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 xxix. Eliz. (Book Michaelmas (29 Elizabeth I))

1.

IN the case of Sellenger,* 1.1 it was said by Anderson, and agreed by the Court, that if a man grant an Annui∣ty out of Land, and hath nothing in the Land, that yet this shall be good to charge the Grantor in a Writ of Annuity; and in the same case it was allso agreed by the Court, that if a man grant an Annuity to a Woman, who takes a Husband, and after Arrerages do incur, and the Wife dye, so that the Annuity is determined, that the Husband shall have an Action of debt for the Arrerages, by the Common Law.

Shuttleworth

This is not remedi∣ed by the Statute of Arrerages of Rents, and then at the Common Law it is but a thing in Action.

Peryam

An Annuity is more than a

thing in Action.

Windham

He may grant it over, and so the opini∣on of the whole Court was, that debt was maintenable.

2.

AT the same day it was said by Anderson,* 1.2 and not gainsaid, that if an Executor plead ne un{que} administer come executor, yet after∣wards he may take the Administration upon him, and well enough be Executor.

3.

IN a Replevin by Bosse against Hawtrey,* 1.3 they were at Issne, Termino Mic. An. 28. & 29. And Bosse had a venire facias in Termino Mic. retournable in Termino Hill. and after in Termino Hill. took an alias retournable in Termino Pasch. and so awarded it in the Roll of Mic. to the intent that the matter should not be tried at the Assises in Kent, and thereupon Hawtrey which was Avowant, moved the Court and prayed expedition, whereupon the Court caused the Roll to be brought in, and notwithstanding that it was a Roll of Mic. Term, yet because it was awarded the same Term, they mended the Roll, and a∣warded the alias retournable the same Term of Hill.

4.

WYlgus brought an Action of Trespass against Welche quare clausum fregit.* 1.4 Welche said,* 1.5 that I. W. was seised and enfeoffed May, and so conveyed a title to himself, the Plantif replyed that A. his Auncestor was seised, and so the Land descended to him, Abs{que} hoc that I. W. was seised, and upon this Issue the Court was moved.

Anderson

the seisin is not traversable, but where it is materiall, and therefore clearly the Traverse is not good;

but Fenner cited a book in 2▪ Edw. 6. that the Travers shall be good, but he stood not much up∣on it. Snagg 27 Hen. 8. 4. Bro. pleadings 1. is contrary, but the opi∣nion of all the Court clearly was that the Travers is not good.

5.

A Man makes a Feoffment in Fee to the use of himself and his Wife,* 1.6 & alterius eorum diutius viventis abs{que} impeticione vasti durantibus vitis ipsorum, the Husband dies, if the Wife shall hold with∣out impeachment of wast or no was moved by the Serjeants. And the opinion of all the Court was, that she shall not be impeached of Wast, because of the severance, but otherwise if it had been Joyntly.

6.

FUlwood brought an action upon the case against Fulwood,* 1.7 and de∣clared that whereas a motion of mariage was between the De∣fendant and a Widow in London, in consideration that the Plaintif should give his assent, that the Father of those Fulwoods should con∣vey to the Defendant all his Lands and Chattells, the Defendant pro∣mised to pay the Plaintif such a sum of money as their Father should assign▪ Ac licet that the Plaintif had given his consent, and that their said Father had assigned him to pay 37. l. yet the Defen∣dant, &c. and he pleaded non assumpsit, and it was found for the Plaintif, and now Fenner spoke in arrest of Judgement for four cau∣ses. [ 1] First there is no consideration, for the declaration is assensum su∣um daret, so that he is at liberty to give his assent or no: and so no [ 2] perfect consideration. The second is ac licet the Plaintif, &c. and [ 3] doth not say in facto that he gave his assent. The third is, that he doth not say that he gave his assent when the Father had those Lands and [ 4] Chattells. The fourth is, that in consideration the conveyance should be made to the Defendant, and it appeareth that it was made to the Defendant and his Wife.

Shuttleworth

To the contrary, we have alleged in deed, that he gave his assent, and that is as much as if he had said in consideration that he gave his assent. And allthough that the conveyance be to both, yet it is in tayl to them, and so the inheritance given to both. And therefore that which you allege is against you.

And the Wife of the Defendant being in Court was very importunate, whereupon the Court moved an agreement, and the Plaintif was content upon condition that the Defendant would enter into bond, but the Defendant seemed unwilling by his silence.

Anderson

Wee have made stay to the intent to do the Defendant good, and he will not be content when more than reason is offered him, wherefore let Judgement be entred for the Plaintif.

7.

