one L. Rearsbie Father of the Plaintiff and of the Avowants and Jane his Wife and to the Heirs of Lyonel who by his Will devised unto A. Rearsbie a Rent of four pounds out of the said Manor with clause of distress for his childs part to be yearly paid Lyonel the Father died 3 Eliz. and afterwards 22 Eliz. Jane died and for the arrearages of the said Rent encurred mean between the death of Loynel and Jane his Wife c. upon which Avowry the Plaintiff did demurr in Law for the Rent doth not begin in effect but after the death of the Wife of the Devisor Construction of Devise for such construction ought be made of the Devise as not to charge the Inheritance with the whole arrearages c. and it was argued to the contrary that the Defendant might well avow the distress for these arrearages for if he in the Reversion upon a Lease for life grant a Rent charge after the death of the Grantor the Grantee shall distrein for all the arrearages encurred after the grant etiam during the life of the Grantor Distress quod Curia concessit and it was said by the Council of the Avowant that the Case at Bar is a stronger Case for this Rent as it appeareth by the words of the Devise was devised to the Avowant for his livelihood and for his childs part which words imply a present advancement and these words yearly to be paid are strong pregnant to that intent It was adjourned XVII Hill. 25 Eliz. in the Kings Bench. THe Earl of Northumberland brought debt upon arrearages of Accompt the Defendant shewed that before the Accompt Account the Plaintiff of his own wrong did imprison the Defendant and assigned Auditors to him being in prison and so the Accompt was made by duress of imprisonment And the same was holden a good Plea by all the Iustices of both the Benches And Iudgment was given accordingly XVIII Pasch 26 Eliz. in the Kings Bench. Pasch 26. Eliz. Forman and Bohans Case REplevin by Forman against Bohan Replevin the Defendant avowed for a Rent charge and shewed that one Wingfield was seised of the Manor of Wesham whereof the place where was parcel And 33 H 6. made a Feoffment in Fee of the place where c. to one Orlow rendring Rent and Sute at the Court of the said Manor and that the said Wingfield was seised of the said Rent and Sute accordingly and died thereof seised and that the same descended to Anthony Wingfield as Son and Heir 1 Cro. 39. c. who was seised of the said Rent as parcel of the said Manor and that the said Anthony so seised of the said Manor and Rent bargained and sold the said Manor and Rent 26 H 8. to Nicholas Bohan Father of the Avowant by these words Manerium de Wesham omnes omnimodos redditus reputed deemed or adjudged part or parcel of the said Manor who entred and died seised and the same descended to the now Avowant as Son and Heir c. and averred that the said Rent at the time of the bargain and sale aforesaid diu ante was reputed parcel of the Manor aforesaid Vpon which Avowry the Plaintiff did demur in Law and it was argued by Gawdy Serjeant for the Plaintiff and he took an Exception to the Avowry because the Avowant sheweth that Anthony Wingfield 26. H 8. bargained and sold the said Manor to Bohan Virtute Quar. bargaine venditionis vigor cujusdam Actus Parliamenti 27 H 8. de usibus c. the said Bohan was seised c. where he ought to have said by force of which bargain and sale the said Anthony Wingfield was seised of the said Manor aforesaid to the use of the said Bohan and that afterwards by reason of the said Statute of 27 H 8. the said Anthony then seised to the use aforesaid the said Bohan was seised in his Demesne as of Fee For it might be for any thing appearing in the Avowry that before the said Statute of 27 H 8. Anthony Wingfield had made a conveyance upon consideration to him who had not notice of the use so as the use being suspended when the Statute came it could not be executed for there was not any seisin to the use and to that purpose he cited the Case of 7 H 7. 3. where a gift of Trees by Cestuy que use is pleaded without alledging that the Feoffors were seised to the use of the Donor at the time of the gift To that Exception it was answered by Popham Attorney General Averment That there is a difference betwixt the Case at Bar and the Case of 7 H 7. for where a man entitles himself by Cestuy que use he ought to maintain such title by every necessary Circumstance which the Law without expressing will not intend but where a man alledgeth a matter which is but a conveyance there needs no especial recital as if a man will pretend the grant of a Reversion and that the lessee for years did attorn he needs not to shew that at the time of the Attornment the Grantor was seised 1 Cro. 746. â—4â— c. and he cited the Case of 10 E. 4. 18. In Trespass the Plaintiff by way of Replication made to him a title that A. was seised and leased to him at Will by force of which the Plaintiff was possessed until the Defendant did the Trespass and Exception was taken to it that the Plaintiff in his Replication had not averred that A. was alive at the time of Trespass and it was not allowed for the subsequent words by force of which the Plaintiff was possessed until the Defendant did the Trespass do amount unto so much for the Plaintiff could not be possessed by force of the said Lease at Will if A. were not alive So here Bohan could not be here seised by force of the said Statute if the seisin of the use which was raised by the bargain and sale had not continued until the coming of the said Statute As to the matter in Law Gawdy conceived that the averment in the perclose of the Avowry is contrary to the matter of the Avowry for the creation of the Rent set forth in the Avowry proves that the Rent is not parcel of the Manor but a Rent in gross and then the general averment that the Rent is parcel of the Manor without shewing how against the special matter of the Avowry is not receivable Reputation And also nothing can be by reputation parcel of a Manor which in rei veritate cannot be parcel of a Mannor but a Rent charge cannot be in rei veritate parcel of a Manor ergo nor by reputation Popham contrary That the averment is not contrary to the matter of the Avowry for the matter disclosed in the Avowry proves that it is not rei veriate parcel of the Manor but it doth not exclude Reputation and the Averment doth not
Another Exception was taken to the Writ because here it appears upon the Plaintiffs shewing that Sir Roger Lewknor had three Daughters and that they have all taken Husbands and that they have issue and that one of the said Daughters is dead living her Husband who is not named in the Writ for which cause the Writ shall abate See 22 H. 6. 24 25. But that Exception was also disallowed for as this Case is there is not any reason that the Tenant by the Curtesy should joyn in this Action for no judgment shall be given here that the Plaintiffs shall recover the place wasted for the term is expired as it appeareth by the words of the Writ scil quas tenuerunt and the Tenant by the curtesy is in possession and where Tenant by the curtesie and the Heir joyn in an Action of Wast Tenant for life shall have Locum vastatum and the Heir the damages which see 27 H. 8. 13. As unto the matter of Law upon the Exceptions of Woods and Vnderwoods it was argued by Shuttleworth that the Action of Wast was not well brought against Ford c. for the Assignment made by Shelley to Ford was with an exception of all Woods and Vnderwoods and therefore Shelley remained Tenant and he ought to answer for the Wood and the Vnderwood in the Action of Wast for upon every demise of Lands the Woods there growing are as well demised as the Land it self for so it appeareth by the Writ of Wast in domibus boscis dimissis ad terminum annorum c. which proves that the Trees are parcel of the demise and so may be execepted See Dyer 28 H 8. 