banister against benjamin trespass in a house issue join upon a seize of the  plaintiff and defendant in evidence to prove no seize show a recovery of land  with a averment that the house be build afterward dyer b er p the jury be  charge to find the seize if they do not find the building upon the land but if  they do to pray the direction of the court one banister bring trespass against  one Benjamin and the trespass be allege to have be do in a message and garden  in d and they be at issue upon a seize of the plaintiff by the defendant  before the suppose trespass and now the jury appear and it be give in evidence  for the plait to prove the seize that one W Benjamin be seize of this message  and garden and feoff the father of the plaintiff thereof by deed in the that  year of h by virtue whereof he take the profit and die seize and thereupon it  descend to the plaintiff as son and heir and he enter and be seize until seize  by the defendant and the defendant to prove his entry lawful and no seize show  a recovery against the plaintiff himself if a writ of intrusion bring by  himself in the ad year of Henry and there the record be read which be of one  hundred acre of land twenty acre of meadow and forty acre of pasture ire I and  do not mention either message or garden wherefore the plaintiff say that the  place where the trespass be suppose be not contain in that record for the form  of the register ought to be observe which express particular how tenement  ought to be demand S by the name of messaage gall den c for if a man have a  title to a formedon in reverter of a acre of land and the tenant in tail build  a house upon the land and die without issue the donor shall demand it by the  name of a message and this be the opinion of Shellev Baldwin and Montague  chief justice for their opinion be ask but the opinion of Spilman Luke and  Marvyne be contrary for a nan can recover the land and soil dyer but of  necessity he ought to recover the edifice build upon it in the argument of  sure and ElLaydons case cro Elizabeth t Elizabeth b r rot or Tanfield cite one  Atndrewss case where it be agree that if a bring a prcecipe c of one hundred  acre in d he shall have one hundred acre by measure accord to the statute  Edward saint but if a man bargain or grant one hundred acre in d to a he shall  have one hundred acre accord to the computation and use of the country so mark  the difference between a recovery and a grant and also it be say by Tanfield  and deny by none that if a recover fifty acre in ejection strong the sheriff  shall make execution accord to the statute de terris mesurandis and not accord  to the capstone of the country and that this have be so adjudge in Mr mason  book e James in the argument of castle and warner case for the judgement in  the king court ought to be upon a certainty it be adjudge between Allen and  hay Org lliz Leon Poph upon a cut in vita in a b which be affirm in error t  Elizabeth in b r and there adjudge that he ought to demand it by name of a  message as it be now and afterward Shelley change his opinion and because of  this diversity of opinion the court desire the sergeant to demurrer in law and  discharge the jury but the plairtiscounsel will not consent to it for they say  that their case be clear enough for they do not wish to claim any thing of the  say one hundred acre of land twenty acre of meadow and forty acre of pasture  but will leave they to the defendant accord to the recovery but they say that  beside and above the one hundred and sixty acre this message and garden be  there so that the message be not build upon the say dyer b er p one hundred  and sixty acre and the defendant aver the contrary wherefore Shelley of the  discretion and with the consent of the court charge the jury in such form to  give their verdict S to inquire if any house be build upon the say one hundred  and sixty acre and if they find it so that they shall not give any precise  verdict but pray the direction of the court and if they find the contrary to  say precise that the defendant seize the plaintiff and note this charge see  the same east c h infra grow hairy for non be faction lease without  impeachment of waste condition for reentry in case of waste whether the  condition be void for repugnancy sergeant row put this case to the judge of c  b Alease be make for term of life without impeachment of waste and if it shall  happen that he commit waste then it shall be lawful for the lessor to enter  and he do commit waste whether may the lessor enter or not and the judge be in  doubt of the case but Shelley think the condition void because it be repugnant  to the grant to be discharge of waste but some think that these word  impeachment of waste shall be understand that he shall not be implead or  punish for waste by action c therefore quaere see h a provide that he do no  voluntary waste in t hn have the executor of a administrator be not suable for  the debt of the intestate e James b r mary week devise two hundred pound to  her daughter and make her son mark week her executor and die he renounce and  Roger week administer clam teslamento fastening against who the deN isee  recover in the spiritual court upon non devisavt plead the defendant make his  wife executrix and die she pray a prohibition to stay execution and by foster  this judgement ought to be satisfy out of the good of the first intestate  which be with the executor of the administrator but administration de to make  new ought to be grant de bind non to one against who execution shall be sue m  car b r Beamond v long sir W Jones cro car a obligor die intestate the  ordinary grant administraion and the administrator make his executor and  diedit be move by sander that a