IN a replevin by Gybson against Platlesse,* 1.8 the Defendant made Co∣nusance as Baylif to Anne Wingfield, and the Issue was whether the Land descended to Anne Wingfield,* 1.9 as Daughter and Heir to I. W. and upon evidence this was the case.* 1.10 The said I. W. was seised of the Lands in question, and divers other Lands, and by his last VVill de∣vised all his Lands and Tenements to Anthony Wingfield of London Goldsmith in Fee; and after and before his death, he made a Feoff∣ment in Fee of the same Lands which he had devised to the same A. W. and when he sealed the Feoffment he demanded, will not this

hurt my Will, and it was answered again that it would not, and he said, if this will not hurt my Will, I will seal it, and then he sealed it, and a Letter of Attorny to make livery, and in some of the Lands the Attorney made livery, but not of the Lands now in question, and af∣ter the Testator died, now if the Devisee shall have the Lands or no, was the question; for if this Feoffment be Revocation of the Will, then the Devise is void. And it was said by the Counsell of Anne VVingfield, that it is a Revocation. For if the Testator had said that this shall not be his Will, then it had been a plain Revocation, quod fuit concessum per Curiam, and then the making of the Feoffment is as much to say, as that the Will shall not stand: but it was answered by the Court, that it appeared that the mind of the Testator was, that his Will should stand, and when he made the Feoffment this was a Revo∣cation in Law, and if no Feoffment had been made, there had been no Revocation in Law, and there is no Revocation in deed, for he said if this will not hurt my Will, I will seal it, and allthough that the Attorney made livery in part,* 1.11 so that the Feoffment was perfect in part, yet for the Lands in question, whereof no livery was made, the Will shall stand,* 1.12 for a Will may be effectuall for Part, and for Part it may be revoked, and the Court told the Jury that this was their opinion, and thereupon the Jury found accordingly, that the Land did not descend to A. VV. quod nota. And Fenner who was of Counsell with the Plaintif, before the coming again of the Jury to the Bar, said to the Counsell of the Defendant, that the Law was clear against them. Allso he said to divers Barresters afterward privately, that in the case of Serjeant Jeofres it was adjudged, that where one had made his Will, and after one of his friends came unto him, and demanded of the Testator if he had made his Wil, and he answered no. And he demanded again, will you make your Will, and he an∣swered no, and yet this was adjudged no Revocation.

8.

ONe Lea of Essex,* 1.13 was sued in an Action of Battery in the Com∣mon pleas,* 1.14 and upon non culp. pleaded, it appeared upon the evi∣dence, that the Defendant and others had thrown daggers at the Plaintif, and grievously hurt and maimed him in outragious manner, and Peryam said to the Jury that they ought to consider, that the Plaintif was put in fear of his life, and had one of his hands maimed, and what damage he had susteyned by his Mayhem, and that they ought to give damage as well for the fear and assault as for the May∣hem, and when the Jury was gone from the Bar, the Defendant cau∣sed the Plaintif to be arrested in the Kings Bench, for a battery done to him by the Plaintif before, and this was shewed to the Court, and

thereupon they sent for Lea, and were grievosly offended with him, for they said that when a man is sued here,* 1.15 he ought safely to come and go by the privilege of this place without vexation elsewhere. And Lea pleaded that he was ignorant of the Law, but the Court an∣swered that ignorantia juris non excusat, and therefore they said that they would punish him, and discharge the other. Then the Plaintif said that he had put in bayl to the arrest, and the Court answered, if you had not done so we would have discharged you, but now we cannot, but they commanded Lea to release his arrest, or otherwise he should smart for it,* 1.16 and Lea was well content to do so.

Anderson

yet you shall pay a fine here allso, for otherwise we shall be perju∣red, wherefore because you are ignorant, you shall be fined at vj. s. and Lea payed the vj. s. incontinently, and went for to release his arrest.

Rodes

You have escaped well, therefore let this be a warning.

9.

BEtween Smyth and Lane the case was such.* 1.17 A. was a Copyholder in Fee according to the custom of a Mannor, whereof the Queen was Lady. And she by her Letters Patents let the Copy hold to B. for years, and he granted his Term to the Copyholder, if by this the Co∣pyhold be determined or no was the doubt. And it was agreed by the Court and all the Serjeants,* 1.18 that if the Lease had been made im∣mediately from the Queen to the Copyholder, then it had been a plain determination, but some put a diversity because the Paten∣tee was not Lord of the Mannor,

Peryam

I think the Copyhold is not gone, for when the Copyholder hath an interest in possession, and the other in the Freehold, and the Patentee grants his interest to the Copyholder, what surrender can this be?

Anderson

I will not have it a surrender, but I will have his interest to be determined. For when he is a Copyholder, this is by Custom, and when the Land is left, this is by the Common Law, and when this is granted to the Copyholder, surely he shall not have both. For he cannot have a Co∣pyhold in the Land, and have the Land also, wherefore in my opini∣on the Copyhold is gone.

Peryam

Peradventure by the grant to the Patentee the Rent shall pass if there be any, but it shall be hard to make it a determination of the Copyhold, for they are two distinct and two severall interests.

Anderson

By the grant made to the Pa∣tentee the Rent shall not pass, for he hath no Reversion.

& ad∣jornatur.

10.

A Quare impedit was brought by Specot and his wife against the Bi∣shop of Exeter,* 1.19 and declared how A. F. was seised of the Man∣ner to which the Advowson is appendant, and presented, and devised the Mannor to his wife now one of the Plaintifs, and she after took to husband Specot, and then the Church became voyd, and they pre∣sented their▪ Clerk, and the Bishop disturbed them. The Bishop pleaded that he claims nothing but as Ordinary, and that the Church is with cure of soules, and confesseth the title of the Plaintif: And that they presented, but he alleged in bar, that he examined their Clerk, and upon the examination, Invenit eum fore schismaticum in∣veteratum, so that by the Law of holy Church he could not admit him. Whereupon the Plaintif demurred in Law.

