Foster Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1682 |
| Date | 01 January 1682 |
| Court | Court of Common Pleas |
English Reports Citation: 75 E.R. 955
COURT OF COMMON PLEAS
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 years of the Reign of QUEEN ELIZABETH. With Learned ARGUMENTS at the Bar, and on the Bench, and the grave RESOLUTIONS and JUDGMENTS, thereupon, of the Chief Justices, ANDERSON and POPHAM, and the rest of the Judges of those times. The Second Edition Corrected and Amended. By W. S. of the Inner Temple, Esq. London, 1682. [1] de teem. pasch. anno elizas. reg. XXVIIJ. 1. Wast. 44 Ed. 3. 34. b. 46 Ed. 3. 22. 28 Hen. 8. 19. a. Wast was brought by Constance Foster, and another, against lessee for years, in effect the case was such ; A man makes a lease of certain lands, excepting all manner of woods, the lessee cuts down trees, and he in reversion brings an action of wast, and by the opinion of the Court, the lessee is not punishable in wast; for they were never let; and therefore the plaintif is driven to his action of trespass at the common law. 2. Return. The sherif returneth in a writ of right four esquires to make the pannel, and doth not say that there be any knights, it was sayd by the Court, that he ought to return them which be, and that there be no more. 955 956 DE TERM. PASCH. ANNO ELIZAB. REG. XXVIIJ. QOULDBBOROUQH. a. 3. Wast. Wast was brought for digging in land, and taking away okes; the defendant pleaded in bar, that the Queen by her letters patents under the Great Seal of England, granted unto him, that he might dig for mines of cole in the land, and prayed that it might be entred verbatim ; and a grant under the seal of the Exchequer was entred ; whereupon the plaintif demurred: now came Walmisley, and would have amended it, and by the opinion of the Court, he cannot amend it after the demurrer bo entred, but judgement shall be given for the plaiatif, if he shew no other matter. [2] 4. Devise and sale by Executors. A. man seised of lands in fee, deviseth to his wife for life; the remainder to his son in tayl, and if his son dye without issue of his body, that then the land shall be sold by his executors, and maketh two executors, and dyeth; the wife dyeth; one executor dyeth ; the sonne dyeth without issue ; the other executor selleth the land ; and Gawdy the Queens Serjeant moved whether the sale be good or no, and it seemeth to him that the sale is good, and vouched the case in 30 Hen. 8. Brook, Devise 31. And now lately, it was adjudged in the Kings-Bench, where a man did devise his lands in tayl, and for default of such issue, that the land shall be sold by his sonnes-in-law, and dieth, having five sonnes-in-law ; the one dyed, the others sold the laud, and this was adjudged a good sale. Anderson] It seemeth the sale is not good; for if one make a letter of attorney to two to make livery and seisin, if the one dye, the other cannot doe it: so if one grant the office of stewardship to two, the one of them cannot hold court alone : and if one of them may sell, to what intent was the statute of 21 Hen. 8. cap. 4. that those which take the administration may sell? Windham] The statute will not prove the case, but it seemeth the sale to be naught; and there is a difference where one giveth an interest to two, and when he giveth but an authority; for an interest may survive, but an authority cannot. Rodes to the same intent, and cited M. 4 & 5 Eliz. fol. 219. a. & 177. & 210. & 371. 5. Battery. 11 H. 4. f. 3. 11 H. 4. f. 61. 22 H. 6. f. 33. 21 H. 6. f. 9. 9 E. 4. f. 46. 43 E. 3. 23. Battery, by Webster against Pain, the action was layd in London, and in truth the battery was committed at Uxbridge in Midlesex, the defendant pleaded that such a day and year at A. in the county of Huntington, the plaintif made an assault upon him, and the hurt &c. absc^ hoc, that he is guilty in London. Snag moved that the traverse should not be good. Anderson] Will you have him to say, abst^ hoc, that he is guilty f that he ought not; for by the speeiall matter he hath confessed the battery, and you will not deny, but that if his plea be true, he hath good cause to bar the plaintif; wherefore if we shall not allow this plea, we shall take the defendant from his remedy to plead, which God forbid : and in 2 Ed. 4. fol. 6. b. In trespass the defendant shewed speeiall matter in London, where the action was brought in Midlesex. Tota Curia, Nelson Prothonotarie had shewed a president in 2 Ed. 4. where such a plea as this was pleaded, wherefore the plea is good. OOULDSBOBOUOH, S. DE TERM. PASCH. ANNO ELIZAB. BEG. XXVIIJ. 957 [3] 6. Trespass. Unity of possession of Common. 11 H. 4. 5. 14 H. 4. 24 E. 3. 