the Lands in question without mentioning of any estate after the death of his Wife and paying 10 l. a peece to his daughter when they enter and if any of the Sons marry and have Issue male of their bodies and dyeth before his enty in the Land then that issue to have his part D. takes a Wife and hath Issue male in the life of the Devisor and the Wife of the Devisor dyeth and he enters and pays the portion of 10 l. a year to the Daughters and after dyes B. the eldest brother enters upon the Issue male of D. It was adjudged in this case That D. had but an estate for life and not in Tail for there were three things precedent to the Tail the Mariâ—ge the having Issue male his death before his entry and when it appeareth he did not dye before his entry therefore he had no â—ail and by the word paying 10 l. to the Daughters he had not a Fee simple but that is intended to be for the estate which he had Grey and Willougbyes Case 626. The Venire bore date in December which was out of Terme but retornable at a day in the next Terme and the Issue upon distresse was afterwards tryed It was held the same was but a misconveying of proces which was helped by the Statute of Jeofailes but if the Agard upon the Roll had been had at a day out of the Terme then the Court held the same to be Error Tiping and Bunnings Case 627. Note It was adjudged that if a Copyhold be granted for life the remainder to another in Fee the admittance of the Tenant for life is the admittance of him in the Remainder because the Lord is not to have a new Fine upon the death of the Tenant for life Cheney and Hawes Case 628. Assumpsit to deliver to the Plaintiff in London certain monies when he delivers to the Defendant certain broad Cloathes there the Defendant pleaded Non Assumpsit The opinion of the Court was that the Defendant ought to have said by way of Answer that the Assumpsit was special have traversed the general Assumpsit in the Declaration Stowels Case 629. If there be two Joynt Tenants and one sole brings Trespas against a stranger who pleads Notguilty Resolved the defendant cannot give in evidence the Joynt Tenancy but he ought to have pleaded it Core and Hadgills Case 630. After Execution awarded supersedias issued quia improvidè emanavit executio but no cause of Restitution was in the supersedeas for which it was said that Execution was done before the supersedeas awarded The Court awarded a non supersedeas with a clause of Restitution in it Coles Case 631. He was Indicted of Burglary the Indictment was quod burglarit ' domum cujusdam Richardi fregit without naming his Sirname and the Judgment holden good Saundleys and Oliffs Case 632. A man was seised of a Messuage and granted the Messuage with all Commons appurtenant and in Trespas the Defendant did prescribe for Common and did aver that all the Farmors of the said Messuage in the place where c. and because it did appear that there was unity of possession of the Messuage and Land in which the Common was claimed the Common was extinct but if the grant had been all Commons usually occupied with the Messuage it would have passed the like Common and so it was adjudged Lewes and Bennets Case 633. The next Avoydance was granted to 2. the one Released to the other who brought a Quare impedit in his own name It was adjudged maintenable because it was before the Church was void Dover and Stratfields Case 634. King H. 7. gave Land in Tail to I. S. his Issue was disseised a stranger being in possession levyed a Fine with Proclamation and 5 years passed the Reversion remaining in the Crown It was holden that the Issue of him was only bound in whose time the Fine was Levyed and no other Issues and that by the Statute of 32 and 34 H. 8. 635. Action upon the case because for money he sold to him Tythes sciâ—ns that he had not any right in them Adjudged the Action did lye by the sciens though there was no direct saying that he had not any right in them Beamounts Case 636. He was taken upon an Excommunicato capiendo and the significavit did not mention that he was commorant within the Diocesse of the Bishop at the time of the Excommunication and for that cause the party was discharged Collins and Willies Case 637. The Father promised 10 l. in mariage with his Daughter the Daughter in consideration thereof promised to pay the 10 l. to the Father upon which promise action upon the case was brought against the Husband It was Resolved that ex rigore juris the Action was maintainable but if the Defendant had pleaded the Covin betwixt the Father and Daughter Popham said the action would have destroyed the Action However the Judgment for the practice was stayed Suliard and Stamps Case 638. Assumpsit that if he being Sheriff would execute a Writ of Execution that he would pay him his Fees due per leges Statuta Angliae and the Plaintiff shewed his Fee was 3 l. the Execution being 60 l. found for the Plaintiff Ir was moved in stay of Judgment that the Plaintiff ought to have shewed the Statute upon which the Fees are due but it was dissallowed because the Action is not an Action upon the Statute so as the Statute ought to be snewed Popworth and Arches Case 639. It was holden in an Accompt that the Defendant cannot wage his Law in accompt for the profits of 14. acres of Land for 6. years Hoe and Beltons Case 640. A Scire fac to have Execution of Damages The Defendant said that the Plaintiff had assigned the damages to the Queen and that the Sheriff by Process out of the Exchequer had extended his Lands for them It was adjudged a good Bar though the Sheriff had not retorned his Writ Hoe and Marshals Case 641. The Defendant was Bail for one F. at the Suit of the Plaintiff F. did not pay the money nor render his Body in a Scire facias against the Defendant the Bail he pleaded that the Plaintiff had released to him all actions after the Bail and before the Judgment It was adjudged the Release did not bar the Plaintiff because the Release was before any duty was due for no duty was by the Bail before the Judgment Coo. 1. part Griffin Lawrence and others Case 642. In Ejectione firme two of the Defendants were guilty and the other not he who was found not guilty died Resolved That the Plaintiff should have Judgment against the others for this Action is but in the nature of Trespass in which the death of one shall not abate the Action Garraway and Braybridges Case Ejectione firme the case was A had Issue F. his eldest Son and B. the Defendant his youngest and conveyed the Lands to the use
Large At last it was Resolved That that Ordinance although it had the Warrant of a Charter was against the Common Law because it was against the Liberty of the subject for every subject by the Law hath Freedom and Liberty to put his Cloth to be dressed by what Clotheworker he pleases and cannot be restrained to any persons for that in effect would be a Monopoly Creswell and Holms Case 756. Debt upon Obligation the Condition was If the Obligee his Heirs and assignes shall and may Lawfully hold and enjoy a Messuage c. without the let c. of the Obligor or his Heirs or of every other person discharged or upon reasonable request saved harmlesse by the said Obligor from all former guifts c. the Defendant said no request was made to save him harmlesse It was adjudged for the Plaintiff because the Defendant hath not answered to all the Condition viz. to the enjoying of the Land and there were 2. Conditions viz. the enjoying and the saving harmlesse Chowley and Humbles Case 757. A Covenanted to make a Feoffment within a year to the use of himself for life the Remainder to H. his younger Son and the Heirs males of his body which remain over and if he did not make the Feoffment he Covenanted for those uses for the Continuance of the Land in his name and Blood Proviso if H. or any Heir male make a Feoffment or Levy a Fine his estate to cease as if he were dead and then the Feoffees to stand seised to the use of such person to whom the Land should Remain No Feoffment was made within the year A. dyed H. the Son levyed a Fine to the Defendant Resolved 1. That the Proviso to cease the estate was repugnant upon his estate for life 2. That his estate could not cease when he had levyed a Fine because then he had no estate 3. That the Feoffees and their Heirs could not stand seised to the use of the person next in discent or Remainder because