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A85496 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 yeares of the reign of Queen Elizabeth. With learned arguments at the barr, and on the bench, and the grave resolutions, and judgements, thereupon, of the Chief Justices, Anderson, and Popham, and the rest of the judges of those times. Never before published, and now printed by his original copy. With short notes in the margent, of the chief matters therein contained, with the yeare, terme, and number roll, of many of the cases. And two exact tables, viz. A briefer, of the names of the severall cases, with the nature of the actions on which they are founded, and a larger, of all the remarkable things contained in the whole book. By W. S. of the Inner Temple, Esq; Goldesborough, John, 1568-1618.; W. S., Esq, of the Inner Temple. 1653 (1653) Wing G1450; Thomason E209_5; ESTC R10354 205,623 227

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Delivery and being void as a Statute it is void in all And after Judgement was given That the first Judgement shall be eversed if other matter be not shewed 128. BOdyam against Smith in Trespas for the taking of an Ox in Dale The Defendant justified the taking in Blacka●re Heriot servise may be seised and that it was his Freehold for damage feasant The Plaintif made a new assignment That the place whereof he hath complained the taking to be is Green-acre in Dale and the Defendant justified there for Herriot service Seasure makes a seisin Gawdy I think the Lord may seise Heriot service and when the Lord hath seised that is a seisin by the hands of his Tenant Plowd fo 45. And for the last point there is not any colour or question for when in trespasse the Defendant pleads a plea in bar New assignment and then the Plaintiff makes a new Assignment reason will that now the Defendant shall have answer to this new assigned wrong for per 27. H. 8. 7. after a new assignment the old barre is waved and out of the book and the Defendant shall plead to the new assignment as if he had never pleaded before Popham Fenner Clinch concordaverunt cum Gawdy 139. BAstard a good name of purchase Bastard for it is a sufficient denomination who shall take per Popham Fenner 140. GAwdy Justice said a man cannot be perjured by an innuend Popham said Perjury that no man is to be touched for a perjurie upon the Statute of 5. Eliz if he be not deposed upon some matter depending in suit in some Court of Record and if he be perjured in circumstance and not in the point in question that is not materiall and is not punishable by the Statute of 5. As if a man doe swear that he saw such a man steal and deliver such a deed and when he did it he was in blew coat where indeed he was not in a blew coato 141. POpham Chief Justice said there will be a difference between disjunctive absolute and disjunctive contingent as if a man be bound to pay ten pound or to enfeoff one upon the returne of I. S. from Rome there if I. S. dye before he return from Rome then the obligation is saved although the ten pound be never payed but if it be a voluntarie Act as to pay you ten pound or to enfeoff you before Michaelmas there if the Obligor dye before Mic. yet hit Executors ought to pay the money A Large Table of all the Remarkable things conteined in the whole Book A ABatement of a Writ see Writ Account where an Acount lies and where not pag. 17 pl. 14. pag. 43. pl. 2 pag. 160. pl. 91. Action upon a case see case and words Action who cannot have an Action pa. 29. pl. 4. pag. 43. pl. 22. pag. 161. pl. 92. Where one may have one Action after another and what Actions they must be and where he shall have none pag. 43. pl. 22. Who ought to joyn in an Action who not pag. 76. pl. 6. pag. 83. pl. 3. pag. 160. pl. 91. What Action Executors may have what not pag. 105. pl. 9. What Action lies against an Administrator what not pag. 106. pl. 11. pag. 119. pl. 4. Account Against whom an Account lies against whom not 161. pl. 94. pa. 177. pl. 111. Administration and Administrator When letters of Administration may be taken pag. 31. pl. 2. What shall be said an Administration of goods what not pag. 152. pl. 79. Where it must be shewed by whom Administration was granted where not pag. 96 97. pl. 13. Where one ought to Administer where not pag. 182. pl. 118. What Actions are maintainable by and against an Administrator and what not pag. 106. pl. 11. pag. 119 pl. 4. pag. 182. pl. 118. Advowson VVhere an Advowson shall pass where not pag. 42. pl. 20. Admittance VVhat is a good Admmittance to a Copyhold what not pag. 95 96. pl. 9. Advantage VVhere one shall not take advantage of a thing for lack of pleading it pag. 106. pl. 11. pag. 161. pl. 92. Addition VVhat Additions do hurt what not pag. 123. pl. 7. 