BREVERTONS case the king grantee of a choose in action may sue upon it in her  own name this case be debate in the exchequer Breverton who be attaint of  treason on the last day of easter term have certain bind which be forfeit to  the king and the king grant those bind to the wife of Breverton without any  word to empower the grantee to bring action upon the bind in her own name and  yet the wife bring a action videlicet a information in her own name upon the  bind and upon this there be a demurrer in judgement because the suit be in her  own name and whether it ought to be in the name of the king be the question  and it be adjudge ut hear that the action be well bring for the king alone may  grant a choose in action and for the same reason that he have grant the bind  which be the substance and foundation of the action the law imply that the  grantee shall use the mean to come at the thing grant c a lawday or warren in  a manor do not pass by a ferment of the manor without cum pertinentHs t  Elizabeth a have a warren in his land and let we the land to b render rend b  kill the cony and a bring trespass quare way et arms for the warren do not  pass by the lease Benloe pl h three coparceners seize of a manor whereto a  leet belong and the king purchase two part of the manor yet the leet by such  purchase be not extinguish but remain appendant to the three part of the manor  there be a difference between a warren use to a manor from time immemorial and  a warren appendant for in the first case it shall not pass by a grant of the  manor cum pertinentHs for it be not parcel in the other it shall pass but not  without these word cum pertinentHs h b a it seem the avowry be good for the  word of the statute be that they shall make avowry as those person against who  the say recovery be shall have do   Litt b agree that it be good there be  three coparceners of a manor and the king grant to they a lawday and they make  a feoff of the manor dyer a er p notwithstanding this they shall have the  lawday so be the law also if a man have a manor and the king grant to I a  warren within the same manor if I afterward feoff the king of the manor  without the appurtenance I shall have the warren and also a man may have a  warren or lawday in other land per totem curian a man make a lease to a for  life and to b for year render rend to commence at a s death who surrender to  his landlord he before the death of a make a feoff to c who suffer a recovery  afterward a die the rend be not extinguish by the feoff and the recoveror may  distrain upon b for rend arrear under h c dyer in b r the case be as follow a  man make a lease for life and afterward the lessor make a lease of the same  land for a term of twenty year render certain rend the term to commence after  the death of the lessee for life then afterward the tenant for life grant his  estate to the lessor and the lessor during the life of the lessee for life  feoff a stranger in fee who suffer a recovery to Walsingham and diverse other  and afterward the tenant for life die and avowry be make for rend by the  recoverors and two point be move in this case by Willoughby and Montague the  first that the rend shall be extinguish by the feoff as if a man make a lease  for year render rend and enter and make a feoff although the termor reenter  the rend be not revive because it be extinguish Fitzjames say to they do not  be so clear of that first case for it be the case of many man and although the  law be so yet there be a great diversity between the case for in the case at  bar the rend do not begin till after the death of the tenant for life and so  the rend be not in be when the lessor make the feoff wherefore it can be  extinguish by that feoff Knightley I do not agree to the first case that if  the lessor oust his termor and make a feoff of it the rend shall be extinct  but it be a doubt in h b whether the feoff shall have debt for the rend  because he be not privy to the contract but in avowry it be the opinion that  he may have it and although the law be that the rend shall be extinguish yet  as my lord Fitzjames have well say the case be not alike because the rend be  not in be at the time of the feoff for it be as if I shall make a lease for  the term of forty year reserve ten shilling at the end of twenty year now if I  make a feoff before the twenty year after the twenty year the feoff shall have  the rend the other point be that this case be out of the statute h c which say  the recoverors their heir and assign may avow and justify for rend service and  custom by they recover as those person may against who the recovery be have  and in this case he against who the recovery be have can not make any avowry  ergo this be out of the statute Knightley then demurrer in law to the avowry  if you dyer b er p choose it but Willoughby and Montague pray day until  another term and have it whether in waste by the grantee of the reversion the  lessee may plead ne granta pass per Le fait or riens step per Le fait and give  in evidence that he never attorned   b if nothing passes by letter patent of  the king a man may plead non to go away per litter patenes m Elizabeth b r cro  Elizabeth gourney and his wife in debt for the performance of covenant against  sir Edward clear and it be plead in bar that the grantee of a rentcharge have  grant it over and issue take upon it and find for the defendant and move in  arrest of judgement that no attornment be show and by three judge it be good  and well aid by the statute of Jeofails and although issue may be take either  upon the grant or upon the attornment yet the issue upon one be find the other  be imply in waste the plaintiff declare upon a lease make to the defendant by  I S who have grant the reversion to he in fee to who the defendant attorned c  whether the defendant may plead ne granta pass per Le fait or riens step per  Le fait and give in