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 larger, of all the remarkable things contained in the whole book. By W. S. of the Inner Temple, Esq;

De Term. Mic. Anno Reg. Eliz. xxx. & xxxj. (Book Michaelmas (30-31 Elizabeth I))

1.

AFormdon was brought against Haselwood and Haselwood,* 1.1 and the one took the Tenancy of the one Moity,* 1.2 Abs{que} hoc that the other had any thing therein, and pleaded in abatement of the Writ, and the other took the Tenancy of the other Moity, and vouched.

Shut.

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

Tota Curia

You must needsmaintain your Writ.

Anderson

Where the pleading is such, as your Writ cannot be good, there it is a ground that you ought to main∣tain your Writ;* 1.3 but if a praecipe quod reddat be brought against two, and the one plead Nontenure, and the other accepts the entire Te∣nancy, Abs{que} hoc, &c. and doth plead in Bar, there you may answer to the Bar, because there peradventure the Writ is good, notwith∣standing; As if a Writ be brought against the Feoffor and Feoffee up∣on condition, or Morgagor and Morgagee; and so there is a diversity.

2.

IN a Quare impedit brought by the Queen against the Archbishop the disturber,* 1.4 and the Incumbent, the disturber pleaded, that long time before he had any thing in the Advowson, by whose Utlary the Queen is intitled, King Ed. 4. was seised of the Honor of Hast∣stings, and granted it to the Lord Hastings in Fee. and further gran∣ted omnia bona & catalla omnium teneutium ejusdem honoris sive mane∣rii residentium & non residentium qui forent utlagati, &c. and so con∣veyes the Honor by descent to the now Lord Hastings, and did not a∣ver that he which was Utlawed,* 1.5 was a Tenant of the Honor.

Curia

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

3.

IN the Kings Bench Anne Bucher brought an Ejectione Firme against Auncell Samford,* 1.6 and other Defendants,* 1.7 And upon not guilty plea∣ded,* 1.8 the Jury found a speciall Verdict, viz. that William Samford was seised of the Mannor of Stone-house in the Parish of S. whereof the Tenements in demand were parcell, and of divers other Tenements within the same Parish, and within a place known in the same Pa∣rish, which is neither Town nor Hamlet, called Ebney, in which Sam∣ford had a Tenement, which hath Lands time out of mind perteining thereunto, lying as well in Ebney as in Stone-house, which Tenement is in the Tenure of one Bucher by Copy of Court-roll, according to the custom of the Mannor, Afterwards William Samford deviseth to his Brother, after the death of Bucher, all that my Tenement with the Appurtenances wherein Bucher dewlleth in Ebney, Now the question was, whether the Lands in Stone-house perteining thereunto shall pass or no? And the famous Cook argued that it should pass, for this word Tenement referreth to his dwelling which is in Ebney, and not to the place where the Lands lie, And therefore he said that words ought to have relation, ut ne impediatur sententia, sed ut res magis va∣leat quam pereat,* 1.9 and he cited 4 Ed. 3 in a Quare impedit quod permit∣tat praesentare ad ecclesiam de Mourton Majorem, and the Defendant demanded Judgement of the Writ for false latin, because of Majo∣rem, and yet it was adjudged good, for it shall be referred to ecclesi∣am, and he cited 19 Ed. 3. & 3 Ed. 4. Allso it passeth by this word appurtenances; for there was such a Chambridgshire case here with∣in this Twelve-month, where a man gave instructions to another to make his Will in this form, I will that B. shall have my House, with

all my Lands thereto apperteining; And the other made it in these words, I devise to B. my house, with the Appurtenances; and it was adjudged that the Land should pass by this words Appurtenances. For allthough that in late Books, Lands shall not pass by this word Appurtenances, yet this is good authority to prove that they shall pass, as 7 Hen. 5. 41. & T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning, and here upon this devise 4. l. Rent is reserved, and the antient Rent is but 45. s. and if the Land should be racked, it is all worth but v. l. a year, and because they are held in Capite, therefore by the Statute we shall have but two parts. And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney,* 1.10 wich are not worth so much, therefore somtime the valew is considerable in a Will, and cited 4 Ed. 6. & 7 Ed. 6. and so he thought the Plaintif ought to recover. And at this time the Court seemed to be of the same opinion, for they gave day over to the De∣fendant, at which day, if nothing were said, Judgement shall be gi∣ven for the Plaintif.

4.