19. by Shelley and Baldwin A man leaseth a Manor except Woods and Underwoods the Lessee cuts the Trees an Action of Wast doth not lie against him for the same for the thing in which the Wast is supposed to be committed was not demised c. and therefore the Lessee shall be punished as a Trespassor and not as Farmer Fenner Serjeant contrary and that the Exception of the Woods and Vnderwoods is meerly void for Shelley who assigns his interest with the said Exception hath not any such interest in the Woods and Vnderwoods so as he can make such exception for he had but an ordinary interest in them as Farmer viz. House-boot Hedge-boot c. which interest cannot by any means upon an Assignment be reserved to the Assignor in gross of the estate no more than if one hath common appendant to his Land and he will make a Feoffment of the Land reserving or excepting the common And he who hath the inheritance of the Land hath an absolute property in the Trees but the Lessee hath but a qualified interest and therefore 21 H 6. 46. the Lessor during the term for years may command the Trees to be cut down and 10 H. 7. 3. Lessee for years hath not any interest in the Trees but for the loppings and for the shadow for his Cattle And in the Case cited where Lessee for life and he in the Reversion make a Lease for life unto a stranger and wast is committed Co. 1 Inst 42. 2. and they bring an Action of Wast the Lessee for life shall have the place wasted and he in the Reversion the treble damages for in him was the true and very property of the Trees and therefore the treble damages do belong unto him and not to the Lessee for life who joyneth with him and the reason wherefore the Lessee for life or years shall recover treble damages against a stranger who cuts down any Trees growing upon the Land to him demised is not in respect of any property that the Lessee hath in the Trees cut down but because he is chargable over to his Lessor in an Action of Wast in which he shall render damages in such proportion So see 27 H. 6. Wast 8. A lease for life is made without impeachment of wast a stranger of his own wrong cuts down Trees against whom the Lessee brings an Action of Trespass in such Case he shall not recover treble damages not for the Trees but only for the breaking of the Close and the loppings for he is not chargeable over to his Lessor for the same because that his Lease was made without impeachment of Wast and if the Lessee hath such a slender interest in the Trees where his Lease is without impeachment of wast his interest is less where it is an ordinary lease without any such priviledge And the property which the Lessee for years hath in the Trees in such Case is so appropriated to the possession that it cannot be severed from it Windham and Anderson Iustices were of opinion that the Exception above is meerly void For Ford the Assignee of Shelly is now Termer and Farmer who alone can challenge interest in the Trees against all but the Lessor and Shelley after his Assignment is meerly a stranger The interest of the Lessee and also of his Assignee in the Trees is of necessity and follows the Farm and the Land as the shadow doth the body And by him where Lessee for years by reason of his lease is to have Wind-fals yet he cannot imploy them but to the benefit and profit of his Farm for if he sell them or spend them elsewhere he shall be punished Rhodes and Periam Iustices that the exception is good as the fruits of the Trees Shovelers c. And afterwards the Case was adjudged upon another point in the pleading so as the matter in Law did not come to Iudgment See Saunders Case 41 Eliz. Where Lessee doth assign excepting the Timber Trees it is a void Exception LXIII Gray and Jeffes Case Pasch 29 Eliz. In the Kings Bench. 1 Cro. 55. Action of assault and Batterry IN an Action upon the Case by Gray against Jeffe the Plaintiff declared that where he had placed his Son and Heir apparent with the Defendant to be his Apprentice and to learn of him the Art of a Tailor That the Defendant had so beaten his Son with a Spade that he thereupon became lame by reason of which he could not have so much with his Son in marriage of him as otherwise he might have because the same lameness is a disparagement to his said son And further shewed that he himself might spend twenty pounds per annum in Lands Haulton argued for the Plaintiff The Action Quare filium haeredem cepit abduxit is given to the Father in consideration that the marriage of his Son and Heir doth appertain to him by the Law and here by the Battery the Son is become so same that he is not so commendable to a Marriage as before and if the Father had lost the whole marriage then the Father should have had the Action Quare filium haeredem c. but here he hath not lost the whole marriage but the marriage is lessened by it and therefore he shall have this Action
the Plaintiff and thereupon Iudgment was given for the Plaintiff CCV Read and Nashes Case Trin. 31. Eliz. In the Kings Bench. IN an action of Trespass by Read and his Wife against Nash for entring into a house called the Dayry-house upon Not guilty pleaded The Iury found this special matter Sir Richard Gresham Knight was seised in Fee of the Mannours of I. and S. and of diverse other Lands mentioned in his Will and 3 Edw. 6. devised the same to Sir Thomas Gresham his Son for life the Remainder to the first son of the said Sir Thomas Gresham in tail the Remainder to the second son c. the Remainder to the third son c. The Remainder to Sir John Gresham his brother Proviso That if his Son go about or made any Alienations or discontinuance c. whereby the premisses cannot remain descend and come in the form as was appointed by the said Will otherwise than for Ioyntures for any of their Wives for her life only or leases for 21. years whereupon the old and accustomed Rent shall be reserved That then such person shall forfeit his estate Sir John Gresham dyed Sir Thomas Gresham his son built a new House upon the Land and 4 Mariae leased to Bellingford for one and twenty years rendring the antient Rent And afterwards 2 Eliz. he levyed a fine of the said Manours and of all his Lands and 5 Eliz. he made a Iointure to his Wife in this manner sci He covenanted with certain persons to stand seised to the use of himself and his Wife for their lives and afterwards to the use of his Right Heirs and afterwards 18 Eliz. he leased unto Read and his wife for one and twenty years to begin presently which was a year before the expiration of the said Lease made unto Bellingford which Lease being expired Read entred It was argued by Cook That here upon the words contained in the Proviso Sir Thomas had power and authority not being but Tenant for life to make a Lease for years or Iointure and that upon implication of the Will which ought to be taken construed according to the intent of the parties for his meaning was to give a power as well as an estate otherwise the word otherwise should be void and it is to be observed That the parties interessed in the said conveyance were Knights and it is not very likely That the said Sir Richard Gresham did intend that they should keep the Lands in their own manurance as Husbandmen but set the same to Farm for Rent And it is great Reason although he willeâ— that the order of his Inheritance should be preserved yet to make a Provision for Iointure and it is great reason and cause to his family to enable and make them capable of great Matches which should be a strengthning to his posterity which could not be without great Iointures wherefore I conceive it reasonable to construe it so That here they have power to make Iointures for their Wives It hath been said That no grant can be taken by implication as 12 E. 3. Tit. Avow 77. Land was given to I. and A. his wife and to the heirs of the body of I. begotten and if I. A. dy without heir of their bodies betwixt them begotten that then it remain to the right heirs of I. and it was holden that the second clause did not give an estate tail to the wife by implication being in a grant but otherwise it is in Case of a devise as 13 H. 7. 