infant, and that she was attaint of Treason. And in 15 Eliz. the brother who claimed the Wardship of his younger brother, was also within age, and therefore it was ruled that the uncle should have the Wardship, because alterum ●…qu●r rege●… qui se●psum nequit. And 5 Ed. 6. the brother of the half blood is next of kin, to whom administration shall be given before the mother; for the Statute of 27 H. 8.15 says, that the next of kin shall have it, and the brother of the half blood is the next of ●in: but Guardianship shall be given by the Law to the nearest friend and that is the uncle William's contr. For although the brother be but o● the half blood. yet he shall have the Wardship▪ for the brother is the next of kin, to whom the inheritance cannot descend; and the 31 Ed. 1. does not gainsay this, for the mother was denied the Wardship, because she was attaint of Treason: for the Law will not suffer that the infant shall be in Ward to any, who may be suspected to do wrong to the infant's land, or to his person, and therefore he shall not be in Ward to any that may inherit him, for there is a suspicion that he may kill the infant. And 5 Ed. 6. Brook, Administration 47. it is agreed that the brother of the half blood is next of kin, and that is the cause of the nearness of love; and it cannot be intended that there should not be love between persons so nearly allied. And 30 Assi. 47. a remainder was limited propinquioribus de sanguine, and there it is agreed that the brother is next of blood. Warburton contr. The uncle shall have the Wardship for two causes, for there is not such natural love between two brothers of the half blood, as is between the uncle and the infant of the whole blood. Also, the Statute says, that he shall be in custody parentum haeredis, and therefore he ought to be in custody of those who are of most ancient degree, who are the parents: but one brother cannot be parent to the other. Walmesley contr. For the brother is the procheine amy; and so hath it been ruled in the time of the Lord Dyer, in 7 Eliz. in C. B. for he ought to be in Ward to him that is next of blood, and most remote in succession. And the 5 Ed. 6. proves, that he is next of kin, and such nearness must needs procure love: and although it sometimes happens that there is not such love, yet this cannot alter the Law that always intends amity; and although the Statute of Mariebirdge speaks of parents, that is intended of such as are of full age, and of sound memory; for if he be not, than some other that is the next of kin shall have the Wardship; and he told Warburton, that he would show him a report of such a Case, where it was ruled accordingly before the Lord Dyer. Hillar. 43 Eliz. Perk against Charnel, in C. B. Rot. 1703. IN an Ejectment upon a special Verdict, the Case was this; John Burly seized in Fee of land, doth devise it to his wife for life, the remainder to William Burly in tail, the remainder to his next heir-male, being of his surname, in Fee, and dies, and then his wife does intermarry with William Burly, who had the remainder in Tail, and then they levied a Fine come ceo, etc. to J.S. and by the same Fine J.S. rendered to the wife for life, the remainder to the husband in Fee, and then a common recovery was had against the husband and wife, and that was to the uses contained in the Fine: then the wife dies, and the husband dies without issue, and the right heir male of the surname of the Devisor enters, and makes a Lease to the Plaintiff, who being outed by the Lessee of William Burly, brought the Action. Williams. Here are two points; first, if this be a discontinuance ●y the wife; secondly, if the recovery bars him in the remainder. And as to the first point, when woman tenant for life, and he in the remainder in Tail being her husband, do join in a Fine, this shall not be a discontinuance of the estate Tail; for by Littleton, discontinuance cannot be by way of grant, although it be in case of a Fine, but aught to be by Livery. And as to the second point, Knivetons' Case, B●. 252. is express in the point, that notwithstanding the common recovery, yet the entry of him in the remainder is legal; for as to the point of recovery, a base Fee doth pass to the Conusee of the Fine, which is rendered back again to the woman for life, and her husband in Fee; and by the Common Law there was no remedy for him in the reversion against a recovery had against Tenant for life, 7 H. 7.12. 5 Ed. 4.2. until the Statute of Westminster the 2. which gives to him a Writ of ad terminum qui praeteriit, and by the Statute of the 23 of H. 8. he may enter: but now the question is, whether this recovery will bar him in the remainder of his entry, because the recovery was of another estate, and not against his Tenant for life. But I conceive that the wife is not in her former or ancient estate, but takes hereby a new estate; for if Tenant for life grants his estate to J.S. and his heirs, and J.S. grants a Rent, and then regrants an estate to the Tenant for life, the Tenant for life shall be liable for the Rent, Dyer 252. Harris contr. For by the rendering of the estate by the Fine, she shall be in her ancient state; and he cited the Case of Peter Cary here adjudged, who being Tenant in T. the remainder to the Earl of Devonshire, was attainted, and then the King pardoned him, and gave him his land again, and then he suffered a common recovery, and thereby barred the remainder in the Earl of Devonshire. But Anderson was against this Case, and said, that by the render the woman was in her ancient estate, and so the remainder discontinued, and the entry of him in the remainder taken away. Warburton. The Fine does make no discontinuance, for they give away but that which they may lawfully do; and so is Bredons' Case, Cook, 1 Rep. 67. and as to the common recovery, it is out of the Statute of the 32 H. 8. because she remains party to the Fine; and by the render upon the Fine, they shall be as in by a new estate, and then the recompense shall not be to the ancient estate, and therefore he in the remainder is not barred nor impeached by this Fine, but he may enter within five years. Kingsmill accorded; for it is plain, that by the render to the husband and wife, they are in a new estate, and the recompense shall go as to that, and not to the ancient estate: but contr. if it had been by way of voucher. Walmesley accorded: but notwithstanding the Fine, and recovery, the entry of him in the remainder is good; and as to the woman, it is clear, that there is no discontinuance to him in the remainder in Fee, for he in the remainder in Tail cannot discontinue, because he is seized by force of the estate Tail; as the 4 H. 7.17. Tenant in Dower, and he in the reversion in Tail, join in a Fine, this is no discontinuance of the estate Tail, because he was never seized, and therefore it is a forfeiture in the Tenant for life, although he in the remainder joined with him, by the 41 Ed. 3. but otherwise if Tenant for life, and he in remainder in Fee, join in a Fine. Vid. Bredons' Case, 1 Rep. 76. Anderson. I conceive he in the remainder may enter, for all passeth from the Tenant for life, and it is her Feoffment, and the confirmation of the other, and so the estate Tail being spent, he in the remainder shall enter for forfeiture, and the recovery shall be no bar, because it was of another estate: and also this title of entry for forfeiture shall not be barred by the common recovery, no more than if a Feoffee upon condition does suffer a common recovery, yet may the Feoffor enter for the condition broken: and judgement was given for the Plaintiff: so that his remainder was neither discontinued by the Fine, nor his entry taken away by the Recovery. 43 Eliz. Hall against Wood, in C. B. IN an Action on the Case for a Trover, and conversion of 40 l. on not guilty pleaded, it was found for the Plaintiff. Walmesley. How can an Action lie for a Trover of money, if it be not within a bag? for this Writ supposeth a loss; and when the money was lost, how doth it appear that the money found is the same money that was lost? Davies. There are many precedents in the King's Bench to prove that this Action will well lie for corn and money, and I have been of Counsel in many of those Cases. Warburton. If the money were lost in view of a third person, upon such Trover the Action will lie, for there it may be proved that it was the money of the Plaintiff. And Walmesley agreed. And note, that a precedent was shown, tempore 40 & 41 Eliz. inter Holloway and Higgs, which was thus; a master delivered to his servant 30 quarters of corn to be sold, and the servant sold them, and converted the money, and the master brought his Action on the Case for the Trover and conversion against the servant, who pleaded, not guilty, and it was sound against him; and two things were moved in arrest of judgement; first, that the master was never possessed of the money, and therefore could not lose it; secondly, because the money cannot be known, and so non constat whether it was the money of the masters, or no. But notwithstanding this Case, judgement was given for the Plaintiff, because the possession of the servant was the possession of the master; and when the servant converts this to his own use, by this the master loseth the property, and is also a conversion in the servant. Mich. 42 & 43 Eliz. Leek against the Bishop of Coventry, in C. B. Rot. 3579. IN a Quare impedit the Case was thus; Langford and Bussy were Patrons of an Advowson, to which they and their Ministers use to present by turn. Langford presented according to his turn, and his Clerk died, and then Bussy presented in his turn also, and his Clerk was deprived, after which Langford grants his Advowson in Fee to Leek the Plaintiff, and then the Bishop without any notice does collate Dr. Babington, who dies; after whose death the question was, if Leek should present, or Bussy; and judgement was given for the Plaintiff, because that notwithstanding the Church was void by deprivation, yet the Patron may transpose his Advowson over. bethel against Sir Edward Stanhop. IN Debt against Sir Edward Stanhop, as Executor to Francis Vaughan, he pleaded that he is not Administrator; and the said Vaughan gave 40 l. to his daughter within age, with power of revocation upon the payment of 20 s. and it was found that this was done to defraud Creditors, and then he died possessed of the goods, and the Defendant sold these goods, which made him Executor in his own wrong, and afterwards takes Letters of Administration. Walburton. I conceive the Plaintiff ought to have judgement, for the Statute of 21 Eliz. of fraudulent conveyances, annuls this gift of the Intestate, because he did it to defraud his Creditors, and then when he died it was assets in the hands of the Administrator. And if a Testator have goods wrongfully taken from him out of his possession, these are not Assets to the Executors or Administrators: but if they be taken out of the possession of the Administrators or Executors, they shall be Assets, for they may take them again: but for goods taken from the Testator, they have but an Action. But here the Administrator may take the goods which were given by the Intestate to defraud Creditors, for the gift was void, and therefore they shall be accounted Assets. And as to the Action, it is well brought; for when a man does administer as Executor, and then takes Letters of Administration, it is at the election of the Plaintiff to sue him as Executor or Administrator, 9 Ed. 4.33. 21 H. 6.8. 2 Rich. 2.20. 18 Ed. 4. Walmesley agreed; for the Statute of the 27 Eliz. hath made void the Testators gift, and sub●ata causa toll ●ur effectus, and the gift being taken away, the property is also taken away from the Donee, and settled in the Donor, as to any Creditor: To which the other justices agreed; and judgement was given for the Plaintiff. Trinit. 