9. pl. 15 Assets VVhat shall be Assets and what not pag. 58. pl. 15. pag. 7 80. pl. 15. pag. 88. pl. 14. pag. 115. pl 8. pag. 177. pl. 111. Alien VVho shall have an Aliens Lands pag. 29 pl. 4. Amendment VVhere a Record may be amended where not pag. 1. pl. 3. pag. 31. pl. 3. pag. 78 79. pl. 12. pag. 89. pl. 17. pag. 113. pl. 3. pag. 124. p. 10. pag. 133. pl. 32. pag. 136. pl. 36. 140. pl. 51. pa. 151 152. pl. 78. pag. 184 185. pl. 124. Amercement For what things severall persons are to be amerced pag. 3. pl. 7. pag. 4. pl. 7. pag. 24. pl. 4. pag. 1 11. pl. 17. Annuity VVhat Annuity is good what not pag. 7. pl. 11. pag. 8. pl. 11 pag. 30. pl. 1. pag. 64. pl. 2. pag. 83. pl. 1. Apportionment VVhere a thing may be apportioned where not pag. 21. pl. 14. pag. 44. pl. 24. pag. 116. pl. 13. pag. 116. pl. 15. Appearance How one ought to appear in Court pag. 61. pl. 20. VVhat is a good appearance what not pag. 67. pl. 12. pag. 118. pl. 1. Arbiterment VVhat shall be a good Arbiterment and what not pag. 77. pl. 8. pag. 91 92. pl. 4. pag. 125. pl. 14. Arrest and arrest of Judgement VVhat is a good arrest what not pag. 30. pl. 5. VVhat is good matter to arrest Judgement what not pag. 186 187. pl. 135. Assumpsit VVhat Assumpsit is good what not pag. 32. pl. 6. pag. 48. pl. 6. pag. 94 95. pl. 4. pag. 97. pl. 14. pag. 138 139. pl. 46. pag. 154. pl. 81. pag. 156 157. pl. 85. pag. 168. pl. 99. pag. 180. pl. 113. VVhere an Assumpsit is broken and where not pag. 146. pl. 65. Assise VVhere an Assise lies and where not pag. 64. pl. 3. pag 154. pl. 80. Attornment VVhere an Attornment is necessary where not pag. 38. pl. 14. VVhat is a good Attornment what not pag. 55. pl. 13. pag. 95. pl. 9. pag 95 96. pl. 9. Attaint VVhere an Attaint lies and where not pag. 42. pl. 18. Attorney VVhat Acts an Attorney may do without VVarrant and what not pag. 49. pl. 2. Assignment VVhat may be assigned and what not pag. 89. pl. 16. pag. 186. pl. 134. Avowry VVhat is a good plea in an avowry what not pag. 65. pl. 6. Averment VVhere an Averment is necessary where not pag. 71. pl. 15. pag. 97. pl. 14. pag. 99. pl. 2. pag. 111 pl. 18. pag. 123. pl. 8. pag. 155. pl. 83. Where an averment may be received where not pag. 107. pl. 12. pag. 129. pl. 22 Audita quaerela VVhere an audita quaerela lies where not pag. 171. pl. 101. pag. 174 175. pl. 108. pag. 176. pl. 111. Aide VVhat prayeing in aid is good and what not pag. 40. pl. 18. B. BAr vide Plea
came to the Bar and demanded Judgement for the Plantif The case and rehersed the case in this sort The Prior of St Johns of Jerusalem in England by deed Indented A. 29 H. 8. Devised a Mesuage called the high House 13 Cotages one Stable and 14 Gardens for 59 yeares to one Corda●l rendring 5. l. 6. s 11. d. viz. For the 13 Cotages iij. l. And for the high house xiiij s and for the Stable xx s and for c. And if it happen the Rent to be behind by three months then the Prior to reenter after by an act of Parliament An. 31. Hen. 8. the Priory was given to the King and hee Vested in actuall Possession thereof with all Conditions and Covenants c. as the Lessor had Afterwards the King 29. Sept. An. 36. by Letters Patents gave the St●ble to the same Cordall and one H. Audley in Fee and the Reversion of the other Parcells descended to the Queen which now is whereupon 8 die Maii An. 23. Issued a Commission out of the Exchequer to enquire si praedict Cordall assign sui perimplevissent performassent omnes conventiones promissiones fact reservat super praedict Indent dimissionis praemissis fact c. And the Commission was retourn'd in Michaelmas Term after and it was found that the four usuall Terms in London are the Feasts of St. Michael the Birth of our Lord the Annunciation and the Birth of St. John Baptist for the Rent was to be paid ad quatuor terminos Anni infra Civitatem London usuales Vsuales terminos And further by the same Iury being a Iury of Middlesex it was found that 37. s 