action of debt lie against the executor but  Shelley justice think the contrary for the ordinary must grant a new  administration genre if one who have land in one will have common with the  tenant of a adjoin uh in a field lie between they he must make title by cause  of vicinage and not as attendant two will be adjoin and between they lie a  large field and one who have land in one will have common there with the  tenant of the other will and so one have common and land with another it be  move whether if such person be to make title to this common he shall make it  as to common appendant or by cause of vicinage and it be hold by the court  that this dyer a er p be common by cause of vicinage and Shelley think that if  there be three will d S and u and S be in the middle between they the will of  d and u can intercommon cause qHci to go for they be not adjoin vicinity but  Baldwin contra and take this diversity if one will have common in another will  during one season of the year and the other have common in dyer the first  during another season or every second year that be not common because of  vicinage for they do not intercommon all at one time but at different time if  a bind be make to a decal to pay to the say dean and his successor whether  upon the dean death his successor or executor shall have debt upon it m  Elizabeth c b a bind wasmade to the bishop of have and well and his successor  and adjudge that the successor can have action of debt upon it but they agree  that the successor may have covenant upon a lease for year which be in the  realty   Litt b contra the doubt be because after the eath of such parson be a  corporation sole the bind be due to nobody and so suspend and a personal  action once suspend be go but there be no rule but sometime fail hale put this  case a man be bind to a dean in twenty pound to be pay to the say dean and his  successor whether the executor or the successor shall have debt for this be  the doubt and Shelley think that the successor shall have it for a debt nay  run it succession and the dean have a corporation to he and his successor as  well as to he and his heir or executor so be of a bishop if the successor be  name in the bind his executor shall not have the action but it be otherwise of  a bind make to a mayor and his successor or to two ehurchwardens and their  successor for they have no capacity to take to their successor c otherwise  will it be of a abbot or prior and Baldwin think that the word to be pay to  the deal and his successor be void inasmuch as the bind be make only to the  dean wherefore c a man have two son the old be attaint and die without issue  in the life of his father the young shall inherit the land butif the old have  issue leave the land shall have escheat at the parliament of h numb there be a  petition of the commons that the attainder of the old son in the life of his  father shall not be a bar to the young and the answer vas Cbrrat conzmuis lea  ex lib mri hackwell a man have issue two son and the elder in the lifetime of  his father be attaint of felony and die live the father and afterward the  father die seize of land in fee whether the land shall escheat or not be the  question and it be holder by brown Coningesby Molineux and hale that the land  shall enure to the young son as heir to his father if the elder have no issue  alive but if he have issue live because he be inheritable by the law if it be  not for the attainder the land shall escheat to the lord and not go to the  young son which note for the diversity of the law dyer b er p michaelmas term  Henry a have the nomination and a abbot the presentation to a church the king  come to the possession of the abbacy and prescribe without nomination quare  irnpedt lie against the incumbent only without name the king m Elizabeth a  administratrix be to nominate and the abbot to present the abbey come to the  king a ought to nominate her clerk to the king by Windham and Walmsley e  Elizabeth if a stranger present he who have the nomination and he who have the  presentation shall join in quare trnpedit the book say each of they shall have  a encore mpedt t e rot before the lord the king it be say that the lord the  king owe justice to the say Alan and to every subject of the kingdom of  England Townshend sergeant put this case if a man have to he and his heir the  nomination of the clerk of a church to a abbot and the abbot ought to present  over the clerk nominate to the ordinary and then the king have the possession  of the abbacy and he present his clerk to the say church be void without any  nomination and he who have the nomination be then at his writ and the opinion  of the court be that he may well have quare hinder against the incumbent only  without any one be name as patron for the king can be sue as a disturber yet  it be say by Townshend that the king can be the instrument of any one but  Shelley say that he be every man instrument for by he every subject have  justice administer c labour a juror who be not summon to appear and give a  verdict accord to his conscience be no cause of challenge t James starchamber  Bradshaw plaintiff salmon holt Ainsworth and other defendant in that case  baret one of the defendant be swear to give evidence by persuasion of salmon  withdraw and do not give his evidence whereupon salmon and baret both be now  fine S salmon in two hundred pound and baret in one hundred and eighty pound  note it for law that if the plaintiff labour a juror to appear and give a  verdict accord to his conscience although the juror be never summon to appear  by the sheriff or his officer yet that be not illegal labour he or cause of  challenge to the juror as special labour per tot cur dyer easter term Henry