17. and there is no difference as some conceive when the devise is to the heir and when to a stranger but these cases concern matter of Interest but our case concerns an Authority And admit that Sir Thomas hath power and authority to make this lease Then we are to consider if the Iointure be good for if it be Then being made before the Lease Use cannot rise out of a power it shall take effect before and the woman Iointress is found to be alive But I conceive That this Iointure is void and then the Lease shall stand for an use cannot rise out of a power but may rise out of an estate of the Testator and out of his Will 19 H. 6. A man deviseth That his Executors shall sell his reversion and they sell by Word it is a good Sale for now the Reversion passeth by the Will. But an use cannot be raised out of an use and a man cannot bargain and sell Land to another use than of the Bargainee And it is like unto the case of 10 E. 4 5. The disseisee doth release unto the disseisor rendring Rent the render is void for a rent cannot issue out of a right so an use cannot be out of a Release by the disseisee for such release to such purpose shall not enure as an Entry and Feoffment Also here after that conveyance Sir Thomas hath built and erected a New house and no new Rent is reserved upon it and therefore here it is not the ancient Rent for part of the sum is going out of the new house But as to that It was said by the Iustices do not speak to that for it appears that the Rent is well enough reserved Another matter was moved for that That a year before the Expiration of the Lease made to Billington this Lease was made to Reâ—d for 21 years to begin presently from the date of it although by the same authority he cannot make Leases in Reversion for then he might charge the Inheritance in infinitum But yet such a Lease as here is he might make well enough for this Lease is to begin presently and so no charge to him in the Reversion as in the Case betwixt Fox and Colliers upon the Statute of 1 Eliz. A Bishop makes a Lease for three years before the Expiration of a former Lease to begin presently It was holden a good Lease to bind the Successor for the Inheritance of the Bishop is not charged above one and twenty years in toto But if a Bishop make a Lease for years and afterwards makes a Lease for three lives the same is not good 8 Eliz. Dy. 246. Tenant in tail leaseth to begin at Michaelmas next ensuing for twenty years it is a good Lease by the Statute of 32 H. 8. so is a lease for 10 years and after for eleven years and yet the Statutes are in the Negative but this power in our Case is in the Affirmative and the Inheritance is not charged in the whole with more than one and twenty years CCVI. Kinnersly and Smarts Case Trin. 31 Eliz. In the Kings Bench. 〈◊〉 upon a usurious Contract 1 Cro 155. IN Debt upon a Bond The Plaintiff declared That the Bond was made in London The Defendant pleaded That an usurious Contract was made betwixt the parties at D. in Stafford-shire that the Obligation was made for the same contract The Plaintiff by Replication saith that the Bond was made bona
197 p VVright and the Bishop of Norwiches case 218 p VVhisker and Cleytons Case 219 p VVard and Blunts case 251 p VVeston and Grendons case 255 p VVoodshaw and Fulmerstons case 262 p VVindham and Sir Edward Cleeres case 263 p VVickes and Dennis case 271 p VValgrave and Ogdens case 305 p VVard and Knights case 315 p VViseman and VVaringers case 339 p VVeston and Garnons case 343 p VVillis and Crosbies case 373 p VVilliams and Blowers case 402 p VValpoole and Kings case 407 p VViggot and Clarks case 419 p VVangford and Sectons case 423 p VVilmer and Oldfeilds case 424 p VVolman and Fies case 449 p VVillis and VVhitewoods case 454 p VVade and Presthalls case 466 p VVharton and Morleys case 467 p VValgrave and Agars case 469 p Z. ZOuch and Bamfeilds case 102 p REPORTS AND Cases of Law Argued and Adjudged in the Time of Queen Elizabeth From the twenty fourth to the three and thirtieth year of Her Reign I. Borneford and Packingtons Case Hill. 25. Eliz. in the Kings Bench. IN Trespas It was found by special verdict Custom of Free-Bench That the Defendant was seised of the Manor of B. whereof the place where is parcel demised and demiseable by Copy c. And that B. the Granfather of the Plaintiff was seised of the place where c. according to the custom of the said Manor in Fee-simple and that within the said Manor there is this Custom That if any Copy-holder dieth seised his Wife over-living him shall hold all the Land during her Widowhood as Free-bench and shall be admitted Tenant to the Lord 2 Brownl 21. and that the Heir shall not be admitted to it during the life of his Mother And found also another Custom within the said Manor That if any Copy-holder be convicted of Felony and the same be presented by the Homage that then the Lord might seize c. And it was further found that the Grandfather of the Plaintiff took a Wife and died seised having issue A. Father of the Plaintiff The Wife is admitted to her Free-bench A. is convicted of Felony and that is presented by the Homage and afterwards A. died after which the Wife died c. It was argued by Atkinson that A. is not within the danger of this Custom for during the life of his Mother who by a Claimer is Tenant to the Lord and admitted to it she is Copy-holder and it is not like to the Case lately adjudged of possessio fratris without admittance for there the party was admittable and so he was not here And also it appeareth by the Custom as it is found That the Lord upon such matter shall seize and therefore we ought to make construction that this Custom doth not extend to Cases where the Lord cannot seize but in the Case at Bar the Lord cannot seize by reason of this Free-bench And we ought not by any construction to extend a Custom beyond the words in which it is conceived but it shall be taken strictly and not be supplyed by Equity with a Custom in the place of a Seisure But notwithstanding all this afterwards Iudgment was given against the Plaintiff II. Hill. 25 Eliz. in the Kings Bench. A Copy-holder doth surrender to the use of one A. upon trust that he shall hold the said Land until he hath levyed certain monies and that afterwards he shall surrender to the use of B the monies are levyed A. is required to make surrender to the use of B. he refuseth B. exhibits a Bill to the Lord of the Mannor against the said A. who upon hearing of the Cause decrees against A. that he shall surrender he refuseth now the Lord may seize and admit B. to the Copy-hold for he in such Cases is Chancellor in his own Court per totam Curiam III. Wade and Bemboes Case Hill. 25. Eliz. in the Kings Bench. IN a Writ of Error by Wade against Bembo upon a Iudgment given in the Court of the City of Bristol the Case was That Bembo was Plaintiff in the said Court against Wade in an Action of Covenant and declared of a Covenant made by word by the Testator of Wade with Bembo and declared also that within the said City there is a Custom That Conventio ore tenus facta shall bind the Covenantor as strongly as if it were made by writing And it was holden by the Court that that Custom doth not warrant this Action for the Covenant binds by the Custom the Covenantor but doth not extend to his Executors and a Custom shall be taken strictly and therefore the Iudgment was reversed IV. The Lord Paget and Sir Walter Ashtons Case 25 Pasch 25. Eliz. in the Kings Bench THe Lord Paget brought an Action of Trespass against Sir Walter Ashton who justified because he is seised of three Messuages to him and his Heirs and that he and all those whose estate he hath c. have had the Woodwardship of the Forrest of C. within which the place where c. and also have had within the said Forrest Estovers without