no Feoffment was ever made Nevil and Sydenhams Case 758. In valore Moritagii The opinion of the Justices seemed to be That a tender was not material but that the value of the mariage was due withot a Tender Atkins Case 759. The Father devised his Land to his Son and the Heirs of his body and further I will that after the decease of my Son John the Land shall remain to G. Son of John Adjudged John had Tail and his Wife should be endowed Carter and Cleypales Case 760. All-Soules Colledge made avoid Lease by the Statute of 13 Eliz. because no Rent was reserved It was a Lease only to try title and Judgment Error was brought and assigned after that the Lease was void The Judgment was affirmed because the party did not plead the Statute for otherwise the Judges are not to take Notice of it Clarke and Dayes Case 761. A man devised Lands to his daughter for life And if she marry after my death and have issue of her body then I will that her Heir after my Daughters death shall have the Land and to the Heirs of their bodies begotten the Remainder in Fee to a Stranger It was adjudged she had not tail but only for Life and the Inheritance in his Heir by purchase and therefore in this case it was Resolved the Husband of the wife could not be Tenant by the Curtesie Deacon and Marshes Case 762. A seised in Fee of a house and possessed of Goods Devised in these words The rest of my Goods Lands and Moveables after my Debts paid c. To my three children B. C. and D. equally to be divided amongst them Adjudged they had but an Estate for Life in the House and that they were Tenants in Common of it and not Joynt-Tenants Smith and Mills Case 763. Adjudged that a Sale made of his goods by a Bankrupt after a Commission of Bankrupt is awarded is utterly void Gibons and Marltiwards Case 764. A. devised certain Land to B. and C. his wife who was the daughter of A. upon condition that they within 10. years should give so much of the Land as was of the value of 100 l. per an to F. F. and that he should find a Preacher in such a place and if they failed their Estate to cease and that then his Executors should have the Land to them and their Heirs upon trust and confidence that they should stand seised to the same uses B. within the 10. years made a writing of Gift Grant and Confirmation but no Livery nor Enrolment of it till after the 10. years The Executors refused to take upon them the Execution of the Will yet it was adjudged they should take the Land by the Devise and that the words upon Trust and Confidence made not a condition to their Estates Arrundells Case 765. In Indictment of Murder the Murder was alledged to be apud Civitatem Westm in Com. Middl. in Parochia St. Margaret and for Tryal a Jury was retorned de Vicineto Civitate Westm Resolved the Tryal not good for the Visne ought to have bin of the Parish and not of the city for a Parish is to be intended more certain then a city and when a Parish is alledged to be in a city the Visne shall come out of the Parish Alderion and Mans Case 766. Assumpsit In consideration the Plaintiff would give his good Will and furtherance to the Marriage the Defendant promised after the Marriage had to give him 20 l. he alledged he had given his good Will and that he did further it but did not show particularly how yet the Court held it to be a good consideration and adjudged the Action did lie Savage and Brookes Case 767. Upon an Indictment of Murder It was Resolved by the Justices that the Queen could not challenge Peremptorilie without shewing cause of her challenge 768. Note It was Resolved by the Justices That if a man buy Corn and converts it to meal and afterwards sells it it is not an ingrossing within the Statute of 5. E. 6. Staffords Case 769. Debt upon Obligation the Condition to make such further assurance as the Council of the Obligee shall Devise The Obligor comes to the Obligee and shews his Council had advised him to make to the Obligee a Lease for years which he required him to do and he refused It was adjudged the Obligation was forfeited otherwife if it were to make such assurance as the Council should devise for then the Council ought to draw and engross it ready to be sealed Plaine and Binds Case 770. Assumpsit 11. Septemb. to deliver certain goods to him if no claime be made to them before 14. September and alledged no claime was made post 11. diem usque 14. Septemb. It was said in stay of Judgment that the Declaration ought to have been that no claim was made after the Assumpsit until the 14. day and not post 11. diem The Court adjudged the Declaration good because the
especial matter upon the division of the day ought to come on the other side otherwise it shall not be intended Bullock and Bibleys Case 771. A Woman Copyholder in Fee took Husband who without his Wife surrendred to the use of a Stranger who was admitted and surrendred to the use of D. the Defendant who was admitted the Husband died the wife survived and died the Heir before admittance made a Lease to trie the Title It was adjudged that the Surrender of the Husband alone made no discontinuance of the Copy-hold of the wife 2. Resolved that the Lease was good before Admittance otherwise it was of a Surrender before Admittance Gooles and Granes Case 772. An Infant surrendred Land which was Copyhold to the use of a Stranger who was admitted It was adjudged that the Infant at his full age might enter because it was no bar nor discontinuance Ford and Holborns Case 773. A. let the Mannor of D. to H. for 17. years rendring yearly to D. G. 10 l. and he was bound in an Obligee to A. to pay the said Rent to D. G. if she so long lived and the said H. or his Assignes should or might so long enjoy the Premises In Debt by the Executors of A. against H. he pleaded that after the Lease to him he himself surrendred the Lease to A. which he accepted and that till the Surrender no Rent was unpaid It was adjudged for the Plaintiff because the acceptance of the Surrender was no conclusion against the collateral payment to a Stranger and H. but for his own Act might have enjoyed the Land still Savage and Bechams Case 774. In Action upon the case for an Escape against the Prisoner brought by the Plaintiff Sheriff It was Resolved that upon a voluntary escape the Sheriff should not maintain an Action against the Prisoner but otherwise upon a negligent escape West and Blackwells Case 775. A. Outlawed after Judgment was taken upon the Capias utlagatum and afterwards escaped Resolved that he was not in Execution for the party without prayer Williams and Beathles Case 776. Debt upon an Obligation after Verdict and Judgment it was assigned for Error that the Teste of the Original was before the day of payment in the Condition It was holden Error and the Judgment for that cause reversed Wells and Dennyes Case 777. Upon a Recovery in Debt of 400 l. upon 2 Fieri fac 100 l. was levyed and returned Afterwards a Capias ad satisfaciend issued for the whole 400 l. It was the opinion of the Court it ought to issue forth but 300 l. and the Judgment for Execution was reversed May and Middletons Case 778. After Debt brought the Plaintiff attached in London a debt due by another man to the Defendant and had Judgment to recover Adjudged a good bar to the Action for so much Bufkin and Edmonds Case 779. It was adjudged in this Case That a Rent payable off the Land upon Cesser of an Estate ought to be demanded where no entry may be Hughton and Princes Case 780. Resolved Tythes shall not be paid of Turkies nor their Eggs nor of tame Patridges or Pheasants quia ferae naturae Beswick and Cundens Case 781. It was adjudged in this case That the Feoffee shall have Action upon the case for a Nusance continued though it was erected before his time Sharington and Fleetwoods Case 782. It was Resolved if a Parson Libells for Tythes and a Prohibition is granted and after he libelleth for the Tythes of another year the first Suit not being determined an Attachment upon Prohibition lieth against him Hall and Vaughans Case 783. If the Jurors eat and drink at their own proper costs before Verdict after their departure from the Bar it is fineable only but it shall not make their Verdict void Adams and Albons Case 784. Resolved that if a Venire facies bears date the day it is retornable it is amendable by the Roll. Gregory and Blasâ—fields Case 785. An Action