Shuttelworth

The Plaintif ought to recover.* 1.20 First, I agree, that if it had been al∣leged in certain wherein he had been a Schismatick, this had been a sufficient plea to excuse him, but as this is, it is otherwise. For a Schismatick is he which divides and separates himself from the Re∣ligion and the Faith established.* 1.21 But this plea is insufficient for the uncertainty, and therefore in 38 H. 3. fol. 2. Fitzh. Quare imped. 124. The Earl of Arundell brought a Quare impedit, and the other sayd, that he presented one to him who was perjured for certain causes,* 1.22 and shewed for what, whereby he was not a person capable, and so it should be in this case; and in 12 Eliz. Dyer fol. 293. he ought to set down the disability of the Clerk,* 1.23 and give notice to the Patron. And allso in Dyer 9 Eliz. fol. 254. the Bishop refused the Clerk because he was a haunter of Taverns and unlawfull▪ Games,* 1.24 &c. Et ob••ea & diversa alia criminafuit criminosus & inhabilis, &c. And there the Plea was thought not good,* 1.25 because that the faults alleged were not evill in their own nature,* 1.26 but by the prohibition of the Law. And allso the Plea was naught, because he had not shewed what the other faults were. And the reason wherefore the Ordinary ought certain∣ly to allege what faults the Presentee hath, is, because the Patron may present another unto him, who is not infected with the same faults, and how can the Patron tell that his Clerk is disabled for such a fault, when he doth not know certainly what the fault is? Then if the Plea of the Ordinary be insufficient, whether he shall be a disturber by his evill Plea,* 1.27 and it seemeth that he shall; for so is the Book in 14 Hen. 7. fol. 21 b. &. 5. Hen. 7. 20.▪ Allso for another reason the Plea is not good, for it is too general for the trial; and all though that it may be sayd that it shall not be tryed by a Jury, but by the Metropolitan, as perchance it shall be, yet it is too generall; for how can he know wherein he is a Schismatick,* 1.28 so that he may exa∣mine him thereof? as in Ravishment of Ward, supposing that the In∣fant

holdeth of him by Knights service,* 1.29 it must be shewed in certain by what service: And allso in the case of Winbish the Plea was not good, because he did not shew in certain how she was heir to the o∣ther; * 1.30 and so I think the Plaintif ought to recover.

Walmisley

to the contrary: And it seemeth the Plaintif shall be barred; First, when a Parson is presented to the Bishop it appears fully that the exami∣nation of him appertains fully to the Bishop,* 1.31 as it is expressed in the Statute De Articulis Clers, de ideoneitate personae present at ae ad be∣neficium Ecclesiasticum pertinet examinatio ad judicem ecclesiasticum, & ita hactenus usitatum est, & fiat in futurum. For the cure of the Parson is the cure of the Ordinary, as it is expressed in 32 Hen. 6. He shall say to him, Accipe curam tuam, & curam meam. Then if we shall be driven to shew wherein he is a Schismatick, and I think not; for the Book of 38 Ed. 3. fol. 2. which is vouched against me, is with me;* 1.32 for there he shewed before what Judge he was perjured, which is very necessary; for if it be not before a Judge it is no per∣jury; but there he did not shew wherein he was perjured: Allso he sayd, that in 12 Eliz. in the Bishop of Norwich's case, the opinion of Walsh,* 1.33 that those things which touch the manners of the Clerk, shall be tryed by the Temporall Court, but that which toucheth the learn∣ing or sufficiency of the Clerk, shall be tryed by the Spirituall Court. And in vain it shall be to allege wherein he is a Schisma∣tick; for this Court cannot judge of it, in proof whereof he cited the Statute of 2 Hen. 8.* 1.34 And he defined a Schism to be Recens dissen∣tio congregationis jure aliquo, but an Heretick is he which hath a habit therein,* 1.35 and is invetorate; so he concluded, that Schismaticus inve∣teratus est Haereticus, & Haereticus est Schismaticus inveteratus; and he defined inveteratus to be, qui est multi & veteris usus in malitia. And if the Bishop had sayd that he was an Heretick, he should not need to shew wherein, and for that he cited the case in 9 Edw. 4. 24. Bro. Deposition 5.* 1.36 Where a Deposition of A. was pleaded, there he ought to shew before what Judges he was deposed, but not wherein. And what is the reason that he must shew before what Judge it was? Surely, because this Court may know to what Court to write; and allso the case in 11 Hen. 7. fol. 8. Bro. 9. of the Union of Wamborough, where it is pleaded, that concurrentibus hiis, &c. and allso he cited 8 Ed. 4. 24. where a divorce was pleaded, causa consanguinitatis pro∣ut patet in recordo, and yet well: And allso he cited the opinions of Fitzherbert and Shelley, 27 Hen. 8. 14. that an Action upon the case doth not lye at the Common Law,* 1.37 for calling one Heretick, be∣cause the Judges at the Common Law cannot discuss it, and he granted the cases put by Shuttelworth,* 1.38 that where the matter is issu∣able, there it ought to be certain, but not as this case is where it shall not be tryed by a Jury; And that which hath been sayd, that the

Archbishop cannot examine him, because he knoweth not wherein he was a Schismatick; this is not so, for the Bishop which accuseth him may inform the Archbishop, so that he may be well advised thereof, and so I think judgment shall be given against the Plaintif.

