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REPORTS Of that Learned and Judicious Clerk J. Gouldsborough, Eſq. Sometimes one of the Protonotaries of the Court of COMMON PLEAS.

OR His Collection of choice Caſes, and matters, agitated in all the Courts at Weſtminſter, in the latter yeares of the Reign of Queen Elizabeth.

With Learned arguments at the Barr, and on the Bench, and the grave Reſolutions, and Judgements, thereupon, of the Chief Juſtices, ANDERSON, and POPHAM, and the reſt of the Judges of thoſe times.

Never before Publiſhed, And now Printed by his Original Copy.

With ſhort Notes in the Margent, of the chief matters therein contained, with the yeare, Terme, and Number Roll, of many of the Caſes.

And Two Exact Tables, viz. A Briefer, of the Names of the ſeverall Caſes, with the Nature of the Actions on which they are founded, and a L•rger, of all the remarkable things contained in the whole Book.

By W. S. of the Inner Temple, Eſq

Ubi eſt nulla Lex, ibi eſt nulla tranſgreſſio: Sed ubi lex eſt nullum, ibi abundat Iniquitas.

LONDON, Printed by W. W. for Charles Adams, and are to be ſold at his Shop at the Signe of the Marygold over againſt Fetter Lane in Fleetſtreet. Anno Dom. 1653.

TO THE Studious, and Ingenious READER.

TWO things (uſually) make new Books famous; the Name of the Authour, and the Ap­probation of the Judicious: neither of theſe are here want­ing; for thou ſeeſt that this Book (as part of its Title) challengeth the Name of that Learned, and Judicious Clerk, John Goulds­borough; A Name ſo well known (even in this our Age) that I ſhould but trifle away time, in multiplying words, to tell thee what he was, and to inlarge upon his worth; and allſo diſcover (too much) mine own weak­neſs, by endeavouring to prove ſo known a Truth, that it is by all (allready) taken for grantld. For the ſecond, I am aſſured, that the Copy hath been communicated to the view of many knowing men in the profeſſi­on of the Common Law, whoſe unanimous conſent in a fair Teſtimony of the excellen­cy thereof, hath been not only a chief cauſe of the now making it publique, but allſo of heigthning the Publiſhers hopes, that this Book will be peruſed with as much content, and received with as generall an Applauſe, as any thing (of the like nature) that theſe latter yeares have afforded; And that his great care and hazard in this his Edition may receive thy candid conſtruction, and him­ſelf reap (if not a fruitfull) yet (at leaſt) a ſaving return, for his better encouragement to adventure further (hereafter) in this kind, for thine, and the publique good. For thy further ſatisfaction know, that thou haſt not here a ſpurious deformed Brat, falſly fathered upon the name of a dead man, too too uſuall a trick, played by the ſubtile Game­ſters of this Serpentine Age; but thou haſt preſented to thee, though I cannot ſay the Iſſue of the Learned Gouldsborough's own Brain, yet I dare ſay, the Work of his own Hand; and that, which were he living, he would not bluſh to own. A Work, I ſay, not roughly drawn, and caſt by, in neglected Sheets, till time ſhould give leave for the perfecting thereof, but carefully tranſcribed (by himſelf) in a fair Manuſcript, deſtined (as it ſhould ſeem) either for the Preſs and publique view, or to be preſerved as a pre­tious Jewell, to be (privately) made uſe of in ſucceeding Ages. That this is true, there want not many living Teſtimonies, of per­ſons of worth, who doe, and have very good reaſon to know his Hand-writing, that, if need required, might be produced, to ſay as much. I ſhall adde but one thing more, and that in brief is this, As the Authour was very careful in Tranſcribing and Correcting his Copy, that he might leave it fair, and en­tire to Poſterity; ſo hath the Publiſher ſpared neither pains nor coſt in the Printing thereof, that the Book may not come foul, and imperfect, to the hands of thee, it's cour­teous, and ingenious Reader.

W. S.
1

De Term. Paſch. Anno Elizab. Reg. xxviij.

1.

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

2.

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

3.

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

2

4.

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

An­derſon

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

Windham

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

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

5.

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

Anderſon

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

3

6.

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

Peryam

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

Anderſon to Walmiſley

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

Walmiſley

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

Windam

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

Rodes aſſented.

7.

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

Anderſon

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

Windham to the ſame intent, and cited the caſe of Long, 5 Edw. 4. fol. 115. b. Rodes cited the caſe in4 Fitzherbert, Quare non admiſit, fol. 47. k. and Baſſets caſe in 9 Eliz. Dyer,Alit. en pr. quod reddat. fol. 260.

Anderſon

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

Peryam

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

Shuttleworth

By the Re­turn.

Peryam

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

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

8.

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

Gawdy

The Plea is nor good.

Anderſon

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

9.

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

Gawdy

The Plea is not good for divers cauſes; the one is for the pretence of the Tenant, for that the Lands were held by Knights ſervice, the Deviſe is voyd for the third part, ſo that therein the Coniſor hath nothing, but ſhe doth not ſhew who had the reverſion of the third part, which ſhe ought to ſhew, and thereupon he vouched 30 Ed. 3. fol. 7. & 34 Ed. 3. quid juris cla­mat. 14 E. 3. Fitzh. Quid juris cl.The Defendant ſaid that he held not of the Coniſor, he ought to ſhew who had the inheritance; and 30 Hen. 6. fol. 8. in Waſt brought by Radford. Another cauſe is, for that in the end of her Plea5 ſhe demandeth Judgement,Eiſdem. ſi pro eiſdem duabus partibus, ſhe ought to Attorn, and ſhe doth not ſpeak of any two parts before, and there­fore it is not good, and vouched 7 Ed. 6. in the Comentaries, Parlia­ment held praedict. 28 Ap. & 9 Edw. 4. bona praedict. J. S. and doth not ſpeak of any J. S. before. Then for the matter in Law, for that the Coniſor was but Tenant in tayl, this notwithſtanding it ſeemeth ſhe ought to Attorn, and therupon he cited the caſe in 48 E. 3. fol. 23. in per quae ſervicia, & 24 E. 3. Tenant in tayl of a reverſion of a Mannor levies a Fine, the Tenant for life ought to Attorn. And 3 Ed. 3. quid juris, &c. It is there ruled, that Tenant for life ſhall Attorn upon a Fine le­vied by Tenant in tayl; and therefore ſhe, &c.

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

10.

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

Anderſon

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

Rodes

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

Anderſon

The caſes are not alike.

11.