upon the Statute of 4. and 5. Philip and Mary for using the Trade of a Clothier not having bin bound an Apprentice for seven years was brought by Plaint in the Court of Ludlow and Judgment there The Judgment was reversed because first it ought to be by Original or Information and Secondly because it ought to be brought in the Courts of Record at Westminster and not in Borough Courts Varrel and Wilsons Case 786. Conspiracy The Defendant pleaded his goods were Feloniously Stollen and he found them in the possession of the Plaintiff for which he Indicted him and gave evidence against him and upon the Tryal the Plaintiff was acquitted and traversed the Conspiracy aliter vel alio modo It was adjudged a good Justification because the finding of the goods in his possession was a sufficient cause of Suspition Marrow and Tarpins Case 787. Debt against two Administrators for Rent behind after the death of the Intestate they pleaded that before the Rent behind one of the Administraters assigned all his Interest to I. S. of which the Plaintiff had notice and accepted of the Rent by the hands of the Assignee before the day in which the Rent in arrear was due It was Resolved that the privity of contract as to the Action of debt was determined by the act of the Lessee and therefore the action of Debt after the Assignment did not lie against the Administrator Smith and Johnsons Case 788. Error of a Judgment in Action upon Assumpsit in the Court of Reding The certificate was Plita c. ad Cur. Dominae Reginae Burgisui de Reding tenend per consuctudinem Libertat Major Burgensibus concess I without saying per consuetudinem ex antiquo usitot or alledging by what person the Liberties were granted and for this cause the Judgment was reversed Corbet and Corbets Case 789. A seised of Lands for real affection covenanted to stand seised to the use of himself for Life and after to the use of R. and the Heirs Males of his Body the Remainder to C. and the Heirs Males of his Body Provided if R. or any Heir Male of his Body shall intend or go about any act to cut off the Estate tail then it shall be lawful for him that is next to enter A. died R. suffered a common Recovery Resolved the Proviso was repugnant to the Estate tail and that the Cesser of the Estate tail as if the party had bin dead was impossible and the going about it such a secret thing that an Issue cannot be upon it Grar Marshal and Marshals Case 790. A. levyed a Fine of five yard Land to the use of himself for Life the Remainder to the use of his eldest Son who was the Plaintiffs husband and the Plaintiff and the Heirs of the Body of the Husband Proviso if the Husband died living A. his Father then G. the Plaintiff his wife should have yard Land and a half for her Life in possession without shewing which Land the Husband died
good against a Purchaser bna fide for valuable consideration Crowther and Fryers Case 800. The case was a Parson sued a Copyholder for Tythes arising upon his Copyhold he prayed a Prohibition and suggested that the Bishop of W. was Lord of the Mannor and that he and his Predecessors time out of mind c. for them their Farmors and Tenants had bin discharged of Tythes arising upon the Mannor and shewed he had bin a Copyholder of the Mannor and preseribed in his Lord. It was the opinion of the Justices in this case that although there is a Prescription upon a Prescription one in the Copyholder to make the estate good the other in the Bishop to make his discharge good yet a Prohibition lyeth for the Prescription in the Lord of Right of necessity and common Intendment proceeds the Prescription in the copyhold estate and the discharge of the Tythes in the Lord shall go to the benefit of the Copyholder Blake and Allens Case 801. B. was bounden 10 A. in an Obligation of an 100 l. for the true behaviour of his Son he being an Apprentice to A. A. after the sealing and delivery of the Bond razed out the word Libris and inserted the word Marcis It was the opinion of the Justices it was not a Forgery punishable because he made his own Bond void and it was not a prejudice to any but to himself 802. Two Executors made Partition of their Testators Specialties and then one of them did release to the Debtor an Obligation which did appertain to the part of the other the Debtor having notice of the Partition betwixt them the other sued in Chancery for Reliefe but the Chancery would not relieve him but if the Release was obtained by Covin for a less Sum then the Debt was there it was holden the Debtor should satisfie the Over-plus 803. It was agreed by the Justices that the Hundred is not chargable with the escape of the Felons nor to pay the Robbery if the Robbery be done in an House nor if it be a Robbery in the High-way in the Night 804. Note It was Resolved â—9 Feb. 43. Eliz. by the Justices upon the Arraigment of the Earl of Essex 1. That when the Queen sent the Lord Keeper and others of her Council to him commanding him to disperse the armed persons which he had in his house and to come to her and he refused so to do and kept the armed men in his house that that was Treason 2. That when he went with a Troop of Captains and others into the city of London and there prayed aid of the citizens to assist him in defence of his Life and to go with him to the Court so as he might be of power to remove his Enemies which attended upon the Queen that that was Treason 3. That the Fact in London was actual Rebellion although he did not intend hurt to the Queen 4. That the adherence of the Earl of Southampton to the Earl of Essex although he did not know of any other purpose then of a private Quarrel which the Earl of Essex had against certain of the Queens Sewants was also Treason in him 5. That all those who went with the Earl out of Essex-House into London whether that they knew his intent or not were Traitors although they departed by Proclamation but those who upon a suddam adhered to him in London and departed so soon as Proclamation was made they were within the Queens Grace of pardon by the Proclamation Holland Jackson and Ogdens Case 805. Error was brought to reverse a Recovery and a Scire facias issued against K and other Terre-Tenants depending which a Writ of Estrepment was awarded against the Terre-Tenants and Resolved it did well lye Dalton and Hamonds Case 806. It was Resolved by the Justices in this case that if the Lord demandeth an excessive Fine of his Copyholder and he refuseth to pay it it is no forfeiture otherwise where it is a reasonable Fine and the Court and Jury shall be Judges of the reasonableness of it But if a Fine be certain the Tenant is to bring it with him to Court and to pay it before admittance and if he be not ready to pay it it is a forfeiture Gambleton and Grassons Case 807. In Trover and Commission it was found for the Plaintiff It was moved in stay of Judgment that the Distringas with the Nisi prius bore the same date with the Venire facies It was the Resolution of the Court that it should be amended for it was aided by the Statute of 32. H. 8. Higgins and Spicers Case 808. A Venire facias was awarded to the Coroners ita quod B. who was one of the Coroners se non intromittat because he was the Servant of R. who was Sheriff It was said the same was no cause of Challenge but the Court conceived it was because confessed However it was but a misconverting of process which was aided by the Statute Hall and Jones Case 809. Action was brought upon the case for slanderous words in a Court of Pipowders The Stile of the Court was Curia pedis pulverizati ratione Mercati c. Secundum consuetudinem Civiiatis It was adjudged there for the Plaintiff and Error brought and Assigned that a Court of Pipowders doth not belong to a Market but to a Faire The Court held that by custome of a city or place it might be to a Market 2. Resolved that an Action upon the case for slanderous words did not lie in a Court of Pipowders and for that cause the Judgment was reversed The Countess of Warwick Attwood and Davies Case 810. Action upon the case against two the one pleaded to Issue the other demurred upon the Demurrer the Plaintiff had Judgment and a Writ of enquire of Damages against him alone and the Defendant relinquished the other Issue It was the opinion of the Court that he might relinquish against him and have Judgment and execution of the damages against the other only Sir Gervase Clifton and Chancellors Case 811. In Trover and Conversion of Jewels The Defendant pleaded that a Stranger was possessed of the Jewels and sold them to him in his shop in Bristol he being a Gold-Smith and because he did not say that the Sale was in pleno Mercatu nor aver'd it was his shop in which he used the Trade of a Gold-Smith It was adjudged for the Plaintiff and in this case it was agreed that the King cannot grant to one that his Shop shall be a Market overt to bind Strangers because it is against the Law Ludd and Wrights Case 812. In debt to perform an Accord the breach was assigned of a thing out of the Submission and issue being joyned the Plaintiff at the Nisi prius was Nonsuit Then the Judgment given upon the insufficient Pleas is not upon the Nonsuit It was holden the Defendant should have costs for the unjust vexation Gawen and Rants Case 813. In Replevin the case was