GAwdy prayed Judgement in an Action of Trespass by Hamble∣don against Hambledon,* 1.11 the case was such. H. was seised in Fee, and had issue,* 1.12 three Sonnes,* 1.13 John, VVilliam now Plaintif, and Rich∣ard now Defendant, And by his last Will devised Lands to Iohn, and to the Heirs Males of his body ingendred, and devised other Lands to William in like sort, and other Lands to Richard in like sort, And that if any of his Sonnes died without issue Male, that then the Sur∣vivor shall be each others Heir, Afterwards the eldest died without issue Male, And if William shall have all his part alone, or else he and Richard between them, was demurred in Law, and day was given o∣ver to argue it.

5.

WAlmisley shewed how an Action was brought by Berdsley a∣gainst Pilkington,* 1.14 upon the Statute of 2 & 3 P. & Mary, for driving a Distress out of the County, And shewed the truth of his case, that the Distress was taken in the Hundred of Offlay in Stafford∣shire, and the City of Lichfield was sometime within this Hundred, And by Letters Patents of 1 Mariae, the City was made a County of it self, and he which took the Distress impounded them within a pound in the County of the City of Lichfield; now whether he hath incurred the penalty of the Statute, or no, was the question? And be∣cause the Court had not a Statute Book there, to see the Preamble,

therefore they would give no resolution.

Anderson

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

And the Serjeants at the bar said,* 1.15 that the party may drive the Distress as far as he will within the same Hundred, but he ought not to drive it above three miles without the Hundred.

6.

IOhn Slywright exhibited an information upon the Statute,* 1.16 for buy∣ing of Titles,* 1.17 against Page, and declared how Joane Wade demised to Page for 60 yeares; the Defendant pleaded not guilty; And now a Jury of Sussex appeared at the bar. And upon Evidence it was mo∣ved, ••if a man have a lawfull Title to enter into Lands,* 1.18 but hath not been in Possession, and he entreth and makes a Lease for yeares there∣of, if this be within compass of the Statute.

Anderson

It is within the Statute, for the mischief was, that when a man had a Title to Land, he would let it to another, to have maintenance and imbra∣cery, and make contentions, and Suites, for remedy whereof the Sta∣tute was made. For if a man have a Title, he may recover according to his Title.* 1.19

Peryam

The mischief hath been truly recited, and therfore it is reason to restrain such bargains. But if a man Recover by Formdon or Cessavit, and make a Lease, this is not within compass of the Statute,* 1.20 allthough that he hath not been in Possession by a year; and in my opinion the Plaintif need not prove that it is a pretented Right, because the Statute expoundeth what is a pretented Right, viz. if he hath not been in possession. And so I have delivered my o∣pinion before this time.

Anderson

If a man hath not been in Possession, and cometh to me, and saith, that he will make me a Lease, and demands if I will take it, and I agree thereto, whereby he maketh me this Lease,* 1.21 if I do not know that he hath not been in possession, I am not within the Statute.

And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor, whereby he might take the Lease well enough. For Fleetwood cited 6 Ed. 3. if one brother maintain the other, this is not within the Statute of Champerty, which case the Court agreed, this is for speciall cause. vide statut. de articulis super cartas.* 1.22

Anderson

One brother may tra∣vell for another, and maintain him, but if he take a Lease of him, he is within the Statute of 32. Hen. 8. for this is a generall mischief, and the mischief is as great, if the brother take a Lease, as if another take it,* 1.23

quod Periam coucessit clearly, but because it was the case of the Defendant, the Jury found a speciall Verdict, viz. that the Lands were conveyed by the Husband of Joane Wade, to the use of himself

and his Wife in Tail-speciall, the Remainder to the Husband in ge∣nerall-Tail, the Remainder to the Wife in Fee, and after the Hus∣band Enfeoffed diverse men thereof, and the Feoffees continued in Possession diverse years, After the Husband died, and then the Wife by indenture sealed and delivered, of the Land, made a Lease to Page which knew all this matter,* 1.24 from the fift day of Jenuary last past, for 60 years, if the Wife should live so long, and that the Wife was Sister to Page the Defendant by the Mother, and found the valew of the Land as if it should be sold, and they prayed the advise of the Court, &c.

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

7.

FEnner moved this case to the Court.* 1.25 An Alien born purchaseth Lands in Tail, the Remainder to a stranger in Fee; The Alien suffereth a Common Recovery to his own use in Fee, And after an Office is found of all this matter, if the Remainder shall be to him which had it before or no was the question.

