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tor brings ac

Lancelot Barret against one Long the defendant, the defendant had him in custody upon a capias utlagatum, and tions of escape suffered him to escape, notwithstanding the exception, not shewing the testament. judgment was given for the plaintiff. (2) But that differs from the former; for the escape was a wrong done to the executor himself, though it be true that the damages to be recovered shall be assets in his hands; for so shall they be in all possessory trespasses, and also the producing of his letters in his first action is somewhat.

(2) See post 218, Chester v. George. 272, Lancastell v. Sidley. n. (1.)

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JOHN JON'S CASE.

Repugnancy in office found makes it void.

UPON a mandamus after the death of John Jon, it was found that die obitus sui he was seized in dom. suo ut de fœdo of the manor, called Sutton's manor in Barrow; and that he being so seized, postea, scilicet 10 Martii 42 Eliz. did therefore infeoff one Winchcombe to the use of himself for life, the remainder to Welcome in fee, and then concludes quod præd. John Jon sic de omnibus dict. præmissis modo et forma supradictis seisitus existens de tali statu suo de eisdem obiit sic inde seisitus 12 Martii 8 Jac. And my Lord Chief Baron and I ruled this office to be void for the repugnancy of the finding of the estate, whereof he died seized, and so ordered a new office to be found.

Wards.

Melius inquir

end. not shewing the warrant

fice.

DAWTRY'S CASE.

A melius inquirendum, and the office taken thereon are void, if it does not show the warrant upon which the former office was taken.

AND another case was this. An office was found by of the first of commisioners after the death of William Dawtry esquire, at Chichester, whereupon a melius inquirend. went forth and recited but thus, Cum per quandam inquisitioner, captam Chichester compertum existit, &c.; and doth not say that it was either by commission or writ, or befor

whom; whereupon we held it void, and the office that was taken upon the melius inquirend.; for by the melius it must appear that the first office was by warrant.

But if it had been virtute commissionis, or de mandato nostro, which is understood by writ, it would have been good enough, although it had not been said before whom, for so the precedents are usual.

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CowPER vs. ANDREWS.

[39]

Tythes in kind are actually extinguished by a modus decimandi, and converted in- Prohibition. to a lay-fee; and that which is given in lieu of tythes is turned into a spiritual fee.

If a certain sum of money, and a portion of the game killed, have been paid, time out of mind, for all tythes of an ancient park, and then the park be laid open, and all the deer die or be destroyed by the owner, or the park be forfeited by judgment in a quo warranto, yet the same form of tything remains.

[The following paragraphs seem to be the only parts of this case which are

applicable to our jurisprudence.]

tovers when

down. 4 Co. 36.

10 H. 7. 13.

the defendant may plead in this case of as

size of estonul disseisin. [40]

vers, nul tort

-I grant, that if a man have common of estovers to his Suit for eshouse, and suffer his house to fall down, he can now claim the house is no estovers; and if he sue for it, and the other plead that his house is down, he shall not have judgment with a 16 H. 7, 9. ceasing of execution, till he have re-edified his house; as in a warrantia charte, or a writ of mesne, where the defendant pleads that he is not sued nor distrained, he Also note, that shall have judgment, but no execution for the present. So in a writ of dower against the heir, if he plead that the demandant detains the evidence, he shall have judgBut in the case ment presently, with a cesset executio. of estovers the plaintiff shall be barred, for at the time of the action brought he hath no right of estovers, but it is in suspense, and therefore it is not a perpetual but a temporal bar, and if he reedify his house in the same place, he shall have his estovers again. And so I think, if he had pulled down his house and built it again; tamen quære, if he bring an assize or quod permittat for his estovers, where his house is down, and judgment passed against him, if he shall not be barred finally, rather than where issue in tail in a formedon is barred by warranty

4 Co. 87. b.

Quære.

Co. L. 393. b.
Co. 88. a. Dy

6 Co. 7 b. 10

139.

[40 a]

[41]

Pop. 198. 9 E. 4. 20. Br. Covent. 22.

Plo. 272. a. 26.

and assets, and then aliens the assets against his issues, yet the bar stands, which should not, but for the judgment. ****

I lay this ground, that regularly this word 'pro' or 'in consideration' doth not import a condition, or make the grant defeasible, though the thing taken in lieu be either taken away by the giver wrongfully, or by any other person upon a just title, so as the thing given be wholly lost. And therefore if I. S. give W. Acre to I. N. for B. Acre, and so è converso, without the word of exchange, it will be not defeasible; nay more, if they use the proper word of exchange, and that be executed, a wrongful entry of either party will do no hurt, but a rightful eviction will. But without the proper word of exchange, though perhaps it were meant in the nature of an exchange, it will not defeat.

