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SIR MARMADUKE WIVEL'S CASE. HARVEY VS. DUCKIN.

every copyholder an action of the case; and yet at this time there was no profit of common at all, and the possibility of restoring of it less than in this case, and therefore there can be no reviving the very tithe, which must be for the inheritance, or not at all.

109

[43 a]

for land recov

56. And for

Touching the uncertainty; if a man grant an advowson with warranty, and the tenant in a writ of right of advow- An advowson descended may son vouch, he shall have, (if he lose,) recompense in value be put in value in land, or other certain profit, and yet the advowson itself ered upon waris utterly of an uncertain value. So of a liberty bona ranty. 9 H. 6. et catalla felonum, &c. which may be valued by an esti- [44] mate communibus annis; if I let my bona et catalla, or recovered in a profits of court, rendering rent, it is no plea in debt for writ of right of my rent, that he had no profits that year; but if the lessor upon voucher, discharge or release all, otherwise it may be, but here is land in value no perpetual discharge. * * * *

an advowson

advowson

one may have

for recompense. 3 E. 2. F. Rec. in

Value 9. 8 E. 2. F. Rec. in Value 11. and Bracton. 3 Co. 33. a. Post. 297. 304. 9 Co. 113. a. Cr. Jac. 195.

SIR MARMADuke Wivel's CASE.

If tenant in tail of an advowson, and his son and heir join in a grant of the next avoidance, such grant is void against the son and heir.

[45] Quare Imped.

and his son

grant of an

Winch Ent.

In case of quare imped. brought by Sir Marmaduke Tenant in tail Wivel this was the point. Tenant in tail of an advowson, joined in a and his son and heir joined in a grant of the next avoid- avoidance. ance. Tenant in tail died, and it was adjudged, that the 677. 10 Co. 47. grant was utterly void against the son and heir that join- b. Plo. 432. b. ed in the grant, because he had nothing in the advowson, Litt. Sect. 446. neither in possession nor right, nor in actual possibility, at Error. the time of the grant. Hereupon a writ of error was brought, but the error was assigned only in a discontinuance, for the judgment was given upon a demurrer.

HARVEY US. DUCKIN.

Innuendo shall not enlarge or change the matter of the words.

Case.

Pasc. 13 Jac.

HARVEY an attorney brought an action upon the case Innuendo. against one Duckin, and declared, that whereas one White 9. Co. 17.b.

Brownl. 1. R.

[45 a]

had made him a bill of forty pounds debt, and had sealed and delivered the same, the defendant spake these slan20. a. Ante 2 f. derous words of him, 'that he had showed him a bill of 3. Apr. 268,

the case that

seal. 2 Cr. 430.

Ant. 8 a.

269. Action of forty pounds' (meaning that bill) 'unsealed, and after showhe had forged a ed it him sealed, and that he had forged the said seal to the said writing.' The defendant, by inducement of other words, traversed these words; and it was found for the plaintiff, and yet judgment was given against him, for the innuendo was of no use; for since the words were only a Yelv. 21. Ac- writing, which is utterly uncertain, an innuendo will not change the matter of the words, for that is to make the words otherwise, than they were by an innuendo. (1)

cord,

(1) Vide ante, Thomas v. Axworth, p. 2 f. and the note to that case.

Out of the

court of wards came this case. Chequer.

The K. takes lands of his debtor, and

FLEETWOOD and ASTON'S CASE.

If the grantee of the king's debtor convey the lands to the king, who reconveys them to the grantee, quære whether the lands are still liable for the king's debt, by the course of the Exchequer.

SIR WILLIAM FLEETWOOD, late receiver there, being indebted to the king for arrearages of his receipts, and again, the land being seized in fee of the manor of Cranford Saint-John, is freed. & Co. and Cranford le Mote in Mid. did convey the same to Sir

puts it away

171. a. 10 Co.

b. 11 Co. 92. b.

a. 263. b. 11

Co. 90. b. 12 b. Apr. 60. M.

Co. 2. Plo. 72.

R. 44.

55. b. 7 Co. 21. Roger Aston in fee, and he conveyed it to the king, his Plo. 321. a. 261. heirs and successors, and presently took it again from the king, to him and his heirs, reddendo annuatim pro manerio de Cranford Saint-John thirtyfour shillings, et pro Cranford le Mote twenty shillings, pro omnibus aliis redditibus, servitiis, exactionibus et demandis quibuscunque. And after Sir William Fleetwood became farther indebted upon his account to the king. The question hereupon made by master attorney of the wards was, whether the said manors were extendible, and liable to any of the debt aforesaid. My Lord Coke and I were of clear opinH. 7. 22. 2 Ro. ion that they were not chargeable; for the land itself was never chargeable for itself, but in respect of the person who was debtor, as in the case of a statute. So as when the king takes the land, the debt is not thereby dis

Plo. 72. a. 45

E. 3. 22. b. 11

470.

5 H. 5. 27. 2 Cr. 425.

[45 b]

[46]

Co. L. 265. t.

45 E. 3. 22. 10

Co. 47. b. 3

Cr. 40, 551.

Plo 72. b. 3

charged, but may be recovered against the debtor himself, but the land itself in the king's hand is not chargeable. And then, when the king conveys the land over, he cannot against his own conveyance charge his land, although the debt be of such a nature that it gives no right in the land, and therefore a release made by the king to the tenant of the land of all rights and titles doth not discharge it. Yet against his own conveyance (the) 2 Cr. 425. 2 conusee of a statute in such a case cannot require contri- 104. 11. 2 Cr. bution, which is the reason of the books, that all other 425. Dy. 193. lands in the hands of other feoffees are by that occasion discharged, though such as be in the hands of the debtor. himself are still chargeable; and we made no regard of the reddendo here, as of no use in this case.