Anderson

I doubt if the Writ be wel brought in the name of the Hus∣band and Wife:* 1.39 For if the Husband have an Advowson in right of his Wife, and the Church become voyd, and the Husband dye, the Executors shall have the presentation;

and the Serjeant sayd that there be many Books in that point.

Anderson

I know it well, but I doubt of the Law in the case. Allso I would have you to argue if this be within the Statute of Demurrers, in 27 Eliz. For if this be not matter of substance, then it shall goe hard with the Plaintif; therefore let it be argued again another time.

11.

ONe Brook was Plaintif in a Replevin,* 1.40 the Case was such: Tho. Speek was seised of a Mannor, in which were Copyholds accor∣ding to the Custom, and the place in which the taking was suppo∣sed, was a Copyhold; and the sayd Tho. Speek being so seised, took to wife one Anne B. and died seised, after whose death the sayd A. in the time of King Edw. 6. demanded the third part of the Mannor for her Dower, by the name of Cent. Messuagiorum, Cent. Gardinorum, tot acr. terrae, tot acr. prati, &c. and was endowed accordingly of parcel of the Demesns, and parcel of the services of the Copyholds, and after she granted a Copyhold, and if this be good was the question; for if she had a Mannor the Grant was good, and otherwise not. And the opinion of all the Court clearly was against the Grant; for when she demanded her Dower, she was at liberty to demand the third part of the Mannor, or the third part of Cent. Mes. Cent. Gard. Cent. acr. &c. and when she demanded it per nomen Cent. Mes. &c.* 1.41 she could have no Mannor: For a Mannor cannot be claimed except by his name of Corporation, as Anderson termed it, and not otherwise; and then Cent. Mes. and Cent. acr. &c. cannot be sayd a Mannor; and then the Grant of a Copyhold by her which had no Mannor was utterly voyd; and this was the opinion of the Court clearly. Quod not a.

12.

SHuttelworth shewed how one Knight was Plaintif in a Replevin,* 1.42 and they were at issue upon a prescription for Common in New∣ton appendant to land in another place, and the venue was of New∣ton onely, and it was found for the Plaintif, and he prayed his judg∣ment, for the tryall may be in the one place as well as in the other,

as in annuity where the seisin is alleged in one County,* 1.43 and the Church in another, it may be tryed in any of the Counties.

An∣derson

But we think otherwise, for it ought to be of both places, when the matter ariseth in both; and if they had been in severall Counties,* 1.44 the Counties ought to have joyned.

Shuttelworth

So is 10 Ed. 4. fol. 10. But our case being after a verdict, I think we ought to have judgement.

Anderson and Windham

The verdictdoth not amend the matter, if it be mis-tried, as this case is. Rodes agreed that it was a mis-triall,* 1.45 and therefore evill, and that mis-trialls are not helped by the Statute of Jeofayles.

Shuttelworth

I agree to that, if you say that the triall is not good.

Windham

So we say.* 1.46

Then Shuttelworth advised his Client to take a new Venire facias.

13.

WAkefield brought a Replevin against Costard,* 1.47 who avowed for damage fesaunt.* 1.48 and the Plaintif prescribed for Common, that all the inhabitants of Dale, except the Parson and infants, and such a house,* 1.49 have used to have Common in the place. The Avow∣ant sayd that the house whereunto the Plaintif claimed Common, was built within thirty yeares last past, and if he may have Common to this new house by prescription or no was demurred in judgement in Michaelmas Term, and then Shuttelworth argued for the Plain∣tif that he should have his Common by prescription, but not of com∣mon right. And Gawdy argued for the Avowant, that the Plaintif shall not have Common, because the prescription is against all rea∣son, that he should have Common time out of mind to that which is but of thirty years continuance: And allso he excepteth the Par∣son, and infants, and such a house, and by the same reason he may except all, which is not good. Then one of the Judges sayd that if this be good,* 1.50 hereafter there shall be no Common for the ancient inhabitants.* 1.51

Peryam

By such a prescription he shall for ever barre the Lord from improving any Common,* 1.52 which is no reason.

An∣derson

All Common is intire; for if a man have Common to three Mesuages, and he infeoffee one man of one Mesuage, and another of the second, and another of the third, the Common is gone. And by this reason allso the new house cannot have Common. And now this Term Gawdy demanded of the Court if they were resolved in the poynt.

Anderson▪

We are all agreed that the prescription is utter∣••y voyd; for it is impossible to have Common time out of mind for a house which was built within thirty yeares, and then he com∣manded to enter judgement, if nothing were sayd to the contrary by the next day.

Shuttelworth

We have sayd all that we can say,

my Lord.

Anderson

Then let judgment be entred against the Plaintif.

14.