43 Eliz. George Brooks Case, in C. B. Rot. 1822. GIbson recovered in a Debt against Bro●k, as Executor to J.S. 60 l. and 6 l. damages, and upon a scire facias to the Sheriff, he returns no Assets, and then upon the estate which was in L●ndon, which the Defendant had wasted and so●d, a fieri fac●as was awarded to the Sheriff of L●…don, with a Commission to the Sheriff of London, to inquire if he had Assets at the day of the Writ, &c and by the inquest it was found that he had Assets at the day of the Writ purchased, etc. and that he had wasted the estate, which was thus returned by the Sheriff, against which the Defendant took issue that he had not Assets; and upon this was a a Demur. Walmesley. A man may avert against the return of a Sheriff, if the return be a matter collateral; as if upon a Ca●ias the Sheriff returns a Rescous, there may be an averment against this, 4 Eliz. 212. a. But if it be in pursuance of the Writ, as non est inventus, there no averment shall be taken against this: but here the return is the saying of the Inquest, and not his own saying. Warburton. I conceive he shall have an averment and traverse, or else he shall be without remedy, for he cannot have an Action on the Case against the Sheriff, because he returns that which was found by the Inquest, and so not like where the Sheriff returns falsely without such Inquest; and no attachment lies, because it is but an Inquest of office; and after it was moved at another day, and a precedent shown, 33 Eliz. in B. R. between Westner and Whitenore, and there it was adjudged that such return of the Sheriff was traversable: and Anderson and Kingsmill agreed to it; wherefore judgement was given for the Defendant, and that the issue was well taken. Day against Fynn. IN an Ejectment, the Plaintiff declared of a Lease for years of a house and 30 acres of land in D. and that J. S. did let to him the said Message, and 30 acres by the name of his house in B. and ten acres of land there, sive plus, sive minus, it was moved in arrest of judgement, because that 30 acres cannot pass by the name of 10 acres, sive plus, sive minus, and so the Plaintiff hath not conveyed to him 30 acres; for when 10 acres are leased to him, sive plus, sive minus, these words ought to have a reasonable construction to pass a reasonable quantity, either more or less, and not twenty or thirty acres more. Yeluerton agreed, for the word 10 acres, sive plus, sive minus, aught to be intended of a reasonable quantity, more or less by a quarter of an acre, or two or three at the most: but if it be 3 acres less than 10. the Lessee must be content with it. Quod Fenner & Crook concesserunt; and judgement was stayed. Smith against Jones. IN an Action of the Case upon an Assumpsit, the Case was; that the wise of Jones was Executrix to J.S. and had Assets to satisfy all Debts and Legacies. The woman dies, and the goods remained in the hand of her husband, who was the Defendant; and Smith the Plaintiff being a Legatee, demanded his debt of the husband, who said to him, Forbear t●ll Michaelmas, and I will pay you; and if this was sufficient cause of Action, was the question on a Demurrer. Davies. The promise is void, because it is after the death of the wife. Yeluerton. The Action will lie, because he hath the ●oods in his possession, and therefore is chargeable, and must answer for them, and therefore there is a good consideration. And he cited Godfrey's Case, who laid claim to a Copyhold, and the Copyholder in possession said to him. If the opinion of the Lord Cook be, that Godfrey hath a good title to it, I will surrender it to him; and because he did not surrender to him, Godfrey brought an Action on the Case, and it was adjudged that the staying of the suit was a sufficient consideration to have an Action on the Case. Yeluerton. If the promise had been to pay this Legacy in consideration he would not sue him, than it had been good. Williams. If there be no cause of suit, there is no assumpsit, and here is no just cause, for he cannot be sued for Legacies. Fleming of the same opinion, for the husband cannot be sued by the Plaintiff, and although perhaps the Legatee may sue him in the spiritual Court, yet that is only for the temporal administration. And afterwards judgement was given for the Defendant. Michaelm. 9 Jacob. Kempe and James against Laurence in C. B. Rot. 3648. IN a scire facias the case was thus, Gant having two daughters made his wife Executrix, until his daughters came to the age of 21. years, or should be married, and then the Executorship should cease, and that than his daughters should be his Executors; and the woman did recover a debt upon a bond made to the Testator, after which the daughters married the Plaintiffs, and they brought the scire facias upon the said Judgement against the Defendants as terretenants, and the Sheriff returned the Defendants terretenants, and no others, and upon Oyer of the scire facias the Defendants pleaded, that H. was sensed of those lands die Judicii reddit, and made a Lease for years to them: judgement, etc. Nichols. The daughters shall have this judgement as Executors, for they are in privity and in by the Testator, and are not like an Administrator who comes in by the Ordinary after the death of the Executor. 6 H. 8.7. Cook. 5. Rep. Brudnells' Case: and the daughters are Executors and subject to debts of the Testator. And as to the plea he said▪ that forasmuch as the Defendants are returned terretenants, they cannot plead that they are but tenants for years, and that their Lessor is not warned: for the scire facias is a personal action to have execution, but of the goods: but in a real action it is a good plea, because the lessor himself cannot plead in discharge of such action 8 H. 6.32. And note that Michaelm. 43 & 44. Eliz. Rot. 834. judgement in the very same point was given accordingly. Trinit. 9 Jacob. Information against West. in C. B. Rot. 1246. IN an Information upon the Statute of the 5 of Ed. 6. cap. 14. for buying of wheate-meale, and converting it into starch. It was resolved by three of the justices (Cook being against it) that this is not within the Statute: but they agreed, that if one bought corn and thereof made meal or oatmeal, and sold it, that this was within the Statute, for that is usual, and is no alteration, and therefore remains the same corn, but starch is altered by a trade or science, which is a mystery, and so it is not the same thing that was sold. But Cook Chief justice contra. And cited one Franklinghams' Cass Michaelm. 39 & 40 Eliza. in B. R. where one bought Barley, and because it was of such Quantity that he could not make Malt of it in his own house, he made Malt thereof in another's house by his own servants. And it was resolved. First, That the conversion of corn into Malt, in his own house, with an intent to sell it was within the Statute, unless there be a saving for it. Secondly, Forasmuch as it was in another's house, he is out of the proviso, and so within the penalty of the Statute. And in Pasch. 42 Eliz. between Reynolds and Gerret. That if a Miller buys corn, and grinds it and sells it within his house, this is within the Statute. And in the Checquer Chamber in a writ of Error there between Baron and Brise, adjudged there, that a Costermonger, who buys Pippins to sell them again was out of this Statute, because they are necessary victual. And divers exceptions were taken to the Information: viz. where he saith Ligamen anglicè Starch, whereas there is no such word, but it is Ligumen, and the anglicè will not help this mistake. Cook 10. Rep. 134. and this exception was taken by justice Winch. But Warburton justice cont. for Starch is a thing newly devised, and there is no Latin word for it, and therefore the anglice there is good. Foster justice took an exception, because the information concluded contra formam Statuti, whereas it ought to have been contra formam Statutorum. For this Statute was of force until the 8 Elizab. and then was determined until the 13th of Elizabeth, and then it was revived, so there are two Statutes; but 'twas agreed, that where a Statute continued the tempore in Tempus, and was never discontinued, nor determined, there it shall be said contra formam Statuti, and this diversity hath been twice adjudged upon this very Statute. viz. 9 Eliz. in Palmer's Case, and in the 35 Eliz. Warburton. count. for the Information doth intent only the Statute of 5 Ed. 6, and 14. and he did recite the words thereof in his Information: also this Statute only makes the offence and declares the manner of it, and no other Statute makes any addition to it, or increaseth the penalty, but only revives it to endure in perpetuum. But if a Statute doth prohibit a thing, and another Statute gives a penalty, there, upon Information upon the penalty, both Statutes ought to be recited and to conclude contra formam Statutorum, vid. Commentar. 206. Morgan's Case. And so the Statute of Usury, 37 H. 8. is revived the 13th Eliz. and an addition made to it, there such inclusion ought to be contra formam Statutorum, but where the Statute is only revived, it is otherwise: as the Statute of Perjury 5 Eliz. was continued until the 14 Eliz. and then it was determined, and 27 Eliz. was revived, yet all informations upon that Statute, are contra formam Statuti 5 Elizab. Cook. This is no good exception and cited Talbot and Sheldens Case. Hillar. 33 Eliz. who were indicted for Recusancy contra formam Statuti 23 Eliz. and in a writ of Error, the judgement was reversed, because the penalty was demanded: for the 10th Eliz. made the Offence, and the 23 Eliz. gave the penalty, but if the Information be for the offence only, there it had been good. See the new Book of Entries 182. but if there be divers Statutes in the point of Information contra formam Statuti is good, because the best shall be taken for the King. Vid. 5 H. 7. 17. 8 Ed. 3.47. ●. Pasch. 10 Jacob. Waller against the Dean and Chapter of Norwich. IN an action of Covenant the Plaintiff declared on a Lease made from the Dean, the Case was thus. The Dean in the 38 Eliz. had made a Lease for 99 years, to one Themilthorpe, and then in the 42 Eliz. made a Lease to the Plaintiff for three lives, rendering Rend, with a Letter of Attorney to make livery, and a Covenant to save the Plaintiff harmless against Themilthorpe, afterwards the Attorney makes livery sc. after Michaelmass which was a Rend day, and he being disturbed by Themilthorpe, brought this Covenant. And two points were moved in the Case. First, Inasmuch as the Lease was void to Walter, whether that the Covenant was void also. Secondly, If the livery made after the Rend day be void. Hoghton Sergeant, If the Covenant depended on the interest of the Lease, as a Covenant to repay the thing devised, or to pay rend, these had been void, because the Lease itself is void, for they do immediately depend upon the Lease, but where the Covenant is for a thing collateral, as a Covenant that the Lessor is owner at the time of the Lease, or that the Lessee shall enjoy it, or shall be discharged and saved harmless, these Covenants being collateral to the Lease and interest are good, although the Lease be void, and the 43 Ed. 3. proves this: where a Lease was made by a Baron and Feme, a Covenant by them shall not bind the wife, contra where the Covenant concerns the interest, as payment of Rent, etc. Also the Covenant was broken immediately upon the sealing of the Lease to the Plaintiff. And as to the second point, he held it was a good livery, because no time was limited in the Letter of Attorney. Dodderidge Sergeant; The Covenant is void, because the Lease is void, but contra, if it had been a Covenant to enjoy for three lives, and he relied much on the difference between tempus annorum and terminum annorum in Cook 1. Rep. 124. Nichols count. The Covenant is good, and yet in force, for when an estate is created in which is employed a Covenant in Law, there if the estate be void, the Covenant is void also, but when there is an express Covenant in Deed, there it is otherwise, although the Lease be void or voidable, as if he Covenant that the Lessee shall enjoy during the term, and the lessee resign, yet is the Covenant good although the term is gone. And as to the second point. The livery is good, for until the livery be made, the lessor shall retain his land, and no Rent is due. vid. Commentat. 