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

Fenner

It ſeemeth that the Avowant ſhall have Return; and firſt I will not ſpeak much to that which hath been agreed here before you, that a Remainder may be charged well enough; for by the Statute the Remainder is lawfully inveſted in Richard; and I agree well that no Formdone in a Remainder was at the Common Law, and ſo are6 our Bookes, in 8 Ed. 2. and Fitzh. in his Nat. brev. ſaith, that it is given by the equity of the Statute. At the Common Law there was no Formdone in diſcender, now it is given by the Statute of Weſtmin­ſter 2 cap. 1. For in novo caſu erit novum remedium apponendum. And I have taken it for Law, that when a thing is once lawfully veſted in a man,Lawful veſture. it ſhall never be deveſted without a lawfull Recovery; and here the Recovery doth not touch the Rent; and I think that all­though the Remainder was never executed in poſſeſſion, yet the Grantee of the Rent ſhall confeſs and avoyd it well enough. The Fine is not pleaded here with proclamation, and therefore it is but a bare diſcontinuance, in proof whereof is the caſe in 4 of Ed. 3. Te­nant in tayl makes a diſcontinuance,Diſtreſs per grantee, before entrie of the grantor. yet he in Reverſion may di­ſtrein for his ſervice. And if there be Tenant for life, the Reverſion to a ſtranger, and he in Reverſion grant a Rent charge, Tenant for life is diſſeiſed and dye, the Grantee of the Rent ſhall diſtrein, all­though that he in Reverſion will never enter: And ſo if Tenant in tayl, the Remainder to the right heirs of I. S. make a Feoffment in Fee upon the death of the Tenant in tayl without iſſue,Droit heir de I. S. the right heir of I. S. ſhall enter well enough: And he put Pleſingtons caſe in 6 R. 2. Fitzh. quod juris clamat 20. & 8 R. 2. Fitzh. Annuity 53. And the caſe in Littleton, & Dyer fol. 69. a. pl. 2. & 22 Ed. 3. fol. 19. One grant a Rent charge to another upon condition that if he dye his heir with­in age,Rent ch. ſur. cond. that the Rent ſhall ceaſe during the minority, yet his Wife ſhall recover her Dower when the heir cometh to full age,Dower. Perk. 327 Which caſes prove, that allthough the eſtate whereupon the grant is be in ſuſpence when the grant ought to take effect, yet the grant ſhall take effect well enough; and if Tenant in tayl, and he in remainder had joyned, this had been good clearly. And 8 Ed. 3. & 43 Ed. 3. Tenant in tayl to hold without ſervice, the remainder to another to hold by ſervice, if Tenant in tayl in this caſe had ſuffered a Recovery, and dyed without iſſue, I think the Lord (in this caſe) ſhall diſtrein for the ſervice, then I ſuppoſe that the fine in the principall caſe ſhall not exclude the Grantee from his rent; for there is a difference be­tween jus in terra,Jus in terra. Prox. advoc. and jus ad terram; for I think that no fine ſhall defeat jus in terra, and 26 H. 8. fol. 3. a. b. if I grant you proximam advocationem, and after ſuffer the Advowſon to be recovered, the Grantee ſhall fal­ſifie in a Quare impedit, Then whether this recovery ſhall avoyd the rent or no, and I think no; for this caſe differs, and now the recovery is had againſt Tenant in tayl, for the remainder here is out of him by the fine, and in the Coni•ee, and the recovery doth not diſprove the intereſt before, for 8 Hen. 4. fol. 12. recovery againſt Tenant in tayl who dieth before execution ſued: And 44 Ed. 3. re­covery of the rent is not a recovery of the homage,Rent & ho­mage. unleſs it be by title: And here there is not any recompenſe to him in the remain­der,7 and therefore there will be a difference in this caſe, and where there is a recompenſe,Annuity for Tithes. fol. 7. Hen. 6. if a perſon grant an Annnity for Tithes,Nomine paenae it is good, but if there be a nomine paenae, it is not good; and 7 lib. Aſſ. an Annuity granted untill he be promoted to a bene­fice,Promotion to a benefice. it ought to be of as great value as the Annnity, and 26 Edw. 3. the Church ought not to be ligitious; and 22 Ed. 3. two men ſeiſed in Fee-ſimple exchange for their lives, &c. and 14 Hen. 4. the King may grant a thing which may charge his people without,Rent for a re­leaſe. &c. And 44 Ed. 3. rent granted for a releaſe by Tenant in tayl, is good, and ſhall bind and charge his iſſue. And ſo he ſeemeth that the Avowant ſhall have return. Walmiſley to the contrary; For firſt it hath been held, that the charge at the beginning is good, and ſo I hold the Law, bnt how,Charge contin­gent. or in what manner, that is the queſtion. 38 Ed. 3. If Tenant for life be, and he in reverſion grant a rent charge, it is good; but it ſhall be quando acciderit. 33 lib. Aſſ. & 5 Ed. 4. fol. 2 b. But this caſe is out of the Books remembred; for there the remainder nunquam accidit, and therefore ſhall never be charged; for as I hold when he in remainder chargeth, he chargeth his future poſſeſſion, and not his preſent intereſt;Sci fa. de rem. View. for if a Sci. fa. ſhould iſſue to execute this remain­der, he ſhall demand the Land, and before the remainder falleth he hath but quaſi jus,Attornment al rent ch. Priority. which is not corporall, neither ought it to be put in view in Aſſiſe; and 21 Hen. 6. a. Tenant of the Land ſhall At­torn upon the grant of a rent charge; and 33 Ed. 3. Priority ſhall hold place when the remainder falleth, and not when it is granted, 17 Ed. 2. and Dyer Tr. 23 Eliz. pl. 1. Then, Sir, when the foundation out of which the rent is iſſuing is gone, the rent is allſo gone; and there­fore let us ſee what authority Tenant in tayl hath in the remainder. At the Common Law, there was no Formdone in deſcender or re­mainder; and the Statute of W. 2. cap. 1. provides but for two per­ſons, viz. he in reverſion and the iſſues; but Formdone in remainder is taken by the equity. 50 Ed. 3. If Tenant for life be, the remainder in tayl to another, the remainder in fee to the Tenant for life, and he makes waſt,Waſt. Bargain de remain. Tenant in remainder ſhall puniſh him: and Fitzh. nat. br. fol. 193. a. Cui in vita, by a wife which was Tenant in tayl upon the alienation of her husband: And I think that if he in remainder bargain his remainder that it is voyd, and he cannot grant to ano­ther that he ſhall dig in the ſoyl, for by 2 Hen. 7. he in reverſion can­not doe ſo. 12 Ed. 4. Recovery ſuffered ſhall bind the iſſue. 7 Ed. 3. no attaint lieth for him in remainder of a verdict given againſt Te­nant for life,Nul attaint pur tenant in rem. then in this caſe he in remainder cannot enter, and the Grantee ſhall not be in a better eſtate than his Grantor, and then if he ſhall never enter, fruſtra est illa potentia qua nunquam reducitur in actum. The reaſon for the grant is good; for when Tenant in tayl dyeth without iſſue, he in remainder ſhall be in by the firſt gift8 in proof whereof is 33 Hen. 6. he in remainder ſhall be in ward;Ward. and in 11 Hen. 4. in Formdone in deſcender,Formdone. he ſhall ſay that the poſſeſ­ſion was given to his father. Prebendary.And a Prebendary cannot charge before induction. Ioyntenants.But if two Jointenants be, and the one charge all, and the other diſclaimeth, the charge is good from the beginning: And the Recoverer here is not under the charge; for allthough he hath that eſtate which he in remainder ſhould have if Tenant in tayl had not aliened, yet is he a meer ſtranger, and in by another title, 10 Ed. 3. If two Jointenants be,Charge per Ioyntenant. and the one charge, this is good, conditio­nally that he which chargeth ſhall ſurvive. And if Tenant pur auter vie charge and die, occupans ſhall hold it diſcharged: So in this caſe; for he is not in of this poſſeſſion. Moreover, there is a miſchief if this charge be good; for then the Land may be charged by two ſe­verall perſons at once, which ſhall not be ſuffered; but yet if ceſtui que uſe charge, and the Feoffees charge, both are good, for the one is by the Common Law,Charge per ceſt. que uſe & Feoffees. 28 Ed. 3. 10. b. and the other by the Statute Law. So if Leſſee for years charge, and he in reverſion charge, and after Leſſee for years ſurrender; but this is in ſeverall reſpects, and I put this caſe for Law,Ch. per leſſee, & per enreverſion. that if he in the remainder bind himſelf in a Statute Merchant,Stat. Merch. per teſt. en rem. ne charge le poſſ. this ſhall not charge the poſſeſſion. And if in this caſe he will grant the rent over, none ought to Attorn, and therefore voyd; and Littleton ſaith, that he in remainder ſhall not falſifie;No attornment. Falſifying. and 26 Hen. 8. the Grantee of leſſee for years ſhall not falſifie; for the nature of falſifying is properly to find a fault, wherefore it ſhould not be good; and what fault can he find in this caſe? ſurely none. Succeſſor lie per confeſſion.4 Hen. 7. 1. a. & 20 Hen. 6. Abbot confeſſeth an Action, the Succeſſor is bound: And further, it is within the Statute of 27 El. for fraudulent deeds; and we need not to plead the covin; for the Statute is generall,Fraudulent faits. and vouched Wimbiſh caſe in the Comentaries, and ſo the Replevin is maintainable.