5. d. ob Part and Parcell of the said Rent were behind not paid by three Months next after Michaelmas last past before the taking of the said Inquisition Cordall made Burnell his Executor and died Burnell granted all the Term to Brech the Defendant Afterwards the Queen 5 Augusts An. 23. which was before the return of the Inquisition and before any Entry or Seisure made by her or by any other to her use granted the high House to Sir John Fortescue and Thekston in Fee and they entred upon Berch and made the Lease to the Plantif for three yeares c. And first it is to be considered if they be severall Rents in this case or no Severall Rents because he saith viz. For the high house 14. s c. For that I take the Law to be very strong Co●cessum per Fenner Rodes that they be severall Rents for allthough that he saith first requiring 5. l. 6. s xj d. which is an entire summe yet when he saith afterwards for the high House so much and for the Stable so much c. This maketh a severance and for that I will remember the case in Dyer fo 308 Feoffment per deux so I hold the Law if a Feoffment be made by two rendring xx l. a year viz. x. l. to the one and x. l. to the other these are severall Reservations but because I hold the Law clear in this point I will speak no more to it Another matter is when the Commission issueth to enquire of all Covenants and Promises conteined in the Indenture to be performed by Cordall Conc. per Rodes Lease sur condicion en un proviso if the finding by the Jury be conteined within these words Covenants and Promises c. And I think they be for if a man make a Lease to one for years and if it happen the said Rent to be behind that then it shall be lawfull to the Lessor to reenter as I think this is a Proviso for the Rent so the case in 22 Hen. 6. A Lease was made for years Rent an agreement rendring Rent the Lessee is bound to perform all covenants and agreements if he do not pay the rent the obligation is forfeit Co●cess per Fenner for the payment of the rent is an agreement So in this case the proviso doth extend to the payment of the rent And as for the exception which was taken viz. That the Jury find that 37 s of the rent was behind and doe not say expresly for the house which is now in question I hold that a vain exception for when they have found that more was behind than that which was now in question allthough that it be in generality yet it is good for the particularity and for that matter I could remember many cases but I will not doubt of a matter as I think without doubt But for the condition which is the great matter of the case First the condition is vested in the King by the express words of the Statute and Condition as I think grant of parcell shall not extinguish the whole condition In the case of a common person the condition shall be utterly gone and so are our Books otherwise peradventure I would doubt of that allso but because the Book is so in Dyer 14 Eliz. fol. 309. I will speak no more of it but the case of the King differs from a common person Rent charge to the King rent seck for as he is the Head and supreme Governour of the Commonwealth so he is the superior in Prerogatives and Preheminences 13 Ed. 3. 14 Ed. 3. A rent charge granted to the King he shall distrein for it in all the lands of the Grantor and 8 Hen. 5. if a rent seck cometh to the King he shall distrein for it and yet it is called seck because no distress is incident thereto And there the principall case was of a Fieri facias No demand by the King 2 Hen. 7. the King shall not demand his rent But it hath been sayd that because conditions go to the destruction and determination of estates Cond strictly taken that therefore they shall be t●ken strictly to which I agree but not in the case of the King as in Bro. Apportionment 23. 168. and so are the presidents in the Exchequer if a man be bound in a Statute Merchant and after the Conisor enfeoffes the King of parcel of the land Conisor enfeoffes le Roy. and enfeoffes a stranger of another parcell and afterwards the Statute is forfeit to the King by atttainder the King shall have execution against the other feoffee And in many other cases the King is privileged especially in things entire For if there be two Coparceners and one be in ward to the King Entire presentation he shall have the entire presentation of all And in this case I think that before the condition shall be destroyed that the Patent made to Cordall shall be voyd for it is not ex certa scientia mer● mot● but it is generall and it was not the intent of the King to take away the intire condition And allthough the King grants the reversion yet the condition which was once vested in the King as I think remains in him