423. for by intendment the possession is better than the Rent. And Cook agreed to this. And the justices agreed with nichols. Trinit. 10 Jacob Barnes Case. TEnant for life the Reversion in the Lessor, a Formedon is brought against the tenant for life, who prays in aid of him in the remainder for life, without him in the Reversion. Warburton. I conceive he shall have the Aid 7 H. 4.2. where aid is prayed against him in the Remainder and Reversion, and and he cited a Manuscript 11 R. 2. direct in the point that the aid would lie. But the other justice's cont. for the Tenant for life hath as high an estate as he in the remainder, and may plead all that the other may, but if there be Tenant for life, the remainder in Tail, there he shall have aid of the Tenant in Taile. 23 H. 6.6. 11 Edw. 3.16. If there be Tenant for life, the remainder for life the remainder in Fee, tenant for life shall have aid of them both, for else he in the remainder shall not come in to plead. 11 E. 3. aid 32. Where it is resolved, that tenant for life shall have aid of the Reversioner for life. Hillar. 28 Eliz. Watkins against Astwick. A Man makes a feoffment on condition that if he, his heirs or Executors do pay the Rent of 100 l. before such a day, that he may re-enter. the Feoffer dies, his heir within age, the mother (without any notice of the son) requests J.S. that he would pay the money for her son. And all this was found by special verdict, but it was not found of what age the son was. Clinch. If the jury had found that the son was of the age of 17 years, the payment had been good. Wray. If a Bond be upon condition that the Obligor or his heirs should pay 100 l. and the Obligor dies, his heir within age, I conceive payment by the Guardion, or by some other friend is good. And afterwards all the justices agreed. That if the Infant were within the age of 14. years, the tender of the money by his mother had been good, but contra, if he had been more than 14 years, and because no age was proved here, but that he was within age, it shall not be intended that he was within the age of 14. years. and therefore they advised the party to begin de novo, and that it may be found that the Infant was within the age of 14. years. Trinit. 25. Eliz. Moris' against Paget. in C. B. Rot. 2215. IN a Replevin, a special Verdict was found, that Sir Francis Ascough was seized of the Manor of Castor in Lincoln, which Manor extended itself into four Towns v z. Castor, North Kelsey, Dale, & ●ale: and that there were demesne lands and Freeholders in each of the said Towns, and that Moris the Plaintiff held the land where &c by Fealty and suit of Court to the Manor of Castor, and the lands did lie in one of the Towns viz. in Norch Kelsey: And Ascough being so seized, sold to the Defendant Totum illud Manerium sive Dominium de North Kelsey cum pertinentiis in North Kelsey, ac omnia ac singula Messuagia, redditus, Herriot, and all other things used or reputed as parcel thereof, with all Courts etc. To have and to hold to the Vendee and his heirs: and Moris the Plaintiff and other freeholders in North Kelsey, did attorne to the Vendee. The Question was, if the Vendee had the Manor of North Kelsey, or not. Peryam's, He has not; yet by the feoffment and attornment all the Tenants and services are conveyed to him: but not as a Manor: for a Manor is made and incorporate by continuance of time, and this entire Manor of Castor cannot be divided no more than other liberties; as if the King grant to three partners, who have three Manors, a Leet or Warren, and one of them makes a feoffment, the Feofee shall not have the Leet, and he●tted Dyer 362. a. and he said, if I grant my Manor of ●except certain Demesn lands and services, the feofee shall have the Manor, and I shall have the Lands and services in gross: and so if I have a Manor that extends into two Towns, and I grant my Manor to you in one Town, you shall have no Manor, but the lands and services in gross. Windham justice cont. For where he grants his Manor of North Kelsey in North Kelsey, there it shall be construed his Manor in reputation. Ander on agreed, for although a Manor cannot be created at this day, yet is it not so entire but it may be divided. Hillar. 30. Elizab. Sir Thomas howard's Case. A Man makes a Lease for years the 10th of May, and then the Lessor bargains and sells this to another by Deed enroled, bearing date the 10th of April, and it was entered to be conveyed the 10th of April before, but in truth it was delivered and acknowledged and enroled afterwards: And it was held that the bargain was without remedy at the Common Law, for he cannot plead that it was acknowledged or delivered after the date of the day of acknowledging it, and so was the opinion of Rhodes. Peryam and Windham, Anderson being absent: for he cannot aver, that it was enrolled or acknowledged at another day than it is recodred, because it is contrary to the Record, for it is entered, that it was acknowledged the 10 of April, and then if such a plea should be admitted, it would shake most of the Assurances in England. Note, Shuttleworth put this case. A man makes a Lease, rendering Rend at two Feasts, and if the Rent be behind at any of the said Feasts or 40. days after, and no distress to be found, that the Lessor shall re-enter, the Lessor comes upon the ground the last day of the 40. and demands his Rent, and because no distress was sound on the land at the time of his demand, he entered. But it was averred that always before this day there was sufficient distress, and the question was, if his entry were good. Fenner and Rhodes said they had seen a Report of the same Ease. 8 Eliz. That the distress ought to be on the Land on the last day, yea at the last instant of the day, which is a legal time to make a demand, or else the Lessor may enter. Walmsley. The same Ease was resolved a year ago in the King's Bench between Ward and Ware. But if it were, (and no distress to be found at any time within forty days) there if there be a distress found at any time, it is sufficient. Vid. 1. Inst. 202. a. 28 Eliz. Wood against Ash. IN a Replevin, the Ease was thus. Puttenham made a Lease of Land with a Stock of Sheep for 20. years rendering Rend, and the Lessee doth Covenant to render back to him at the expiration of the Lease 1000 Sheep of the age of three or four years, and that the Lessor grants all his Chattels, and this stock of Sheep to Elizabeth Vavafor the Defendants now wife: but in Truth, the Sheep of the old stock were all spent, and others supplied, part by increase, and part by buying of other Sheep. Walmesley, for the Defendant. The grant made by the Lessor is good; for the general property does remain in him, although that the Lessee hath a special property. To which it was answered, that if the ancient stock of Sheep were still, it had been godd; but it was not, and therefore the grant is void. Walmesley. Although the first stock was changed, yet the new stock does supply it, and is in place thereof, and shall be in the same condition as the other stock is, and therefore the Lessor shall have property in it. But the whole Court was against him: for they said, that the increase of the stock of Sheep should be to the Lessee, and the Lessor shall never have them at the end of the term: but they agreed, that if the lease were of the stock with Lambs, Calves, and Pigs, there the increase belongs to the Lessor. And all the Court took this difference, sc. when a lease is made of dead goods, and when of living; for when the lease is of dead goods, and any thing is added to them for reparations or otherwise, the Lessor shall have this addition at the end of the term, because it belongs to the principle: but in case of a stock of Cattle, which hath an increase, as Calves and Lambs, there these things are severed from the principle, and Lessor shall never have them, for then the Lessor shall have the Rent, and the Lessee shall have no profit. Trinit. 29 Wiseman against Rolfe. in in C. B. Rot. 1454. IN a Writ of right the Case was thus. A man selfed of Land in Fee makes his will, and gives to D. his wife such Land for life, the remainder to T. his son and heirs of his body, and also gives to T. his son his Land in B. and also his Land in C. and also he gives his Land called Odyum to the seed of his son habendum all the demised premises to his T. son and the heirs males of his body. The Question was it T. should have an estate in Tail in B. and C. or if the last words shall relate only to that which was last named. Fenner for the Plaintiff. For the last Clause is a new Clause, and shall not be preferred to the first, for it gins with a verb viz. I give my Land called Odyum, and therefore the limitation afterward shall be referred only to this. And 10 H. 7.8. There was a grant by Dedi custodiam. Parci & Arbores vento prostrate. The Grantee shall have the trees by this Clause, and 14 Eliz. A man deviseth thus. I give my Manor of C. to my second son: Item I give my Manor of S. to my second son to have and to hold to him, and to his heirs. And by Dyer, Welsh and Weston he had an estate but for life; but Brown cont. for if a Lease be made to A. B. and C. successively, it is adjudged that they are joint-tenants, but if it be to them as they are named, they shall have it one after the other: and if a devise be to one and his heirs, and after to another for life, the Law will construe that the estate for life is to proceed, for that words of Relation in Wills shall be taken stricttly, as if a devise be to A. and his heirs of his body, and he does devise other land in Forma praedicta, this shall be but for life. Walmesley count. and said that this limitation did go to all, whereof no limitation was made before; for the rules of reason are uncertain, and therefore such matters shall be expounded according to the best sense that may be, and here the sense is most natural to refer it to all, and the word all imports this▪ and the Case of the fourth of Elizabeth (under favour) accords with this viz. that the Devisee shall have Fee in both. But if the Devise had been, I devise D. to my son Thomas, and also to him and his heirs the Manor of S. there he shall have D. but for life. And if a man devise to his 4. sons, A. B. C. and D. to have to the persons last named to them and their heirs, there all shall have Fee. 19 Ed. 4. In a praecipe of a house and an acre of land in three several Towns, and that the Defendant Ibidem ingressus est, and did not say into the house and land, and yet it was held good. Periam and Rhodes. He shall have an estate Taile in all, and the relation shall be to all. Anderson doubted at first, but agreed afterwards and judgement was given accordingly. 32 & 33 Eliz. Mathewson against Trott. in C. B. Rot. 1904. UPon a special verduit, the Case was this. A man seized of land in soccage devised it to his younger son, and died seized, the elder son enters and dies seized, and his heir enters, and the younger son enters upon him, the Question was, if his entry be taken away by this descent. Walmesley. It is not, and he compared this case, to a title of entry for a condition broken, or a Conusee of a Fine upon grant and render etc. in which Cases not descent shall take away entry. Anderson. The Devisee hath interest presently, and the land does not descend; for the devise prevents the descent, and the Freehold is presently in the Devisee, and the Statute 32 H. 8. which gives power to Devise lands, does make a Title in the Devisee as a Title of entry for condition of Mortmain, and the Devisee shall not have an ex gravi querela upon this Statute, but he must enter. Walmesley. The Devisee hath not a Freehold presently, for if it were so, the Devisee at the Common Law ought not to sue an Ex gravi Querela: but certainly if the freehold be in the Devisee, his entry is taken away. And afterwards judgement was given by Anderson that descent does not take away the entry of the Devisee, but delivered no reason for it. Hillar. 