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

12.

KIng Hen. 8. gave certain lands to Sir Edward Bainton,Treſpaſs. Knight, and to the heirs males of his body engendred, who had iſſue Andrew and Edward, and dyed. Andrew afterwards convenanted with the Lord Admirall Thomas Seymer, that he would convey an Eſtate of thoſe Lands to himſelf for life, the remainder to the Lord Seymer in Fee; and in like manner the Lord Seymer convenanted to convey an9 Eſtate of other Lands to himſelf for life, the remainder to Andrew Bainton in Fee. Afterwards Andrew Bainton levyed a Fine, and exe­cuted the eſtate according to the covenant on his part. Afterwards the Lord Seymer, before performance of the covenant on his part, was attainted of High Treaſon, and all his Lands forfeited to King Edward the ſixth, who dyed without iſſue, and the Lands de­ſcended to Queen Mary, to whom Andrew Bainton ſued by Petition, and ſhewed how ſhe had thoſe Lands to the diſinheriſon of him and his heirs: and Queen Mary, by her Letters Patents, ex certa ſcientia, & ex mer•motu, &c. granted to Bainton all thoſe Lands and Tene­ments which he had covenanted to convey to the Lord Seymer, and all reverſions thereof, in as ample manner as ſhe had them; Et ulte­rius ex uberiori gratia ſua ſhe granted all reverſions, claims, and de­mands, qua ad manus ſuas devenerunt ratione, &c. aut in manibus ſuis exiſtunt, aut exiſtere deberent. Afterwards Andrew Bainton levyed a Fine of thoſe Lands to one Segar in Fee, and dyed without iſſue; then Edward Bainton entred, and Segar brought his Action of Trepaſs.

Puckering

It ſeemeth that the entry of Edward Bainton is conge­able, and ſo the Action not maintainable. Firſt let us ſee what paſſeth by this Grant of Queen Mary to Andrew Bainton; and then whether a Fine levyed by Tenant in tayl, the reverſion being in the Queen, be a bar to the tayl by the Statute of 4 Hen. 7. The firſt Fine as it is pleaded is not pleaded with proclamations, and therefore but a diſ­continuance, and remains but as at the Common Law. At the Com­mon Law before the Statute of D•nis conditionalibus, a Fine levyed was a bar to all men; for all Inheritances were Fee ſimples, then by that Statute it was ordained, Quod nequeper factum, nequefeofamentum, of the Tenant in tayl, the iſſue ſhould be barred. After which Statute, as I intend, the Law was ſuch, that when Tenant in tayl levied a Fine of ſuch a thing as he might diſcontinue, and the Fine executed in poſſeſſion, allthough the words of the Statute were Ipſo jure ſit nullus, yet the iſſue was put to his Formdone; but if it were a Fine Execu­tory, then by the death of the Tenant in tayl the iſſue was remitted, and the Fine voyd: But now by the Statute of 4 Hen. 7. the Law is made otherwiſe; and for that here it is to be granted, that he can­not diſcontinue the eſtate tayl, becauſe the reverſion is in the King, as it was now lately adjudged in the Exchequer in the caſe of Gille­brand, ergo, here the eſtate doth not paſs to the Feoffees by the firſt Fine, when he took an eſtate again to himſelf for life, the remainder to the Lord Seymer in Fee, but a Fee ſimple determinable, then when the Lord Seymer was attainted, Queen Mary had ſuch an eſtate as the Lord Seymer had, which was a Fee determinable, and ſhe had another Fee abſolute in jure Coronae: After when he ſued by Pe­tition10 he did not ſhew to the Queen what eſtate he had, nor what e­ſtate the Queen had, but that it was to the diſinheriſion of him and his heirs; then the Queen grants reverſionem inde adeo plene libere & integre as ſhe had it, or as it came to her by the Act of Parliament. And I think when the Queen gives by generall words, ſhe doth not give any ſpecial Prerogative: And for that 8 Hen. 4. fol. 2. A grant to the Biſhop of London to have catalla, &c. and 9 Eliz. 268. in Dyer, the caſe of the Dutchy of Cornwall, & 8 Hen. 6. the King pardons all Felonies, this is no pardon of the Outlawry, and eſpecially when the Queen hath two intereſts it ſhall be conſtrued beneficially for the Queen, as 9 Edw. 4. Grant of an Office where the Grantee was no de­niſon, ſee there Baggots Aſſiſe, and 38 Hen. 6. the King grants Land to J. S. for the life of himſelf and J. D. and after grants the reverſion up­on the life of one of them. And further the caſe in Dyer, where Queen Mary grants in Manerium de Bedminſter in Com. Somerſet, 5. 13 El. fol. 306. a. Then, Sir, the Patent is, that the Queen intendens dare congruum remedium in praemiſſis, &c. and when he iueth to the Queen by Petition,Petition certain all titles ought to be in the Petition. 3 Hen. 7. & 1 H. 7. a Latin caſe, the caſe of the corody, and this is in nature of a Petition, & therfore ought to be certain, then the Patent is, Et ulterius ex uberiori gratia ſua conceſſit omnes reverſiones quae ad manus ſuas devenerunt ratio­ne actus Parliamenti, &c. aut in manibus ſuis exiſtunt, vel exiſtere de­berent, &c. and they are not to be expounded ſo largely, as to make the reverſion to paſs; for if thoſe words, ratione, &c. were before admanus ſuas, &c. or after in manibus ſuis exiſtunt, then it cannot be intended but the reverſion ſhall not paſs to Bainton. Now when in manibus ſuis exiſtunt come after theſe words,References. ratione, &c. for references are to be intended according to the meaning of the parties,Deviſe. 29 lib. Aſſ. & 14 Eliz. Dyer. Deviſe of all Acres, except a Leaſe for 30 years: And thoſe words, aut exiſtere deberent, ought to have ſome relation, ergo, it ought to be intended, quae in manibus ſuis exiſtunt ratione attinctu­rae, &c. and this will not make any grant of the reverſion. For the meaning of the Queen was, becauſe Bainton had no recompenſe of the other Lands,No uſe. to give him theſe, for no uſe was in him by the co­venant of Seymer, as it is agreed 1 Maria fol. 96. ſo nothing paſſed but that which was in the Queen by reaſon of the atteynder of Sey­mer. For the other matters; I think that A. Baynton is not Tenant in tayl by the grant again; but admit him ſo, yet he cannot diſconti­nue, neither is he bound by the Statute of 4 Hen. 7. for the Statute doth not extend but to ſuch things which are touched by the Fine, & things which are not touched doe not paſs, as Commons, Rents, Wayes,Claim per leſſee pur•ans. alit. poſtea ſi ſoit en poſt. &c. Br. Fines, 123. 30 Hen. 8. fol. 32. And it hath been adjudged in Sanders caſe, 21 Eliz. that Leſſee for yeares need not to make claim within five years, and vouched the opinion of Br. tit. 11Fines 121. accordingly, that the iſſue ſhall not be barred. And as the King is privileged, ſo are his poſſeſſions, allthough that afterwards they come into a ſubjects hands. Generall re­ſtraint.And where one hath a ſpecial Grant allthough a general Reſtraint come after, if he doe not ſpeak ſpeci­ally of this, the Grant ſhall be good in many caſes, as 19 Hen. 6. fol. 62. the Parſon of Edingtons caſe, Br. Patents 16. and the caſe of the Abbot of Waltham, 21 Ed. 4. fol. 44. Br. tit. Exemption 9. & in 19 Hen. 8. it was doubted if the iſſue of a common perſon ſhould be barred, ergo, the iſſue in tayl, the reverſion being in the King, is not barred. And the Statute of 32 Hen. 8. is generall, as well for thoſe which were of the gift of the King, as others; and therefore afterwards there was another Statute made, which excepted thoſe which were of the gift of the King, as it was before the Statute of 32 H. 8. and it was a vain thing to make this Statute of Exception, if it were a bar before by the Statute of 4 H. 7. And for authority I have a report de­livered me by a Sage antient in the Law, that in 16 & 17 El. in Jacksons caſe, where Lands were given in tayl, the remainder to the King in fee, the Ten•nt in tayl levyed a fine after the Statute of 32 H. 8. by the opinion of the Court,Difference per enter rem. & reverſion in le Roy. this was a bar, but the Court then ſayd, that o­therwiſe it ſhould be if the reverſion were in the King, as our caſe is, wherefore ſeeing there is neither diſcontinuance, nor bar in the caſe his entry is congeable, and the Action not maintainable. Walmiſley to the contrary; I will agree that it is not any diſcontinuance, yet he may admit him out of poſſeſſion if he will, as in 18 Edw. 3. Where Tenant in tail, the Reverſion in the King, makes a Leaſe for life, and hath two Daughters and died, and Leſſee for life was im­pleaded, and upon his default the two daughters prayed to be recei­ved, and ſo they were; and as me ſeemeth the Petition made by him to the Queen, ſhall not prejudice or hinder the Grant, ex mero motu•, and vouched 3 H. 7. fol. 6. the Priors caſe.