Anderson

I think the Queen shall have a good Fee-simple,* 1.26 for if there be a good Tenant to the praecipe, then is the Remainder gone, and you will not deny but that he is Tenant sufficient before Office found.

Fenner

True, Sir, but when the Office is found, by relation thereof the Recovery is avoided.* 1.27

Anderson

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

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

8.

PLympton brought an Action of Trespass against Dobynet,* 1.28 the Defen∣dant pleaded, that the place in which, &c. is Copyhold, and pleaded a Grant to Southey, which granted it to him, &c. The Plain∣tif replyed, that long time before the Grant pleaded by the Defendant, Alice Gooding was Lessee for life, secundum consuetudinem manerii. &c. and that the Custom is, that the Lord may grant Copies as well in Reversion as in Possession. And that in 5 Eliz. the Lord Morley being Lord of the Mannor,* 1.29 granted to him a Copy in Remainder before the grant made to Southey, which now came in Possession, and that

he entered, untill, &c. The Defendant rejoyned that there is a cu∣stom in the Mannor, that the Lord may grant Copies in reversion, with the agreement and consent of the Tenant in possession; and if any Copies be granted, without consent of the Tenant in possessi∣on, that then there is such a custom, that such Grants shall be allto∣gether voyd, abs{que} hoc, that they are devisable modo & forma, &c. whereupon the Plaintif demurred in Law.

Walmisley

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

Allso he argued that this custom shall be voyd, and cited 19 Ass. the case of the command of St Johns, and 2 Hen. 4. & 19 Eliz.* 1.30 the Ejectione firme by Bill anu Attorney; and he de∣fined usage to be, Constitutio ex diversis actionibus saepius iteratis. Shuttelworth argued to the contrary, and cited 37 Hen. 6. the case of Common, and 26 Ed. 3.

9.

GAwdy the Queens Serjeant rehearsed the case of Beverley in this manner;* 1.31 Thomas Beverley brought a Quare impedit against the Ordinary, and Gabriell Cornewell the Incumbent, which was in, of the presentation of the Queen; and upon pleading, there was a Demurrer entred up, and before that was discussed, Beverley was Outlawed at the suit of another,* 1.32 in an Action of Debt; then Corn∣well resigned his Benefice, and the Queen presented him again, where∣upon he was instituted and inducted; Then Beverley brought a Writ of Error in the Kings-bench, and reversed the Outlary, because that he was named of Hamby, where there were two Towns of the same name, and neither of them without an addition, and now he brought a Scire facias to execute his first judgement against Corn∣well, who pleaded all the matter in bar, and it seemed to him that the Plaintif shall be barred; for by the Outlary of the Plaintif, the presentation was forfeited to the Queen, allthough that it was but a thing in action, and thereupon he cited 2 Hen. 5. where a man had a Patronage with his Wife,* 1.33 and was Outlawed, &c. then, if by the reversall of the Outlary, he shall be restored to the presentation; and he sayd that he shall not, for that it was a thing once lawfully exe∣cuted, and vested in the Queen, and he cited 4 Hen. 7. where a man is attainted by Act of Parliament, &c. Allso the opinion of Brian there, is a strong proof of this case. And further he sayd, that he was of counsell with a case in 26 Eliz.* 1.34 where Debt was brought by Hanmer against Luddington, and the Defendant was condemned, and a Fieri facias issued to the Sherif, who by virtue thereof sold a term

of the Defendants, and levyed the money thereupon, and afterward the Defendant brought a Writ of Error, and refused the Judgement, the question was if he shall be restored to his term; and it was ad∣judged, that he shall not, but onely to the money for which it was fold, because the sale was once good, and so he thought that the Plaintif ought to be barred.