the Land should pass by this words Appurtenances For allthough that in late Books Lands shall not pass by this word Appurtenances yet this is good authority to prove that they shall pass as 7 Hen. 5. 41. T. 21 Ed. 3. 18. Allso Wills shall be taken by meaning and here upon this devise 4. l. Rent is reserved and the antient Rent is but 45. s and if the Land should be racked it is all worth but v. l. a year and because they are held in Capite therefore by the Statute we shall have but two parts And it cannot be intended that it was his meaning to have us pay 4. l. for the Lands in Ebney Valew wich are not worth so much therefore somtime the valew is considerable in a Will and cited 4 Ed. 6. 7 Ed. 6. and so he thought the Plaintif ought to recover And at this time the Court seemed to be of the same opinion for they gave day over to the Defendant at which day if nothing were said Judgement shall be given for the Plaintif 4. GAwdy prayed Judgement in an Action of Trespass by Hambledon against Hambledon Survivor the case was such H. was seised in Fee and had issue Mic. 29. 30 three Sonnes Eliz. r●t 2325. John VVilliam now Plaintif and Richard now Defendant And by his last Will devised Lands to Iohn and to the Heirs Males of his body ingendred and devised other Lands to William in like sort and other Lands to Richard in like sort And that if any of his Sonnes died without issue Male that then the Survivor shall be each others Heir Afterwards the eldest died without issue Male And if William shall have all his part alone or else he and Richard between them was demurred in Law and day was given over to argue it 5. WAlmisley shewed how an Action was brought by Berdsley against Pilkington Impounding upon the Statute of 2 3 P. Mary for driving a Distress out of the County And shewed the truth of his case that the Distress was taken in the Hundred of Offlay in Staffordshire and the City of Lichfield was sometime within this Hundred And by Letters Patents of 1 Mariae the City was made a County of it self and he which took the Distress impounded them within a pound in the County of the City of Lichfield now whether he hath incurred the penalty of the Statute or no was the question And because the Court had not a Statute Book there to see the Preamble therefore they would give no resolution Anderson The meaning of the Statute was because the Bailif of the Hundred might make deliverance Allso I think it is within the compass of the Statute because the City was a County severed before this Statute made And the Serjeants at the bar said Same Hundred that the party may drive the Distress as far as he will within the same Hundred but he ought not to drive it above three miles without the Hundred 6. IOhn Slywright exhibited an information upon the Statute Champerty for buying of Titles Pasch 30. Eliz. rot 1532. against Page and declared how Joane Wade demised to Page for 60 yeares the Defendant pleaded not guilty And now a Jury of Sussex appeared at the bar And upon Evidence it was moved ●if a man have a lawfull Title to enter into Lands Lawfull title but hath not been in Possession and he entreth and makes a Lease for yeares thereof if this be within compass of the Statute Anderson It is within the Statute for the mischief was that when a man had a Title to Land he would let it to another to have maintenance and imbracery and make contentions and Suites for remedy whereof the Statute was made For if a man have a Title he may recover according to his Title Recovery Peryam The mischief hath been truly recited and therfore it is reason to restrain such bargains But if a man Recover by Formdon or Cessavit and make a Lease this is not within compass of the Statute A pretended Right allthough that he hath not been in Possession by a year and in my opinion the Plaintif need not prove that it is a pretented Right because the Statute expoundeth what is a pretented Right viz. if he hath not been in possession And so I have delivered my opinion