number And that one Rowland Bishop of Coventry and Lichfield was seised of the Forrest aforesaid in the right of his Church and by Indenture betwixt him and Sir Edw. Ashton his Ancestor whose Heir he is setting forth that divers debates had been betwixt the said parties concerning some profits within the said Forrest It was agreed betwixt them that the said Sir Ed. Ashton should release unto the said Rowland all his right in the said Office and Estovers and that the said Rowland shoud grant de novo unto the said Edw. and his Heirs the said Office and one hundred loads of Estovers per annum out of the said Forrest After which the said Ed. according to the said agreement did release to the said Bishop ut supra after which the said Bishop by Indenture reciting the said former Convenants in compl Indenturae praedict Convent did grant to the said Sir Ed. the said Office and Estovers pro easiamento dicti Edwardi haered suorum by assignment of the Officers of the said Forrest and if the assignment he not made within ten days after request that then the said Ed. and his Heirs should cut dow wood where they pleased and averred the things released were of as great value as the things granted And upon this matter the Plaintiff did demurr in Law and it was adjuded for the Plaintiff for here no Inheritance in the things granted passed to the said Sir Ed. but only an Interest for his own life 1. Inst 148. a. 398. b. ib. Dy. 253. 1 Cro. 644. for the grant was to Sir Ed. only without the word Heirs and the reference to the Indentures by which the Bishop hath covenanted to grant the Inheritance nor the words in the grant imply an estate in Fee s. pro easimento dict Ed. haered suorum and that in default of Assignment it should be lawful for Sir Ed. and his Heirs
shall not supply the defect of the words in the grant V. Gilbert and Sir George Harts Case Mich. 25 and 26 Eliz. in the Kings Bench. GIlbert brought Debt upon Escape against Sir George Hart Sheriff of Kent and declared Escape 1. Cro. 188. 271. That he recovered a certain debt against A. who was taken in Execution c. And the Case was That the said A. was taken in Execution in the time of the old Sheriff and escaped also then and afterwards the Defendant being Sheriff the Plaintiff again sued a Scire facias against the said A. upon the Iudgment aforesaid upon which Execution was awarded by default and thereupon issued a Capias ad satisfaciendum by which A. was taken and escaped And by the opinion of all the Iustices the Defendant in this Case shall be charged for notwithstanding that A. was once in Execution which was determined by escape in the time of the old Sheriff yet when Execution was now awarded against him upon his default in the Scire facias the same shall bind the Sheriff out of whose custody he escaped VI. Moor and Farrands Case Mich. 25 and 26 Eliz. in the Common Pleas. MOore leased Lands to Farrand upon condition that he 1. Cro. 26. Condition where shall not bind Administrators 1. Anders 123. Dy. 6. 1 Cro. 26. 757 3. Len. 67. his Executors or Assigns should not alien without the leave of the lessor Farrand died intestate his Wife took Letters of Administration and aliened without leave and by Periam Iustice she is not within the penalty of the Condition for the Administrator is not meerly in by the party but by the Ordinary And by Meade and Periam If a Lease for years upon such a Condition be extended upon a Recognisance the same is not an alienation against the Condition But if feme lessee for years upon such Condition taketh a Husband and dieth the Husband is within the danger of the Condition for he is Assignee If the King grant to a Subject bona catalla felonum and the lessor for years upon such a Condition be out-lawed upon which the Patentee enters Now by Periam the Patentee is not bound by the Condition Meade contrary for the Condition shall go with the Land. VII Maynyes Case Mich. 25 and 26 Eliz. in the Exechequer MAyney seised of Lands in Fee took a Wife Co. 1. Inst 41. â— made a Feoffment to a stranger committeth Treason and thereof is attainted and hath a Charter of Pardon and dieth It was moved by Plowden in the Exchequer if the Wife of Mayney shall have Dower against the Feoffee Dower Manwood Chief Baron by reason of this Attainder Dower cannot accrue to the Wife for her title begins by the Enter-marriage and ought to continue and be consummated by the death of the Husband which cannot be in this Case for the Attainder of the Husband hath interrupted it as in the Case of Elopement Attainder where an Estoppel And this Attainder is an universal Estoppel and doth not run in privity only betwixt the Wife and him to whom the Escheat belongs but every stranger may bar her of her Dower by reason thereof for by the Attainder of her Husband the Wife is disabled to demand Dower as well as to demand his Inheritance and he cited the Resolution of all the Iustices of England in the Case of the Lady Gates 4. Ma. Dyer 140. and the Pardon doth not help the matter for the same extends but to the life of the Offender but doth not take away the Attainder by which she is barred to demand Dower during the said Attainder in force See the Statute of 5. E 6. cap. 11. Vid. Fitz. Dower 82. 13. E 3. 8 E 3. Dower 106 Fitz. Utlag 49. 8 Mich. 25 and 26 Eliz. in the Exchequer 4. Len. 117. Leases for three lives of Copy-hold estate are not within Stat. 41. Eliz. IN the Exchequer it was found by special verdict That the Guardians and Chanons Regular of Otlery were seised of the Mannor of O c. and that 22 H 7. at a Court holden there granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Mannor and that afterwards 30 H 8. They leased the Lands by Indenture to H. rendering the ancient and accustomed Rent and afterward surrendred their Colledge c. and afterward W. and W. dyed And if that Lease so made during the customary estate for life notwithstanding the Statute of 31 H 8. be good or not was the Question being within a year before the surrender c. It was argued by Egerton Sollicitor that the said Lease is void by the Statute the words of which are whereof or in the which any estate or interest for term of life year or years at the time of the making of any such Lease had his being or continuance and was not then determined finished or expired and therefore we are to see if that right or possession which W. had at the time of the making of the Lease were an interest or an estate for life And as to this word estate it is nothing else than measure of time for an estate in Fee-simple is as much as to say an interest in the Lands for ever and the like of other estates and therefore here W. and W. had at the time of the making of this Lease an estate for life in the thing demised And although such customary Tenants are termed in Law Tenants at will yet they are not simply so nor meerly Tenants at will but only Tenants at will secundum Consuetudinem Manerii Copy-holdeâ—â— Interest which Custom warrants his possession here for his life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord so cannot a Tenant at will whose estate is determined at the will and pleasure of his Lessor And although this estate is but by Custom and by no Conveyance the estate is raised it is as material so as it be an estate and this estate being supported by Custom is known in Law an estate and so accounted in Law and the Law hath notably distinguished Copy-hold Tenancies by Custom and Tenancies at will by the Common Law for a Copy-holder shall do Fealty shall have aid of his Lord in an Action of Trespass shall have and maintain an Action of Trespass against his Lord his Wife shall be indowed the Husband shall be Tenant by the Curtesie without new admittance and it was adjudged in the Common Pleas 8. Eliz. That if a Copy-holder surrender to the use of another for years the Lessee dieth his Executors shall have the residue of the Term without any admittance M 14. and 15. Eliz. a Copy-holder made a Lease for years by Indenture warranted by the Custom it was adjudged that the Lessees should maintain Ejectione firm although it was objected that if it were so then if