VValmisley

to the contrary: For in our case,* 1.35 when the Queen presenteth, she hath gained a Patronage to her self, untill we recover it again, and this is the case of Ratcliffe, in 35. For so long as the Incumbent which is presented continueth by that Induction in possession, so long he which presented him is Patron,* 1.36 per Collow, in 20 Ed. 4. and by 46 Edw. 3. tit. Incumbent. & 19 Ed. 3. tit. Quare impedit. If the King bring a Quare impedit, and hath title to recover, yet the other is Patron untill his Clerk be re∣moved, a fortiore where the Writ is brought against the Incumbent of the King, he is Patron untill he be removed, then if nothing shall be forfeit to the Queen, then it is to be considered, because the Queen hath presented the same Defendant of new, whether he shall be removed or no,* 1.37 and it seemeth clearly that he shall, because he claimeth under this estate, and this is done hanging the Writ; and no act done hanging the Writ shall extort the Plaintif from his ex∣ecution, and surely the Writ is hanging untill execution be done; and he cited 31 Hen. 6.* 1.38 If one make an Attorney, he shall be Attor∣ney untill execution be done; and 21 Hen. 7. if the Defendant re∣sign, and a stranger is presented, hanging the Writ, yet the Plaintif shall remove the stranger,* 1.39 and 20 Eliz. in Dyer accordeth with that, notwithstanding that some there held the contrary:* 1.40 And to the like purpose is the case in 11 Hen. 4. of traverse of an Office. Then for the Outlary that was avoydable by Plea,* 1.41 by the Statute of 2 Hen. 5. per the Books, in 22 Hen. 6. and 38 Hen. 6. Then if by the Outlary reversed he shall be restored, and it seemeth that he shall; for a man shall see a great difference between this case and the cases put: For if a man in an Action deny his Deed, and therefore pay a Fine to the King, if after he reverse the Judgement, yet he shall not be restored to the Fine, because it is a by-thing, and a thing collaterall, and therefore he denyed the opinion of Brian,* 1.42 in 4 Hen. 7. for it cannot be Law: But if a man be indebted to me, and after I am Outlawed, and then the King releaseth this debt,* 1.43 and then I bring a Writ of Error, and reverse this Outlary, I shall be restored to my action a∣gain. And here he hath shewen to us a peece of cunning; for when he pleads the Outlary in us, he hath pleaded the Record specially, for otherwise we would have sayd,* 1.44 nul tiel record, and then it being reversed it should have been certified for us, as there is a case in Dyer. Then here, allthough that be in by a new presentation, yet all the words of our Writ are true in this Scire facias; but I grant that Exe∣cutors

shall have a Qnare impedit for a disturbance done to their Te∣stator.* 1.45

Anderson

The case in Dyer is thus reported, That I when I was the Queens Serjeant, and Gerrard now Master of the Rolls, then being Attorney of the Queen, were of opinion that the Clerk of another shall not be removed, and concerning that matter, I held then, as I doe still, that in some cases the Clerk shall not be removed, and in some cases he shall; for if he come in under the title of the Plaintif,* 1.46 and since the same, then he shall be removed, but if he come in by title Paramont he shall not be removed; and here, for that this is done hanging the Writ, it seemeth that he shall be removed: For if a man bring a Praecipe, and hanging the Writ the Tenant alien, yet the recovery is good against him,* 1.47 and shall allso bind every one under him.

Peryam

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

An∣derson

What reason is there in that? when it was an apparent practise of the Defendant to resign; for otherwise she could not have presented,* 1.48 the Church being full before.

Peryam

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

Anderson

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

Peryam

The point is if by the Out∣lary the Queen have a new title, by reason of the Plaintif, and I doubt much thereof, if by the judgement she shall have the presenta∣tion.

Anderson

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

Rodes

Truly I hold that the Plaintif shall remove the Clerk.

Windham

And in my opinion it is clear e∣nough, that by the reversall of the Outlary the Plaintif shall have his presentation.* 1.49

Anderson

Then let Judgement be entred for the Plaintif.

Peryam

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

10.

A Writ of Partition was brought by Henry Tannworth,* 1.50 and Chri∣stian Tannworth, against John Tannworth their elder brother; for lands in Hawlesteed, alias, Elsted in Leicester-shire, because that Halsteed is parcel of the Soak of Rothelay, wherein there is such a custom,* 1.51 that the lands shall equally descend to all the heirs males, and in giving of evidence, Walmisley sayd that the members of a Mannor are other Towns in which the Mannor extends, and Pucker∣ing sayd,* 1.52 that at this day the Queen may make a Soak: For it is no∣thing else but a Precinct, to which divers Mannors come to doe suit; and as a great Leet containing divers other Courts; and the Evi∣dence

was strong for the Tenant; for he shewed by plain proof, that this was never parcell of the Soak, allthough that it was within the ancient Demeasne of Rothelay,* 1.53 as it was proved by the Book of Domes∣day, which was there shewen, and a Clerk of the Exchequer read it (for other Clerks could not) and he sayd, and so sayd the Serjeants; and the Tenant delivered to Anderson and Peryam an ancient Book of the time of Ed. 2. for their remembrance, wherein, in 4 Ed. 2. in a nuper obiit, it is sayd, that if the Lands which have been departible and departed, come into the Lords hands by Escheat, they shall not be departible in his hands,* 1.54 vel in manibus alicujus alius perquisitoris non possunt partiri. And he sayd that such was the opinion of Sir Thomas Bromley the last Lord Chancellor upon hearing of the matter there; whereby when the Jury came to give their Verdict the Plain∣tif was Non-suit.