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

Shuttelworth

No, Sir, but the record is con­trary to the Book, quod nota, and when ſhe granteth ex certa ſcientia, it ſhall be taken beneficial for the party, 1 H. 7. 13. omnia debita releaſed to the Sherif, and 29 Ed. 3. the King ſeiſed the lands of a Prior alien, &c.Difference per enter intereſt & prerogative. Touts droits poſſ. per fine. Fine puis diſ­ſeiſin ou diſ­cont. alit de recovery. and there is a difference between the caſes put, and this caſe; for when the Queen makes a Grant, all matters of intereſts may paſs by the words, but matters of prerogative, as in the caſes put by my brother Puckering, cannot paſs, for they are not within the words, but intereſts are. To that which hath been ſayd, that he was not ſeiſed of any eſtate tayl, this is not any argument; for if he had three rights, by the Fine all are gone and paſſed to the Coniſee; for if he be diſſeiſed, or diſcontinue, and then levy a Fine, this is a bar, but12 otherwiſe it is of a recovery;Leſſee pur•ans en reverſion & poſſ. diverſity. for that is no bar, but of an eſtate tayl. And as to the caſe of Saunders, that leſſee for years need not to make claim, the caſe was not ſo, but the caſe was of a leaſe inreverſi­on, and he had never entred, and therefore it was but as a common, or a rent; but if it be a leaſe in poſſeſſion, he is bound, as in Zouches caſe. Then becauſe the King is in poſſeſſion, it hath been ſayd that it is no bar; but this ſeemeth to be no reaſon; for the Statute began with the King, and the Preamble ſeemeth to induce it; and the third, ſaving of the Statute, is by force of any gift in tayl, ſo this is generall: And becauſe he cannot diſcontinue, therefore can he not make a bar? Non ſequitur: For he cannot diſcontinue, and yet a Fine levyed is a good bar; and the Statute of 32 Hen. 8. doth not impair this opinion, but it was to take away the doubt moved in 29 Hen. 8. Allthough indeed the Law was all wayes clear in the caſe, as it was agreed by all the Judges in Stowels caſe; and the words of the Statute of 34 Hen. 8. that the recoveries ſhall be no bar, doth not extend but to the words going before, as in the caſe in Dyer, that a man had not done any act but that, &c. And the Queen in this caſe hath not any prejudice; for ſhe ſhall have the rent with the re­verſion: And as for Jacksons caſe; that maketh for me; for the queſtion of the caſe there was, that the remainder ſhall be gone, and we ought not to take regard to that which is ſayd indirectly in the caſe, but the point of the Judgement is the matter; and for autho­rity it is direct in Dyer, fol. 26. pl. 1. and therefore it ſeemeth that the entayl is barred; and ſo the action maintainable.

Anderſon

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

13.

ONe Colgate brought a Replevin againſt Blyth. who avowed the ta­king,Replevin. and thereupon they were at Iſſue in Kent, and the Jury found a ſpeciall Verdict. The caſe in effect was this; Husband and Wife are ſeiſed of Lands in right of the Wife: And ſhe by Indenture in her own name agrees that a Fine ſhall be levyed, and limits the uſes by Indenture. After the Husband by another Indenture agrees that a Fine ſhall be levied, and limits other uſes, and afterwards a Fine is levied by them both; now whether the uſes limited by the13 Husband ſhall bind the Land of the Wife in Perpetuity, The Jury prayed the adviſe of the Court, &c. For if they be good, they found for the Plantif, if not, then they found for the Defendant.