in the Case which gives cause of suit in Chancery for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound c. and the Obligee bring her into the Chancery and if a man threaten me that if I will not pay to him ten pounds he will sue me in Chancery upon which I promise to pay it him no Action will lye And an Infant is not chargeable upon any contract but for his meat drink and necessary Apparel 19 Z. 4. 2. And in Debt upon such necessary Contract the Plaintiff ought to declare specially so as the whole certainty may appear upon which the Court may judge if the expense were necessary and convenient or not and upon the reasonableness of the price for otherwise if the necessity of the thing and reasonableness of the price doth not appear the Chancellor himself would not give any remedy or recompence to the party Wray Justice conceived that the Action would not lye for the contract was void and the Infant in an Action against him upon it may plead Nihil debet And if an Infant sell goods for money and doth not deliver them but the Vendee takes them he is a Trespassor but if the Infant had been bounden in an Obligation with a surety and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless upon that promise an Action lyeth for the Infant cannot plead non est factum which see Mich. 28 29 Eliz. in the Case of one Edmunds And afterwards it was adjudged against the Plaintiff CLVII Charnock and Worsleys Case Trin. 30 Eliz. Rot 833. In the Kings Bench. Owen 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley the Case was that the Husband and Wife the Wife being within age levyed a Fine and the Wife upon inspection was adjudged within age it was moved if the Fine should be utterly reversed or as to the Wife only should stand against the Husband by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish that where such a Fine is reversed the Plaintiff shall not have execution till after the death of the Husband and by Coke and Atkinson a Fine acknowledged by the Husband and Wife is not like to a Feoffment made by them for in case of Feoffment something passeth from the Husband but in case of a Fine all passeth out of the Wife and the Conusee is in by her only And Atkinson shewed a Precedent in 2 H. 4. where the Fine was reversed for the whole and also another Precedent P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff and N. Ford. and Jane his Wife Deforceants the Wife being within age and Iudgment was given quod finis praedict adnulletur pro nullo penitus habeatur and that the Husband and Wife should be restored and thereupon a Writ issued to the Custos Brevium to bring into Court the Foot of the Fine and it was presently cancelled in Court. Wray this is a strong Precedent and we will not varse from it if other Precedents are not contrary Gawdy who was the same day made Iustice the Fine cannot be reversed as to one and stand as to the other and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture and the Husband aliens and takes back an estate to him and his Wife for their lives they both are remitted for the Wife cannot be remitted if the Husband be not remitted And a Precedent was cited to the contrary 7 Eliz. where the Case was that the Husband and Wife levyed a Fine the Husband died the Wife being within age the Wife took another Husband and they brought a Writ of Error and the Wife by inspection adjudged within age Fine reversed as to one to stand good against another and the Fine was reversed as to the Wife and her Heirs And it was argued by Golding that here the Writ of Error ought to abate for the Writ is too general whereas it ought to be special Ex querela A.B. nobis humillime supplicantis accepimus c. See the Book of Entries 278. Also the purclose of the Writ is ad damnum impsorum the Husband and the Wife whereas the Wife only hath loss by it and as to the Fine it self he conceived that it should be reversed but as to the Wife as if a man of full age and a man within age levy a Fine in a Writ of Error brought the Fine shall be reversed as to the Infant only and shall stand against the other and he cited the Case of the Lord Mountjoy 14. Eliz. Where a man seised in the right of his Wife acknowledged a Statute and afterwards he and his Wife levyed a Fine and he said that during the life of the Husband the Conusee of the Fine should hold the Land charged with the Statute Also in the Precedent of 2 H. 4. the Iudgment is that propter hunc alios errores the Fine should be reversed and I conceive that another Error was in the said Writ for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres partes dividend And see that where two parts are demanded in a Writ 3 Co. 58 59. Modern Rep. 182. the Writ shall say so Brief 244 Coke contrary and as to the last matter I confess the Law is so in a Writ but not in a Fine for the same is but a Conveyance for it I be seised of a Manor and I grant to you two parts of the said Manor it is clear it shall be intended in three parts to be divided And as to the principal matter I conceive when the Fine is levyed by the Husband and Wife it shall be intended that the Land whereof c. is the Inheritance of the Wife if the contrary be not shewed and therefore if the party will have an especial Reversal he ought to shew the special matter as in Englishes Case A Fine was levyed by Tenant for life and he in the reversion being within age bringeth a Writ of Error now the Fine shall be reversed as to him in the Reversion but not as to the Tenant for life but here it shall be intended the Inheritance of the Wife and that the Husband hath nothing but in the right of his Wife and therefore she shall be restored to the whole for nothing passeth from the Husband but he is named with his Wife only for conformity 11 H. 7. 19. A. takes to Wife an Inheretrir who is attainted of Felony the King shall not have the Land presently by which it appeareth that all is in the Wife and she shall be restored to the whole and the Iudgment shall be according to the Presidents cited
before And as to the President cited 7 Eliz. the same is not to the purpose for the second Husband was a stranger to the Fine for it would be absurd to reverse the Fine as against him Egerton Solicitor General Presidents are not so holy quod violari non debeant as to be rules to other Iudges in perpetuum and I conceive that the Fine shall be reversed as to the Wife only for the Fine is but a Conveyance and the Husband may lawfully convey the Land of his Wife for his life and if the Husband alone had levyed the Fine the same had bounden the Wife during his life If a woman Lessee for life taketh to Husband him in the Reversion and they joyn in a Fine the Fine shall stand as to the Inheritance of the Husband but shall be reversed as to the Interest of the Wife Coke it shall be intended here all the Interest and estate in the Land to be in the Wife as 20 H. 7. 1. Where the Husband and Wife are vouched it shall be intended by reason of the Warranty of the Wife only and so the Counter-plea shall be of the seisin of the Wife and her Ancestors Wray when the Husband and Wife joyn in the Fine it shall be presumed the Inheritance of the Wife and if it be otherwise it ought to be specially shewed and as to that which hath been said that if the Husband alone had levyed a Fine it should have bounden the Wife during the life of the Husband the same is true but such Fine is but a discontinuance but the right continueth in the Wife but when the Husband and Wife joyn in the Fine all passeth out of her and if the Fine in such case for the Inheritance shall be reversed in all to whom belongs the Free-hold to whom shall he be attendant Gawdy 12 H. 7. 