33 Eliz. Mosgrave against Agden. Rot. 2529. IN an action of the Case on a Trover and conversion of six barrels of Butter. The count was that they came to the hands of the Defendant, and after the trover they were impaired, and decayed, ratione negligentis custodiae. And the Court held clearly that the action would not lie, for he who finds goods, is not bound to preserve them from putrefaction, but it was agreed, that if the goods were used, and by usage made worse, the action would lie. 44 Eliz. Ayer against joiner, in C. B. Rot. 2529. IN a second Deliverance, it was said by the Court, that if Lessee for years does assign over his term, and yet continues possession, that he hath but a naked possession, and no interest nor estate, but the estate and interest does remain in the grantee, so that he may grant it over. And Walmesley said, that if the Lessee makes waste, the Lessor may have an action of waste against him: and there is a cas●, that if a man makes a Lease, and the Lessee waves the possession, and a stranger commits waste, the Lessor shall have an action of waste against the Lessee, but the principal question was upon the pleading. Taylor being Lessee for years, 9 Elizabeth did grant and assign this to Air the Plaintiff. The Defendant pleaded, that before the grant made to Ayer sc. 8 Elizabeth Taylor did grant and assign his estate to the Defendant, without traversing the gift made to the Plaintiff. Williams. There needs no traverse, for being granted the 8 Elizab. it is impossible it should be granted 9 Eliz. 2 Edw. 6. and 1 H. 5. Anderson. He ought to travers, for it is impossible to confess and avoid a grant by confession that was granted to another before, for if it were so, the second grant is void, and so being so, confessed, here ought to be a travers. Walmesley count in 32 H. 6. it is sufficient to say, that at another day, etc. there was another arbitrement, etc. for by that the first arbitrement is void in Law. And it is a good plea in a Will, that after that, there was another Will made, without Traversing, and there is difference between Lands and Chattels: for land may be gotten out of a man by wrong, and therefore it may be that after the feoffment the Feoffor entered and it disseised the Feoffee, and did infeoff another, but it cannot b● so here of a term for years for no man can take it away from the Lessee by wrong. Glanvill and Kingsmill count. There must be a Traverie, for there aught to be a confession before there can be an avoidance, but here he does not confess the grant, but pleads matter that denies it being granted. And at last Anderson gave judgement that he ought to Travers. 42 Eliz. Rudd. against Topsey. in C. B. Rot. 135. IN a Quare Impedit. The jury found that Edward Capell was seized of an Advowson in Fee, and did let it to the Defendant for years and during the Lease he presented the Defendant, and the doubt was whether this were a surrender or an Extinguishment. And it was held by all the justices, that this could not be a surrender, but is clearly an extinguishment: For if a man does present to his own Church as Proctor to another, by this he looseth his advowson. Nat. Br. 25.17 Ed. 33.24. H. 6. Hillar. 42 & 43 Eliz. Forrest against Ballard. Rot. 2480. AN Audita querela was brought upon a Statute, which was acknowledged before a Mayor, who had no power to take it. Anderson. An Audita querela will not lie upon a void Statute. But Kingsmill, Walmesley and Warburton count. and Walmesley cited 〈◊〉 Br. 102. where an Audita querela was brought upon a forged Statute, and there it would lie upon a Statute made by Duress: 20 Ed. 3.28. Trinit. 40. Eliz. Goodrick against Cooper. in C. B. Rot. 1259. IN a Replevin the Defendant justified for Rent granted to the Master and Scholars of Emanuel College in Cambridge. And the jury found, that one Spendelose being seized of the land where &c. by his Deed did grant to the said Master and Fellows, a Rent Ch. of 40 l. per annum for ever: and that Spendlose did seal his part of the Indenture, and delivered it to the use of the Master and Fellows to one J.S. to deliver it accordingly, but there was no dead to show their receipt thereof: and then they sealed the other part but they made no Attorney to deliver it, and it was ●ound that the Rent was paid for divers years after. Walmesley. Although no Letter of Attorney were made, yet it is good, for by their sealing of the Counterpart there is a sufficient agreement to the grant. As it a Reversion be granted to a Corporation by Deed, although they cannot accept of this, but by Attorney, yet if they bring a waste, this is a sufficient agreement to vest it in them. Quod assi Justiciarii concesserunt, And judgement was given for the Avowant. Michaelm. 43 & 44. Eliz. Claygate against Bachelor. in C. B. Rot. 3217. IN debt upon a Bond of thirty pound, the Condition was, that if Robert Bachelor, son to the Defendant, did use the Trade of Haberdasher as journeyman servant, or Apprentice, or as a Master, within the County of Kent, within the Cities of Canterbury and Rochester, within four years after the date, that then, if he pay twenty pound upon request, the Obligation to be void. And all the justices agreed that the condition was against Law, and then all is void, for it is against the liberty of a Freeman, and against the Statute of Magna Carta cap. 20. and is against the Commonwealth. 2 H 5. & 5. And Anderson said, that he might aswell bind himself, that he would not go to Church. And judgement was given against the Plaintiff. Michaelm. 43 & 44 Eliz. Dogget against dowel. in C. B. Rot. 65●. IN an action on the Case upon an Assumpsit, The Plaintiff declared, that at the request of the Defendant he had lent to him 30 l. the 10th day of May 5 Eliz. and the Defendant in consideration thereof, viz. the second day of May aforesaid did promise and assume upon himself, that he at the end of the year would lend the Plaintiff other thirty pounds for a year, or give to him five pound. It was said, that the consideration is good, for although the promise was made at another day, yet is it in pursuance thereof, so that in Law it shall be accounted all at one time, and is not like to the case in Dyer 372. where the Master promised one who was bail for his servant, that he would save him harmless, this is no consideration, for the Ballment was of his own will, and was executed before the Assumpsit, but if the Master had first requested, and afterwards assumed, there it is good; and so was it adjudged in the case of one Sydenham against Worthington, Trinit. 27 Eliz. Rot. 748. Where the request was before, and the promise after, and there it was a good Assumpsit. Warburton agreed. And it is like as if I should say to you, do such a thing, and I will give you five pound, this is no good contract. But all the justices on the contrary; for when at the first day the Plaintiff did lend to the Defendant thirty pound that was absolute, and the speaking on the second day cannot have such reference to the first agreement, that it shall be accounted all one. Anderson. If I say to one: In consideration you will serve me, for a year, I will give you five pound, here is no cause of action, for the consideration is precedent and not mutual, and so judgement was entered for the Defendant. Hillar 41 Eliz. Wentworth against Wright. Rot. 2529. IN a Quare impedit, two points were moved 1. If the Parson be made Bishop, whether the Patron should present or the King by his prerogative. William's. The King shall, for before the Statute the Pope should present, and the reason was, because the Bishop had received his presentment gratis from the Pope: and by the same reason the King now shall present, for there is no reason the patron should, for by his precedent presentment he hath dismissed himself until resignation or death, as if a man lets land for another man's life, he shall not have the land during the life of Cestuy que vie, & great mischief would be, if it should not be so, for else all the presentments, that the King hath made, shallbe usurpations. The second matter was, that no presentment is pleaded against the King by the Patron, for it is pleaded that the Parson was admitted and instituted, but not that he was inducted (but the Court held it good notwithstanding that omission) But as to the first point, the Court asked Williams, if he could show precedents that the King should have such presentment, for they said, that the usage by the Pope is no argument at all, for that he used to usurp many things. Walmesley, I conceive this custom began by the Pope's usurpation, but he said, there is a Book in the time of Ed●. 2. where this point is argued and adjudged, that the Patron shall present and not the King. William's showed eight or nine Precedents in the time of H. 8. that the King used to present in such case, but all of them were between spiritual persons. And the Court said, they did not regard those precedents, for all spiritual persons were the Pope's servants vid. 6 Elizab. 72.8. South against Whitewit. IN a prohibition, the case was thus, the wife of Whitewit had spoken scandalous words of South, and therefore the was excommunicated by the high Commissioners, and by Letters Missive a Pursuivant came at twelve of the clock at night, and broke the house of Wo●tewit and took the body of Whimbly ew●… wife, who was rescued: wherefore Whitewit her husband was called before the Commissioners, and hereupon Whitew t prayed a prohibition. And the question was, if a Pursuivant could break a house by such Commission or not. And it was agreed, that by the Common Law, neither the Pope, nor any other spiritual judge had any thing to do with the body and goods of any one, for only the sword spiritual belongs unto them. Walmesley: At the Common Law, after Excommunication a Capias Excommunica●um was awarded, and I conceive this writ is of force at this day, and is not taken away by the Statute of 5 E●…z. Kingsm●ll agreed, for this Statute gives power only to correct the spiritual law, and to take away the authority of the Pope, but gives the same means to execute it as before, and he further said, that the Statute that did erect the Court of Wards, doth appoint a Seal belonging to it, and other process according to the course of the Common Law: and therefore by the same reason, if this Statute of ● Eliz. intended to give them such authority, they would have appointed a Seal also, and a course according to the Common Law, but as the course is here used, a man may be robbed in his house by a beggarly Pursuivant which is no Officer known by the Law. And so was the opinion of the justices. Pasch. 