Shuttle­worth Serjeant

It ſeemeth that Judgement ſhall be given for the Plan­tif; For the uſe limited by the Husband, ſhall be a good limitation in Perpetuity,Rent ch. ou Leaſe per feme covert. and firſt the Wife only cannot limit any uſe, for her Acts are of no Validity. And therefore if a Wife grant a Rent charge, or make a Leaſe, and the Grantee enter, this is a Diſſeiſin, & 43. Ed. 3. Deeds given by a Feme Covert are void. & 17. lib. Aſſ. a VVife le­vies a Fine Executory,Fine executory executed. per feme covert. ſur grant & render, as a ſole Woman, and af­ter a Scire fac. Is brought to Execute this Fine, the Husband ſhall ex­tort the Execution, and if it were a Fine Executed, then it is a Diſſeiſin to the Husband. Vſe quod.For an uſe is a Declaration how the Land ſhall continue in Perpetuity, and the Feoffees are nothing but Inſtru­ments, or Organs to convey the uſe, for the Land yields the uſe and not the Feoffees; then when the Wife which is under the Power of her Husband,Limitation per infant quaere. limits an uſe, this is void, for I hold for Law, if an Infant limit uſes, and after levy a Fine, and do not Reverſe it during his Nonage, yet the limitation ſhall not bind him, and ſo of a man non compos mentis. Non compos mentis.And ſo it was ruled in the Court of Wards, where a naturall Ideot made a Declaration of uſes, and levied a Fine accor­dingly,Ideot naturall. that yet it ſhall be to the uſe of himſelf. And then in our caſe the Limitation by the Wife cannot be good, but her Will depends upon the Will of her Husband, and the expreſſing of the uſe by the Husband ſhall be good. Eſtate, diſſeiſin, & aſſumſit al feme.For if an Eſtate be made to a Wife, if the Hus­band ſeaven years after agree, it is good, and ſo it is of a Diſſeiſin to a uſe, ſo ofan Aſſumpſit to the Wife, 27 Hen. 8. in Jordans caſe, & 1 Hen. 7. in Doves caſe, and in a Pra•cipe quod reddat, the default of the Wife ſhall be the default of the Husband,Default del feme. becauſe ſhe is Compellable to the Will of her Husband by the Intendment of the Law. 21. lib. Aſſ. A man ſeiſed of Land in Right of his Wife, makes a Feoffment in Fee,Livery per ba­ron. and would have made Livery, but the Wife would not agree to the Livery, yet notwithſtanding the contradiction of the Wife, the Livery was Adjuged good. & 33 Hen. 6. Husband and Wife are Plantifs in an Aſſiſe,Nonſuite del feme. and the Husband would Proſecute, but the Wife would be Nonſuite, the act of the Husband ſhall be accepted, and the act of the Wife rejected. So if the Husband will make an Attourny and the Wife wil diſſavow him,Attourny. yet he ſhall be their Attourny. And as I think this Limitation by the Husband ſhall bind the Wife in perpe­tuity:Caſe per fine & indentare Difference. Juris clamat. For if the Husband make a Leaſe of the wifes Land for 100 years, the Wife may avoid it after his death; but if after they both Levy a Fine, the Leaſe ſhall be good-for ever. And 11 Hen. 4. He in Reverſion, and one which hath nothing, Levy a Fine, & quid juris clamat ſhall be brought againſt them both. And as I conceive it, it ſhall be14 counted her folly,Reentry per condition. that will take ſuch a Husband as will Limit ſuch uſes. For if a Wife hath an Eſtate in Land, upon condition for not payment of Rent that the Feoffor ſhall reenter, if ſhe take a Husband, which doth not pay the Rent, whereby the Feoffor or his Heires reen­ter, the Eſtate of the Wife is utterly defeated. And in 4 Ed. 2. A woman Tenant takes a Husband,Ceſſavit. who ceaſeth by two yeares, whereby the Lord bringeth a Ceſſavit, and recovereth the Inheritance of the Wife, ſhe ſhall be bound. And this appeareth in Fitzh. in Cui invita. 21. And it ſhall be ſo if the Wife hath but a Freehold,Waſt. as it is in 3 Ed. 3. A woman Leſſee takes a Husband, who maketh Waſt, whereby the Land is recovered, and 48 Ed. 3. fol 18. Husband and Wife ſell the Land of the Wife, this is onely the ſale of the Husband; but if after they Levy a Fine, this ſhall bind the Wife. And for expreſs Authori­ty it is the caſe in Dyer,Joynture. fol. 290. a pl. 2. And ſo it is a Common caſe if a man ſeiſed of Lands, takes a Wife who hath a Jointure in his Land, and he makes a Limitation of uſes, and after they both Levy a Fine, this ſhall be the Limitation by the Husband, becauſe it ſhall be intended that the Wife conſented, if it doth not appear to the con­trary. Whereby the Declaration of the uſe here by the Husband, ſhall be good to bind the Wife, and therefore Judgement ought to be given for the Plantif. Fe•ner to the contrary, for here the Inhe­ritance is in the Wife, and where the Husband limits further than he hath Authority, there the Law ſhall make a Declaration of the uſes, for the Husband cannot Limit uſes of that which he hath not, 21 Ed. 3. A man takes a Wife ſeiſed of Lands in Fee,Atteynder del feme. and before that the Husband was intitled to be Tenant by the Curteſie, the Wife was at­tainted of Treaſon,Homage. the Land ſhall be forfeit; and 44 Ed. 3. He ſhall not make Homage,Conuſans. before he be intitled to be Tenant by the Cur­teſie. 12 R. 2. Conuſans ſhall be made by the Bayley of the Husband in the name of the Husband and Wife. Warranoy.And in this caſe the Coniſee is in, in the per by the Wife, and Warranty made to the Husband ſhall inure to the Wife; and 18 Ed. 3. A man ſeiſed of a Mannor in right of his Wife,Villain. to which there is a Villain regardant, the Villain Purchaſeth Lands, the Husband ſhall be ſeiſed of the Perquiſite in right of his Wife. And yet otherwiſe it is where a man is Leſſee for years of a Mannor, to which, &c. For he ſhall be ſeiſed of the Per­quiſite in his own Right. Divorce.12. lib. Aſſ. If he be Divorced, his Eſtate is gone. Leaſe & Rent ch. diverſity.And I agree to the caſe, put by my Brother Shut. Where the Husband makes a Leaſe for years, and after he and his Wife levy a Fine, there the Leaſe ſhall be good, but if the Husband grant a Rent charge, and after he and his Wife Levy a Fine, I do not agree that this is good, for in the firſt caſe the Coniſee found one which had an Intereſt in the Land, but not in the laſt. Then, Sir, here the Husband hath no power to Limit the uſe for the Land of his Wife to indure15 for ever. Feoffee al uſe.28 Hen. 8. The Feoffece to uſe at the Common Law, Li­mits an uſe to a ſtranger, this Deveſteth the firſt uſe, but if he limit is to ceſtui que uſe, then it is an ancient uſe, and not new. And ſo it is if Tenant for life, and he in Reverſion levy a Fine, this ſha•l be to the uſe of him in Reverſion. 2 Loyntenants.And ſo if two Joyntenants be in Fee, and they limit ſeverall uſes, this ſhall be good according to their li­mitations for the Moities of either of them, and for no more. And if Husband and Wife levy a Fine to the uſe of the Husbands Sonne,Fits del baron: yet this is to the uſe of the Wife, but if he be the Wifes Sonne allſo, then this is a good conſideration, and the uſe ſhall be accordingly. And theſe caſes I put to this intent, that when a man limits an uſe which is repugnant,Ʋſe repugnant. or further than he hath Authority, the Law ſhall make a Declaration of the ſame uſe, for Bracton ſaith, Nemo poteſt ad alterum plus juris tranferre, quam ipſe habet. And I take the Law, if Husband and Wife levy a Fine of the Lands of the Wife, and render back to the Wife in Tail,Fine levie de terres del feme O•e r•eder al feme en tail. and the Husband dye, and the Wife diſcontinue, that this is not a Purchaſe of the Husband within the Statute of 11 Hen. 7. And ſo it was here adjuged in 18. of Eliz. in Alexanders caſe. And I agree to that which hath been ſaid ▪ that the Wife only cannot limit uſes; but becauſe the Jury hath found for•he Defendant, if the limitation by the Husband be not good (as I think it is not) then Judgement ſhall be given for the Defendant. Conceſſum.

Adjornatur.