25. Br. Extinguishment 14 Ass. pi. 20. Nelson, Prothonotary, brought a writ of trespass against another, in effect the case was thus; The Abbot of Westminster was seised of lands, to which he had common in the lands of a prior; afterwards, by the Statute of Dissolutions, as well the lands of the abbot, as of the prior, were given to King Hen. 8. And after that, the Dean of Westminster had a grant of the mannor which the abbot had, and Nelson had the other mannor which the prior had, into which a tenant of the deans put his beasts, claiming common, as once it was in the hands of the prior, and Nelson brought his action of trespass. Walmisley moved that the tenant should have his common. Peryam] Is this a new easel It hath been adjudged heretofore, that by the union of possession the common is gone. Anderson to Walmisley] Have you any reason why the common shall not be gone 1 Walmisley] No, my Lord, if the statute will not help us; for the statute is, that the King shall have it in the same plight as the abbot had it, and the abbot had common, ergo, &c. Windam] So is the statute, but the statute doth not say, that it shall continue so in the hands of the King, and it is impossible that it shall continue in the hands of the King as it was in the hands of the abbot, therefore the common is gone. Rodes assented. 7. Quare impedil. Moor brought a quare impedit, & after judgment had a writ to the Bishop of Norwich, and at the alias the bishop returned, that after the awarding of the first writ, and before the receipt of the second, the Queen had presented the same defendant by her letters patents, who is admitted, instituted, and inducted, so that, &c. Shuttleworth moved that the Ordinary might be amerced for his evill return ; for when he had judgement to recover, he ought to have the effect of his judgement; for else it shall be in vain to sue a quare impedit, and thereupon he avouched the case in 21 Hen. 7. 8. & 21 Eliz. 364. Dyer, that the other clerk shall be removed. Anderson] The return is not good; for me seetneth in a quare impedit, when one which hath title paramount presents, hanging the writ, then allthough the plaintif hath judgement to recover, yet his clerk shall not be removed; but if it be under, or after the title of the plaintif or defendant, then his clerk shall be removed; and here he hath returned, that the Queen hath presented the same man which is defendant, and therefore he shall be amerced. Windham to the same intent, and cited the case of Long, 5 Edw. 4. fol. 115. b. Rodes cited the case in [4] Fitzherbert, Quare non admisit, fol. 47. k. and Basset's case in 9 Eliz. Dyer, fol. 260. Anderson] In a prgecipe quod reddat, if the sherif return upon the habere facias seisinam, that another hath recovered by title paramount against the defendant, and hath execution, he shall be amerced. Peryam] How doth it appear to us, that he which the Queen hath presented, is the same defendant 1 Shuttleworth] By the return. Peryam] No, sir; and therefore it is good to be advised: and after Windham doubted for the same cause. Et adjornatur. 8. Dower. Tristram Ayscough, and Eulaleia his wife brought a writ of dower of the endowment of her first husband; the defendant pleaded in bar, that an annuitie was granted 958 DE TERM. PASCH. ANNO ELIZAB. BEG. XXVIIJ. QOULDSBOROUGH, S. to her first husband and her self, in recompense of her dower, which she after his death accepted; and the plaintif replyed, quod recusavit predict, annuitatem, after the death of her husband. Gawdy] The plea is nor good. Anderson] Your intent is, for that she disagreed in the country, and not in a Court of Eecord, that the disagreement shall not be good ; but I think not so : for if she say in the country, that she will not have the sayd annuity, this is a good refusall; and if she once disagree, she can never agree afterwards (quod tota Curia concessit) but peradventure recusavit is no good pleading. 9. Quid juris damat. Francis Windham, one of the Justices of the Common Pleas, brought a quid juris clamat against the Lady Gresham, to have attornment of certain lands comprised within the note of a fine levied to him by one R. Read : the lady pleaded, that certain persons were seised of those lands, and held them of King Hen. 8. by knights service, and enfeoffed W. Read, and the lady then his wife, to have and to hold to them and the heirs of the husband, who devised the reversion after the death of the lady to the sayd R. Read in tayl, the remainder, &c. and that the said R. Read levyed the fine, &c. whereupon Windham demurred in law. Gawdy] The plea is not good for divers causes; the one is for the pretence of the tenant, for that the lands were held by knights service, the devise is voyd for the third part, so that therein the conisor hath nothing, but she doth not shew who had the reversion of the third part, which she ought to shew, and thereupon he vouched 30 Ed. 3. fol. 7. & 34 Ed. 3. quid juris clamat. The defendant said that he held not of the conisor, he ought to shew who had the inheritance; and 30 Hen. 6. fol. 8. in wast brought by Radford. Another cause is, for that in the end of her plea [5] she demandeth judgement, si pro eisdem duabus...
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