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;

11.

IN the Exchequor Chamber before all the Justices, &c. the case was such, John Capell gave the Mannor of How-Capell, and Kings-Ca∣pell 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 di∣streineth 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 are

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 Westmin∣ster 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, it shall never be devested without a lawfull Recovery; and here the Recovery doth not touch the Rent; and I think that all∣though 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. Te∣nant in tayl makes a discontinuance, yet he in Reversion may di∣strein 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, all∣though 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, 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 with∣in age, that the Rent shall cease during the minority, yet his Wife shall recover her Dower when the heir cometh to full age, 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 be∣tween jus in terra, 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 fal∣sifie 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. re∣covery of the rent is not a recovery of the homage, unless it be by title: And here there is not any recompense to him in the remain∣der,

and therefore there will be a difference in this case, and where there is a recompense, fol. 7. Hen. 6. if a person grant an Annnity for Tithes, 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 bene∣fice, 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, &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, 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; for if a Sci. fa. should issue to execute this remain∣der, he shall demand the Land, and before the remainder falleth he hath but quasi jus, which is not corporall, neither ought it to be put in view in Assise; and 21 Hen. 6. a. Tenant of the Land shall At∣torn 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 there∣fore let us see what authority Tenant in tayl hath in the remainder. At the Common Law, there was no Formdone in descender or re∣mainder; and the Statute of W. 2. cap. 1. provides but for two per∣sons, 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, 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 ano∣ther that he shall dig in the soyl, for by 2 Hen. 7. he in reversion can∣not 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 Te∣nant for life, 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 gift

in proof whereof is 33 Hen. 6. he in remainder shall be in ward; and in 11 Hen. 4. in Formdone in descender, he shall say that the posses∣sion was given to his father. And a Prebendary cannot charge before induction. 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, and the one charge, this is good, conditio∣nally 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 se∣verall 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, 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, that if he in the remainder bind himself in a Statute Merchant, 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; 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. 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, 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 ar∣gued in Trinity Term next. But afterwards judgement was given a∣gainst the Rent charge.

Notes

• Lawful vesture.
• Distress per grantee, before entrie of the grantor.
• Droit heir de I. S.
• Rent ch. sur. cond.
• Dower.
• Jus in terra. Prox. advoc.
• Rent & ho∣mage.
• Annuity for Tithes.
• Nomine paenae
• Promotion to a benefice.
• Rent for a re∣lease.
• Charge contin∣gent.
• Sci fa. de rem. View.
• Attornment al rent ch. Priority.
• Wast. Bargain de remain.
• Nul attaint pur tenant in rem.
• Ward.
• Formdone.
• Prebendary.
• Ioyntenants.
• Charge per Ioyntenant.
• Charge per cest. que use & Feoffees.
• Ch. per lessee, & per enreversion.
• Stat. Merch. per test. en rem. ne charge le poss.
• No attornment. Falsifying.
• Successor lie per confession.
• Fraudulent faits.