14

WIlliam Knight,Eject. firm. as Eeſſee for yeas to Sir John Forteſcne and Rich. Thikſton Gentleman, brought an Executione firme againſt W. Bre•h, of one Meſnage with the Appurtenances in Themilſtreet in the Pariſh of St. James Clarkenwell, the Defendant pleaded not guilty, and the Jury appeared at the Bar, and Evidence given on both ſides; And at the length the Plantif Demurred in Law upon the Evidence given for the Defendant,Demurrer al evidence. and thereupon the Jury were diſcharged. And now Gawdy the Queens Serjeant came to the Bar, and demanded Judgement for the Plantif,The caſe. and reherſed the caſe in this ſort. The Prior of St Johns of Jeruſalem in England by deed Indented, A. 29 H. 8. Deviſed a Meſuage called the high Houſe, 13 Cotages, one Sta­ble, and 14 Gardens, for 59 yeares to one Corda•l, rendring 5. l. 6. ſ. 11. d. viz. For the 13 Cotages, iij. l. And for the high houſe xiiij. ſ. and for the Stable xx. ſ. and for, &c. And if it happen the Rent to be behind by three months, then the Prior to reenter; after by an act of Parliament, An. 31. Hen. 8. the Priory was given to the King, and hee Veſted in actuall Poſſeſſion thereof, with all Conditi­ons and Covenants &c. as the Leſſor had. Afterwards the King 29. Sept. An. 36. by Letters Patents gave the St•ble to the ſame Cordall,16 and one H. Audley in Fee, and the Reverſion of the other Parcells deſcended to the Queen which now is, whereupon 8 die Maii, An. 23. Iſſued a Commiſſion out of the Exchequer to enquire, ſi praedict. Cor­dall & aſſign. ſui perimpleviſſent & performaſſent omnes conventiones & promiſſiones, fact. & reſervat. ſuper praedict. Indent dimiſſionis & prae­miſſis fact. &c. And the Commiſſion was retourn'd in Michaelmas Term after, and it was found that the four uſuall Terms in London are the Feaſts of St. Michael, the Birth of our Lord, the Annunciati­on, and the Birth of St. John Baptiſt, for the Rent was to be paid, ad quatuor terminos Anni infra Civitatem London uſuales. Ʋſuales termi­nos.And further by the ſame Iury, being a Iury of Middleſex, it was found that 37. ſ. 5. d. ob. Part and Parcell of the ſaid Rent, were behind not paid, by three Months next after Michaelmas laſt paſt before the taking of the ſaid Inquiſition. Cordall made Burnell his Executor, and died. Burnell granted all the Term to Brech the Defendant. Afterwards the Queen 5 Auguſts An. 23. (which was before the return of the Inquiſition) and before any Entry or Seiſure made by her, or by any other, to her uſe, granted the high Houſe to Sir John Forteſcue and Thekſton in Fee, and they entred upon Berch and made the Leaſe to the Plantif for three yeares, &c. And firſt it is to be conſidered if they be ſeverall Rents in this caſe or no;Severall Rents. becauſe he ſaith, viz. For the high houſe 14. ſ. &c. For that I take the Law to be very ſtrong,Co•ceſſum per Fenner, Rodes. that they be ſe­verall Rents, for allthough that he ſaith firſt, requiring 5. l. 6. ſ. xj. d. which is an entire ſumme, yet when he ſaith afterwards, for the high Houſe ſo much, and for the Stable ſo much, &c. This ma­keth a ſeverance, and for that I will remember the caſe in Dyer, fo. 308,Feoffment per deux. ſo I hold the Law, if a Feoffment be made by two, rendring xx. l. a year, viz. x. l. to the one, and x. l. to the other, theſe are ſeverall Reſervations; but becauſe I hold the Law clear in this point, I will ſpeak no more to it. Another matter is when the Commiſſion iſſueth to enquire of all Covenants and Promiſes conteined in the In­denture to be performed by Cordall,Conc. per Rodes. Leaſe ſur condi­cion en un proviſo. if the finding by the Jury be con­teined within theſe words, Covenants and Promiſes, &c. And I think they be; for if a man make a Leaſe to one for years, and if it happen the ſaid Rent to be behind, that then it ſhall be lawfull to the Leſſor to reenter, as I think this is a Proviſo for the Rent; ſo the caſe in 22 Hen. 6. A Leaſe was made for years,Rent an agree­ment. rendring Rent, the Leſſee is bound to perform all covenants and agreements; if he do not pay the rent the obligation is forfeit;Co•ceſſ. per Fenner. for the payment of the rent is an agreement: So in this caſe the proviſo doth extend to the payment of the rent. And as for the exception which was taken, viz. That the Jury find that 37 ſ. of the rent was behind, and doe not ſay expreſly, for the houſe which is now in queſtion, I hold that a vain exception; for when they have found that more was behind than that17 which was now in queſtion, allthough that it be in generality, yet it is good for the particularity; and for that matter I could remem­ber many caſes, but I will not doubt of a matter (as I think) without doubt. But for the condition, which is the great matter of the caſe, Firſt, the condition is veſted in the King, by the expreſs words of the Statute and,Condition. as I think, grant of parcell ſhall not extinguiſh the whole condition. In the caſe of a common perſon the condition ſhall be ut­terly gone, and ſo are our Books; otherwiſe, peradventure, I would doubt of that allſo; but becauſe the Book is ſo, in Dyer 14 Eliz. fol. 309. I will ſpeak no more of it; but the caſe of the King differs from a common perſon;Rent charge to the King. rent ſeck. for as he is the Head, and ſupreme Governour of the Commonwealth, ſo he is the ſuperior in Prerogatives and Prehe­minences. 13 Ed. 3. & 14 Ed. 3. A rent charge granted to the King, he ſhall diſtrein for it in all the lands of the Grantor: and 8 Hen. 5. if a rent ſeck cometh to the King, he ſhall diſtrein for it, and yet it is called ſeck, becauſe no diſtreſs is incident thereto: And there the principall caſe was of a Fieri facias. No demand by the King.& 2 Hen. 7. the King ſhall not de­mand his rent. But it hath been ſayd, that becauſe conditions go to the deſtruction and determination of eſtates,Cond. ſtrictly taken. that therefore they ſhall be t•ken ſtrictly; to which I agree; but not in the caſe of the King, as in Bro. Apportionment 23. & 168. and ſo are the preſidents in the Ex­chequer, if a man be bound in a Statute Merchant, and after the Co­niſor enfeoffes the King of parcel of the land,Coniſor enfeof­fes le Roy. and enfeoffes a ſtranger of another parcell, and afterwards the Statute is forfeit to the King by atttainder, the King ſhall have execution againſt the other feoffee: And in many other caſes the King is privileged, eſpecially in things entire: For if there be two Coparceners, and one be in ward to the King,Entire preſen­tation. he ſhall have the entire preſentation of all. And in this caſe, I think, that before the condition ſhall be deſtroyed, that the Patent made to Cordall ſhall be voyd; for it is not ex certa ſcientia, & mer•mot•, but it is generall, and it was not the intent of the King to take away the intire condition: And allthough the King grants the re­verſion, yet the condition which was once veſted in the King, as I think, remains in him ſtill; for in 31 Edw. 3. an advowſon deſcended to three perſons, and the youngeſt is in ward to the King, and he granted it to Queen Philip his Wife,Advoſon to 3 parceners. and ſhe granted it over to the Earl of Arundell, who granted it to the eldeſt parcener, the Church became voyd, the King had the preſentation; for when the King was poſſeſſed of the wardſhip of the youngeſt, he was intitled to preſent for all; and when he granted the ward over, this did not deveſt the title of the two eldeſt which was veſted in him before: and 37 Hen. 6. the Grant of the King upon a falſe ſuggeſtion is voyd;Falſe ſuggeſtion and in Littleton, he ſhall have account againſt Executors; and yet the Law is clear,Account. that an Action of Account will not lie againſt Execu­tors;18 & ſo for all thoſe Reaſons Judgment ſhall be given for the Plain­tif. Several reſer­•ations.Fenner to the contrary: And firſt, I agree that they are ſeverall reſervations; and ſo is the caſe which hath been remembred in 8 Ed. 3. A Leaſe was made of eight Acres of land, reſerving eight ſhillings of rent, viz. for every Acre 12 d. thi•is ſeverall; and to that which hath been ſayd, that the condition is a proviſo, I deny that; for a proviſo,Proviſio quid ſit as me ſeemeth, either is in the affirmative, that a thing ſhall be done; or in the negative, that it ſhall not be done; but here it is neither directly affirmative, nor negative, and therefore they have found it without commiſſion;Agreement. but I confeſs that agreement extends to rent, 22 Hen. 6. & 14 Hen. 8. then the Jury which was of Mtdleſex have found the four uſuall Feaſts in London, viz. St Johns, &c. and this as it ſeemeth they cannot doe, becauſe it is a thing in another County; eſpecially they being but an Inqueſt of Office. Further, they have found that 37 ſ. was behind at one Feaſt, and this is impoſſible; for then the entire rent ſhould amount to 7 l. And further, the Leſ­ſors have purchaſed the reverſion, before the return of the Inquiſition and Commiſſion, and then the Queen cannot be intitled, becauſe ſhe hath not the Freehold; for it hath been adjudged here, that if a man fell his lands, and afterwards makes livery thereof, and after inrolls the ſale, this ſhall not have relation to the date of the deed, becauſe it takes effect by the livery which was before the inrolment: And 8. Edw. 3. Feoffment puis atteynder.A man attainted of Treaſon makes a feoffment of his land after he is reſtored, yet he ſhall not have the land; yet if he had not made the feoffment, he ſhould have been reſtored to the land with the mean profits. Then if the King grants the reverſion, if he ſhall have the condition remaining, and I think not; for the King hath it by expreſs words of the Statute, as the Prior had it; and if the Prior had granted parcell of the reverſion,De percell de Reverſion. the entire condition had been gone, and the King ſhall be in the ſame caſe; for Ceſſavit is given by the Statute of Weſtminſter 2. cap. 21. eodem modo as in the Statute of Glouceſter, cap. 4. This doth not ly of an eſtate tayl, no more than a Ceſſavit by the Statute of Glouc. 8 Ed. 2. And ſo I think Judgement ſhall be given for the Defendant.