the Cause and they do award an Erroneous Process or Misaward a Capias by which the party is taken in Execution yet it is a lawfull Execution and the Sheriff is chargeable with the Escape and he is not to examine the Error of the Court in avoiding the Execution Second that the Conviction of the Felony was no discharge of the parties Execution and it was adjudged against the Defendant 412. Debt brought in Co. B. for an Amercement in a Court Baron the Defendant would have waâ—ed his Law the Court doubted of it and some Presidents were shewed as Trin. 6. Eliz. Tindal and Tuckers Case that he might in such Case wage his Law Quare The Queen Bishop of Lincoln and Skiffings Case 413. Quare Imp. The Case was the Countess of Kent had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was adjudged he was Lawful Chaplain for the Patent is not of necessity but only in Case where he hath Cause to shew it and he hath no cause to shew it because her Retainer was good without a Patent Bâ—rd and Adams Case 414. In this Case a Case of a Prohibition to stay a Suit in the Spiritual Court for Tythes of the Rakings of Lands after the Crop of corn was carried away It was holden That the prohibition would not lye but that Tythes should be paid of Rakings But vide 42. Eliz. in B. R. in Gree and Haales Case It was adjudged that by the Custom of the Realm Tythes should not be paid of Rakings Battey and Trevillions Case 415. Replevin The Defendant avowed That I. and A. his Wife were seised in Fee in the right of his Wife and devised the Land in which to I. H and I. his Wife with E. their Daughter for 60. years rendring four Marks Rent Afterwards 38. H. 8. I. and A. his Wife levyed a Fine and the Conusees rendred the Land to A. for Life the remainder to Tho. their Son in tail with remainder over A. died Tho. entred upon the Lessees and made a Feoffment to I. D. and others to perform his Will the Lessees reentred Tho. 7. Eliz. by his Will ordained that his Feoffees should stand seised untill they had levied sufficient to pay his debts and Legacies which were not payed and therefore the Defendant as Bayliff to the Feoffees made conusance and as to the rest he avowed for that Tho. was seised in Fee of the place in which c. and 6 Eliz. devised the same to H. L. and M for Life rendring 30. s. Rent and afterwards entred upon the Leslees and levyed a Fine thereof to the use of himself in Fee and afterwards infeoffed thereof the first Feoffees to the use of his Will the Lessees reentred and he made his Will as above and died and for 3. l. rent for two years he made conusance as Bayliff to the surviving Feoffees The Plantiff to the first Avowry said that Tho. was seised in Tail by the render of the Fine and the tail descended to H. his Son and then E. one oâ— the Lessees who survived to husband the Plaintiff bâ—que hoc that Tho. enfeoffed the Feoffees to such uses as the Defendant hath a ledged and as to the other Conusance the Plaintiff demurred in Law The Jury found the seisin of A. and her Husband and the Lessee for years to the three persons and the Fine and Render to the seisin of Tho. and the Feoffment of Tho. to I. D. and others to perform his Will and they found a Letter of Attorney to persons whereof the said I. H. one of the Lessees was one conjunctim divisim to enter in all the Premises and take possession and deliver the same to the Feoffees or one of them and that after Tho. made his Will as before and that C. one of the Attorneys to one of the Feoffees and D. another of the Attorneys delivered seisin to another of the Feoffees There were divers points in this Case First because the Jury have sound a Devise of Land and no Tenure if the Justices could judge the Tenure to be Knight Service or Soccage this point the Justices said they would not meddle with Second point admit the Land to be holden in Capite and that the Land passed by the Willâ— they held that but two parts of the Land passed by the Devise 3dly When he devised that his Feoffees should stand seised and he had not Feoffees but he himself was in possession the Justices held it was devise of the Land it self 4thly They held where one of the Lessees made Livery as Attorney to the Lessor that he did not thereby extinct or surrender the Term. 5thly When an Authority is to four conjunctim divisim to execute Livery that one might execute Livery in one part and the other in another part 6thly They held when Tenant in tail of Lands in lease for years makes a Feoffment and the Lessee reentred it was a discontinuance 7thly They held when Tenant in Fee simple of a Reversion expectant upon Lease for years deviseth two parts of the Land that no part of the Rent passeth 8thly In this Case because the avowry is made for the whole Rent and it appeareth he hath title but to two parts It was holden he should not have a Return for any part 9thly They held when the Avowant makes title but to two parts of the Rent and the Jury assesse damages for the whole Rent that the Avowant could not have Judgment unlesse he Released the damages 10thly When the Lessor entred upon his Lessee for life and made a Feoffment and the Lessee reentred the Justices doubt if the Rent was revived Keale and Carters Case 416. False Imprisonment the Defendant Justified that he was Constable and that the Plaintiff brought a Child of the age of 2. years and no more into the Church and there left it to the intent it might dye for want of sustenance wherefore he Imprisoned him till he agreed to take away the Child It was the opinion that the Justification of the Defendant was good because the Act of the Constable was but to prevent a felony which he might do by virtue of his Office Fenwick and Mitsorths Case 417. The Case was A. man seised of Lands in Fee Levyed a Fine thereof to the use of Wife for life the remainder to the use of his eldest Son and the Heirs males of his body the remainder to the right Heirs of the Conusor The Conusor made a Lease for 1000. years to B. the eldest Son dyeth without Issue having a daughter the Conusor dyeth the Wife after dyeth the eldest Son Leaseth the Lands to the Plaintiff It was adjudged in this Case it was a Reversion and no Remainder and this limitation to his right Heirs was meerely void Sir Moiâ—e Finch and Throgmortons Case 418. The Case in effect was this The Queen made a Lease for years rendring rent