40 Eliz. Goosey against Pot, in C. B. IN a Replevin the Case was thus; two Hundreds were adjoining together to two several Manor of two several persons, and the avowant was seized of one of them, and he prescribed that all the Tenants of the other Hundred have used to make suit to the Leet within his Hundred; and also that the Lord of the other Hundred used to appear, or to pay him 4 s. pro anno futuro; and if it were not paid, the Defendant prescribed, that he and all those, whose estates he hath, have used to distreyn any Inhabitant within the Hundred for the same; and therefore for 4 s. not paid, he did avow the Distress whithin the Manor of the Plaintiff, who was one of the Inhabitants. Williams. A man may prescribe by a que estate in a Hundred, for a man may have it by disseisin, and there are divers precedents which the Prothonotaries have showed me to warrant this in a Replevin, for the seisin is the matter of the title. And to this Littleton's rule may be added, that of all things which lie in grant, and whereof a man cannot be disseised against his will, a man shall not plead a que estate, Kingsmall. A que estate cannot be pleaded of a Hundred, unless if be appendent to the Manor; and a second matter was moved in this Case, viz. that he prescribed to distreyn the Cattle of a stranger for the essence of the Lord. Williams. It is not good, by the 41 Ed. 3. but by the 47 Ed. 3. for suit and service, the Cattle of the Lord may be distreyned on any land within the Hundred. Anderson. I do agree to the Case of my Lord Dyer, that the Cattle of a stranger cannot be taken for a Herriot. Walmesley. In the 12 of H. 7. it is said by Fineux, that a Lord of a Manor may enlarge his services by prescription, and so the Cattle of a stranger may be taken: but for a personal matter, as for amercement in default of suit, no stranger may be distreyned. And afterwards agreed by all the justices, that the stranger's Cattle could not be distreyned. Holt against Lister. IN a Replevin the Case was thus, he in the reversion after Tenant in Dower, grants it over to the use of himself for life, the remainder to his nert son in Tail, the remainder to the use of himself in Fee, and after this he levyes a Fine to the Plaintiff and his heirs of land which he claimeth the haereditate sua, after the death of the Tenant in Dower. The Plaintiff brought a Quid Juris clamat against the Tenant in Dower, and upon non sum informatus, judgement was given that the Tenant should attorn, and now he prayed that she should not attorn, for if she atterns, she will torfeit her estate. Walmesley. If he in the remainder for life grants over by Fine, it is no forfeiture, for he gives no more right than he hath; and so hath it been adjudged in the time of my Lord Dyer. Glanvill. I agree to that: but in this Case he grants that which he hath de haereditate sua, and this recital will make a forfeiture; and than if the Tenant in Dower attorn, this is a forfeiture. Anderson. This attornment is no forfeiture, because it is by judgement of the Court. Walmesley. I agree, for the Grant itself is no forfeiture, unless it be by reason of the recital, but the Attornment shall have relation only to the substance of the Grant. And it was much disputed between Walmsley and Glanvill, If Lessee for life of a Rent grants this in Fee by Fine, if this be a forfeiture; and Walmesley vouched a judgement, that it was no forfeiture; and Glanvill vouched 31 Ed. 3. Grant 60. to the contrary, and 15 Ed. 4.9. by Littleton. If Lessee for life of a Rent grants this by Fine in Fee it is a forfeiture, by reason of the Estoppell, otherwise if it were by Deed. Vid. 1 H. 7.12. Mich. 32 & 33 Eliz. Marshes Case, in B. R. Rot. 1011. MArsh and his wife brought a Writ of Error as Executors to Nicholson to reverse an Outlawry upon an Indictment of Felony pronounced against the Testator. Altham of Grays-inn. The sole point was, whether the Executors may have a Writ of Error, and I hold that they may; for if there be no heir, it is great reason that the Executors should have it, for otherwise the erroneous judgement cannot be at all reversed; and every one shall have a Writ of Error that is damaged by the erroneous judgement, and Executors have right to the personal estate to have Error: For if a man recovers damages in a Writ of Cozenage, and the land also, and dies, his heir shall have Execution for the land, and the Executors Execution for the damages, by the 19 Ed. 4.5. 43 E●. 3. 13 Ed. 4.2. If a man does recover my villain by a false Verdict, the heir shall have an attaint for the villainy, and the Executors for the damages, and a Writ of Error shall be given to him to whom the right of the thing lost doth descend, as it was adjudged in the Case of Sir Arthur Henningham, and he cited two precedents in the point, 1 T●…ity, 11 H. 8. Rot. 3. where an Administrator brought a Writ of Error to reverse a judgement given in an exigent. Vid. 2 Rep. 41. a. Cook contr. In Natura Brevium, 21 M. he says, an Executor shall have a Writ of Error upon a judgement given in Debt against the Testator and the heir shall have Error to reverse Outlawry in Felony, and to restore him in his blood, and he said that it was part of the punishment in Felony to have the blood corrupted, & sic filius portat iniquitatem patris; and by reason of the attainder, he cannot inherit any Ancestor; wherefore he having the damage, it is reason that he should reverse it. And although Executors shall have a Writ of Error for Chattels personal, yet they shall not have one when they are mixed with things real, 5 H. 7.15.18 Ed. 4. If Writings be in a Box, the heir shall have the Box, because real things are more regarded than personal. Nevertheless in this Case the Writ of Error is in a real Action, for the Law says, that it is in the same nature as in original action, whereupon it is brought; as if Error be brought to reverse a judgement given in a personal action, the Writ of Error is personal; and so in like manner is it real, if the first action be real, 47 Ed. 3.35. 35 H. 6.19, & 23. and although the first action be mixed, yet the Law does rather respect the reality, 30 H. 6. Barr. 59 where two brought an assize, and one did release, and there it was said, that although this were a mixed action, yet it shall be according to the most worthy, and that is the reality: and 16 Assi. 14. divers Disseisors being barred in an assize, did bring a Writ of attaint for the damages, and summons and severance was suffered, for damages were joined with the reality: and Stanford, 184. If a man be indicted before a Coroner, quod fugam fecit, if he after reverse the Indictment, yet he shall have his goods, for de minimis non curat Lex: But note, that the justices said, that the fugam fecit was the cause of forfeiture of the goods, and not the Felony. And as to the precedents, he agreed to the Case of the 18 H. 7. for an Executor shall have a Writ of Error to reverse judgement given in an exigent, for there nothing but the goods are forfeit, 30 H. 6. Forfeiture 31. and for the precedent in 11 H. 8. it cannot be proved that the Outlawry was for Felony. Vid. Rep. fol. 3. 33 Eliz. Lily against Taylor, in B. R. Rot. 467. MArsh seized of the land in question, did devise this to Rose Lily for life; and if she fortuned to marry, and after her decease should have any heirs of her body lawfully begotten, than that heir should have the land, and the heirs of the body of such heir; and for default of such issue, the land shall revert to Philip Marsh, his son and his heirs, and the question was, if the husband of Rose shall be Tenant by the courtesy, or not; and so if Rose had estate Tail, or for life only. Godfrey. She hath estate but for life; and he cited a Case adjudged in Benlowes Reports, 40 Eliz. where lands are devised to A for life, and after his decease to the male children of his body, and it was adjudged that the male children have an estate Tail by purchase, and nothing by descent, and so A had nothing but for life. Gawdy agreed, for she hath but for life, and when she dies, her issue shall have it. Popham agreed, if the words were, that if she had issue, that he should have it. But Clench held, that she had an estate in Tail executed, and that her husband shall be Tenant by the courtesy. Fenner. The issue is as a Purchaser, for the Devisor intended that Rose should not have a greater estate than for life. And also it was agreed by all the justices, that a Devise to a man and his heir shall be accounted a Foe-simple, for that the word, heir, is collective: and so is the 29 Assi. where land was given to a man, and to the heir of his body, & uno haeredi ejusdem haeredis, this is an estate Tail. Popham. He shall be Tenant by the courtesy; and he agreed, that heir of the body was a good name of purchase: but if a Franktenement be limited to his Ancestor, and by the same Deed it is also limited to his heir, the heir shall be in by descent. But Fenner on the contrary. Pasch. 38 Eliz. Bolton against Bolton. Rot. 882. & 582. TEnant for life being impleaded, doth pray in aid of him in the Reversion, who join and lose, etc. and the Tenant for life brings a Writ of Error, and the Record is removed, and he in the remainder brings a Writ of Error also, De Recordo quod coram vobis residet; and the question was, upon which Writ of Error the judgement should be reversed: and it was objected, that if it should be reversed by the Tenant for life, that he in the remainder should be restored. But Gawdy, Fenner, and Clench contr. Who held, that it should be reversed at his suit who first brings the Writ, as in case of Interpleader, it shall be always upon the first Writ. And notwithstanding the removing of the Record by the Tenant for life at the next term, the Court said, it was at their discretion to reverse this at suit of an● of the parties, as they pleased: and because they observed some indirect practices by him in the remainder, it was reversed at suit of Tenant for life. Pasch. 5 Jacob. Sir Henry Dimmocks Case, in the Court of Wards. TEnant of the King by Knight's service, bargains and sells his land to Sir Henry Dimmock and his heirs, and Sir Henry Dimmock dies, his heir within age, and then the Deed is enrolled; the question was, if the King should have premier seisin. Trist. The King shall not, because Sir Henry did not die within his homage, but the land was in the Bargainor; as if there be a Bargainee of the reversion, and the Tenant makes waste, the Bargainee shall not have waste, unless the Deed be introlled before the waste committed, 3 Jacobi. Bellingham against Alsop. Bargainee before inrolment sells the land over, and it was adjudged that the second bargain was void, 10 Eliz. Mockets case. Disseisee releaseth to the Bargainee of the Disseisor before inrolment, and adjudged void. 5 Eliz. in Pophams' Case it was said, that the Statute of inrolments had altered the Common Law; for now by the delivery of the Deed, no use is raised until it be enrolled, But all the justices held, that the heir should be in Ward, and pray premier seisin if he were of full age; for the Statute says, that no use shall be, unless the Deed be enrolled: but if it be enrolled, it passeth ab initio, and then the Bargainee shall be Tenant ab initio. But it was also agreed by all the justices, that the wife of Sir Henry shall not be endowed, and that Rend paid to the Bargainor at the Rent-day incurred after the bargain is good, and the Bargainee hath no remedy, because it is a thing executed. Trinit. 12 Jacobi. Cuddington against Wilkin, in C. B. Rot. 924. IN an Action of the Case for calling the Plaintiff Thief, the Defendant justified, because the Plaintiff had stolen Sheep, 37 Eliz. the Plaintiff replied protestando, that he had not stolen Sheep, and pleaded the General Pardon, 7 Jacobi, upon which the Defendant demurred, and adjudged for the Plaintiff, for the Pardon had so purged and abolished the Offence, that now he was no Thief, 1 Ed. 3. Corone 15. 2 Ed. 3. Corone 81. 1 Assi. 3. So if one call another Villain after he is enfranchised. And in one Baxters Case, in Banco Regis, it was adjudged, that where a man was accused for Perjury, and acquitted by Trial, if he be afterwards called perjured, he shall have his Action on the Case. And judgement was given for the Plaintiff. Seaman against Cuppledick. IN a Trespass of Assault and Battery, the Defendant justified in defence of his servant, scil. that the Plaintiff had assaulted his servant, and would have beaten him, etc. and the Plaintiff demurred. Yeluerton. The bar is good, for the master may defend his servant, or otherwise he may lose his service, 19 H. 6.60. a. Crook justice. The Lord may justify in defence of his villain, for he is his inheritance. William's contr. The master cannot justify, but the servant may Justify in defence of his master, for he owes duty to his master, 9 Ed. 4.48. Yeluerton. The master may maintain a plea personal for his servant, 21 H. 7. and shall have an Action for beating his servant; and also a man may justify in defence of his cattle. Cook. A man may use force in defence of his goods, if another will take them; and so if a man will strike your cattle, you may justify in defence of them; and so a man may defend his son or servant, but he cannot break the peace for them: but if another does assault the servant, the Master may defend him and strike the other, if he will not let him alone. Williams. It hath been adjudged in Banhams Case, that a man cannot justify a battery in Defence of his soil, a fortiori he cannot in defence of his servant. vid. 19 H. 6.31. 