19

De Term. Trinitat. Anno xxviij. Eliz. Reg.

1.

ROd•s Juſtice

Judgement ſhall be given for the Plaintif. Firſt, I agree that they are ſeverall rents; and yet this queſtion doth not goe to the overthrow of the Action; in proof whereof both great reaſon and authority is copious: For if the Leſſor had entred into parcel, this had not ſuſpended the entire rent; or if the reverſion of parcel there­of were granted, this ſhall carry no more than that which is granted; (& ſo it was held by the Juſtices) when it was granted to Cordall. Parcel entred into.And 2 H•n. 6. if I reſerve an entire rent, and the Leſſee will pay but par­cell, &c. & 17 Ed. 3. fol. 52. by Sharde. & 11 Ed. 3. lib. Aſſ. If I make a Leaſe of two Acres, reſerving for the one Acre x. ſ. to me and to mine heirs; and for the other Acre x. ſ. generally: And Dyer, fol. 308. b. & Lib. Aſſ. pl. 23. If three Coparceners be, and rent be reſerved for equality of partition, but one Scire fac. ſhall be brought; for it is brought but upon one record;1. Scire fac. and Littleton pl. 316. but one action of debt for Tenants in common, but ſeverall Avowries; ſo I hold that they be ſeverall rents in this caſe, and yet but one condition: And for that let us ſee if by grant of parcel, the entire condition be gone. In the caſe of a common perſon, it is all gone, as it was adjudged here in Hill. laſt, where a man makes a Leaſe for years, reſerving xx l. for rent,Sum in groſſ, and rent reſer­ved upon cond. and allſo a ſum in groſs of xxvl. was to be paid to the ſame Leſſor, upon condition, if the rent, or ſum in groſs were be­hind, then a re-entry to be made. Afterwards the Leſſor took an E­ſtate back again of parcell of the term, the ſum in groſs was not payd, and it was adjudged that he ſhall not take advantage by the conditi­on; for when he took an eſtate back again, the rent was ſuſpended, and then for the ſum in groſs he ſhall not re-enter, becauſe the condi­tion was entire;Cond. entire. but all though that the caſe of a common perſon be ſo, yet the Princſes caſe differs; for ſhe ſhall have her Prerogative; and for the Preheminence which the Queen ſhall have, I referre you to the argument of Iuſtice Weſton in the caſe of the Lord Barkley:Coment. And that the Queen ſhall have her Prerogative in a condition, I will remember the caſe of the Abeſſe of Sion, & 38 Hen. 6. & 21 Hen. 7. the King may make a feoffment in fee upon condition that the Feof­fee ſhall not alien,Feoffment in fee upon cond. reſervation. and 2 Hen. 7. & 35 H. 6. he may reſerve a rent to a ſtranger; and 21 Eliz. the Queen grants her debt to another, and he in reaſonable time will not proſecute, the Queen may take it a­gain,20 gain,Gr••t of a debt and may ſue: And allſo Cranmers caſe, where King Hen. 8. gave lands to the uſe of him for life, and after to the uſe of his Executors for twenty yeares,Rent charge after atteynder. after he was attainted, the Queen ſhall have this rent as a rent charge, and yet ſhe had the reverſion before. And in reaſon it ſeemeth the Queen may apportion her condition; for if this condition by the grant to Cordall ſhall be avoyded, four principles ſhall be overthrown; for it is a principle That the King ſhall not be deceived in his grant. 2. Item, that when concourſe and equality of titles come together,4 Principles for the King. that King ſhall be preferred. 3. Item, in entire things he ſhall have all. 4. Item, that his grant ſhall not extend to ſeverall intents or purpoſes: For the firſt, if the King be decei­ved in the operation of the Law, his grant ſhall be voyd, as where he grants to a man and his heirs males,Releaſe ſeveral. this ſhall be voyd. 6 Hen. 7. releaſe of all demands. 11 H. 7. 10. releaſe of all action, and yet in thoſe caſes there is matter of intereſt and not prerogative, and yet nothlng paſſeth if ſhe be deceived. For ▪ the concourſe of title, 4 Ed. 6. a man makes a feoffment in fee, upon condition that the feoffee ſhall not commit treaſon, after the feoffee commits treaſon, the King ſhall have the land,Treaſon. & 44 Ed. 3. per Thorp, tenant of the King, &c. he ſhall have the rent again: And for the caſe of the Lady Hales in the Co­mentaries, where lands deſcend to a villain. For entireties, 44 Ed. 3. the King and others give lands to a Monaſtery, the King ſhall be ſole Founder,The. King ſole founder. 19 Hen. 6. he ſhall have the intire obligation where the one obligee is outlawed:Obligation. and in 11 Hen. 7. & 2 R. 3. two are indebted to the King,Releaſe to the oblige. and he releaſeth to one of them, then his grant ſhall not inure to two purpoſes, Bagg•ts Aſſ. And ſo if the King give lands to his villain, this ſhall be no enfranchiſment to him. So for all thoſe reaſons I hold the condition may ▪ well enough be apportioned. Vill•in.Then for the third matter, when the commiſſion iſſueth to enquire of all cove­nants and proviſoes, if the condition be within thoſe words; and for that point I think that the Plaintif ſhall recover; for allthough it be not within the words, yet the commiſſion is generall after; but yet I hold that is within the words, 21 Hen. 7. fol. 37. per Fineux. If I let land for term of years, rendring, &c. I ſhall have debt or covenant at my election: and Dokerayes caſe, 27 Hen. 8. Proviſo is a conditi­on, and ſo it was held here in the caſe of the Lord Cromwell and An­drews. Then when the Jury found that 37 ſ. 5 d. ob. were behind, if this office be good or no? and in my conſcience that which is good, ſhall be taken for the Queen, and the reſt ſhall be voyd; for offices between party and party may be voyd for uncertainty, as the caſe is in Dyer, 3 & 4 Eliz. Office in Beverley, &c. fol. 209. Or they may be avoyded for falſity,Proviſo is a condition. 1 M. Culpepper fol. 100. b. Or for inſufficiency, as in my Lord of Leiceſters caſe in the Comentaries,Offices voyd. but this is only for the Queen, and therefore ſhall be taken favourably, and therefore I will21•ompare it to a verdict where ſurpluſage is found, 3 Hen. 6. Plene adminiſtravit,Superpluſage in a•erdict. and the Jury found that they have more than Aſſets. 47 Ed. 3. the Jury found that he which prayed to be received had no­thing in the land, where the iſſue was joyned, whether the particular tenant had a fee. And 39 Hen. 6. 9. ſurpluſage in an Inquiſition. & 5 Hen. 5. fol. 2. Reſceit.Cobhams caſe, where they found a Divorce in Kent, &c. Inquiſition.Allſo, Sir, Offices may be good for that which is certain and voyd, for that which is uncertain, and good for the King, and not for a ſubject, Strenes caſe, in 15 Edw. 4. & 14 El. Office found after the death of the tenant by the curtefie, & 29 H. 8. Br. tit. Office devant Eſche­etr, 58. Dyer.And if a commiſſion be awarded, and the lury ſay, that d•quo tenetur ignorant, then a melius inquirend. ſhall goe forth ▪ but if they ſay, per quae ſervicia ignorant, then nothing ſhall be done, but it ſhall be intended Knights ſervice, and ſo is the experience of the Ex­chequer. And here they have found that more was behind, ergo, they have found that ſo much was behind, Quia omne majus continet in ſe minus. Then if this be within the Statute of 18 H. 6. c. 16. And it ſeem­eth that it is not; for that Statute as I think is but an expoſition of 8 H. 6. and that ſpeaketh of Leaſes by Treaſurer and Chancellor, and for that ſee the caſe of the Duke of Suffolk 3 & 4 Ph. & Mar. Dyer, fol. 145. And ſo I think for all theſe cauſes judgement ſhall be given for the Plaintif. Peryam Juſtice to the contrary. For the firſt matter, I agree that they be ſeveral rents for the viz. here doth expound the matter, and when the viz. may ſtand with the premiſes,Videlice•. then it is good, and o­therwiſe not, and for that the caſe in 17 lib. Aſſ. which hath been vouched,Difference be­tween an an­nuity and a rent charge. and diſſeiſin of one is not diſſeiſin of the other rent: And there is a plain difference between an annuity and a rent ſervice, be­cauſe for an annuity it is the book in 29 Edw. 3. fol. 51. & 29. lib. Aſſ. 3 Parceners, and rent reſerved for equality of partition, &c. vouched by Rodes; but if I grant you xl ſ. out of my Mannor, viz. x ſ. out of parcel in the tenure of A. and x ſ. out of another parcell,Rent limited out of an intire mannor. this is voyd; for firſt there was a grant out of the entire Mannor, 9 lib. Aſſ. yet this is one leaſe, & but one reverſion, & but one condition, & the condition is entire, and that is wel proved by the expreſs words of the condition (totaliter reentrare) and this proved by Winters caſe in 14 El. and Raw­lins caſe adjudged,Totaliter. where the ſum in groſs was behind,Dyer. the caſe vouched by Rodes,Cond. is undevi­dable. 33 Hen. 8. in a common perſons caſe it cannot be divided, neither by title, nor by the act of the party. If ſurrender be made of parcell,Surrender of parcel. the rent ſhall be apportioned, but the condition is utterly gone:Dyer. But peradventure it will be objected ▪ that in 17 Eliz. the condition there was divided, where he aliened parcell with the con­ſent of the Leſſor, and the other parcell without conſent, and in that the Leſſor entred for the condition broken;Cond,•pportion­ed. I grant this caſe, and yet this doth not prove that a condition may be apportioned; for the22 reaſon in that caſe is, when he made ſuch a condition, the condition extended but to that which he aliened without licenſe, and to no more, and ſo I hold the Law where a leaſe is made of twenty Acres, with condition,Eviction. &c. and parcell is evicted. And warranty at the Common Law cannot be divided; for if two Coparceners were who had warranty to detain,Garr•nty. and they made partition, the one could not vouch without the other,V•u•her. and therefore ſhe ſhould pray in ayd, and then both to vouch Paramount, and ſo the Statute which giveth p••tition between Joyntenants ſaveth their warranty, otherwiſe it were gone. And ſo if two Joyntenants make a leaſe for years, reſer­ving rent upon condition,Partition of a〈◊〉 and after they make partition (as they well may, having the reverſion and the freehold in them) I hold the Law clearly, that the one nor the other ſhall enter for the condition broken: Then in the caſe of the King, I hold the Law that it ſhall not be apportioned; and yet I agree that the King ſhall have his Pre••gatives for his preſent lands and goods,Prerogative. but he ſhall never have Prerogative when wrong ſhall be done to any man. Rent charge app•rtioned.If the King have a Rent chage, and after Purchaſe parcell of the Land charged, it ſhall be apportioned, 21 Hen. 7. he may well condition that his Feoffee ſhall not alien; for in thoſe caſes there is no preju­dice to others, but all thoſe caſes run upon other grounds. And in Bartlets caſe, the King is bound by the Statute of donis conditionalibus, for it was a wrong that the Donee at the Common Law ſhould alien the inheritance. And this caſe as me ſeemeth is not within the con­courſe of Title,C••••urſe of•itle. as my Brother Rodes hath argued, neither is the King deceived as hath been ſaid. For when the King enters, he ſhall be ſeiſed in priſtino ſtatu ſuo,Dyer. and this is a principall reaſon in Winters caſe; & 16 Eliz. a perſon makes a Leaſe reſerving Rent, upon conditi­on, that if it be behind & lawfully demanded, that then he ſhall re-en­•er,De•and. after the reverſion cometh to the King, he ſhall not ma••demand, I agree well thereto; the reaſon is, becauſe the demand is a thing which goeth to the perſon of the King. Then, Sir, the Statute is, that the King ſhall have it as the Prior had it, which is meant of the eſtate and not of the perſon of the King: Then, Sir, it is impoſſible that the King ſhould have the land as the Prior had it, ut in priſtino statu ſuo, if he doe not utterly defeat the grant made to Cordall; then here the condition is gone,The Kings grant againſt the Law is voyd. but not by any grant as it hath been moved, but by the operation of the Law: And 49 Ed. 3. the King grants that lands ſhall be deviſable, it is voyd, becauſe it is againſt the Law; and it is againſt the Law, that a condition ſhould be apportioned, ergo, the King ſhall not apportion it. But admit this queſtion againſt me, then let us ſee what title the Queen hath by this commiſſion. Firſt, the commiſſion is to enquire if Cordall his Aſſigns and Farmers have per­formed all covenants and proviſoes contained in the Indenture;Proviſo. as23 for that I hold the law clear that they have au•hority, by thoſe words, to enquire of the condicion, but for other reaſons I think the Com­miſſion void. For the Commiſſion is to enquire per bonos & legales ho­mines de Com. noſtre M•dd. and it doth not appear here that the Ju­rors were of Middleſex, and therefore the inquiſition is not good. Further,Severall & ſpe­ſpecial finding. they have found a thing in another County, and this they cannot find, but I hold that the Jury in one County, may find the ge­nerall iſſue in another County. Allſo I hold that when the party can­not plead that which is the great matter of the Action, they may find it in an another County becauſe the party cannot pleade it, as in 9 Ed. 2. in debt againſt Executors, &c. And for theſe reaſons I hold judgement is to be given for the Defendant.