Tenant in tail became Officer yet that Land shall be sold by the Queen 2. When an Officer is endebted to the King and his Land subject to be sold by the Act 13. Eliz. and he to prevent the sale of the Queen and to evade out of the Act makes a conveyance of his Lands to his Issues or others of his Blood in consideration of natural affection that such conveyance shall not be good not said to be Bona fide within the Proviso of the Act of 39 Eliz. but that the Queen may sell the Land for so much of her debt as was due before the conveyance 3. If the Officer or Debtor of the Queen after 39 Eliz. be Tenant in tail or hath power of Revocation there the Queen may sell the Land by the Statute of 39 Eliz. and if any such Officer or Debtor before 39. Eliz. and and after 13. Eliz. had made any conveyance to his Issues or Blood without valuable consideration especially if it be with power of Revocation that Land may be sold by the Queen by the Statute of 39. Eliz. Adams and Lamberts Case 848. A man devised Lands to his Brother for Life the Remainder for Life the Remainder in tail upon condition to find a Chaplain for ever to pray for Souls and for the Souls of all Christian people to celebrate Mass Annusaries and other Superstitious uses and if they failed to perform the Uses then he devised the Remainder for eight years to an Hospital and because he doubted the profits of those Lands would not suffice he devised other Lands to supply them upon condition that if they aliened or let the Land to the prejudice of those in the Remainder they should presently enter and to be seised to the said uses It was resolved 1. That the Devise of Land to find a Priest c. was a Superstitious use 2. That although one of the uses was uncertain and no certain Sum limitted to it 3. That although the Devise was for the Sustentation and Maintanance of poor men yet the Limitation to them to pray for Souls was a Superstitious use because they depended upon the Superstitious uses and therefore it was Resolved in this case that all the Lands were given to the King by by the Statute of 1. Eliz. of Chaunteries Salway and Wales Case 849. It was holden by the Justices That if a man makes a Deed of Feoffinent in December and after and before Livery executed the Feoffor sells the Land by good assurance to another and after that the Feoffee takes Livery and Seifin of the Feoffor it is Forgery in the Feffor and the Feoffee So if the Feoffee causeth Livery to be endowed generally upon the Deed without a special day of making the Livery the Indorsement is Forgery Mouse and Weavers Case 850. The case was A. after a Recovery in an Assize in the Court of the Mannor of Isleworth and before Seisin delivered by the Bayliff of the Mannor bought the Copyhold by Surrender It was adjudged maintenance within the Statute of 32. H. 8. But it was holden by the Justices that if one recover Land and be in possession by Writ of Seisin he may sell the same although he nor his Ancestor or other by whom he claims was in possession by the space of a year next before And in this case it was holden by the Justices that a Clerk or Attorney in one Court cannot sollicite a Cause in another Court although it be for the same matter which was in his own Court Pollard and Moretons Case 851. It was Resolved in this case that a Justice of Peace coming to remove a Force may take posse comitatus with him 2. Resolved if one entreth into an house where no man is in the house with armed men or company unusual the same is a forceable entry Whetstone and Mintons Case 852. A. a Citizen of London seised divers Messuages in the Parish of St. Mary Sommerset in Queen-hith London 25 H. 6. devised the same to his two Daughters in tail and for want of such Issue to the Parson and Churchwardens of St. Michael and their Successors they yearly holding and making an Anniversary in the Church for the Soul of him and his Wife paying 6 s. 8 d. yearly amongst the Chaplains and others there and if the Parson and Churchwardens were remisse in holding Anniversary then the Parson and Curchwardens and Successors for that time should pay 20 s. of the Uses of those Lands Nomine poenae to the use of the Chamber of London The Devisor died the Land being of the yearly value of 10 l. 3 s. 4 d. The Daughter 's died without Issue the Parson and Churchwardens entred and took the profits and held the Anniversary and paid yearly the 6 s. 8 d. amongst the Chaplains c. et non ultra The Statute of 1. Ed. 6. of Chaunteries was found The sole Question in this case whether the Land or Annual Rent were given to the Crown by the Statute of 1 Ed. 6. of Chaunteries It was Resolved by the Justices in this Case that only the Annual Rent of 6 s. 4 d. was given to the Crown by the Statute and not the Lands for they said it had bin often adjudged that where a stipend was appointed to an Anniversary Obit Legacy c. there although the Land was given in the Premises the Crown should have but the stipend and in this case the intent of the Devisor was clear that the Parson and Churchwardens should have all the profits over and above the 6 s. 4 d. yearly to their own use Grills and Rigewayes Case 853. The case was A man was in Execution for debt and brake Prison and escaped The Sheriff made fresh Suit and retook him It was adjudged in this case no escape and it was holden that if the Prisoner who escapes be out of his sight yet if the Sheriff or Goaler take him upon Fresh Suit in recenti persecutione he shall be in Execution again 854. Note it was Resolved by the Justices that the breaking of a Dwelling-house in the night to the intent to rob or kill any one is Burglarie although that no person be in the house and if a man have two houses of Habitation which he dwells in by turnes if a Thief in the night breakes the house in which the person is absent it is Burglarie Austin and Twynes Case 155. It was Resolved in this case if two Churches one of the value of 10 l. and the other of 8 l. be within one mile of another the Ordinary may consolidate them and if the Patron and King confirm it the consolidation is good by the common Law and by the Statute pf 37 H. 8. 856. The King made the city of Gloucester a County with a clause of exemption from the County of Gloucester and of the power of the Officers of the County saving to the King and his Heirs Liberty for their Justices of Assize Goal-delivery and keeping Sessions there
Resolved it was a good Saving and that all Justices in their Sessions to be holden within the city might hear and determine Offences committed in the County but no offence done within the city though in the time of the Sessions Heydon Smith and others Case 857. Audita Querela The case was A. and B. seised of Capite Lands and P. seised of Soccage Lands they all three acknowledged a Statute of 8000 l. to R. A. and B. levyed two several Fines of their moyeties to C. and W. to the use of themselves and their heirs until default of payment was of certain Annuities and then to the use of C and W. they after default of payment sold the Lands to H. and D. H. released to D. who devised the Land in tail and died the Devisee in tail died without Issue the Wives of the Plaintiff were Heirs to D. to whom the third part of the Capire Land discended R. had extended the Lands upon Statute before the default of payment of the Annuities and before the Bargain and Sale and although he sued the extent against A. and B. and also P. yet the Sheriff extended the Lands of A. and B. and to defeat the extent and to have Restitution because the Land of P. was not extended the Audita Querela was brought The principal point in this case was if the Bargainee and those which claim under him should have no Audita Querela for the extent made before his time Another point was if the Coheirs should have an Audita Querela without the owner of the two parts all of them being Tenants in common and equally grieved with the extent The case is very learnedly argued pro con but not Resolved Salter and Botelers Case 858. A Rent was granted to A. his Executors and Assignes for the Life of B. out of Bl. acree A. died living a Cestuy que use The Executors of A. distreined for the Rent and averred the Life of B. It was adjudged the Distress was not lawfull because by the death of the Grantee the Rent was determined but if the Rent had been granted to the Grantee and his Heirs the Heir of the Grantee should have bin a special Occupant and he might distrein for the Rent Ewer and Moiles Case 859. In a Replevin by E. in the Kings Bench against M. M. being an Infant appeared there by Artorney also an Imparlance was entred Petit licentiam interloquendi usque and no day was named and Judgment being there given for these Errors the Judgment was reversed Boulton and Bastards Case 860. A. and his Wife seised in the Right of the Husband of the Mannor I. exchanged the same with S. and D. for the fourth part of the Mannor of S. A. died the Wife entred into I. and evicted it for her Life It was adjudged it was a defeating of the Exchange for ever because the exchange was of Land in possession and yet the Justices held that a Reversion might be exchanged for Lands in possession and Note It was said that unequall value or quantity in the one more then the other should not avoid the exchange but otherwise it is of unequality of Estate Stephen and Tots Case 861. T. and his Wife being divorced in the spiritual Court à thoro mensa The Father