evidence that he never dyer attorned to the plaintiff  Shelley think that he ought to traverse the attornment but Knightley and  Fitzherbert think well that he may do either the one or the other if it be  true that he never do attorn attornment render unnecessary by Ann c f Doual a  in a formedon for a rentcharge if the tenant plead jointtenancy in parcel of  the land the writ shall abate for the whole a formedon be bring of a rend  charge issue out of two acre of land the tenant plead jointtenancy of one acre  with a stranger whether this plea go in abatement of the whole writ be the  question and Shelley and Fitzherbert think that it be a good plea to abate the  whole writ inasmuch as in rend charge demand it be necessary to name all the  tenant of the land out of which c but of rend service it be not so for that  may be demand against a pernor c debt on bind to make if require such  assurance as counsel shall advice plea protestand no advice say that he be not  require replication advice of a release and a tender of it and refusal to seal  it rejoinder that he do not refuse be a departure Montague ask the advice of  the court in the joinder of a issue where the case be that in debt on bind  with a condition to perform all covenant in a certain indenture there be in  the indenture one covenant that the defendant shall do and permit to be do all  thing for assurance of he plaintiff in certain land which shall be devise by  counsel for the plaintiff if he shall be thereto dyer a er p require and the  defendant protestand that the counsel for the plaintiff do not devise any  thing for plea say that he be not require c the plaintiff reply that I S his  counsel devise that the defendant shall release all his right c wherefore he  cause a release to be make and show it in certain and require the defendant to  seal it c and he refuse so to do and the defendant rejoin that he do not  refuse priest and the court say that that will be a plain jeofail inasmuch as  he waive his bar S the request which he ought to maintain videlicet to say  that he be not request but it be say that there be no need for the plaintiff  to have speak of the refusal inasmuch as the defendant have plead in the  negative that he be not request and it be sufficient for the plaintiff to say  that he request he after the devise and release make without more and then  they be at issue c after regress make the disseizee shall have the corn though  sever from the land by the seize note it be hold clear by all the judge that  after regress make by the seize the disseizee shall have the corn of the seize  although they be sever by the seize as it be also adjudge but late upon good  consideration in b r in say case dyer easter term and Henry fine or recovery  bar the heir of tenant in tail male but be no discontinuance nor affect the  reversion be in the king h car in chancery between the earl of Nottingham and  Lord Munson it be resolve that if a tenant in tail of the gift of the king  levy a fine and suffer a recovery the estatetail be not bar for the statute h  c save it but otherwise if the king for money make a gift in tail by Coventry  hide and Richardson tenant in tail to he and his heir male the reversion be in  the king suffer a common recovery or levy a fine Say of Lincoln inn ask the  judge whether his heir shall be bar or not and they be of opinion that it be a  bar to the heir although it will not be a discontinuance of the tail nor be  against the king as to the reversion and Englefielde say that he have be  concern illthis case and that upon mature consideration it be hold that he  shall be bar but Shelley doubt under plene to manage the executor show debt  pay must show they pay before the commencement of the action but judgement  against he shall be de good testator so much m Elizabeth adjudge that if a  executor pay a just debt after a writ sue out and before notice of it or  summons first serve there it be a good plea but otherwise if it be a debt of  record for he ought to take notice of that at his peril term Rep m Elizabeth  it be hold that if a executor plead non be factum and it be find against he he  shall only be charge of the good of the testator otherwise be it where he be  sue in another court in debt against a executor who plead plene to manage it  be give in evidence at the trial by the defendant that he have dyer b er p pay  diverse debt upon contract make by his testator upon which the plaintiff  demurrer in law and now Montague demand judgement for the plaintiff and the  judge think there be no reason for delay it inasmuch as he be not compellable  to pay such debt and admit that the creditor have bind for they yet inasmuch  as the defendant have not say that he pay these debt before that writ purchase  for if he pay they pen the writ that be not a good administration to bar the  plaintiff by Baldwin they agree that the judgement shall be enter and that it  shall be only de good testator no more than if it be find by verdict quod  notam on a writ of entry in the post bring against a man after the statute of  use who before the statute be a beneficiary and use with his wife if he plead  jointtenancy with her he must show the statute all pernancy of profit of the  land be take away by the statute h c certain person be seize to the use of a  husband and wife before the statute and now a writ of entry in the post be  bring against the husband and he plead jointtenancy with his wife Mountague  put this question whether it be necessary to make mention of the statute of  extinguishment of use h c which make they jointtenants and the court think  that it be necessary to show the statute for at commonlaw when the tenant  plead jointtenancy with a stranger it be necessary to show by who feoff  wherefore c then Montague ask further whether the demandant may aver the  husband sole pernor of the profit and the court think that all pernancy of