SNagg shewed how the Earl of ••Kent had brought an action of debt against a Londoner for rent behind,* 1.53 and shewed how the Countes••▪ of Derby was tenant in Dower of this land, and took to husband the Earl of Kent, and that Henry Earl of Derby had granted it to the Earl of Kent habendum after the death of the Countess for certain yeares, and he shewed how the grant was made by the name of a reversion also,* 1.54 and that the Tenant had attorned, and alleged the death of the Countess. And the Court said that the Attornment is not necessary, for it is but a lease in reversion, and then no rent passeth thereby.

Anderson

If you had been privy to the case of Tal∣boys in the Kings-bench, you would not have moved this doubt.

Peryam

It is allso the very case of Throckmorton in the Commen∣taries.

Snagge

But here in my case he hath granted it by the name of the reversion allso, and then the reversion will carry the rent.

Curia

Then is your grant voyd; for a man cannot grant his reversion, habend. after the death of another; and therefore, quacunque via data, you shall have no rent.

And thereupon Snagge conticuit cum rubore.

15.

MOunsay was Plaintif in debt upon an obligation against Hyly∣ard,* 1.55 and the Defendant pleaded the Statute of Usury, because it was made for the sale of certain Copperas, and he took more than was limited by the Statute, and that it was made by shift and chevisance, and other matter he alleged to prove it within the Sta∣tute; the Plaintif replyed, that it was made upon good considera∣tion, and traversed the delivery of the Copperas, which was an evill issue clearly,* 1.56 and it was found for the Plaintif, and this was alleged in arrest of judgement, and yet for that there was an issue tryed, all∣though it was mis-joyned, the exception was disallowed, and judge∣ment was given for the Plaintif.

16.

AN Action of Debt was brought upon the Statute of Purveyors,* 1.57 because he had cut down Trees against the form of the Statute of 5 Eliz. The Defendant pleaded not guilty, and it was moved that this was an evill issue; for he ought to have pleaded nil debet; and the Court commanded him to plead nil debet.

17.

WAlmisley shewed how the Lord Anderson is Plaintif in an Action of Trespass against Wild,* 1.58 who was Tenant for life, and they were at issue, and the Venire fac. issued in Michaelmas Term, and now this Term the Defendant prayed in ayd, which he sayd he ought not to doe, be••••use they have furceased their time; for they ought to pray it when the Venire facias is awarded, or otherwise they shall not have it; and he cited for that purpose 15 Edw. 3. And the Court was of the same opinion, that he ought then to pray it, or not at all.

18.

A Writ of Error was brought upon a judgement given in London,* 1.59 and this was the case; Sir Wolstan Dicksey Alderman, brought an Action of Debt in London against Alderman Spenser for rent behind upon a Lease for years made to Spenser by one Bacchus, who after∣wards granted the reversion to Dicksey, and the Tenant attorned, and the rent was behind, &c. Spenser pleaded in bar, that before the grant of the reversion to Dicksey, Bacchus was seised, and shewed the custom of London, to make inrolments of deeds indented, and then shewed that before the bargain to Dicksey, he bargained the reversion to him by paroll, and so demanded judgement, si actio, &c. and this plea was entered upon record, and hanging this suit, Dick∣sey entred into the Land for a forefeiture of the term, because he had claimed a Fee simple, and Spenser re-entered with force, and his ser∣vant with him, but not with force, and thereupon Dicksey brought an Assisse of fres•• force against them in London, and all this matter was there pleaded, & adjudged that it was a forfeiture of the term, & the Jury gave damages, and the Court increased them, and the judge∣ment trebled as wel the damages increased as the others, and allso the Iudgement was quod praedicti defendentes capiantur, &c.* 1.60 and thereupon Spenser brought a Writ of Error, and assigned Error in the point of the Judgment, because it was no forfeyture. And allso because the Dama∣ges increased by the Court were trebled. And allso because the judg∣ment was Capiantur where but one was a Disseisor with force, & ther∣fore it should be Capiatur.

Shuttleworth

There is no forfeyture made by this Plea before triall had thereof.* 1.61 For if in Wast the Defendant say that the Plaintif hath granted over his Estate to another, this is no forfeyture, so in Cleres case, if he say that another is next Heir, this is no forfeyture.* 1.62 And in 26 Eliz. here was a case in a quod jur••s clamat, the Defendant pleaded an Estate tayl, and after at the Assises,

he confessed but an Estate for Life, and yet this was no forfeiture.

Curia

None of us do rememember any such case here.

Walmisley

Surely the case is so, and I can shew you the names of the parties.

Anderson

I will not believe you before my self, and I am sure that I never heard of any such case.

Peryam

If any such case had been here we would have made a doubt therof, for ther are Authorities against it, as in 8 Eliz. & 6. R. 2. Plesingtons case.

Shuttleworth

Allso theyhave said that the fresh force was brought infra quarentenam, silicit qua∣draginta septimanas,* 1.63 and the quarentena is but 40 dayes.

Curia

That is no matter, for the silicet is but surplusage, and so no cause of Error.

