Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

King versus Bery and Palmer.

2. IN an Ejectione firmae, brought by William King against John Bery and William Palmer Defendants, for two Messuages and certain Lands in Halstead in the County of Leicester, upon a Demise alledged to be made by Dorothy Pool, and Robert Smith▪ the case upon a speciall Verdict was this; The said Dorothy was Tenant for life of the said Tenants, the Remainder over to the said Robert Smith and his Heirs, and they being so seised made the Lease in the Declaration, upon which the Action was brought. And per cu∣riam, the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration; for although they joyned in the Demise, yet during the life of the said Dorothy it is her Demise, and not the Demise of the said Robert Smith; but as his confirmation for that time: for he hath nothing to do to meddle with the Land during the life of the said Dorothy, but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith, and not before, because untill this time Smith hath nothing to do to meddle with the Land. And in a more strong case, If Tenant for life, and he in the Reversion in Fee make a Gift in tail, for the life of Tenant for life, it shall be said to be his Gift, but after his death it shall be said the Gift of him in the Reversion, and if the Estate tail had expired during the life of the said Tenant for life, he shall have the Land again in his former Estate, and there shal be no forfeiture in the case, because he in the Reversion of the immediate Estate of Inheritance had joyned in it, and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life, wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33, & 34 Eliz. Rot. And the Judgment is entred, Hill. 34. Eliz. Ret. 72.

3. In this Term I hapned to see a Case agreed by the Iustices in 3. & 4. Eliz. which was this:

If a man make a Lease of two Barns, rendring Rent, and for default of pay∣ment, a Re-entry, if the Tenant be at one of the Barns to pay the Rent, and the Lessor at the other to demand the Rent, and none be there to pay it, that yet the Lessor cannot enter for the Condition broken, because there was no default in the Tenant, he being at one, for it was not possible for him to be at both places together.

And upon this Case now remembred to the Iustices, Popham, Walmes∣ley, and Fennor said, That perhaps also the Tenant had not money sufficient to have been ready to have paid it, at either of the said places, but it is suffi∣cient for him to have and provide one Rent, which cannot be at two places together.

And by the Case reported here also; If Lands and Woods are demised to∣gether, the Rent ought to be demanded at the Land, and not the Woood, because the Land is the more worthy thing, and also more open then the Wood: And therfore by the three Iustices aforesaid, Rent ought not to be demanded in any private place of a Close, as amongst Bushes, in a Pit, or the like, nor in the open and most usuall passage therof, as at a Stile, Gate, and the like.

4. Vpon a Prohibition sued out of the Kings Bench, the Case appeared to be this.

The late Lord Rich, Father to the now Lord Rich devised, to his Daughter, for her advancement in marriage 1500. upon condition, that she marry with the consent of certain friends, and deviseth further, that if his Goods and Chattels are not sufficient to pay his Debts and Legacies, that then there shall be 200 l. a year of his Lands sold to supply it, and dies, making the now Lord Rich his Executor, his Goods and Chattels not being sufficient to pay the Debts of the Testator, as was averred, the said Daughter married with a Husband against the will of those who were put in trust to give their assents; and the Husband and the Wife sued in the Spirituall Court for the Legacy: And it was surmised that they would not allow the proofs of the said now Lord Rich, exhihited to prove the payment of the Debts of his Testator; and further, that they would charge him for the sale of the Land; upon which matter the Prohibition was granted to the Delegates, before whom the mat∣ter depended, and now consultation was prayed in the case.

Vpon which it was affirmed by a Doctor of the Civill Law, that they will allow the proofs for the payment of the Debts, according to our Law, and that the Legacy shall not be paid untill the Debs are satisfied. But he said, that by the Law, if the Executor do not exhibit his Inventory, but neg∣lect it for a year, or more, that then if any omission or default be in the true value of the Inventory exhibited, that then such on Executor for this default shall pay all the Legacies of his Testator, of what value soever they are, not respecting the Debts, or the value of the Goods or Chattels, how small soever the omission, or default be in the Inventory; And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator, and that in the Inventory exhibited, the values of every thing were found to be too small, and therfore to be charged by their Law, albeit he hath not Goods and Chattels sufficient of the Testators. To which it was answered, that this was quite without reason, for by such means every Subject of the Realm may be utterly defeated, if he take upon him the charge of an Executorship: And if this shall be admitted, no man will take upon him the Execution of the Will of any, and by such a means none will have their Wills performed, which shall be too inconve∣nient.

And they said further, that in as much as Debts are to be proved by the Common Law of the Realm, those of the Ecclesiasticall Courts ought to admit in the proof therof, such proofs as our Law allows, and not according to the precisenesse of their Law: And although by their Law such a Condi∣tion as before being annexed to a Legacy, is void, because that marriage oughr to be free without Coercion, yet where we are to judge upon the point (as we are here) if the Execution happen to be charged because of the sale of Land, and for the money coming therof, a prohibition shall be granted to the Ecclesiasticall Iudge in such a case, wherby the Court granted a spe∣ciall consultation in the Case, to wit, that they proceed for the Legacy, provi∣ded, that they charge the Executor no further then he hath in Goods and Chat∣tels of the Testator, after his true and due Debts are satisfied: And that in the case of the proof of these Debts, they allow such proofs as by the Law of the Land are holden to be sufficient in such a case; Quod nota ben••, as to the restraining of Ecclesiasticall Courts in their proceedings, to bind any subject touching his private temporall Estate, against all reason: And as to it, that they do not intermeddle in any thing belonging to the Common Law of the Realm, as Debts, and the like, against the due course of the Common Law.