before this time Anderson If a man hath not been in Possession and cometh to me and saith that he will make me a Lease and demands if I will take it and I agree thereto whereby he maketh me this Lease Ignorance if I do not know that he hath not been in possession I am not within the Statute And then the Defendant shewed that he was brother of the halfblood to the Wife of the Lessor whereby he might take the Lease well enough For Fleetwood cited 6 Ed. 3. if one brother maintain the other this is not within the Statute of Champerty which case the Court agreed this is for speciall cause vide statut de articulis super cartas Maintenance Champerty Difference Anderson One brother may travell for another and maintain him but if he take a Lease of him he is within the Statute of 32. Hen. 8. for this is a generall mischief and the mischief is as great if the brother take a Lease as if another take it The case quod Periam coucessit clearly but because it was the case of the Defendant the Jury found a speciall Verdict viz. that the Lands were conveyed by the Husband of Joane Wade to the use of himself and his Wife in Tail-speciall the Remainder to the Husband in generall-Tail the Remainder to the Wife in Fee and after the Husband Enfeoffed diverse men thereof and the Feoffees continued in Possession diverse years After the Husband died and then the Wife by indenture sealed and delivered of the Land made a Lease to Page which knew all this matter Knowledge from the fift day of Jenuary last past for 60 years if the Wife should live so long and that the Wife was Sister to Page the Defendant by the Mother and found the valew of the Land as if it should be sold and they prayed the advise of the Court c. And the morow after the like information being brought against the woman being Lessor the like Evidence was given and the like case found 7. FEnner moved this case to the Court. Recovery An Alien born purchaseth Lands in Tail the Remainder to a stranger in Fee The Alien suffereth a Common Recovery to his own use in Fee And after an Office is found of all this matter if the Remainder shall be to him which had it before or no was the question Anderson I think the Queen shall have a good Fee-simple Tenant sufficient to the praecipe for if there be a good Tenant to the praecipe then is the Remainder gone and you will not deny but that
the Declaration ought to agree with the Writ 14. A Writ of false Judgement was brought upon a Judgement given in a Court of the Deane and Chapter of Westminster Administrators in an Action upon the case brought against one as Administrator And did not shew by whom the Administration was committed which he ought to have done by 32 Hen. 6. 35 Hen. 6. 50. a. and the Assumpsit was laid to be in consideration that Assets came to the hands of the Defendant And whether this were a good consideration was another doubt and it was not averred that the Administrators had goods sufficient after the Debts and Legacies were paid And at this day it was held that when an Action is brought against an Administrator it need not be shewed but in an Action brought by them clearly they ought to shew it And for the other matter whether the Plaintif needed to aver that they had Assets besides the Debts c. it was said that this ought to come and be shewn on the other part And for that Woodwards case in the Commentaries was cited And the next morning Puckering shewed that he had a report of a Judgement given in the Kings Bench that it is not necessary to shew that they had Assets besides the Debts and Legacies c. And therefore he prayed that the Judgement may be affirmed And so it was for Rodes had seen the report of Puckering according to his saying and testified the same whereby Judgement was here given against the Administrator Anderson being in the Starchamber 15. IT was agreed by all the Justices Herriot that for a Herrio● service the Lord cannot distrein out of his Fee no more than for a Rent but he may seise a Herriot Custom out of his Fee 16. A Man was outlawed Vtlary and the Sherif retourned the Proclamation tali die omnes singulas proclam fieri feci And did not shew that such a day he made the first and such a day the second c. and this was assigned for Error and prayed that the Utlary night be reversed and so it was 17. FLeetwood shewed that this case came in pleading Rent-service