Shuttleworth

If a man disseise another without force, he shall not be taken and imprisoned, and therefore for this cause the Judge∣ment is erroneous, and allso the costs encreased are trebled, and therefore erroneous,* 1.64 and cited 22. Hen. 6. 57.

Anderson

In an Acti∣on of Trespass, If the Defendant pray aid of a stranger, this is a for∣feiture, and if it be counterpleaded, yet it is a forfeiture, then shall the deniall thereof make any change in the case? surely no,* 1.65 in my o∣pion. And I say that Acts which come from himself are forfeitures,* 1.66 but Collaterall Acts,* 1.67 as in the case of Wast are not.

Walmisley

In 22 Ed. 3. 13. the Tenant said that the Grantor hath released unto him, the Judgement shall be but that he shall Attourn. And allso he cited 3 Ed. 3. & 33 Ed. 3. & 18 Ed. 3. & 36 Hen. 6. & 34 Hen. 6. fol 24. to prove that it shall not be a forfeiture before triall.* 1.68

Anderson

If one who hath no Reversion, bring a quid juris clamat against Tenant for life, this is a forfeiture of his Estate, and as you have said, if in VVast the Tenant plead the Feoffment of the Plaintif, or non dimisit, true it is that these are no forfeitures, for you know well enough that a Feoffment is no Plea, and then it is void, and to say non dimisit is no forfeiture.

Peryam

The Judgement given in Plesingtons case is not well given, for it ought to have been, quod pro seisina sequatur si volunt. as in the case of Saunders against Freeman, and he cited 10 Edw. 3. fol. 32. to that intent.

Wyndam

The doubt which I conceive is for that he pleads a custom in London for the inrollment of Deeds indented, and he sheweth that his bargain was by parol, and therefore void, and then no forfeiture, as if in Trespass a man prays ayd, as by the Lease of I. S. and in the conclusion prayes aid of I. N. this is void.* 1.69

Anderson

Allthough that it be so, yet the pleading is, that he bar∣gained the Reversion, and then this is good by parol in London, therefore there is no doubt in that point.

Walmisley

The Books in 15 Ed. 2. & 25 Ed. 3. Import•• that Judgement ought to be given be∣fore any forfeiture can be.* 1.70

Curia

Without doubt he may take ad∣vantage thereof before Judgement, as well as after, if the plea be en∣tred upon record.

Wyndam

For the point of capiantur, the Book is in 2. lib. Ass. Pl. 8. Br. imprison. 30. & in 9. lib. Ass. & 12. lib. Ass. Pl.

33 Br. imprison. 40.

Anderson

Two may be Disseisors,* 1.71 and the one with force and the other not, as if I command one to make a Disseisin, and he makes a disseisin with force, and allso if one enter with force to my use, and after I agree, he is a Disseisor with force and I am not so, and those cases will answer the Books of Assises, for in those ca∣ses they were present,* 1.72 but in these not, and so I hold that he which is present when force is made, is a Disseisor with force.

Then it was moved if the Statute of 8 Hen. 6. doth extend to fresh forces.

VVyn∣dam

It doth extend to them by express words,

and Fleetwood cited a case in 44 Edw. 3. 32. that an Attaint lieth of fresh force. Then for the other matter of trebling of damages increased, the Court made no doubt but that they shall be trebled, and they said that so it was late∣ly adjudged here in a case of Staffordshire.

19.

PUckering shewed how an Attaint was brought upon a false Oath made in a Replevin,* 1.73 where the Defendant made Conusance as Bayley to one Hussey, and in the Attaint surmise was made that the Sherif was Cosen to Hussey, and thereupon prayed Process to the Coroners, and Puckering moved that no Process should issue to the Coroners, for Hussey was not party to the Attaint, and then this is but matter of favour, and he cited 3 Hen. 7. And all the Court accor∣ded with him, that it is but matter of favour onely, and no sur∣mise to have a Writ to the Coroners, but VValmisley would have put a difference between Lessee for years and a Bayley,* 1.74 for as he pretended, in the case of a Bayley, it shall be a principall challenge, but not in the other case; but all the Court was against him, and that it is no principall challenge in the one case nor in the other. The last day of the Term it was moved again, and the Court was of the same mind as before.

20.

IN a Quare impedit,* 1.75 it was said by Anderson, and agreed by all the Court, that if a man make a Feoffment in Fee of a Mannor with∣out deed, and without saying (with the appurtenances) yet the Ad∣vowson shall pass, and cited 15 Hen. 7. where it is adjudged that it is parcell of the Mannor, and lieth in Tenure.

21.

IN an Action of debt Anderson cited a case which was before him at the Assises in Somersetshire,* 1.76 an Action of Battery was brought in London, and a Justification made in Somersetshire, Abs{que} hoc that he was guilty in London, and the Plaintif replyed de injuria sua propriae abs{que} tali causa, and Anderson said that a man shall never plead, de son tort. demeasne: where the matter ariseth in a Forein Country.

22.

AN ejectione firme was brought by Clayton against Lawson,* 1.77 the De∣fendant pleaded in Bar, a Recovery had in the Kings Bench a∣gainst the Lessor of the Plaintif. And Fenner moved that it should be no Bar no more than in Trespass.