of the Wife devised a Legacy to her for which she sued the Plaintiff his Executor in the Spiritual Court he there pleaded the Release of the Husband which the Spiritual Judges would not allow of It was the opinion of the Justices in this Case that the Release of the Husband was good notwithstanding this Divorce Sparke and Sparkes Case 862. A man made a Lease for life and after made a Lease for 99. years after the death of Tenant for life if the Lessee for 99. years should so long live and if he dyed within the Terme the Lessor granted that the Land should Remain to his Excecutors and Assignes for 21. years after the death of the Survivor of both the Lessees The Lessee for 99. years granted the Lease for 21. years rendring Rent and dyed Intestate having survived the Lessee for life the Administrator brought Debt against the Assignee of the Terme for 21. years for the Rent It was adjudged that the action did not lye because the Contingent foe 21. years never vested in the Lessee for 99. years the Intestate nor ever was in him to dispose or grant Bridge and Atkins Case 863. Words viz. Thou art an old perjured Knave and that is to be proved by a stake between the ground of such and such adjudged that for these words the Action did not lye Bothes Case 864. He was arraigned of Felony for a second forgery after Cónviction of a former forgery in the Star Chamber upon the Statute of 5 Eliz. of writings concerning the Lands of I. S. In this Case Resolved that no Accessary can be in Forgery but all one principally 2. Resolved that for Felony the Kings Bench might commit one to the Fleet or unto any other Prison and also that a Prisoner who is condemned to perpetual Imprisonment was not Baileable nor Removeable Shaw and Norwoods Case 865. A man by his Will devised 40 l. to two Infants equally the Executrix delivered the money to one to whom the Defendant was Executor who made a Bill testifing he had received the 40 l. to the use of the Infants one of the Infants dyed Intestate his Administrator brought Debt against the Defendant the Executor of the Baylee It was adjudged the Action was maintainable and the specialty although it was not made to the Infants yet it was a sufficient Testimony of the debt Fort and Wards Case 866. A Copyholder had Common of Estovors in the Lords Woods appurtenant to his Copyhold and he purchased the Freehold of Inheritance in the Copyhold and had words in his deed of purchase of all Commons appertaining to the said Messuage Yet it was adjudged that the Common which he had to the Copy estate was extinct but if there had been special words in the Grant of the like Common as he had in the Copyhold before the surrender it had been good and as a new grant of Common Morgan and Slades Case 867. It was Resolved by all the Justices of England that an action upon the Case upon Assumpsit lyeth upon every contract Executory as well as an Action of Debt Seymayne and Greshams Case 868. G. and B. were Joynt Tenants of a house in Lond wherein they had several goods B. acknowledges a Statute and dyed a Writ of Execution came to the Sheriff of Lond. who came to the house with a Jury to extend the goods of B. G. seeing them and knowing the Cause of their comming to the intent to frustrate the Execution shut the Door of the house so as the Sheriff could not do Execution For which the Plaintiff brought his Action upon the Case and layd it to be to his damage of 2000 l. It was adjudged against the
Plaintiff that the Action did not lye Vide this Case more at large in Cook 3. part of his Reports Cornwalls Case 869. Quo Warranto for claiming goods of Felonum de se The Defendant said that the Mannors of S. and L in the County of Gloucester were within the Principality of Wales before the Statute of 27 H. 8. and the Kings Writ did not run there and that his Grandfather seised of those Mannors as Lord Marcher used amongst others to have that Liberty of goods of Felons de se and that the Statute of 27 H. 8. which united Wales to England had a Proviso that the Lord Marchers should retain their Franchises to hold Courts to have Waifes and Estrays infangtheef outfangtheef and Felons goods and deduced the Mannors to himself and eo Warranto he claimed to have the good of Felons de se within his Mannors upon which it was demurred the Case is only argued bet not Resolved Ideo Quaere Darcy and Allens Case 870. The Queen by her Letters Patents granted to Darcy the Importation and sole making of playing Cards within the Realm of England for a certain Terme of years A Citizen and Freeman of the Company of Haberdashers in London Cards beings Merchantable Commodities brought Cards into England and sold them for which Darcy brought his Action of the Case and declared it was to his damage of 2000 l. upon which there was a demur in Law It was in this Case after long and Learned Arguments at length Resolved That the Letters Patents for the sole making of playing Cards within the Realm was void because it being a Mechanical Trade it was contrary to the Liberty and to the prejudice of the Subject 2. That the dispensation or sole License to have the Importation of Cards was a Monopoly and so void by the Law See Coo. 11. pt the Case of Monopolies Garrard and the Dean and Chapter of Rochesters Case 871. The Dean and Chapter by deed under their Common Seal granted to the King the Mannor of S. in exchange for other Lands the deed was made without a Letter of Attorney but they acknowledged it to be their deed in their Chapter house before I. S. Attorney of the Court of Augmentations who brought it into Court and it was there enrolled with a Memorandū that the enrolment was such a day which was a moneth before the date of the deed In this Case it was Resolved 1. That the acknowledgment of the deed in the Chapter house was sufficient without doing it by Attorney 2. That the Attorney of the Augmentation might take the acknowledgment of a Deed out of Court he being a Judge of the Court. 3. That the enrolment of the deed before the date of it was not void as to make the deed void because it was only the Misprision of the Clark which shall not make the deed void Prine and Allingtons Case 872. A Capias ad satisfaciend ' was 2. July delivered in Holborne to the Sheriff of C. he the same day made his Warrant to his Bailiffs but afterwards the same day there came a Supersedeas to the Sheriff the Bailiffs not having notice of it took the party in Execution who escaped and they retook him upon which false Imprisonment was brought It was adjudged the Action did lye for the retaking of him was not Lawfull because the Authority of the Sheriff was determined by the Supersedas Yet the Court held the Bailiffs were excused in this Case and no action of Debt upon the escape did lye because they had no notice of the Supersedas Webster and Allens Case 873. A Copyholder where the custome was to demise for three Lives demised to one for life the Remainder to such a one as he should marry and the first Son of his body Resolved that both the Remainders were void but the estate for his own life good Penny and Cores Case 874. Debt upon Obligation for payment of 8 l. the Defendant pleaded payment of 5 l. before the day and acceptance of it in satisfaction of the 8 l. It was adjudged a good plea. The Queen and Bishop of Peterboroughs Case 875. A Baronesse which was a Widdow retained two Chaplains they purchased Dispensation the Baronesse was married before they accepted double Benefices It was adjudged they might after take two Benefices because the marriage was no discharge of their Service but if the Baronesse dye before they accept the Benefices they cannot afterwards take two Benefices within the Statute of 21 H. 8. Ward and Lakins Case 876. In a Replevin the Plaintiff declared of the taking of two Heifors apud W. tali die and did not say in quodam loco vocato c. and for that cause the Declaration was held to be insufficient Scarles Case 177. Debt against an Excecutor by Original he pleaded a Recovery in the Court of I. and that ultra he had not goods the Recovery was after the Teste of the Original but the Defendant avered that he had not notice of the Original It was holden by the Court a good plea but if a man be sued upon an Obligation and he will pay another debt after without suit if he have notice of the first suit Devastavit in an Execuror Gregory