1. In a Praecipe quod reddat against three they vouch severally the Voucher was not received and yet they might have several Causes of Voucher but the Law presumes they are Ioynt-tenants and have a joynt cause of Voucher if the contrary be not shewed And afterwards Iudgment was given quod finis predict reversetur and Wray said he had conferred with many of the other Iustices who were of the same opinion Gawdy the Fine shall be reversed in all for this is an Error in Law of the Court F. B. 21. D. For by this Fine the Husband giveth nothing divided from the estate of the Wife but all passeth from the Wife and therefore all shall be reversed and if the Fine should be reversed as to the Wife only then the Fine levyed now by the Husband alone is a discontinuance by which the Wife by the common Law shall be put to her Cui in vita and that is not reason Also we cannot by this Reversal make the Conusee to have a particular estate during the life of the Wife And therefore the Fine is to be reversed for the whole and as void for the whole to the Conusee CLVIII Cage and Paxlins Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 125. 3 Len. 16. DAniel Cage brought an Action of Trespass against Thomas Paxlin for Trespass done in a Close of Wood called the Frith-Close and in the Park and for taking of certain Loads of Wood the Defendant pleaded that the Earl of Oxford was seised of the Mannor of W. of which the place where c. is parcel and leased the same to J. S. for years excepting all Woods great Trees Timber-trees and Vnderwoods c. And covenanted with the Lessee and his Assigns that he might take Hedg-boot and Fire-boot super dicta premissa and shewed further that the said I. S. assigned his Interest unto the Defendant and that he came to the said Close called the Frifth-Close Lease of Lands excepting the wood and cut the Wood there for Fire-boot as it was lawful for him to do c. And note that after the Lease aforesaid the said Earl had assured the Inheritance thereof to Cage the Plaintiff And it was argued by Godfrey that the Lessee cannot take Fire-boot in the said Close for the wood c. is excepted and was never demised and by the exception of the wood the soil thereof is excepted See 46 E. 3. 22. A. leased for life certain Lands reserving the great wood by that the soil also is reserved vi 33 H. 8. Br. Reservation 39 28 H. 8. 13. 3 Len. 16. And by the words of the Covenant the intent of the Lessor appeareth that the Lessee shall have his Fire-boot out of the residue of the Lands demised for praemissa here is equivalent with praedimissa And he cited the Case moved by Mountaine cheif Iustice 4 E. 6. in Plowden in the Case betwixt Dive and Manningham 66. A. leaseth unto B. a Manor for years excepting a Close parcel of it rendring a Rent and the Lessee is bounden to perform all Grants Covenants and Agreements contenta expressa aut recitata in the Indenture if the Lessee disturb the Lessor upon his occupation of the Close excepted he hath forfeited his Obligation c. But our Case is not like to that Post 122. And if I let the Manor of D. for years except Green-meadow and afterwards I covenant that the Lessee shall enjoy the Premisses the same doth not extend to Green-meadow Snagg Serjeant to the contrary and by him praemissa are not restrained to praedimissa but to all the Premisses put in the former part of the Indenture of Demise therefore the Lesse shall have Fire-boot in the one and the other 2 Roll. 455. 2 Cro. 524. Post 122. and he put a difference betwixt all Woods excepted and all woods growing excepted for in the one case the soil passeth in the other not And as to the Case cited before in Plowden 66. that is true for exception is an Agreement And he said that by that exception the soil it self is excepted and these woods which are named by name of woods contrary where a Close containeth part in woods and part in Pasture And by the exception of Timber-trees and Vnder woods all the other woods are excepted but not the soil As if a man grant all his Lands in D. Land Meadow Pasture and woods thereby passeth by exception of this Close of wood the soil also is excepted and he conceived that although all the woods be excepted yet by the Covenant an Interest passeth to the Lessee Select Case 155 Hob. 173. Dy. 19 198 314. 21 H. 7 31. More 23. 1 Roll. 939. so as he may take Fire-boot without being put to his Action of Covenant As 21 H. 7. 30. A. leaseth unto B. for life and Covenants in the Indenture of lease that he shall be dispunished of Wast although the same be penned by way of Covenant yet it is a good matter of Bar being all by one Deed And afterwards Iudgment was given for the Plaintiff as to that
every issue begotten betwixt William and Joan should have an estate for life successive and a Remainder in tail expectant as right heir of the body of William A Contingent shall hinder the execution of an estate in possession and this estate tail shall not be executed in possession by reason of the mesne Remainder for life limited to the heir of the body of William and Joan and although that these mesne Remainders are but upon a contingent and not in esse yet such regard shall be had to them that they shall hinder the execution of the estates for life and in tail in possession As if an estate be made to A. for life the Remainder to the right heirs of B. in tail the Remainder in Fee to A. although the estate tail be in abeyance and not in esse during the life of B. yet in respect thereof the Free-hold and Fee shall not be conjoyned Southcote Iustice To the same purpose And he put a case lately adjudged betwixt Vaughan and Alcock Vaughan and Alcocks case Land was devised to two men and if any of them dieth his heirs shall inherit these devisees are Tenants in common because in by devise but contrary if it were by way of Grant Lands are devised to A. and B. to be betwixt them divided they are Tenants in common Wray William and Thomas have but for life for they are purchasors by the name heir in the singular number but when he goes further and says for want of such issue to the heirs of the body of William in the plural number now Will. hath an Inheritance And if a devise be made to one for life and then to his heir for life and so from heir to heir in perpetuum for life here are two estates for life and the other Devisees have Fee for estates for life cannot be limited by general words from heir to heir but by special words they may And here Thomas being next heir of the body of William and Joan hath an estate for life and also being heir of the body of the said William hath a Remainder in tail to him limited the mesn remaineth limited to others i. e. to the next heir of the body of Thomas being in abeyance Co 11. Rep. 80. because limited by the name heir his Father being alive shall not hinder the execution of these estates but they shall remain in force according to the rules of the common Law Then Thomas so being seised levyeth a Fine against the Provision of the Will by which Thomas hath forfeited his estate for life and so his next heir shall have the Land during his life And a great reason wherefore the heirs ut supra after the two first limitations shall have tail is because that if every heir should have but for life they should never have any Interest in the Lands by these limitations for by the express words of the devise none shall take but the heir of the first heir for ever i. e. When Thomas aliens by which the use vests in Francis and when afterwards Francis levieth a Fine then the use vests in Percival Hâ—rt being next heir of the said Francis at the time of the Fine levyed notwithstanding that afterwards Francis had a Son which is his next heir and therefore the use in Percival by the birth of the said Son in Francis shall not be devested Estate vested shall not be devested because it was a thing vested in him before by purchase 9 H. 7. 