Anderson

I think it to be a good Bar. For this Action is as strong to bind the possession, as a Writ of right is to bind the right.

VVyndam

I think it is no Bar no more than in Trespass.

Anderson

This is more than an Action of Tres∣pass, for in this he shall recover his Term.

Rodes

This case was mo∣ved the last Term, and the opinion of the Court then was, that it was a good Bar.

Fenner

True it is, if it were between the parties themselves; but here the Plaintif is but Lessee to him which was Barred.

Anderson

Allthough that it be so, yet he claymeth by the Lease of him which was Barred, and during the Lease of the other his Lessor could have no right, and what shall he have then?

Fenner

That which is between the parties cannot be an▪ Estoppell to the Plaintif here which is but a stranger.* 1.78

Anderson

I know that he shall not plead it by way of Estoppell, but he shall conclude Iudgement si Actio,

Peryam

If in an Assise a Recovery in another Assise be pleaded in Bar,* 1.79 he shall not conclude by way of Estoppell▪ but Iudgement si Actio, and there he is driven to a higher Action, and so here; and the Law shall never have end, if after a man is Barred in his Action, he may bring the same Action again, therefore I think it a good Bar, and that he is driven to a higher Action.

VVyndam

Lessee for years can have no higher Action.

Anderson & Peryam

If one which hath a Lease for years and no more,* 1.80 enter upon him which hath a good title, he is a disseisor of all the Feesimple.

Wyndam

If two claim by Lease from one man, and one bringeth an Ejectione Firme, and is Barred, what Action shall he have then?

Anderson

None, for he hath no Right.

VVyndam

That is hard.

Anderson

What Action shall he have which is Barred in Formdone? surely none.

Fenner

This is another case.

Anderson

Aliquantulum incensus, truly it is a

plain case that he shall be Bared, whereunto Peryam and Rodes agreed clearly.

23.

IN a praecipe quod reddat,* 1.81 the Tenant demanded the view, and an ha∣bere facias visum issued, and the Tenant came not to the Sherif to take the view, it was said by the whole Court, that the Sherif may ret••urn, that none came to take the view, and he shall never have the view again.

Anderson

The habere fac. visum is the suit of the Te∣nant, and then when he doth not come to take the view, this is a de∣fault, and then good reason to exclude him from the view.

Gawdy

Such a retourn was never seen before, and therefore it is to be noted, the case was between Ho•• and Hoo for Lands in Norfolk.

24.

IOhn VViseman of the Inner Temple,* 1.82 brought an Action of debt a∣gainst Thomas VVallenger, the case was this. A man seised of three acres of Land in Fee, makes a lease, reserving xxx. s. of Rent, and after devised the Reversion of two acres to a stranger, and the third acre descended to the Heir, and he brought an Action of debt for xij. d. being behind, and Puckering moved if they were agreed of their judgement in the case.* 1.83

Anderson

If a man let two Acres of Land rendring Rent, and grant the Reversion of one of them, all the Rent is gone, as it is in Dyer, and at the Common Law, before the Statute of W. 3. there was no apportionment, and the Statute speak∣eth of no such apportionment as this is.

Rodes

Surely no Book in all the Law will warrant this apportionment.

Fenner

Yes Sir, 5 Ed. 3. If a man have a Rent of xx. s. and grants parcell thereof, and the Tenant Attourns, this is good.

Rodes

This is another case. But shew us the case which was in the Kings Bench against the next Term.

& adjornatur, but the Plaintif said then to divers Barresters that such a case was adjudged with him in the Kings Bench. Pasch xxviij. Eliz. Rot. 341. between▪ Wiseman and Brewer, and another case in the Com∣mon place, London, Rogers versus Hunt, Pasch. 16 Eliz. Rot. 1544.

25.

A Quare impedit was brought by Beverley against Cornwall,* 1.84 which was the Presentee of the Queen, and the Plaintif had Judgement to recover, and now the Queens Serjeant shewed that the Plaintif is outlawed, and prayed that he Writ to the Bishop might be stayed, and that they may have a scire facias for the Queen, to shew

wherefore she shall not have Execution of this Judgement.

Walmysley

This cannot be debated now, for the Plaintif hath no day in Court, after Judgement, and this is but a surmise.

Curia

The Record here before us testifies that he is outlawed.

VValmysley

Yet it is but their surmise that he is the same person.

VVyndam

In debt upon an Oblig: If the Plantif be outlawed, the Queens Serjeants may pray the debt for the Queen; and yet this is but a surmise. And the opinion of three Justices was (for Anderson was absent) that they ought to stay Execution, but how▪ Processe shall be awarded, or if a Scire sacias shall issue against the Plaintif or no, they would be advi∣sed for the course thereof, but Peryam thought that they might have a Scire facias against the antient Incumbent.

4.

A Quare impedit was brought by Gerard,* 1.85 and declared that his An∣cestor was seised of the Mannor, to which the Advowson is ap∣pendent, and presented, and died seised, and the Mannor descended to him, and so he ought to present, the Defendant pleaded in Bar, that the Ancestor of the Plaintif was joynt ly seised with his Wife, and that she survived, & for default of her Presentation th•• Lapse ac∣crued to the Bishop, who did collate. Abs{que} hoc that he died sole sei∣sed, and it was moved by Gawdy that the Traverse shall be naught, for he ••ad sufficiently answered to him before. And the opinion of the Court (Anderson being absent) was that the Traverse is void, because he had confessed and avowed him before, and cited 5 Hen. 7. 11. 12. Bro. tit. Traverse sans ceo 13.