11.

SHuttelworth shewed how Robert Hughson brought an Action of Debt against B.* 1.55 as Administrator of F. and declared upon a simple contract made by the Intestate,* 1.56 and the Defendant pleaded plene ad∣ministravit, and it was found by Verdict against him. And now in arrest of Judgement the Defendant alleged, that the Action is not maintainable against him upon a simple contract. And Shuttelworth thought that now he is past that advantage, because he did not shew it in pelading, and cited the opinion of Cottesmore in 13 H. 6. And whether the Court ex officio ought to bar the Plaintif or no was the question.

Rodes

It appeareth to us judicially that no acti∣on will lie upon a simple contract against Executors or Admini∣strators, wherefore then ought the Plaintif to have Judgement?

Shuttelworth

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

Rodes

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

Shuttelworth

This is by Littleton onely.

Rodes

The case is ruled, and Littleton gave Judgement; so is the case in 11 Hen. 4. where an Action upon the case is brought against an Inne-keeper,* 1.57 if he be not named Hospitator, allthough he plead in bar, yet we ex officio ought to abate the VVrit.

Pery∣am

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

Shuttelworth

So is 18 Edw. 4.* 1.58

& 6 Hen. 7. Rodes

If a man bring an Action, and the Defendant plead in bar by Deed, and do not shew the Deed, and the other pleads in bar, and doth not except thereun∣to,

but they were at Issue, this is Error; for we ex officio ought to have adjudged it evill; and so is the Book in 22 Hen. 6. or 28 Hen. 6. and I can shew the case.

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

12.

RObert Johnson is Plaintif against Jonathan Carlile in an Ejecti∣one firme;* 1.59 and upon not guilty pleaded the Jury found a spe∣ciall Verdict,* 1.60 that William Grant was seised in fee of the Lands now in question being held in Socage, and devised them to his Wife for term of her life; and when John his sonne came to the age of 25 years, then he sho••ld have those Lands to him and to his heirs of his body ingendred, and dyed; afterwards the sayd John before that he came to the age of 25 years levyed a Fine thereof in fee, and after came to 25 years, and had issue a Daughter, and dyed, and after the Wife dyed, then the Daughter entered, and made a Lease to the Plaintif; the question was no more, but whether this Fine levyed by the Father before any thing was in him, shall be a bar to the Daughter.

Rodes

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

Windham and Pe∣ryam

We have adjudged it lately in Zouches case, that the Issue shall not have this averment.* 1.61

Shuttelworth for the Plaintif

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

Curia

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

Windham

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

Shuttelworth

Too short, I doubt, for us.

After at a∣nother day Shuttelworth moved the case again.

Anderson

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

Shuttelworth

No Sir.

Anderson

How then can he which is privy avoyd it?

Shuttelworth

By Plea he cannot.

Anderson

The Verdict will not amend the matter.

Fenner

If I make a Feoffment upon condition,* 1.62 and after levy a Fine of the same land to a stranger, and after I re-enter for the condition broken, the stranger shall not have the land.

Curia

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

13.

A Writ of Dower was brought by John Hunt and Ioan his Wife, late the Wife of Austin,* 1.63 for the third part of Lands in Wolwich; the Defendant pleaded that the Lands are Gavelkind,* 1.64 And that the Custom of Gavelkind within the County of Kent is, that the Wife▪ shall have the Moity during her Widowhood, according to the Custom, and not any third part according to the Common Law; upon which Plea the Defendant demurred in Law;* 1.65 And one question was, whether this Prescription in the Negative be good with the Affirmative; And the other doubt was, if the Wife may wave her Dower by the Custom, and take it according to the Common Law. And the Justices held the Prescription good enough, being in the Negative with the Affirmative.* 1.66

Windham

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

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

14.

WAlmisley prayed the opinion of the Court in this case.* 1.67 The Sherif extendeth Lands upon a Statute Staple, and whether the Conusee shall b•• said to be in Possession thereof, before they be delivered to him or no?

Anderson

Allthough that they be exten∣ded, * 1.68 yet the Conusee may refuse to receive them.

Walmisley

True Sir.

Anderson

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

Windham

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

Walmisley

True Sir, that is our very case.