But [my Lord Chief Baron] made a doubt of this, in respect (as he said) that he took the use of the Exchequer to be otherwise, except the king's patentee had the ordinary clause of covenant and grant to be discharged of all duties, debts, and demands.

And therefore we all agreed that our opinion in this case should be made up in the decree for the discharge of this land, without prejudice to the use of the Exchequer for the king's debt there.

Co. 12. b. 13 a.

Ro. 470. N. B.

3 C. 126.

SIR THOMAS PICKERING'S CASE.

If the king knights his ward within age, the wardship ceases, but the value of the marriage may remain due.

CLANRICKARD VS. LISLE.

It is error to deny the essoin when it ought to be granted; but not e contra.
In what cases vouchees and tenants may have essoins, &c.

For reverter. Co. B. V. case essoin.

Jones 7. Es

Ante 1. Post.

THE Earl of Clanrickard and his wife brought a forme- 1 Cr. 341, 511. don in reverter against Robert Viscount Lisle, ut supra, soin B. 104. wherein he was essoined after the view, and then pleaded in abatement of the writ, ut supra, which was adjudged good, ut supra, and then vouched two, whereof one was

329. Hut. 28,

co. 15. b.

43, 93. Hob. 8.

For the day of appearance for

[46 a]

vouchees. Ro.

34.

first essoined, and then the other, with an idem dies always to the demandant, tenant, and vouchee. And now quin1.825. Winch. dena Pasc. which was the last day of the essoin, both the vouchees appeared, and at the same day my Lord Lisle tenant cast an essoin, both for himself and his attorney. And it was excepted unto, that this essoin lay not, according unto the book, 3 H. 7. 13. which being spoken to at the bar twice or thrice was at last spoken to by the court, and agreed, una voce, [by myself, Winch, and Nichols] that the essoin did lie. For first, there is no statute that takes away the essoin in this case, so then it is to be judged by reason, books, and precedents of court.

Essoin 19. 54.
Br. 71.

[47]

Essoin 182. 5
Co. 13. a.

Now, for books, that of 22 H. 6. is directly the principal case, and the essoin excepted unto there, as it is here; and it was allowed clearly by the court with this reason, that the tenant may say that the vouchee is not the same person, and may have divers other pleas against the vouchee; and 5 E. 3. Essoin 54. is the like, where the first vouchee was essoined after an essoin of his vouchee. And 13 E. 3. Essoin 6.

Now the precedents are clear and common to the same purpose, and roll of that book 22 H. 6. which is the very case, was found according to the book, between Crulle and Mansell, Mich. 22. H. 6. in the essoin roll. And so Hill. 34. H. 6., between Belgrave and Harding, and divers others; but the book of 3 H. 7. was not warranted by any roll, for I caused it to be searched.

Now the reason of the case is this, that though the tenant had an essoin before, that was in another respect, that is to say, between him and the other demandants. But now he was in another order and degree of plea between him and the vouchee, who being not yet entered into the warranty, might, as before, either himself vouch, or the tenant; but if he were once actually entered into the warranty, then he could be no more essoined, nor the tenant, who had now done with the vouchee, and was also out of pleading against the demandants, because his plea was put into the mouth of the vouchee.

And therefore the book 29 E. 3. 48. Simkin Simons' case, it was resolved that the vouchee and tenant may

have either of them one essoin before they enter into the warranty. But now though the essoin be granted in respect of the pleas that may arise between the vouchee and tenant, as hath been said; yet it is to be entered between the tenant and demandant, and not between the tenant and vouchee, as the said book is, 29 E. 3. 48. And idem dies is still to be given to the parties not essoined.. And though the essoin here were cast both for his tenant and attorney; yet it was good enough, being but a surplusage for the one.

So the essoin was adjudged and adjourned here as due, & and is also the most safe, because it is error to deny the essoin, when it ought to be granted, and not è contra.

[47 a]

Co. 59. a. 5 Co. 39. b. Dy 26, 169.

Cox vs. BARNSLY.

Ancient demesne lands may be taken by elegit out of the king's court; but no
freehold holden in ancient demesne, can be recovered in the king's court.
Ancient demesne is a good plea to an action brought in the king's court to recover
possession of lands so holden. Secus in trespass quar, claus. fregit.
Actions at common law, upon which no remedy could be had in ancient demesne,
may be sued in the king's courts, though they concern the possession, as quare
impedit, &c.; but in cases of new rights and remedies created by statute, it is
otherwise.

KEBLE US. OSBASTON.

[49]

Verdict in the disjunctive, that the defendant, sued as executor de son tort, admin- Debt. istered or otherwise converted to his own use the goods of the intestate, is good. Co. B. Vide post. p. 52, Foster v. Jackson, n. (2.)

A right of action once vested against an executor de son tort, is not taken away by

a subsequent grant of administration to another person, though it was granted before action brought.

Waller. Trin.

WILLIAM KEBLE, executor of Robert Keble, brought an London. action of debt upon a bill obligatory of thirteen pounds 12 Jac. Rot. thirteen shillings and four pence, against Francis Osbas- 4087. in the disjunc

ton, executor of the testament of another William Keble, The defendant pleaded that the said William Keble, the supposed testator, died intestate, and that before this writ purchased, the administration of his goods was committed to one Edward Keble, who administered and still doth.

Verdict

tive. 5 Co.33.

b. Cr. Car. 89.

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