But it is true that the word pro in some cases hath the force of a condition, when the thing granted is executory, and the consideration of a grant is a service or some other like thing, for which there is no remedy but the stopping of the thing granted; as in the case of annuity granted for counsel, or for doing the office of a steward of a court; or the service of a captain, or keeper of a fort. Ughtred's case, Co. 7. lib. And in those cases the condition is not precedent, and therefore needs not to be averred performed, when the annuity is demanded; and these cases are within the reason of an exchange, where the land given is evicted, for here the failure of counsel or service is a kind of eviction of that, that is to be done for the annuity, inasmuch as he hath no means either to exact the counsel or recompense for it, but to stop the annuity.

And it is to be noted, that this a condition, that it being denied

hath so far the force of once, it doth avoid the

b. 15 H. 7. 10. annuity, not for that one payment, but for ever, which is to be noted for use, after in the principal case. 5 H. 7. 10. I covenant with I. S. to give him ten pounds to serve me a year; in his action for his money he must count for his service done, and it seems, though he had

Post. 106.

covenanted è converso, to serve me; for though in that case I might have an action for the service, yet it is not as of an estate vested of land of inheritance, as the case is here.

In another case it works by condition precedent, as in all personal contracts; as I sell you my horse for ten pounds, you shall not take my horse except you pay me ten pounds; 18 E. 4. 5. and 14 H. 8. 22; except I do expressly give you day; and yet in this case you may let your horse go, and have an action of debt for your money; and so may the tailor retain the garment till he be paid for the making, by a condition in law.

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So if I retain one to serve me a year for ten pounds, he cannot demand the ten pounds, but he must aver he hath served me out the year. And 32 E. 1. ff. Avowry 245. an avowry was made for not repairing a park pale anew; the tenant answered, that his tenure was to repair Plo. 134. b. Pop. 198. for the old pale. And Catesby, 15 E. 4. 4. puts it of a grant to make a new pale for the old, and holden in both cases, that if the old pale be withholden, he needs not to make a new, for here is no remedy for the old pale; and perhaps neither in case of tenure nor of grant; in this case the detaining of the old pale will discharge more than for that one time, for in that case the old is allowed towards, or for the new pale per vices; not so in the annuity granted pro consilio, which is totally for counsel, and therefore will extinguish wholly. And the case 9 E. 4. Plo. 141. a. fol. 20. and 15 E. 4. fol. 4. is full in this point; for there was a composition between the abbot of Sempringham and the master of Burton Lazer, whereupon the master granted, that the abbot should have certain tithes without contradiction; and the abbot granted him forty shillings a year out of the house for the same. And the opinion It is true that was, that though the master take away the tithes, yet the tion at the abbot must pay the rents, for both parts are executed and might be made presentable, either party hath remedy for the wrongful detaining; but for that was Needham says, that if the rent had been granted pro deci- spiritual still while it was mis habendis absque calumnia, it would have been other- appropriate, wise perhaps. Graye's case, Co. lib. 5. fol. 78. is full to this. F. N. Br.

Apr. 297.

an appropria

common law

but so is not

f. 35. and Grin

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this. If one had a common in my ground, time out of mind, and hath paid me for it hens and eggs, yet this is not entire, that he need declare of both parts, because it is no condition, and consequently, though he refuse to pay the eggs, that he should hold the common. But if it were conditional, as in the case of Potwater, there paying, or to pay, because in that case there is no remedy, as in the former, by distress, will be taken conditionally. **** Wheresoever I suffer any injury joined with a loss, the law shall give me a remedy and recompense according to my certain or uncertain loss, yea, and sometimes where the thing is not in being, but utterly extinguished. If the case here were that he should have yearly two deer out of the same park, the disparking would not hurt, for he should have the value ever; and so likewise where he sets not out his tithes, nor pays not the modus; for nummus est vou, as it is the law and measure of all things; for no man ever doubted that the nonpayment of the modus restored the tithe in kind, though it be alleged of form that he was ready. And therefore, if a man have common of estovers in my woods, so many loads by the year certain, or else uncertain, as much as he shall spend in fires, and in repairs of his house; if I stub up this wood, so as there neither is nor will be any wood again, yet he shall have an assize from year to year of his common of estovers: whereof these consequents follow, that the inheritance of the common of estovers doth remain, notwithstanding that there are no estovers, for else he could not have an assize, wherein he must declare of his inheritance or freehold, at least by grant, or by prescription. Next he shall recover a seisin of those estovers, which are not in being, whereof he is supposed to be disseised, and also damages, not according to that that it now yields, but according to that value, that it yielded communibus annis, though it were uncertain. So in Marie's case, Coke lib. 9. fol. 111. If any man feed in a common wrongfully, every commoner may have an action of the case against him; and by the same reason, if the lord of the soil plough it up, or make a water of it, every freeholder may have an assize, and

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