and Harrisons Case 878. Resolved Ejectione firme doth not lye of a Copyhold if the Plaintiff doth not declare the Custome Lease and Ejectment 879. A Woman recovered Dower in the Common pleas and had a Writ to the Sheriff to put her in possession of the same The Sheriff returned the Writ that he delivered her 84. Acres and that she had entred into 24. Acres parcel thereof and accepted of the same Resolved it was a good bar to her although it was a lesse quantity then the 3. part of the Land mentioned in the Record Aoliffe and Archdales Case 780. Resolved in this Case If a man be bounden to pay money for the Meat Drink and Apparel of an Infant and pay it and take a Bond of the Infant to repay the money such a Bond is void and the Infant shall avoid it for Nonage Broke and Smiths Case 881. It was adjudged in this Case that where a man by a Deed was to discharge Lands from all Incumbrances and before the sealing and delivery of the Deed there is Memorandum endorsed that it should not extend to such an Incumbrance It was Resolved the Endorsement is an explanation of the Deed and made parcell of it and a suit upon an Obligation to discharge Incumbrances shall not extend to the Incumbrances mentioned upon the endorsement of the Deed. Yate and Goths Case 882. A. was indebted to B. who dyed Intestate his Wife took Letters of Administration and brought debt and had Judgment and after dyed Intestate It was adjudged that an Administrator de bonis none of the first Intestate could not sue forth Execution upon the Judgment but is put to a new action of debt Swelman and Cuts Case 883. A Lease was made for years upon
the Justices that a Writ of Error was not maintainable in the Exchequer Chamber by the Statute of 27. Eliz. upon a Judgment in B. R. upon Rescous because it is not within the words of the Statute although it be a Trespass Giddy and Heales Case 915. Action upon the case in B. R. by Heale for these words he being a Counsellor at Law Whereas one said to Giddy that Heal had affirmed upon his credit that the Fee-simple of certain Lands was in the Patentees of the Queen The said Giddy said No friends Heales Warranty we well know a great number of his Country trusting to his Warranty have been undone It was adjudged in B. R. for the Plaintiff and 100 l. damages and Error being brought in Exchequer Chamber and assigned the Words were not actionable The Judgment was affirmed Marronor and Cottons Case 916. Judgment was given against Marroner in the B. R. for Cotton for these words spoken against Cotton a Justice of the Peace viz. He hath received mony of a Thief that was apprehended and brought before him for stealing of Sheep to let him escape and keep him from the Goal Error brought in Exchequer Chamber and assigned the words were not actionable but the Judgment in B. R. was affirmed Bâ—shop and Gins Case 917. Debt upon an Obligation in B. R. for performance of Covenants one was that he delivertd a Ship in London usque portum de Blackney and no time limited for it and the breach was assigned in it that he did not deliver the ship such a day and Judgment there for the Plaintiff Error brought and assigned that the Issue was ill joyned because he had time to deliver it during his Life that the Court said was but the misjoyning of the Issue which was remedied by the Statute of Jeofails after Verdict 2. Error that the Venire was of Blackney where it ought to be de Portu Blackney The Court held it no Error but good and the Judgment was affirmed Falsowe and Thornies Case 918. In Debt the Venire upon the Roll was retornable die Martis post 15. Trin. and the Writ in facto was returned die Jovis post 15. Trin. that was assigned for Error but non allocatur because but misawarding of Process which is aided by the Statute of Jeofails and the Judgment was affirmed Cundey and Edgecombs Case 919. In Debt the Venire was filed Trin. 35. Eliz. to try an Issue between Richard Cundey de Bodrygan querent Peter Edgecombe de Mount Edgecomb in Com. Devon Defendant The Writ was direct Vic' Cornubiae Hill 39 Eliz. The continuance upon the Roll was Juratores inter Richardum Cundey de Bodygran in Comitatu Cornubiae mercatorum queren Petrum Edgecombt de Mount Edgecomb in Com-Devon in placito debiti ponitur in respectu nisi Justitiarii ad Assisas in Comitatu praedict capiendas assignat prius venerint c. upon the Margent was written Cornubiae It was assigned for Error that the last County is Devon in the Addition of the Defendant for the habitation of the Defendant The Justices held it no Error because Cornubiae was in the Margent and where there are two Counties before Com. praedict shall extend to that which will affirm the Judgment although the other be the Prochine antecedent Wilcoks â—nd Hewsons Case 920. Debt upon a Bill of 30. l. The Defendant pleaded he delivered the Bill upon a Condition to the Plaintiff that if he did procuer a particular of certain Land that it should not be his Deed but if he did not procure the particular it should be his Deed The Plaintiff took Issue it was his Deed and so found by Verdict Error brought and assigned that the Defendants plea was insufficient and the Plaintiff ought to have demurred upon it and the Issue which he took was vain and void because the especial matter had confessed the Deed and so the Issue is taken upon a thing confessed the Judgment was affirmed because the Defendant cannot assign Error in his own Plea and although the Issue be joyned upon a thing confessed the same is but surplussage and it was in the Election of the Court to give Judgment either upon the Plea or the Verdict Joyner and Ognells Case 921. Debt upon a Bill of 100 l. by Humphrey Joyner Executor of George Skiner against the Defendant the Defendant pleaded per minas and after Issue joyned befor Nisi prius he confessed the Action in Court The confession was entred non potest dedicere quia ipse debuit praedict ' Georgio Skinner in vita sua praedict ' 100. l. modo forma poout and upon that the Judgment was Quod praedict Humfred Joyner recuperet versus praedict ' Georgium Ognel debittum suum praedict ' necnon quatuor libras pro damnis suis quae sustinuit tam occasione detentionis debiti praedict ' quam pro missis c. eidem Humfredo Skinner per curiam adjudicat upon this Judgment Error was brought and assigned that the confession of the Action is not according to the Declaration for the Declaration is in the debuit to the Testator and Detinet of the Executor as it ought to be but the Confession is in the Debuit only 2. Error the Judgment is Quod Humfrey Joyner recuperet debitum eidem Humfredo Skinner adjudicant whereas it ought to be eidem Humfredo Joyner adjudicat As to the first Error the Court said that after the Defendant hath relinquished the Bar the Declaration remains without defence for which cause the Court may well judge for the Plaintiff and for the second Error it was amended by the Court. Gomersall and Watkinsons Case 922. Eliz. Watkinson the Defendant brought Debt in B. R. against the Plaintiff Executor of William Gomersall and shewed that the Testator retained her in his Service 28 Eliz. taking 40 s. for one year for her Wages and so from year to year and that she had served the Testator five years who died her wages not paid The Defendant the Executor pleaded Nihil debet which was found against him and Judgment for the said Eliz. the Plaintiff Error was brought and assigned the Action did not lie against the Executor It was said by the Justices it appeareth prima facie upon the Declaration that the said Eliz. was compellable to serve by the Statute of 5 Eliz. and then when he voluntarily retains her in service being compellable to serve the Master cannot wage his Law in Debt for the wages and therefore the Action is maintainable against his Executors Stanton and Suliards Case 923. Note It was Resolved in this Case Whereas the Sheriff brought an Action upon the case against the Defendant in the Kings Bench upon Assumpsit to pay the Sheriffs Fee upon arresting the party in Execution which was 12 d. for every pound where the Execution did exceed a 100 l. and there Judgment was given for the Plaintiff that upon Error thereupon brought in the Exchequer the Judgment was reversed because an Action