2.

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

Snagg

well Sir, then we will give evidence.

Anderſon

for whom are you?

Snagg

for the Plantif.

Anderſon

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

Rodes and all the Court

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

Anderſon

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

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

3.

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

An­derſon

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

Windham

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

Peryam

So I think clearly,

whereby the Jury found for the Plantif.

4.

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

25

5.

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

6.

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

Walmyſley

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

An­derſon

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

Walmyſley

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

Anderſon

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

Walmyſley

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

Walmyſley

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

Feryam

For the other if you will.

Walmyſley

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

Peryam

The other is cold enough.

And ſo the26 Court held the Feoffment good clearly. And they laughed upon Len­nard, becauſe he had profited ſo well by his action.

7.

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

Snagg

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

Walmyſley

to the contrary. For if the recompence here doth not go to the Eſtate of him which brought the Scire facias, then it ſhall be no Bar, & in 9 Edw. 4. an Action was brought againſt two Executors, when there were four, and a Recovery had againſt them two, the other ſhall falſifie, for that they had equall Authority,Falſifying of re­covery per executors. and here the Husband and Wife have equall Authority, & 10 Ed. 4. the Wife ſhall have an Aſſiſe, if a Re­covery be had only againſt the Husband, & 2 Ed. 4. he in Reverſion prayed to be received,Reſceit per def. de un Joynt. he ſhall plead that the Tenant held joyntly with another, and the reaſon is, if he ſhould be received only upon the default of one of them, then he cannot have his recompence over Paramount,Grant de rever­ſion de un Joynt. & 18 Hen. 6. 1. & 13 Edw. 3.