Anderson

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

Windham

The Lands are in the Queens hands.

Peryam

The Writ is, Cape in manum nostram.

Rodes

This is like to the case of disceit, where he shall not have the mean issues. So as it seemed to them,* 1.69 the Conusee shall not have it, but they did not say expressly who should have it.

15.

TRespass quare clausum fregit, was broug••t' against two, the one ap∣peared, * 1.70 and the other was outlawed, and the Plaintif declared against the one onely, who by Verdict was found guilty, and now Walmisley spake in arrest of Judgement, that he should have declared against them both, or against the one simuleum, &c. But the Court thought that this was helped by the Statute of Jeofailes, but at this time they were not resolved.

16.

A Speciall Verdict was found,* 1.71 that a Woman sole was seised of certain Lands held in Socage, and by her last Will devised them to I. S. in Fee, and after she did take the devisee to Husband, and du∣ring the Coverture she Countermanded her Will, saying that her Husband should not have the Land, nor any other advantage by her Will, and then died. Now whether this be a sufficient Countermand, so that the Husband shall not have the Land, was the question.

Shut∣tleworth

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

Gawdy

In Wills, the time of the making is as we••l to be respected,* 1.72 as the death of the Devisor; And then she being sole at the time of the making, allthough that▪ afterwards she took a Husband, yet this is no Countermand, and so is Bret. and Rigdens case in the Commentaries.

Anderson

If a man make his Will, and then be∣come non compos mentis,* 1.73 yet the Will is good, for it is Common that a man a little before his death, hath no good memory.

Shuttle∣worth

I do not agree the Law to be so,

and so Rodes seemed to a∣gree, but Anderson affirmed as before.

Windam

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

Rodes

If a man make his Will, and af∣ter do become non compos mentis, and then live three or four years after,* 1.74 it is no reason that such a Will shall be good, and he cited 3 Edw. 3. it in. Northt. for this case.

Gawdy

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

Tota Curia

That is nothing so, for all∣though the Proviso had not been,* 1.75 yet the Statute should have had a reasonable construction.

But for the principall case, the Court was not yet resolved. After at another day, Gawdy moved the case again, and held strongly, that by taking of a Husband; this is not Counter∣manded, and cited 2 R. 2. and then during the Coverture, she hath s••bmitted her Will to her Hu••band; For by 3 Ed. 3. it in. Roteland she

cannot devise to her Husband, whereby he concluded that the VVill is good. Shuttleworth to the contrary, because she hath no ability at the time when it should take perfection, and every Will ought to have three things, Inception, Progression, and Consummation. And he cited Bret. and Rigdens case.

Anderson

I am of my first opinion that this VVill is not good, for I think this Countermand by the Wife is sufficient,* 1.76 and if non compos mentis say that he doth revoke his Will, this is a sufficient Countermand. And whereas it hath been said, that a Feme-Covert hath no VVill; Sir that is not so, for she hath a Will in many cases,* 1.77 as if she be Executrix she may make a gift, &c. So if I be bound to do such an Act, if such a Feme-Covert will consent, in this case if the Husband onely consent, it is not sufficient, but the Wife ought to assent allso. And if this Will shall be good, then this mischief will ensue, that after a Will is once made, the partie shall have no power to controll it,* 1.78 therefore I think the Will is not good.

Wyndham

I am of the same opinion. For a Will is not perfect untill after the death of the Devisor,* 1.79 and when she is disabled at the time of her death, the Law saith, that such a Will is void. But I think that a Feme-Covert cannot Countermand her Will, for the same reason which doth disable her to make a Will, doth allso disable her to Countermand that which is made before; for by 3 Edw. 3.* 1.80 which was cited before, she cannot devise to her Husband, and by the same reason she cannot Countermand that which is devised to her Husband; but because the Wife was not a person a∣ble at the time of the Consummation thereof, therefore it is not good.* 1.81 Peryam to the same intent. First the Mariage is not any Coun∣termand, and for the case in 2 R. 2 I think it good Law. And I have allwaies taken this diversity, that if a woman grant the Reversion af∣ter Tenant for years,* 1.82 and before Attornment had she take a Husband, that this is a Countermand, but if that it be a Reversion after Te∣nant for life, then it is no Countermand, For in the first case his Ti∣tle of Tenant by the Curtesie begun by the intermariage, Allthough that it was not consummate before issue had; And it seemeth a clear case that a Feme-Covert cannot Countermand a Will, for she cannot make a Will. And whereas it hath been said by my Lord, that a wo∣man hath a will,* 1.83 true it is; but that is either by custom, or by rea∣son of some by-matter, as in the cases put. But VVills ought to take effect at the time of the death, and if then she be disabled, it is not good; for it is not consummate before; as if there be Husband and VVife, and the Husband be seised of Lands in Fee, and levy a Fine thereof, and then dye, and after the levying of the Fine five yeares pass, yet she shall not be Barred; but if after the death of the Husband five yeares pass, she is barred by a Fine, because her title was not conmsumate untill after the death of the Husband, whereby &c.