9 Ed. 4.48. Trinit. 12. Jacob. Drury against Waller. IN an action on the Case upon a trover and conversion of 200 l. delivered by the Plaintiff to the Defendant; and upon not guilty pleaded, the Question was, if denial by the Defendant to pay it upon request, would bear this action. And the case of Isaac was urged, who brought an action of Trover, etc. for 200 l. in a bag, and by verdict it was found that demand was made thereof, and a denial to pay it. And by Dodderidge it was a Conversion. Crook accorded, but Haughton doubted the case. And Man Prothonotary said, that he remembered a precedent in the Case, where it was resolved, that in such case denial of a horse was a conversion. Haughton. I remember an action of Trover was brought for a Trunk, and it was ruled there, that if one hath Timber in my land, and he demands liberty, to carry it off my Land, and I deny it, this is not a sufficient conversion. Dodridge, there is great difference in the Cases, for a Horse or money cannot be known, if they be used, but Timber may. Et adjournatur. Michaelm. 8 Jacobi. Alfo and Dennis against Henning. in B. R. Rot. 969. IN an action of Covenant, the Case was thus. Thomas Tavener by Indenture primo Jacobi, did demise land to one Salisbury for 7. years: and by the same Indenture Salisbury did Covenant, grant, condescend and agree with Taverner his heirs and assigns, that he, his Executors and Administrators should pay to Taverner his heirs and assign 75 l. per annum. And after Taverner demised the same land, to Mary Taverner for life, and he demised the reversion for 40. years to the Plaintiff, if he so long lived, and the tenant attorned, and for rend due at the Feast of St Michael he brought his action of Covenant. And the first question was, if this were a sum in gross, because the Lessee covenanted to pay this as a Rent. And resolved by Cook Chief justice, and the Court, that this is a good reservation of Rent, for it is by Indenture, and their intention was to have it as a Rent, and the words of the Indenture shall be accounted to be his, who may most properly speak them. 26 H. 8.2. 10 Eliz. 275. 22 H. 6.58. 28 H. 8.6. And the Case between Whitchett and Fox in Replevin this term, where a man made a Lease for 99 years rendering rend, and the Lessee covenanted by the same deed with the Lessor, that he would not alien without his assent upon pain of forfeiture, and after he aliened, and the Lessor entered. And it was held by the Court that this was a condition, although the Plaintiff did covenant: for being by Indenture, they shall be the words of both, and the words sub paena ●orisfacturae are the words of the Lessor. The second point was, if the assignee for 40 years, may have a Covenant, and it was held he might; for it is for payment of rent, and if the Lessee covenants to do any thing upon the land, as to build or repair a house, there a covenant will lie for the assignee, by the common Law, but if it do not by the Common Law, yet it is clear that it will lie by the Statue of the 32 H. 8. And the Court held, that an Assignee of part of the reversion might take advantage of the condition or covenants, so that he hath part of the reversion of all the thing demised. And Cook, Chief justice said, that the opinion of Mourson 14 Eliz. 309. a. is good Law. Pasch. 36 Eliz. Butler against. Archer. IF two joint-tenants be of land holden by Herriot service, and one dies, the other shall not pay Herriot service, for there is no change of the tenant, but the survivor continues tenant of the whole land. But if a man seized of land in Fee, makes a feoffment to the use of himself and his wife, and the heirs of their two bodies begotten, the remainder to the right heirs of the husband, and the husband dies, a Herriot shall be paid, for the ancient use of the reversion was never out of the husband Michaelm. 29 & 30 Elizab. Stephen's Case. in C. B. IN an Ejectment, the Case was, Sir William Beale made a Lease by Indenture to William Pile and Philip his wife, et primogenito proli Habendum to them and the longer liver of them successively during their lives, and then the husband and wife had issue a daughter. And it was holden by three of the justices, that the daughter had no estate, for that she was not in esse, at the time of the grant. Michaelm. 30 & 31. Eliz. Lewin against Mandy. in C. B. Rot. 2529. IN a Replevin the Defendant avowed for 20 l. Rent, which was pleaded to be granted by Lovelace and Rutland by Fine to Stukley and his heirs, who being seized thereof, did recite that he with 7 others were Plaintiffs in a Writ of Covenant against Lovelace and Rutland, upon which a Fine was levied, by which Fine the said Lovelace and Rutland amongst other things, did grant a rent of 20 l. out of the Manor of D. and other Lands to the said Stukely, who granted it to Hoveden, under whom the Defendant claims in Tail. The Question was if this were a good grant, because, there are many misrecitalls in the Indenture: for whereas he recited that in the Writ of Covenant for the fine Lovelace and Rutland were Defendants, in truth they were Plaintiffs, and Stukely and the others Defendants, and whereas he recited that the said grant was made to him, it was made to him and his heirs, also he said, that the said Rend Charge amongst other things was granted whereas nothing but the 20 l. Rent was granted, and that only out of the Manor of D. and not out of other Lands. Anderson. If a man recites that he hath a Rent of 10 l. of the grant of J.S. whereas he hath this of the grant of J.D. yet is the grant good. And at last it was adjudged that the grant was good. Note that Fenner at this time said, that it had been resolved by Anderson and Gawdy and other justices very lately. That if the King's Tenant dies, his heir within age, yet the heir at full age before livery sued may bargain and sell by Deed enrolled, or make a Lease for years and it is good: but if he makes a feoffment or leavy a fine ●ur conusance de droit come ceo, etc. this is void, because it cannot be without intrusion upon the King. Trinit. 39 Eliz. Oldfeild against Wilmore. in C. B Rot. 2715. IN Debt upon a Bond to perform the award of J.S. who did award that the Defendant should pay 10 l. or cause two strangers to be bound for the payment thereof, the Defendant pleaded performance, the Plaintiff replied that he had not paid the money, and the Defendant demurred. Walmesley for the Plaintiff. For although the award be in the disjunctive, yet forasmuch as it is void as to one part, now upon the matter it is single, and on the non payment of the ten pound is forfeit 17 Ed. 4.5. Windham and Rhodes, held that the Plaintiff should have pleaded so much of the award as was for it is a thing entire, and the Law will adjudge that one is only to be done, because the other is contrary to the Law. Anderson and Peryam. The plea is good, for a man shall not be compelled to show a void matter, and although the Defendant had caused the two strangers to be bound, the obligation is broken, for as to this arbitrement, it is merely void, and at another day the Plaintiff had judgement. Goodridge against Warburton. IN an Ejectment. The jury gave a special verdict, that Francis was seized of the land in Tail, and suffered a Recovery to the use of him and his heirs, and afterwards did devise the same lands to his wife Margery until his daughter Prudence came to the age of 19 years, and then that Prudence should have the Land to her and the heirs of her body, upon condition to pay twelve pound per annum to the said Margaret during her life in recompense of her dower, and if she failed of payment, than Margaret should enter, and hold the Land during her life, and afterwards, it shall go to Prudence as before. And after this John Francis the heir did reverse this recovery, by a Writ of Error, and entered upon Margaret, and she brought her Writ of Dower, and was endowed of the third part, and then she levied a Fine of that third part to the said John Francis, and he enfeoffed Tyndall, who made the Lease to Goldsing, and then Margaret married Warburton, and Prudence came to the age of 19 years, the Rent of twelve pound is not paid, and Warburton and his wife entered, and Goldsing brought this action. Walmesley. By the recovery of the third part in the Writ of Dower, the Rent of twelve pound, which was in recompense thereof is gone. For at the Common Law, if a woman recover in Dower, she hath waived that which was assigned to her in lien of her Dower, as in case of Dower ad ostium Ecclesiae, and 10 Edw. 4. If the husband discontinues the Land of his wise, and she brings a Writ of Dower, she is concluded to have a Cui in vita. Shuttleworth count. By this recovery the estate tail is revived, yet as this case it is is, not material, for because he entered without a sult, he is a Disseisor, and that was agreed by all at the Bar and the Bench. And he cited 26 H. 8. 3d. 4th H. 7.11. And I conceive that the Dower will not conclude her of the twelve pound per annum, for it is not a Rent, and the title to have the Land for her jointure for nonpayment the Rent was not in esse at the time of the recovery of her Dower, but afterwards, as if a Lease he made to a woman who marries the Lessor, who dies within the term, and the wise enters, this shall not conclude her Dower, after the Lease is expired by the eleventh of H. 4. Also the twelve pound is not appointed to be issuing out of the Land, and so it cannot be a jointure, and therefore, the wife is at large to have the twelve pound, and her Dower also. But the Court held, that she could not have her jointure, for by the recovery of the Dower her jointure is barred, for the Rent was given her in recompense of her Dower, so that it cannot be intended that she shall have Rend & Dower also, wherefore it was adjudged that her entry on the Land was not good. 30 & 31 Eliz. The King against the Bishop of Canterbury and Hudson. Rot. 1832. IN a Quare impedit, Hudson the Incumbent did plead, that King Edw. the 4th did grant the Rape of Hastings, Et bona & catalla Fellonum Fugitivorum & ategat of all Residents and non-resident within the said Rape to the Earl of Huntingdon. And pleaded that John Ashborne was seized of the Manor of Ashborne, and of the advowson appending to it, and held the same of the Earl of Huntingdon as of his Rape of Hastings, and that the said John Ashborn, was outlawed, during which, the Incumbent of the said Church died, and the Earl presented the said Hudson. Shut. I conceive this avoidance does not belong to the Earl, by reason of this grant, for by the same Patent liberty is given to the said Earl & his heirs to put himself into possession, and of such things as he cannot put himself into possession, they will not pass, and here this is a thing in action, which by these words will not pass. 19 H. 6.42. by the grant, de Catalla Fellonum obligations do not pass. Walmesley, Stanford in his prerogative, saith, that by the words, Bona & catalla the King shall have the presentation to the Church of him that is outlawed or Attaint, and by the same reason he may grant it by such a name, and although the party cannot seize such a thing, yet it shall pass 39 H. 3.35. Rend for years shall pass by the grant of bona & Catalla. Periam. It will pass by these words, for it is an ancient grant, for in that time the Patents, of the King were not so specially penned, as now they are. Anderson. I conceive the avoidance will not pass by these words, for within this word bona moveables are contained both dead and living, and Avoidance is no Chattel nor right of Chattel. Quod Peryam negavit, etc. Mich. 37 & 38 Eliz. Townsend against Whales. IN an Ejectment, the jury found that J.S. was seized of land in possession, and also in reversion for term of life, and made a Devise by these words, That his Executors take the profit of all his Lands and tenements Free and Copy, for ten years for the payment of his debts, and Legacies, and after the end of the said ten years, that all the aforesaid lands and tenements with their appurtenances, should be sold by his Executors or one of them, and the silver to be bestowed in the performance of his Will, or by the Executors of his Executors, or any of them, and then one of the Executors died within the ten years, and the two surviving Executors did grant all, aswell in possession as in reversion to House, who made a Lease to the Plaintiff. And two points were resolved. 