A man had a Rent service payable at the Feast of St. Michael And on Michaelmas day he died about ten of the clock in the morning now he demanded whether his Heir or his Executor shall have the Rent Anderson Hath he not all the day to pay it and upon condition to pay such a sum he may tender it any time before Sun-set Peryam But if the party accept the payment in the morning it is good Curia If it be a case in this Court you ought to demur as your case is and not to be thus Politick 18. A Writ of Error was brought upon a Judgement in the Kings Bench Abatement and one of the parties died hanging the Writ And the Court held this to be an abatement of the Writ and that he ought to purchase a new Writ De Term. Mic. Anno Reg. Eliz. xxx xxxj 1. AFormdon was brought against Haselwood and Haselwood Abatement and the one took the Tenancy of the one Moity Dier 3. 4. Phil. Mar. 134. Absque hoc that the other had any thing therein and pleaded in abatement of the Writ and the other took the Tenancy of the other Moity and vouched Shut Shall I maintain my Writ or answer to the Bar of the other Tota Curia You must needsmaintain your Writ Anderson Where the pleading is such as your Writ cannot be good there it is a ground that you ought to maintain your Writ Praecipe quod reddat but if a praecipe quod reddat be brought against two and the one plead Nontenure and the other accepts the entire Tenancy Absque hoc c. and doth plead in Bar there you may answer to the Bar because there peradventure the Writ is good notwithstanding As if a Writ be brought against the Feoffor and Feoffee upon condition or Morgagor and Morgagee and so there is a diversity 2. IN a Quare impedit brought by the Queen against the Archbishop the disturber Vtlary and the Incumbent the disturber pleaded that long time before he had any thing in the Advowson by whose Utlary the Queen is intitled King Ed. 4. was seised of the Honor of Haststings and granted it to the Lord Hastings in Fee and further granted omnia bona catalla omnium teneutium ejusdem honoris sive manerii residentium non residentium qui forent utlagati c. and so conveyes the Honor by descent to the now Lord Hastings and did not aver that he which was Utlawed Averment was a Tenant of the Honor. Curia It is not good without doubt for otherwise he is not within compass of the Grant and therefore a day was given by which if the Defendant did not shew better matter the Queen should have Judgement 3. IN the Kings Bench Anne Bucher brought an Ejectione Firme against Auncell Samford Devise and other Defendants Glocester And upon not guilty pleaded Hit 30. Eliz. rot 188. the Jury found a speciall Verdict viz. that William Samford was seised of the Mannor of Stone-house in the Parish of S. whereof the Tenements in demand were parcell and of divers other Tenements within the same Parish and within a place known in the same Parish which is neither Town nor Hamlet called Ebney in which Samford had a Tenement which hath Lands time out of mind perteining thereunto lying as well in Ebney as in Stone-house which Tenement is in the Tenure of one Bucher by Copy of Court-roll according to the custom of the Mannor Afterwards William Samford deviseth to his Brother after the death of Bucher all that my Tenement with the Appurtenances wherein Bucher dewlleth in Ebney Now the question was whether the Lands in Stone-house perteining thereunto shall pass or no And the famous Cook argued that it should pass for this word Tenement referreth to his dwelling which is in Ebney and not to the place where the Lands lie And therefore he said that words ought to have relation ut ne impediatur sententia sed ut res magis valeat quam pereat Quare impedit and he cited 4 Ed. 3 in a Quare impedit quod permittat praesentare ad ecclesiam de Mourton Majorem and the Defendant demanded Judgement of the Writ for false latin because of Majorem and yet it was adjudged good for it shall be referred to ecclesiam and he cited 19 Ed. 3. 3 Ed. 4. Allso it passeth by this word appurtenances for there was such a Chambridgshire case here within this Twelve-month where a man gave instructions to another to make his Will in this form I will that B. shall have my House with all my Lands thereto apperteining And the other made it in these words I devise to B. my house with the Appurtenances and it was adjudged that