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;

80.

WIseman brought a Writ of Error against Baldwin,* 1.1 upon a Judgement given in Trespass in the Common place upon a speciall Verdict, which was, that Baldwin was seised of 24 Acres of Land, and made his Will, and by the same devised his said

Land to Henry his youngest Sonne when he should accomplish the age of 24 years, upon Condition, that he should pay 20. l. to the Daughter of the Devisor; And if he shall happen to dye before his age of 24 years, then he willed that Richard his eldest Sonne shall have the same Land, upon Condition, that he should pay to the said Daughter 20. l. And he willed further by the said Will, that if both his Sonnes failed of payment of the said 20. l. to his Daughter, that the said Land should remain to his Daughter. And after this Devi∣sor died, and Henry his younger Son entred after the age of 24 years, and did not pay the said 20. l. to the Daughter, and Richard the el∣dest Son did enter upon him; and whether his entry were lawfull or not was the question. Cook Attorney said, it was a meer Limita∣tion and no Condition, and by consequence the entry of the eldest Sonne is not lawfull, and to prove that he cited a Case which he said was in Justice Dallisont reports 9 Eliz. where a man devised Land to his youngest Son, upon Condition of payment of a certain sum of money to his Daughter, as our case is, The Remainder over to another of his youngest Sonns, and the first Devisee entred, and did not pay the money; and he in Remainder took advantage of that, and so in our case, by the Devise Richard is to have nothing, if Henry the youngest Son did not die before 24 yeares, and the intent of the Devisor appears that his Daughter shall have the Land for non payment of the money; And therefore if the Heir enter for the Condition broken he destroies the whole intent of the Devisor; And therefore the entry of the eldest Son is not lawfull.

Godfery

I think it is a meer Condition, for so are the words. And then when the word subsequent, limit a Remainder to the Daughter for default of payment, that is not good, and he denyed the case cited out of Justice Dallison, for he said he was dead long before An. 9 Eliz.

Gawdy

I take the case of 29 Hen. 8. 33. to be a Limitation, and no Condition, for there a man devised to the Prior and Covent of St. Bartholomewes, Ita quod reddant decano & capitulo sancti Pauli 16. l. per An. And if they failed of paiment, that their estate should cease, and that the Land should Remain to the said Dean and Chapter, and their Successors. And it seemeth there, that the Dean and Chapter for non payment shall not enter; But I think the contrary, and I think in this case it is a Limitation and no Condition.* 1.2

Fenner

If I make a Lease for life upon Condition, with Remainder over, may my Heir enter for the Condition broken?

Godfry

Yes Sir.

Fenner

Nay tru∣ly, for then he shall defeat the Remainder, which is well limited by me before, the which I may not do, and this is the reason; if I make a Lease for life upon Condition, and after grant the Reversion over, that before the estate the Condition was gone, for that, if I re∣enter I shall defeat my own grant

Gawdy

Per 29. Ass. If a man devise

to one upon Condition, that if he shall be a Chaplin, to remain over to a Corporation, and the Tenant was made Chaplin, by which the Heir entred, and an Assise was adjudged maintainable against him, for his entry was not lawfull.

Clinch

The intent of the Devisor appears, that for default of payment, the Daughter shall have the Land, and therefore the Sonne shall not enter. And Wilcocks case in this Court, was, that a man seised of a Copyhold in the nature of Burrough English, surrendred that to the use of his Will, and by his Will de∣vised the Land to his eldest Sonne, upon Condition that he should pay to the youngest Sonne x. l. And after for non payment the young∣est Sonne entred, and his entry was adjudged lawfull.

Gawdy

Wee three are agreed, that it is a Limitation and no Condition, by which the first Judgement was reversed.

Notes

• * 1.1

  Limitation.
• * 1.2

  A remainder and a recovery may be created by one deed.