27.

BYngham brought an Action of debt upon an Obligation against Doctor Squire,* 1.86 and the Condition was, that if the Defendant did obtein a good grant of the next avoydance of the. Archdeaconry of Stafford, so that the Plaintif might enjoy it, that then, &c. and the Defendant pleaded that he had obteined a good grant of the next a∣voydance, and in truth so he had, but the antient Incumbent was cre∣ated a Bishop, whereby it perteined to the Queen to Present, so that the Plaintif could not enjoy it, and therefore the Plaintif moved the Court that the Defendant should amend his plea, and the Court (An∣derson absente) commanded him to do so, for it seemed unto them that the Obligation was forfeit. Gawdy moved for the Defendant that when the Archdeacon was made a Bishop, the avoidance per∣teined to the Queen by her Prerogative, so that it was become im∣possible, but nevertheless he took day to amend his Plea.

Notes

• * 1.1

  Annuity.
• * 1.2

  Executor.
• * 1.3

  Triall by provise.
• * 1.4

  Travers.
• * 1.5

  Trin. 28. Eliz. rot. 537.
• * 1.6

  VVast.
• * 1.7

  Action upon 〈◊〉〈◊〉 case.
• * 1.8

  Revocation of a VVill.
• * 1.9

  Norfolk Trin.
• * 1.10

  28 Eliz. rot. 2••30.
• * 1.11

  Feof••ent per∣fect in part.
• * 1.12

  Will.
• * 1.13

  Privelege.
• * 1.14

  Battery.
• * 1.15

  Privelege de Court.
• * 1.16

  Fine.
• * 1.17

  Copyhold Mith. 27. & 28. Eliz. Rot. 1858. Rad∣ford.
• * 1.18

  28 H. 8. 30. b.
• * 1.19

  Pasch. 28 El. rot. 2091.
• * 1.20

  Certainty.
• * 1.21

  Schismatick.
• * 1.22

  Perjury.
• * 1.23

  Notice of dis∣ability certain.
• * 1.24

  Tavern and gaming.
• * 1.25

  Evil in it self.
• * 1.26

  Evil forbidden.
• * 1.27

  Disturber by evil pleading. Triall.
• * 1.28

  Ravishment of a Ward.
• * 1.29

  12 H. 8. f. 6. a. f. 11.
• * 1.30

  Coment. f. 42. b.
• * 1.31

  Examination.
• * 1.32

  Perjury.
• * 1.33

  Manners, Lear∣ning, difference.
• * 1.34

  Schism.
• * 1.35

  Heretick.
• * 1.36

  Deposition.
• * 1.37

  Heretick.
• * 1.38

  Matter issuable.
• * 1.39

  Advowson in right of the wife.
• * 1.40

  Copyhold.
• * 1.41

  Mannor a cor∣poration.
• * 1.42

  Visne. 〈◊〉〈◊〉 Ass. pl. 42.
• * 1.43

  Annuity.
• * 1.44

  Counties joyn.
• * 1.45

  Mis-trial.
• * 1.46

  New Venire facias.
• * 1.47

  The Lord.
• * 1.48

  Comptons case.
• * 1.49

  Prescription for Common.
• * 1.50

  Antient inha∣bitants.
• * 1.51

  Improvement.
• * 1.52

  Common entire,
• * 1.53

  Grant.
• * 1.54

  Lease in rever∣sion, Grant in reversion, diffe∣rence.
• * 1.55

  Jeofayle.
• * 1.56

  Issue mis••oyned.
• * 1.57

  Issue.
• * 1.58

  Ayd prier.
• * 1.59

  ••orfeiture.
• * 1.60

  Increase of da∣mages.
• * 1.61

  Wast.
• * 1.62

  Quid juris clam.
• * 1.63

  Quarentenae. Scilicet a sur∣plusage.
• * 1.64

  Aydin Trespass.
• * 1.65

  Proper acts.
• * 1.66

  Collaterall.
• * 1.67

  Difference,
• * 1.68

  Quid juris cla∣mat.
• * 1.69

  Praying in ayd.
• * 1.70

  Forfeiture be∣fore Judgement.
• * 1.71

  Present Dissei∣sor, absent, Differance.
• * 1.72

  Present▪
• * 1.73

  Challenge.
• * 1.74

  Lessee pur ans.
• * 1.75

  Adverson.
• * 1.76

  Pleading.
• * 1.77

  Bar.
• * 1.78

  Estoppell.
• * 1.79

  Assise.
• * 1.80

  Tenant for years disseisor of tenant in Fee simple.
• * 1.81

  View.
• * 1.82

  Apportion∣ment.
• * 1.83

  Rent extinct by the grant of part of the Re∣version.
• * 1.84

  Vtlary.
• * 1.85

  Travers.
• * 1.86

  Cond. im∣possible.