the  profit be clear go by the statute quaere pen a writ of error upon a nonsuit in  c b the defendant may sue for the cost recover in the original action and he  shall have they though the judgement be reverse in a action upon the case the  plaintiff be nonsuit at the trial wherefore the defendant by the statute make  h c have judgement to recover his cost and afterward the record be remove by  error into the king bench by the plaintiff pen which undetermined the  defendant bring a action dyer of debt in the common plead upon a new original  and declare upon the record of the action upon the case and this matter be  plead by the defendant c and the better opinion of the court be that the  action be maintainable because it be bring upon a new original e James b r  Elisdem v Bennet in a action upon the case for word the plaintiff be nonsuit  at the trial and he move that his declaration be bad to save cost upon the  statute h c and James c but it be adjudge that for his vexation he shall pay  cost although in fact he can never have have judgement if the verdict have be  find for he east car b r rule that after judgement reverse debt do not lie for  the cost give upon the first judgement sayer on cost Bac ab and if the record  be deny c b can write to b r because it be the superior court but the record  shall be certify into chancery by certiorari and send in by dyer a er p  mittimus but if it be a infierior court this court may write to it see the  like e pl pl and afterward in the same term judgement be give that it be no  plea and Fitzherbert and Baldwin hold that although the record be reverse yet  the plaintiff shall have the cost which be assess by the discretion of the  court because of the wrong and vexation of the suit but Englefielde doubt of  that the matter be enter m that of the present king rot but it be never argue  to a demise of twentysix acre plea that the twentysix acre be demise and four  acre more traverse the twentysix acre only the verdict find a demise of only  twentyone acre whether the plaintiff shall recover queen in debt the plaintiff  declare that he demise twentysix acre of land to the defendant render yearly  forty shilling for a term of year and for the rend arrear he bring the action  the defendant plead that the plaintiff lease the say twentysix acre of land to  he and four acre more pay the aforesaid rend without this that he demise the  twentysix acre only upon which they be at issue and the verdict be that the  plaintiff demise only twentyone acre and whether the plaintiff shall have  judgement upon this verdict or not be the question Fitzherbert and Englefielde  think that the plaintiff shall recover for in that the verdict find that the  plaintiff demise twentyone acre only it be a void verdict in this part for it  be admit and confess on the part of the defendant that twentysix acre be  demise as he declare and they ought not to find contrary to what the party  have agree for their charge be no more than whether the four acre more be  lease or not and they have not find that the four acre more be demise ergo  they have find against the defendant Baldwin and Shelley e contra for the  issue be find as well against the plaintiff as against the defendant for the  plaintiff have lie the cause of his action upon a lease of twentysix acre and  upon that he intend to recover but Shelley think that if the issue and the  plea have be well plead the plaintiff may have recover upon the verdict for  the plea be not good because it be not necessary for the defendant to take a  traverse in this case inasmuch as he have confess it and more and then the  traverse shall come from the part of the plaintiff S without this that he  demise the aforesaid four acre c and then their charge shall be only upon the  surplus that be the lease of four acre but here their charge be upon the  entirety c but he wish to consider it this opinion of Shelley be affirm in c b  as to the traverse under a covenant by lessee with a penalty to sustain and  repair the bank of a river he be not subject to the penalty for a damage by  sudden inundation but be bind to repair it in convenient time dyer a lease for  year be make of a meadow by which the river Exe run by deed indent and the  lessee covenant to sustain and repair the bank to prevent the water from  overflow upon pain of forfeiture of ten pound and afterward by reason of a  great outrageous and sudden flood which happen late by reason of the  subversion of the weir in Devonshire the bank be decay and perish c and by the  opinion of Fitzherbert and Shelley the law be that the lessee be excuse from  the penalty dyer a er p as if it be of a house which be burn by lightning or  overturn by the wind because it be the act of God which can be resist but  still he be bind to make and repair the thing in convenient time because of  his own covenant a remainder limit by will upon a estate in fee determinable  on the failure of payment of rend to a stranger who shall then have it be void  as to the stranger but the heir may enter for a breach of the condition m and  Elizabeth b r fulmerston v steward cite in pell v brown cro James land be  devise to one and his heir upon condition that for nonperformance b shall have  it in fee adjudge that the remainder be a limitation and that the limitation  over to b upon the estate in fee be good and that b shall have it upon the  noperformance and Popham and Fenner say that it be so agree by all the judge  in the case of chantry post a b Leon enter Elizabeth rot e James c b in the  argument upon doyle case Hutton sergeant put this case as have be adjudge in c  b m and Elizabeth rot between a this be certain the case of soul v Gerrard cro  Elizabeth and the word or without issue by mistake leave out see Cowp dougl a  Corwood and Cowland John Parker devise land in ken to Richard his second son  and his heir and if he die before twentyone year of