1. That the Executors may grant the reversion (34 H. 6.) for by these words (Free and Copy) his intent appears, that all should be granted. 2. That although one of the Executors died, yet the other two Executors may sell. Anderson. If such bevise had been at the Common Law, and one Executor had refused, the two others could not sell, but if one die, the survidors may sell the land; for there the authority doth survive. Which difference the other justices agreed to. And at another day Anderson said, there was difference, where the Devise is, that Executors should sell his and the money divided between them, there if one die, the others shall not sell, but otherwise here, because the money is the performance of his will. Walmesley. The sale by the two Executors is good, for it is said; the Executors or any of them, etc. And Beaumond agreed, Wherefore judgement was given for the Plaintiff. Note that there were two verdicts in this case, and the first only found, that the Executors shoull sell after the ten years, and that one died, and the other two did sell within the ten years, and the opinion of the Court was that the sale was void, but in the 39 and 40 Eliz. all the whole will was found and judgement given ut supra. The Earl of Rutland's Case. Roger Earl of Rudand, and John Manners and others Executors to John late Earl of Rudand Executor to Edward Earl of Rutland, brought an action on the case against Isabella Countess of Rutland. And Declared for divers jewels and goods, etc. that came to the hands of John Earl of Rudand as Executor to the said Edward, and the said John the 10th of July 29 Eliz. did casually lose them, which after came to the hands of the Defendant, & licet saepius requisita, she would not deliver them to the said John in his life time, nor to the said Plaintiffs after his death, but knowing the goods did belong to the Plaintiffs in D. in the County of Nottingham converted them to her proper use. And a verdict for the Plaintiff. And it was moved often in arrest of judgement, but all the justices agreed, that the action of Trover and converversion would lie by the Executors upon the Statute of the 4 Ed. 3. upon a conversion in vita Testatoris, and so hath it been adjudged in the King's Bench, and although the Statute mentions only a Writ of trespass, that is only put for example. Also they all agreed, that the sole cause of action to the Conversion, for it there were no conversion, they shall be put to their Detinue, therefore the great doubt did arise because the day and time of the conversion was not showed, for perhaps it was after the Writ and before the Declaration: And also if it was in vita Testatoris they should have this action by the 4th of Ed. 3d. But at length Walmesley said, That all justices of the Common Pleas, and of Sergeants Inn in Fleetstreet (besides Peryam's Chief Baron) were of opinion that judgement should be given for the Plaintiffs, for that some of them held, that the day of the Conversion is not material to be shown, and others, that of necessity as this case is, it shall be intended that the conversion was in the Plaintiffs time, wherefore judgement was entredfor the Plaintiffs, but a Writ of Error was brought, and the Case much debated. Michaelm. 38 & 39 Eliz. Carew against Warren. in C. B. Rot. 1945. GUnter Tenant in Tasle of Lands in ancient Demesn made a Lease for 60. years to J.S. and for security thereof levied a Fine to Lee and Loveland, who rendered to Gunter in Fee, who devised the reversion to his wife for life the remainder in Fee and died. And then the Lord of Andover, (which is an ancient Manor) by an Ostensum est nobis, returned in the Common Bench against Lee and Lovelace, upon a scire Facias awarded against them. and two Nihils returned, the Fine was reversed. Anderson. The scire Facias is not well awarded, for it ought to be brought as well against those in possession, as the Conufors, and this appears by the 21 Ed. 3.56 by which they in possession and those in remainder ought to be made privy. Walmesley agreed, for the Freehold, which is in me shall not be taken from me without making me privy, no less, then if A. bring a Praecipe against B. of my land and recover, for I shall have an Assize upon this. Also another matter is in the Case. For the land now in question is alleged to be parcel of the Manor of Andover, and therefore cannot be ancient Demesne. But no judgement was at this time given, because there were but two justices. Halling against Command. IN an action of Covenant, the case was thus. Command the Defendant did covenant with the Plaintiff, that at the Costs and charges of the Plaintiff be would assure certain land for the jointure of the Plaintiffs wise before M●ch●e mass. And the Plaintiff declared that no assurance was made, nor tender before the said Michaelmas. And hereupon the Defendant demurred, for that the charges should have been offered before the assurance, 3 H. 74.23 Eliz. Dyer. Anderson in the 35 & 36 Eliz. F●ste● did covenant with Frank to make an assurance at the costs and charges of Frank, and Frank brought a Covenant and Foster Demurred because no charges were tendered to him, & it was adjudge against Fester, for Frank could not have cognizance what manner of assurance should be made, and so could not tell what charges to tender, and therefore he ought first to show him what manner of assurance he should make, and according to that he ought to tender reasonable Charges. Walmesley. But the charges ought to precede the assurance, but the declaring of what manner of assurance should be made aught first to be done, Beaumond of the same opinion. Michaelm. 38 Eliz. Damport against Sympson. IN an action on the Case, the Plaintiff declared that he had given to one Spilman certain jewels to Traffic with them beyond the Seas, and that he had not fold them. but had delivered them to the Defendant, who had spoilt them, whereupon the Plaintiff brought an action against the said Spilman, and upon not guilty pleaded they were at issue: and the now Defendant at that evidence did Depose upon his oath, that the jewels were worth but 200 l. whereas they were worth 800 l. by reason whereof the jury gave indeed but 200 l. damages, and for this false oath he brought this action: and the jury upon not guilty pleaded, found for the Plaintiff, and assessed 300 l. damages. And now it was moved in arrest of judgement that the action would not lie, no more than against those inform a justice of Peace of Felony upon his oath against J. S. 20 H. 7.11. Also the party grieved hath his remedy in the Star-Chamber. And Walmesley said that for perjury there was no remedy, and so is it in the 7th Eliza. Dyer 243. a. for it is not to be thought that a Christian would be perjured, and in the 2d H. 6.5. a Conspiracy will not lie against Indictors, who inform their company of their oath. Wherefore, It was adjudged that this action did not lie. Note that Anderson was against this judgement: but Walmesley Owen and Beumond were against him. FINIS. The Table of the principal matters contained in this Book. Abatement. WHere the Resignation of a Bishop, Dean, or Parson, shall abate the writ, and where not 30, 31 Where the writ shall abate for not naming the party according to his Dignity or Office, and where not 61 In trespass against two, the writ shall not abate for the death of one 107 Admiral. Where he hath Jurisdiction, and where not 122, 123 Action, and what words will bear Action. Slanderous words of several kinds 13, 17, 18. vide Slander where the Lessee for years by intrusion shall have an Ejectment, and so in case of the King 18 What Action the Lessee of an Intruder or Copyholder of the King shall have if he be outed 16 Where an Action will lie for slanderous words spoken, or for any of them, and of a slander in writing 30 Action of Trover good against the Husband only; though the wife made the conversion 48 Action of debt by an Administrator, durante minoritate, not good 35 Where a second Action for the same matter shall be brought, and where not, 37 For warranting sheep sound 60 Where a Trespass or Detinue shall lie for Goods taken and sold 70 What Action for a Dog, Ferret, or Hawk 94 Where two shall join in the action, and where not 106 Nonsuit of one Non-sult of both in a personal action 107 For a Fine in the Leet brought by the Lord 113 Where an action of Trover will lie for money 113 Account. For fish in a Pond 19 Account will not lie where is no privity 35, 36 Against a Receiver 36 Several actions of Account 36 Administrator vide Executors Advowson. Where by the presentment of another the King shall be said to be out of possession 43 Grant of the next avoidance by a Letter 47 Advowson appendent to a Manor, and the Manor is granted, yet the Advowson will not pass 53 Where the Patron shall dispose of the Advowson, though three be a deprivation 151 Age. The Heir of the Tenant in tail that is impleaded during life of the Tenant by Courtesy, shall not have his age 33 Aid. Difference between Tenant at will, and Tenant at sufferance, in case of praying aid 29 By him in reversion 43 Where the Tenant prays in aid of a stranger, it shall be a forfeiture 81 Alien. Debt by an Administrator alien Born 45 Who shall be accounted an alien enemy 45 Amendment. Where the Habeas Corpus & distringas shall be amended, though the Venire be well returned 62 Amends, vide payment. Annuity. Where the husband shall have an action of debt for the arrears of an Annuity granted to the wife before marriage 3 Granted by him that hath no Estate, what remedy for the Grantee 3 From a Corporation 75 No Dower to the Bargainees wife before enrolment 70 Where the suing or recovering of Dower, shall be accounted the waving of the Assignment of Dower 150 Entry. WHere the Entry of the Lessor on the Lessee, shall not avoid the Covenant of the Lessee 65 The Lord shall not have a Cessavit after entry in parcel 66 Where the entry of the Discontinuee shall avoid the fine of the Tenant in tail 75, 76 Where the descent of the Intruder on the King shall not take away the entry of the King's Feoffee 45 Entry into a house to demand money, where good 114 Error. Error in Judgement whether amendable 19 Where a writ of Error by the husband and wife within age, shall reverse a fine levies by them against both 21 Where two persons bring a writ of Error, and the Tenant pleads the release of one, it shall bind both 22 Against the stile of a Court, for not saying. secund●m consuetudinem 50 For want of the addition of the Defendants name 58 Who shall have a writ of Error to a-avoid a recovery, and whether the heir general or special shall have it 68 Where the heir shall have this writ, and where the Executors 147 Escheat. No Escheat to the Lord where the Felony is pardoned before attainder 87 Estovers. Turbary leased, and the Lessee converts half to arable, and then grants totum turbarium 67 Execution. Where the Sheriff delivers a Manor cum pertinentiis in execution, what passeth thereby 4 Where a writ of execution is good against one attaint of felony 69 Executors. Where an action grounded on a simple Contract will be against Executors 57 Where the second administration shall repeal the first 50 In what case Executors shall have an action for things done in the life of the Testator 99 Where Executors shall be said to be Assignees 125 Where an Administrator or Executor shall be said to take by purchase 125 Extent. Where the Sheriff extends a Manor by the name of acres, land, Meadow, and wood, what passeth 4 Felony and Felons. FElony of a Shepherd, to steal Sheep 52 What persons shall keep felons goods 121 Fine Where the husband and wife shall bring a writ of Error to reverse a fine levied by them 21. in error. Where in a mistake in a fine shall be remedied 42 Fish. Whether the Heir or Executors shall have the fish in a Pond 20 Where waste will lie for taking fish 19 Forfeiture. Executors cannot forfeit goods to charritable uses 33 Frankmarriage. The necessity of the word Frankmariage in the gift, and the nature and quality of the estate 26 Gift in Frankmarriage after the Espousal, good 26 Where a gift in Frankmarriage shall be by matter ex post facto, be made an estate in tail, or other estate 27 Grants. WHat passeth by this grant, Panagium & by the grant of acorns 35 What passeth by the grant of pastura terrae 37 Grant to I.S. and there be many of that name to whom it shall be intended 64 Habendum. LEase of a Manor habendum with all the members, what passeth 31 Lease to one habendum to three others for their lives, and the longer liver successively, what estate 38, 39 Lease to husband and wife & primogenito, what estate 40 Heir. Where the heir shall have the rend reserved in a Lease for years 9 Where the Heir Tenant of the King in Socage shall enter without livery 116 Indictment. FOr drawing a Sword in Westminster-hall, the Courts then sitting 120 Infant. Where payment or tender of money for an Infant is good, and at what age, 137 Enrolment. Where the Bargainee shall be accounted Tenant of the land before the Inrolment 69 When the use passeth by the Inrolm. 