25. A enfeoffs B. upon condition on the part of A. to be performed 1 Cro. 61. and dyeth having issue a Daughter the Daughter performs the condition and afterwards a Son is born the Daughter shall hold the Lands against the Son So 5. E. 4 6. A woman hath issue a Daughter and afterwards consents to a Ravisher the Daughter enters and afterwards a Son is born yet the Daughter shall hold the Lands for ever i. e. And Geofries Iustice said Francis being in by force of the Forfeiture shall not be subject to the limitation of the Will i. e. to any forfeiture if he alien for the estate which Francis hath for his life is but an estate gained by the offence of his Father and the use was limited to him upon the Will of Richard and then the said estate is not subject to the Proviso of the Will and then hath not Francis committed any forfeiture And admit Francis shall forfeit yet Percival shall get nothing thereby but the estate which Francis had at the time of the Fine levied scil the Free-hold only for no estate of Inheritance was in him living his Father As to the regress of the Feoffees Geofries was of opinion That where an use is limited to a person certain and thereupon vested in the person to whom it is limited That the Entry of the Feoffees in such case is not requisite notwithstanding that the first estates be discontinued but where the use as in our case is not limited to a person certain in esse but is in abeyance not vested in any person upon the limitation of it some estate ought to be left in the Feoffees to maintain that use and to render it according to the limitation and in our case these uses not in esse at the time of the making of the Statute of 27 H. 8. could not be executed by the said Statute but now at the appointed time by the limitation shall be raised and revived by the Entry of the Feoffees but here by the Fine and Non-claim the Feoffees are bound and their Entry taken away and so no use can accrue to Percival Hart by such Entry Southcote Iustice was of opinion that the Feoffees cannot enter at all because that by the Statute of 27 H. 8. nothing is left in them at the time of the making of the Statute which saves the right of every person c. other than the Feoffees so as no right is saved to them but all is drawn out of them by the operation of the Statute and the second saving of the Statute saves to the Feoffees all their former Right so as the Right which the Feoffees had by the Feoffment to the use is utterly gone But Percival Hart may well enter for he is not bound to the five years after the Fine levied for he had not right at the time of the Fine levied but his right came by the Fine Wray chief Iustice The Feoffees are not to enter for the Statute of 27 H. 8. hath two branches 1. gives the possession to Cestuy que use in such manner as he hath in the use 2. takes away all the right out of the Feoffees and gives it to Cestuy que use so as nothing at all remains in the Feoffees for if an Act of Parliament will give to me all the Lands whereof my brother Southcote is seised and that I shall be in the Seisin thereof now is the actual possession in me without my
Entry so where an use is often executed by the Statute Cestuy que use without any Entry hath an actual possession i. As to the uses contingent nothing remains in the Feoffees for the setling of them when they happen but the whole estate is setled in Cestuy que use yet subject to such use and he shall render the same upon contingency And if any estate should remain in the Feoffees it could be but an estate for life for the Fee simple is executed in Cestuy que use with an estate in possession and then the Feoffees should be seised to another use than was given them by the Livery Also if a Feoffment be made unto the use of the Feoffor and his heirs until J.S. hath paid unto the Feoffor 100 l. from thenceforth the Feoffor and his heirs shall be seised to the use of the said J.S. and his heirs if upon such Feoffment any thing should remain in the Feoffees before the payment by I.S. the same should be a Fee-simple and then there should be two Fee-simples of one and the same Lands one in the Feoffor and the other in the Feoffees which should be absurd and therefore the best way to avoid such inconveniences is to continue the Statute that it draws the whole estate of the Land and also the confidence out of the Feoffees and reposeth it upon the Lands the which by the operation of the Statute shall render the use to every person in his time according to the limitation of the parties And also if any Interest doth remain in the Feoffees Then if they convey to any person upon consideration who hath not notice of the use then the said use shall never rise which is utterly against the meaning of the said Statute and the meaning of the parties and therefore to construe the Statute to leave nothing in the Feoffees will prevent all such mischief And if a Feoffment in fee be made to the use of the Feoffor for life and afterwards to the use of his wife which shall be for life and afterwards to the use of the right Heirs of the Feoffor The Feoffor enfeoffeth a stranger taketh a wife now cannot the Feoffees enter during the life of the Feoffor and after his death they cannot enter because they could not enter when the use to the wife was to begin upon the intermarriage and then if the Entry of the Feoffees in such case should be requisite the use limited to the wife by the Act of the Feoffor should be destroyed against his own limitation which is strong against the meaning of the Act aforesaid for by the said act the Land is credited with the said use which shall never fail in the performance of it And such contingent estates in Remainder may be limited in possession a Fortiori in use which see 4. E. 6. Coithirsts case 23. And Plesingtons case 6 R. 2. And it is true at the common Law the Entry of the Feoffees was requisite because the wrong was done unto them by reason of the possession which they then had but now by the Statute all is drawn out of them and then there is no reason that they medle with the Lands wherein they have now nothing to do and the scope of the Statute is utterly to disable the Feoffees to do any thing in prejudice of the uses limited so as the Feoffees are not to any purpose but as a Pipe to convey the Lands to others So as they cannot by their Release or confirmation c. bind the uses which are to grow and arise by the limitation knit unto the Feoffment made unto them which see Br. 30. 30 H. 8. Feoffments to uses 50 A. covenants with B. That when A. shall be enfeoffed by B. of three Acres of Lands in D. that then the said A. and his Heirs shall be seised of Land of the said A. in S. to the use of B. and his Heirs and afterwards A. enfeoffeth a stranger of his Lands in S. And afterwards B. enfeoffeth A. of his Lands in D. now the Feoffee of A. shall be seised to the use of B. notwithstanding that the said Feoffee had not notice of the use for Land is bound with the use in whose hands soever it come And see the like case ibid. 1. Ma. 59. Vpon the reason of which cases many assurances have been made for it is the common manner of Mortgage i. e. If the Mortgag or pay such a sum c. that then the Mortgagee and his Heirs shall be seised after such payment to the use of the Mortgagor and his Heirs In that case although that the Mortgagee alien yet upon the payment the use shall rise well enough out of the possession of the Alienee and the Lands shall be in the Mortgagor without any Entry For the Mortgages could not enter against his own alienation to revive the use which is to rise upon the payment and therefore without any assistance of such Entry it shall arise As at the Common Law Land is given to A. in tail the Remainder to the right heirs of B. A. levies a Fine makes a Feoffment suffers a Recovery c. although the same shall bind the Issues yet if B. dyeth and afterwards A. dyeth without issue now notwithstanding this Fine c. The right Heir of B. may enter And always a use shall spring out of the Land at his due opportunity and it is a collateral charge which binds the Lands by the first Liberty and cannot be discharged vi 49. Ass 8. 