Rodes to the same intent, for if I devise the Mannor of Dale as it is iu the Com. for &c. and then have nothing in it, but afterwards purchase it,* 1.84 now it shall pass, which proveth that the perfection of a Will is at the time of the death, and in 39 H. 6. a man devised lands, and before his death was disseised,* 1.85 nothing passed by the Will, because it was no Will, untill death; and here in our case because she was disabled at the time of her death, it is void.

Anderson

Then let judge∣ment be entred accordingly.

17.

A Proclamation was directed to the Sherif of Cheshire against John Hockenhall,* 1.86 and the Writ was retorned, Tale die ad comitat. meum tent in le Shirehall &c.* 1.87 proclamationem feci, ac eodem die ad gene∣ralem Sessionem &c. proclamationem feci &c. And now this matter was pleaded in avoidance of the Utlary to reverse it, because those proclamations were made one day, whereas the Writ was (tribus seperalibus diebus &c. And the Sherif was amerced to forty shillings for his evill retorn. And at another day he was amer∣ced to other forty shillings because he had retorned divers Writs in Secretary hand,* 1.88 And commandment was then given to the Custos brevium, to receive no Writs retorned in Secretary hand, for the Court said that writing in Secretary hand would be so worn in a do∣zen yeares that no man can read it.

18.

HOcker brought debt upon an Obligation against Gomersale and his Wife Executrix of the last will of Henry Gooderd ••••perdict.* 1.89 Hen. Gooderd de London Tayler,* 1.90 And they pleaded in bar a recoverie had against them in the Kings bench as Executor testamenti H. G. nuper di∣cti H. G de Lond.* 1.91 Barber Chirurgeon, whereupon the Plaintif demur∣red, And the Defendant did not aver that the said G. Tayler & G. Bar∣ber Chirurgeon was allone person, and they also omitted this word praedictum, And whether this were good or no was the doubt, And it seemed to the Justices that it was not good, although it was alleged that it shall be intended all one person▪ and then if a plea in bar be good to common intent, it is good enough. And therupon John Pa∣stons case was cited in 21 H. 7. Where it was Westmonasteriu••, & doth not say praedictum,* 1.92 yet it shall be intended the same VVestm. mentioned before. Whereunto the Court answered▪ that here by common intent he shall not be intended the same person, but rather to the contrary, For common intent is that which shall be intended more strong than any other, and not that which resteth indifferent, As if a man

Plead a Feoffment in fee, it shall be intended that the Feoffer was of full age, but here common intent is that he was another person, be∣cause Barber Chirurgeon, and Tayler, are divers functions by com∣mon intent, And as to the case put, by common intent it shall be in∣tended the same Westm. because the place is so notorious, that com∣mon intent will nor intend any other. But Peryam would not grant that case of 21 H. 7.

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

Peryam

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

And for his President Anderson and Peryam said that they would not regard it, if it do not appear that Exception was taken thereunto if the Presidents be shewen for matter,* 1.93 but if they be shewen for form then otherwise it is.

Anderson

If I. S. bring a Praecipe against me, and I vouch I. S. it shall not be intended the same person,* 1.94 if he do not say expresly that he is the same person, therefore a Fortiori here it shall not be inten∣ded the same person.

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

19

FEnner shewed how Bartholmew Brooksbie hath brought a Quare impedit,* 1.95 and declared how A. was seised of the advowson in fee, and graunted to him and another the next avoidance, and after the church became void, and the other released to him all his right &c. and the Defendant disturbed him. And after they pleaded to issue which was found with the Plaintif, and this matter alleged in arrest of judgement, that the Release was void, and then he hath no cause of action, for when the Church became void, then it was a thing in action or actionary, and therefore could not be granted over by 28 H. 8.* 1.96 and by the same reason it cannot be released, as 1 and 2 P. and M. and 2 and 3 P. and M. in Dyer.

Anderson

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

Et adjornatur.