age or without issue then  he devise it to his other son Richard enter and have issue a daughter and die  before twentyone year and adjudge that the daughter shall have the land e  Elizabeth b r Gibbons and Warner sir Edward clear case on the will of sir  Richard fulmerston by Popham and CrawIey the reversion in that case be good  and this book not law roll Rep the custom of London be that a man may devise  his purchase land in mortmain and a purchaser devise by his will that the  prior and convent of saint Bartholomew in west Smithfield and their successor  shall have the land so as they pay annual to the dean and chapter of saint  Paul sixteen mark and if they shall fail of payment that their estate shall  cease and that the say dean and chapter and their successor shall have it and  for a breach of the condition they of saint Paul enter and to Fitzherbert and  Baldwin it seem clear that the condition be void for it can continue after the  feesimple give for the feoff have determine his right and interest and then  the stranger can enter for the condition break but the heir may the  reversioner make a feoff with livery the termor be upon the land whether this  be good queen a lease be make for a term of year render rend the lessor make a  feoff of the land the termor be upon the land and the termor occupy the land  whether the feoff shall have the freehold and the rend or not be moved Shelley  think the feoff good for the termor have interest in his chattel and the  lessor have interest in the freehold and so it be a distinct interest and the  freehold may pass and the term be save but otherwise be it of a lease for life  for there the lessor have no title to the freehold dyer b er p lessee for life  deliver seize upon a letter of attorney that be not a surrender by periam m  Elizabeth c b in Trevillians case rot Leon and see the case of Higg and  Harrison style Rep enter Trin rot and in my note it be in the book of the year  p b Baldwin and Fitzherbert think that nothing pass by the feoff if the termor  do not agree to it for the lessor have nothing to do with the possession  during the term and the livery and seize be nothing but a gift of the  possession which the lessor can make without wrong the termor and for this the  common doctrine must be allow videlicet that the lessor must grant the  reversion and the termor attorn And Baldwin say that if the feoff be make the  termor agree dyer to it the term and rend be go for that be a full surrender  in law of his term but Fitzherbert deny this lessee for life deliver seize  upon a letter of attorney that be not a surrender by periam m Elizabeth c b in  Trevillians case rot Leon and see the case of Higg and Harrison style Rep  enter Trin rot and in my note it be in the book of the year p b for the termor  have a interest which can be surrender without his consent to surrender for in  Henry the termor give his permission to his lessor to make the livery and he  make it and that be hold no surrender of his term for his intention to  surrender do not appear but if the feoff be make by the agreement of the  termor that be as much as if the termor have grant all his interest to the  feoff for a day or a hour or for the space and time of livery of seize and no  long and then the feoff shall be good and yet the termor shall have his term  again and the rend revive and in h b the lessor make the feoff by agreement of  the termor and there the opinion be that the feoff shall have the rend but  they all in a manner agree that if the lessor oust the termor against his will  and make the feoff although the termor reenter the rend be extinct for the  land be discharge of the rend in the hand of the feoff and in the hand of the  feoff it shall not be revive any more than if the lord seize his tenant and  make a feoff although the disseizee enter the feoff shall not have the  signiory wherefore c Knightley there be a difference between the case for in  the case of the lord where the tenant shall reenter he leaves nothing in the  person of the feoff but whole defeat his estate but in the other case he  leaves the reversion and the freehold in the feoff wherefore they be not  similar c And Shelley think that the lessor may make a feoff if he be within  view the termor be in possession and not privy to it and the freehold and  feesimple may well pass and the rend also but the case deserve a serious  consideration and the point of law be well worth arguing And Montague say that  they mean to demurrer in law upon the case therefore quaere a clerk in  chancery by sue out a general supersedeas to a exigent forfeit his privilege  see the case of Higg and Harrison style Rep enter Trin rot and in my note it  be in the book of the year p b one of the clerk in chancery be sue in c b in a  action of debt and process continue till the exigent and the defendant be such  clerk sue out a supersedeas to the sheriff because improvident and afterward  sue a writ of privilege out of chancery direct to the justice of the bench  recite the privilege of chancery and require the judge to surcease and it be  well argue whether he shall have his privilege or not and at last the  privilege be disallow and the clerk drive to answer for the court be legal in  possession of his plea by the act of the defendant himself dyer a er p for  inasmuch as he have sue out a supersedeas because improvident he have well  affirm the jurisdiction of the court for every supersedeas because improvident  recite the defendant appearance in court dyer by attorney and show his name  that therefore be his own default but if he have not sue out this writ  notwithstanding the exigent the privilege shall be allow and for this  precedent be show and then after the writ of privilege come to the justice  they ought to have issue a special supersedeas of the outlawry to the sheriff  recite the writ of privilege and so note well the distinction