149 joint-tenants and Tenants in Common. Lease made by them, rendering rend to one of them, both shall have the rent 9 Many cases declaring what acts are good by one joint-tenant to another, and what not 102 Jointure. Where an assurance made to a woman for her Joynt-ture, shall be good by averment, although not expressed in the Deed 33 Judgement. Reversed in an action of debt, for declaring less than is alleged in the writ 35 Jury. Jury eat before verdict, the verdict good 38 Jury finding out of their Issue 91 Juryman returned that is no freeholder 44 Leases. LEase to a man by these words, Dedi concessi & confirmavi. 9 Of a house excepting one Chamber 20 Of him that hath nothing in the land 96 Sub hac conditione si vixerit vidua & habitaret super pramiss. the Lessee dies, how the term continues 107.108 Of three acres, and of the Manor habend. three acres, and the Manor for 21. years several Demises 119 Lessee assigns over, and continueth possession 142 Lord and Tenant. Feoffment of the Tenant to the Lord 31 Where the Tenant enfeoffs the Lord of a Moiety, and the Seignory is extinct, how to be observed 37.73 Manor. WHat passeth by this word, Cite of a Manor 31 Lease of a Manor habend. all the Members, what passeth 31.138 How a Manor may be divided 138 Grant of a Manor in one Town that extends itself into two Towns 138 Master and Servants. Where the Master may justify for the man, and where the man for the Master 151 Nobility. Where the woman shall lose her Nobility or Dignity by marriage 81 By what act a man shall lose his Nobility 82 Obligation, Statute-merchant, and Staple, Recognizance. WHere trial on a Bond shall be within the Realm, though the Condition to be performed without 6 Two bound in a Bond, and the Seal of one taken away. yet the Bond good 8 Action brought againg the Heir of the Obligor, as heir apparent, the Father being dead, not good 17.119 Obligation wants in cujus rei testimonium, good 33 Where an action of debt on a bond for money to be paid at several times, shall be sued before the last payment, and where not 42 One bound by a wrong name 48 What shall be said to be no delivery of a bond, although the Defendant seal it, and lays it on the Table, and the Obligee takes it up 95 In what case the Obligee shall be accounted a party to the cause, why the Obligation cannot be performed 104 Where two shall join in Audita quaerela, on a Statute, and where not 106 Where Conditions on Bonds shall be void in Law 143 Outlawry. A Disseisee outlawed shall not forfeit his Lands 3 Where an Outlawry pleaded shall be taken for a Dilatory plea, where not 22 Pious uses. GOods given to pious uses not forfeitable by Executors, and what remedy 'gainst the Executors 33, & 34 Pawn. He that hath a Pawn hath no interest therein to deliver it one to another 123 How a man may make use of Goods or Cattles pawned to him 124 Parceners, and Partition. Where they shall join in waste 11 The writ of Partition returned, how good 31 Payment, Demand, Tender, Amends. Where request to pay money must be made and where not 7 Where the Law will expound to whom a tender must be made 10 Who shall tender for the heir within age 34 Where payment of rent to him that extends the land, shall save the Condition against the Lessor 38 Where several actions for payment shall be brought on a Bond or Contract, at the several dries, and where not, till all the daies are past 42 Payment in debt, on a bond pleaded at the day, and given in evidence before the day good 45 Tender in trespass not good, otherwise in Replevin 48 Where the Obligor shall give the Obligee notice, when he will tender the money, and where not 108 Where on Bon● given for payment of rent, the Lessee shall demand the rent, where not 111 Pleas and pleading. By the Lessee of an Intrudor 16 Where a Lease must be pleaded, hic in curia praelat. 16 By the Obligor on a bond to save harmless, plea that he was not taken in execution, etc. 19 Where ancient Demesne is a good plea 24 Where in an Avowry a man shall plead for Franktenement 51 Difference in plea between appeal of Mayhem and Murder 59 Where a man shall be bound to set forth Seisin of him who made the Devise, and where not 103 Prescription. For a Common 4, & 5 To buy and sell, etc. 6, & 7 Who shall prescribe to a way, and who not 72 Presentation. Where the King shall be limited in time to present by Lapse, and where not 2.89.90 Where Recusancy of the incumbent shall cast the Lapse on the King 5 Where the King shall not lose his Presentment by Lapse, though he do not present in time 5 The Church, how void for Simony 87 Prohibition vid. Writs. Promise vid. Assumption. Proviso vid. Condition. Property. Where the property of stolen Goods shall be altered according to the Statute of 2, and 3. Phil. & Mar. 27 A man outlawed hath property in his goods 116 What property the Constable shall be said to have of Felons goods 120 Quare Impedit. IN what cases it lies, and what not 99 Releases DIfference of a Release to Tenant at sufferance and Tenant at will 29 Of a Bond, the Release bearing date the same day, not good 50 Of the avoidance of a Church, why void 86 Remainder. Lease for years with Remainder to the said persons, where good, and where not 38, 39 Seniori puero, whether a Female shall take 64 Reparations. Notice to the Astignee of a Lease to repair, not good 114 Rents. Where the Confirmation to the Assignee of the Lessee of part of the land shall extinguish the Rent of the whole 10 Where an entry for breach of the Condition in part of the Land, shall extinguish the Rent for the whole 10 Rent granted out of Land not chargeable therewith, how good 111 Where the Tenant of the Freehold shall be charged with the Rent-charge, and where the Termor 117 Reservation. Rend reserved to his Executors or Assignees where good, and where not 9, & 10 Reserved at Michaelmas, what time of Michaelmas shall be intended 64 Resignation. Of a Benefice without presentation, or on Condition 12 The Nature of a Resignation 12 Sheriff. WHere an action of debt lies against him for an escape, though the Capias be not returned 43 No escape against the Sheriff when especial bails are requested 98 Where a man shall aver or traverse against the return of a Sheriff 132 Slander, and slanderous words, vide Actions Calsing one Bastard 92 Calling one Whore, and that she had the French-pox 34 For saying, Thou Murderer, good 33 By him in remainder, for saying the immediate Tenant was alive 33 For the word Cozener 47 Thief, and thou hast forged a Deed 47 For pilfering 56 Thou hast stolen half an acre of Corn, innuendo, Corn sowed 57 He was disproved before the Justice's 58 He was perjured, and I will prove him so 62 Statutes. Mistaking the Parish, on an action for Robbery on the Statute of Winchester 7 Lease for years, not within the Statute of Quia emptores 10 Lease on the Statuce of 27 H. 8.28.32. Who are within the Statute of Monasteries, 31 H. 8.56 Lease for one year within the penalty of the Statute of buying of Tithes 57 21 H. 8. for Nobleman's Chaplains 51 In the 8. of H. 6. how to plead the entry 93 Exposition of the Statute 5 Ed. 6.14.135. Where a man shall plead Contra formam statuti, though there be more Statutes of the same matter 135 Traverse by Executors on the 4. of Ed. 3. good 156 Surrender. By the Husband, Lessee for years of his wife's estate, how good 32 What, and how may things belong to a Surrender 97 Tenure. NO Tenure between Donor and Donee in Frankmarriage 26 Tenant at jufferance, Will, D'auter vie, &c: Where such Tenants holding over shall gain a Feesimple, or make a Disseisin, and where not 27.28 Tenant at sufferance shall justify Damage-feasant 29 Difference where a Tenant at sufferance holds over, and where a Tenant at Will 35 Tithes. Where Tithes by composition shall be paid, according to agreement, although they be not ty●hable 34, 35 Where they shall be paid of the Glebe land 39 By the Parson's release of all Demands, Tithes are not released 40 Where altering the Crop of the Land, shall alter the Tithes from gross to small Tithes 74 Where a discharge to pay Tithes without Deed is good, and where not 103 Trial. Where the trial shall be on the land, though the cause or matter were on the Sea 54 Uses, and Cestui que use. USe to the husband and wife, habendum to the husband for three years 48 How Cestui que itse shall be said to be seized before entry 86 Wardship. WHere the husband alone shall have a writ of Ravishment of Ward, without the wife 82, & 83 Whether the brother of the half blood or the Uncle of the whole blood shall have the Wardship in Socage 128 Warranty. The exposition of the word, To warrant Land 100 Two joint-tenants with Warranty make partition, the Warranty is gone 104. Otherwise of a Feoffment 104 Warren. What it is, and whereof it consists 66 Of Waste committed there 66 Warren in a Common is good, and the Commoners cannot kill the Coney's Damage-feasant 184 Waste. Where a man shall have but one action of waste on several Leases, and where not 11 The form of entering Judgement in a writ of waste 12 For taking Fish out of a Pool 19 Waste in the house for not scouring a Ditch 43 In Pigeon houses, Hop-grounds, and Fish ponds 66 Where the Lease is ruinous at the entry of the Lessee, and falls down afterwards, the Lessee is excused, and where not 93 Way. How extinguished by unity of possession 127 Wills, and Testaments, Executors, Administrators, and Legacies. Where a man deviseth that his wife shall have the occupation and profits during her widowhood 6, & 7 Where a Devise shall be intended within the word Demise 14 Where a Devise shall be taken as a Demise for breach of a Condition 14 Where a Devise of several parcels of Land to several persons, and the Survivors to be each others heir, what Estate passeth 25 Where an Administrator pays debts, and there a Will is found, yet the payment good 28 Where a Devise shall make an Estate tail by implication 29, 30 What passeth by this word, Livelihood, in a Will, according to the custom of London 30 Where Ex intention shall make a Condition in a Devise 32 Where an uncertain Devise shall be construed good, as to a certain intent 35 Legatees refusing to prove the Will, shall lose their Legacies 44 Devise of a Tenant in Borough-english to his two Sons 65 Devise to his two Daughters, his Heirs 65 Devise of all Lands, Meadows, and Pastures, whether the house passeth 75 Will made, and the party says he will not make his Will, no Revocation 76 What passeth by the Devise of a Manor 88, 89 Devise of Jewels, what shall remain to the Heir, and will not pass by the Will 124 Writs. Where a Scire facias lies, and where not 3 Where certainty in a writ of Ejectment is requisite, and where not, and difference between such writ, and a writ of Novel Disseisin 18, & 19 Quod ei deforceat, how it will lie in waste 102 FINIS.