Notes

• * 1.1

  Abatement.
• * 1.2

  Dier 3. & 4. Phil. & Mar. 134.
• * 1.3

  Praecipe quod reddat.
• * 1.4

  Vtlary.
• * 1.5

  Averment.
• * 1.6

  Devise.
• * 1.7

  Glocester.
• * 1.8

  Hit. 30. Eliz. rot. 188.
• * 1.9

  Quare impedit.
• * 1.10

  Valew.
• * 1.11

  Survivor.
• * 1.12

  Mic. 29. & 30
• * 1.13

  Eliz. r••t. 2325.
• * 1.14

  Impounding.
• * 1.15

  Same Hundred.
• * 1.16

  Champerty.
• * 1.17

  Pasch. 30. Eliz. rot. 1532.
• * 1.18

  Lawfull title.
• * 1.19

  Recovery.
• * 1.20

  A pretended Right.
• * 1.21

  Ignorance.
• * 1.22

  Maintenance Champerty Difference,
• * 1.23

  The case.
• * 1.24

  Knowledge.
• * 1.25

  Recovery.
• * 1.26

  Tenant sufficient to the praecipe.
• * 1.27

  Relation.
• * 1.28

  Copyhold.
• * 1.29

  The Lord Mor∣leys case.
• * 1.30

  Custom what it is.
• * 1.31

  Utlary.
• * 1.32

  The Case.
• * 1.33

  Patronage in right of his wife.
• * 1.34

  Restitution af∣ter a Scire fa••••
• * 1.35

  Patronage.
• * 1.36

  Possession.
• * 1.37

  Acts done hanging the Writ.
• * 1.38

  Attorney.
• * 1.39

  Presentment.
• * 1.40

  If he come in by title, by mony:
• * 1.41

  Plea by the Statute.
• * 1.42

  Collateral thing
• * 1.43

  Release of▪ the King of the debt of one outlawed.
• * 1.44

  Speciall plead∣ing.
• * 1.45

  Executors shal have a Quare impedit.
• * 1.46

  Title peramont.
• * 1.47

  Tenant in a Praecipe aliens.
• * 1.48

  Plenarty.
• * 1.49

  Reversal.
• * 1.50

  Partition.
• * 1.51

  Members of a Mann••r.
• * 1.52

  Soak quid.
• * 1.53

  Domesday.
• * 1.54

  Partible lands Escheat.
• * 1.55

  Office of the Court.
• * 1.56

  Pasch. 30 El. rot. 421.
• * 1.57

  A common Ianholder.
• * 1.58

  A De••d not shewed in Court.
• * 1.59

  Fine.
• * 1.60

  Hil. 29 El. rot. 824.
• * 1.61

  Parties and privies shall have no aver∣ment.
• * 1.62

  Feoffment upon condition.
• * 1.63

  Dower.
• * 1.64

  Trin. 30. E∣liz. rot. 156.
• * 1.65

  Negative pre∣••cription.
• * 1.66

  I••••eritance.
• * 1.67

  Extent.
• * 1.68

  Refusall.
• * 1.69

  Disceit.
• * 1.70

  Simul cum Dyer 239.
• * 1.71

  Disability of the Devi∣sor at the time of his death.
• * 1.72

  Taking a Hus∣band is no Countermand of the Wife.
• * 1.73

  Not of sound mind.
• * 1.74

  Long life ma∣keth difference.
• * 1.75

  Reasonable construction.
• * 1.76

  ••••u••termand by one not of found mind.▪
• * 1.77

  Wills of fe••e 〈◊〉〈◊〉
• * 1.78

  Controlement.
• * 1.79

  No countermand
• * 1.80

  Consummation.
• * 1.81

  Mar••iage no countermand.
• * 1.82

  Reversion.
• * 1.83

  Will by custom•• or by some by-matter.
• * 1.84

  Perfection.
• * 1.85

  Disseisin after Will.
• * 1.86

  Proclamati∣on.
• * 1.87

  Dyer fol. 206.
• * 1.88

  Secretary hand.
• * 1.89

  Common in∣tendment.
• * 1.90

  Trin. 30. Eliz.
• * 1.91

  Rot. 2••03.
• * 1.92

  Common intent what it is.
• * 1.93

  Matter 〈◊〉〈◊〉 Form 〈◊〉〈◊〉 Presidents.
• * 1.94

  ••oucher.
• * 1.95

  A thing in action relea∣sed.
• * 1.96

  Interest shall survive.