49 E. 3. 16. Isabell Goodcheapes case A man deviseth that his Executors shall sell his Lands and afterwards dyeth without heir so as the Land escheats to the King yet the authority given to the Executors shall bind the Lands in whose hands soever it comes c. And so a title of Entry continues notwithstanding twenty alienations But an use is a less thing than a Title of Entry especially an use in contingency and an use as long as it is in contingency cannot be forfeited As if the Mortgagor be attainted and pardoned mean betwixt the Mortgage and the day of Redemption c. Then when Thomas levies a Fine Francis may well enter And Thomas before the Fine had an estate tail executed to his Free-hold and therefore by the Fine he gave an estate of Inheritance to the Conusee and then no right of entail remained in Francis but he took an estate for life only and that as a Purchasor by the limitation of the Will and then when Francis levied a Fine his estate was gone which was but for life and then the right of the entail and all the other estates which are especially limited are also gone and so Percival Hart to whom no estate was specially limited hath not any cause to enter c. And it was further said by Wray Husband and Wife Tenants in special tail the Husband levies a Fine with Proclamations and dieth the Wife enters the issue in tail is
Southcotes case Southcotes case So a Title of Cessavit in the Feoffees shall be executed by the Statute So if the King grants to the Feoffees in use a Fair Market or Warren these things shall be executed by the Statute Clerentius case as it was holden in the Case of Clarentius As to the Condition they conceived That it is broken for where the Devisor had allowed to the Devisee to discontinue for life to make a Ioynture to his Wife now he hath exceeded his allowance for he might have made a Ioynture to his wife indefeisable by Fine upon a Grant upon a Render for life c. But this Fine with the Proclamations is a Bar to the former entail which was created by the Devise and hath created a new entail and the former tail was barred by the Fine against the intent of the Devisor Also by this Fine he hath created a new Remainder so as his Issue inheritable to his new entail might alien and be unpunished which was against the meaning of the Devisor And as to the Lease for lives to the Defendants the same is not any breach of the Condition for that is warranted by the Statute of 32 H. 8. which enables Tenant in tail to make such a Lease so as it cannot be said Discontinuance which Anderson and Periam granted But the Fine levied after is a breach of the Condition and then the Re-entry upon the Lessees who have their estates under the Condition is lawful As where the wife of the Feoffee upon Condition is endowed and afterwards the Condition is broken now by the Re-entry of the Feoffor the Dower is defeated And Shutleworth put this case A Feoffment is made upon Condition that the Feoffee shall lease the Lands to A. for life and afterwards grant the Reversion to B. in Fee the Feoffor may re-enter for by this Conveyance he in the Reversion is immediate Tenant to the Lord where by the intended assurance the particular Tenant ought to be Puckering Fenner and Walmesley contrary And by Walmesley By this devise the use only passeth and not the Land it self for the Statute of 1 R. 3. extends only to Acts executed in the life of Cestuy que use and not to devises which are not executed till after the death of the Devisor which see 4 Ma. Dyer 143. Trivilians case See also 6 E. 6. Dyer 74. The Lord Bourchiers case but 10 H. 7. Cestuy que use deviseth That his Executors shall sell the Land now by the sale of the Land in possession for the same is in a manner an Act in his life for the Vendee is in by Cestuy que use and here is a Condition and not a Limitation for the nature of a Condition is to draw back the estate to the Feoffor Donor or Lessor but a Limitation carrieth the estate further And he conceived That the Condition is not broken by this Act for the intent of the Devisor is pursued for his meaning was That the wife should have a Ioynture indefeisable against the issue in tail and that the inheritance should be preserved that both should be observed And he said that this Fine being levied by him in the Reversion upon an estate for life is not any discontinuance but yet shall bar the estate Tail. And the Iustices were clear of opinion that the Condition is broken and also that the intent of the Condition is broken for it might be that Charles had issue by a former wife which by this Fine should be disinherited and a new Entail set on foot against the meaning of the Devisor c. and afterwards Iudgment was given for the Plaintiff CCCCX Simmes and Wescots Case Hill. 31 Eliz. Rot. 355. In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 147. That in consideration that he would marry the Defendants Daughter the Defendant promised to give him 20 l. and also to procure him all the Corn growing upon such Lands and to provide necessaries for the wedding dinner the Defendant did confess the communication betwixt them and that he promised to give the Plaintiff 20 l. so as he would procure a Lease of certain Lands to his Daughter for her life absque hoc that he promised modo forma The Iury found the promise of the 20 l. but not any other thing it was moved in arrest of Iudgment that the Assumpsit whereof the Plaintiff hath declared although it consist of divers things yet it is entire and if the whole is not found nothing is found and the Case of 21 E. 4. 22. was cited touching variance of Contract as where an Action of Debt is brought upon a Contract of a Horse and the Iury found a Contract for two Horses the Plaintiff shall never have Iudgment On the other side it was said That the Plaintiff shall recouer damages for the whole that is found i. for the 20 l. See 32 H. 8. Br. Issue 90. In an Action upon the Case the Plaintiff declared that the Defendant did promise to deliver four Woollen-cloaths the Defendant pleaded That he did promise to deliver four Linnen-cloaths absque hoc that he promised c. the Iury found That the Defendant did promise to deliver two Woollen-cloaths and the Plaintiff did recover damages for the two So in Wast the Wast is assigned in succidendo 20 Oaks upon which they are at Issue the Iury find but ten Oaks the Plaintiff shall have Iudgment for so much and shall be amerced for the residue Gawdy Iustice Here are several Assumpstis in Law as Br. 5. Ma. Action sur le Case 108. a man in consideration of a Marriage assumes to pay 20 l. per Annum for four years two years incur the party brings an Action upon the Case for the arrearages of the two years Wray In an Action upon the Case the Plaintiff ought not to vary from his Case as if a promise be grounded upon two considerations Ragula and in an action upon it the Plaintiff declares upon one only he shall never have Iudgment and here the Iury have not found the same promise Clench If promise be made to deliver a Horse and a Cow and the Horse is delivered but not the Cow the party shall have an Action for the Cow but he shall declare upon the whole matter and afterwards Iudgment was given quod querens nihil capiat per billam CCCCXI Stile and Millers Case Trin. 31 Eliz. In the Kings Bench. Tithes 1 Cro. 161 578. 11 Co 13. A Parson Leased all his Glebe Lands for years with all the profits and commodities rendring 13 s. 4 d. pro omnibus exaction ibus demandis and afterwards libelled in the Spiritual Court against his Lessees for the Tithes thereof the Lessee obtained a Prohibition See 32 H. 8. Br. Dis 17. 8 E. 2. Avowry 212. Wray Tithes are not things issuing out of Lands nor any secular duty but spiritual and if the Parson doth release to