upon the case did not lie in such Case Bowes and Powletts Case 924. In the Kings Bench the case was A. and B. were Indebted to the Queen by Recognizance 500 l. C. and D. were indebted in 200 l. to F. by Obligation F. was indebted to A. 200 l. F. at the request of A. assigned the Debt of 200 l. due from C. and D. to the Queen by Deed enrolled in part of satisfaction of the 500 l. due to the Queen by A. B. A. afterwards for his discharge of the 200 l. against the Queen prosecuted Suit in the Exchequer against C. for the levying of the 200 l. of the goods and Chattels of C. C. in consideration that A. would forbear to prosecute any Process against the said C. till Hill Term following promised to pay A. 200 l. and 20 l. to buy him a Gelding and in an Action upon the case brought for it in B. R. upon non Assumpsit It was found for the Plaintiff there and Damages and Judgment Error was brought in the Exchequer and the Judgment upon the body of the Declaration was reversed because the consideration was not lawfull nor sufficient for the surceasing of a Suit was no discharge of the Debt nor was it lawfull to have recompence for the forbearing or surceasing of a Debt which was due to the Queen Hinson and Burridges Case 925. Action upon Assumpsit in B. R. In consideration the Plaintiff would sell and deliver to I. S. the Defendants Factor at the request of the Defendant 200 Hog-labms to the use of the Defendant he promised he would pay so much mony to the Plaintiff as should be agreed betwixt the Plaintiff and I. S. and alledged he delivered them to I. S. and I. S. and the Plaintiff agreed for 40 l. price to be paid at certain dayes since past and the Defendant had not paid the mony It was found for the Plaintiff and Judgment Errour brought and assigned 1. That the Contract was the Contract of the Defendant himself and Debt did lye not Assumpsit Resolved the sale was to I. S. and the use is but a Confidence which gave not property to the Defendant so that Debt did not lye against him but Assumpsit 2. Error no place is alledged where the Plaintiff and I. S. agreed of the price and day of payment which is traversable The Court held it good enough because the Defendant pleaded Non Assumpsit and a verdict was given But the Court said it had been a good cause of Demurrer Palmer and Humfreys Case 926. Ejectione firme de una pecia terrae vocat M. furlong una pecia terrae vocat Ashbrokee uno Gardino vocat Minching-Garden quae omnes singulae parcellae terrae jacent in W. It was assigned for Error that Pecia terrae is uncertain and so the Declaration not good And 2. Because no place certain is alledged in which the Garden is and for these Causes the Judgment was reversed Matthew and Matthewes Case 927. Assumpsit in B. R. whereas the Testator was endebted to the Plaintiff 35 l. The Defendant being his Excecutor in consideration the Plaintiff would give him day promised to pay the money Found there for the Plaintiff and Judgment upon Error brought the Judgment Reversed Because the consideration was not sufficient because the Defendant was not by Law bound to pay the money after the death of the Testator and giving day to pay that which he was not bound to pay was no sufficient Consideration Edmunds and Bufkins Case 928. Debt in B. R. and declared the Dean and Chapter of W. demised the Rectory to A. for 60. years which by mean Conveyance came to F. who demised it to C. for 20. years rendring Rent C. demised it by his will to D. 10. of the last years and afterwards dyed possessed D. entred and granted his Interest to Edmunds F. demised the residue of the Terme to S. his Wife and Executrix S. married Bufkin they brought Debt and had Judgment Error was brought and assigned that C. the first Lessee of F. demised 10. of the last years to D. and it was alledged that the demisor made not any Executor or that the devisee did enter by the assent of the Excecutor nor that he was possessed by virtue of the demise but generall that he entred after the death of the devise and for these Causes the Judgment was reversed Paramour and Pains Case 929. Action upon the Case in B. R. and declared in Consideration the Plaintiff had sold to the Defendant 14. Cowes for 34 l. and 4. Oxon for 16 l. the Defendant promised to pay cum requisitus esset Found for the Plaintiff the Judgment was reversed because the Consideration was not sufficient but Debt lay upon the Contract and not Assumpsit Plaine and Bagshawes Case 930. Debt in B. R. against B. Executor of I. S. and demanded 47 l. 8 s. 8 d. monetae Flandriae attingent ' to 40 l. 12 s. 6 d. English money The Defendant pleaded fully Administred the Jury found Assets and Judgment there that recuperet debitum suum praedict ' damna sua praedict ' Errour brought and assigned for that the Jurours did not inquire of the value of Flanders money and for that cause the Judgment was reversed for although the Plaintiff did affirme the Flanders money did attain to 40 l. 12 s. 6 yet it is no Warrant to the Court to adjudge it so unlesse found by the Jury Stafford and Powlers Case 931. Error was brought of a Judgment in an action upon the Case in B. R. for words the words were viz. One W. Web being arrested as accessary for stealing his own goods Mr. Stafford knowing thereof discharged the said Web by an agreement of 3 l. to which Mr. Stafford was party whereof 30 s. was to be paid to Mr. Stafford and was paid to his man by his appointment Error brought It was said the words were not actionable but the Justices held them actionable and the Judgment was affirmed Bordolf and Perry and his Wives Case 932. Debt in B. R. upon an Obligation made by the Wife dum sola fuit the Defendant pleaded Non est factum found for the Plaintiff The Judgment was that the Husband be in misericordia and the Wife Capiatur And it Reversed because it ought be Capiantur against both Penraddock and Erringtons Case 933. Assault and Battery in B. R. against two Defendants and declared of Assault Battery tantas minas de vita sua imposuer ' quod non audebat ire circa negotia They pleaded Deson Assault demesne It was assigned for Error that the Assault of one cannot be the Assault of the other and they ought to have pleaded several pleas the Court held it no Error for that the Assault might be joynt 2. Error because nothing is said to the Minas yet the Judgment was affirmed because Minas is but to enforce the damages and not the substance of the Declaration Wilcocks and Greenes Case 934.
it was Resolved that upon such Writ the Sheriff or his Officer might without any Offence by a Warrant arrest the person of the Countesse for he is not to dispute the authority of the Coâ—rt in awarding the proces but he is to execute the Writ to him directed But because the Defendants did arrest the Countesse upon a feined action of their own heads without Warrant They were fined and sentenced by the Court. Dag and Penkevells Case 1007. A bill was exhibited in the Star Chamber against the Defendant and divers others for several Offences The Defendant for that he inserted the name of a special Bailiff in a Warrant which was made by the Sheriff with blanks without privity or direction of the Sheriff Note in this Case it was holden that where there are several Defendants and one only is sentenced the other shall have Costs because not charged with the offence for which the sentence was but with other Offences of which they were acquitted 2. It was holden in this Case that a Defendant shall not have benefit of a general pardon at hearing of the Cause unlesse he prayes the same upon his answer put into Court Clerks Case 1008. Note in this Case being the Case of a Purveyor who was sentenced in the Star Chamber for several Offences in executing his Office of Purveyor It was said there were 7. properties incident to every Purveyor 1. He ought to be sufficient to answer the King and the party 2. He is to do his service in person and not by Deputy because it is an Office of Tâ—â—st 3. He is to be sworn in Chancery before he execute his Office for he ought to have authority under the great Seal with blank Labells to insert what he takes 5. His Authority is to continue but six moneths without renewing 6. He ought to take where is plenty and in Convenient time and no more then is sufficient 7. He is to take the things in kind and not money for them Lovice and Goddards Case 1009. The Case was A. the Grandfather had Issue two Sons T. and W. and by his Will devised to T. all his Mannors Lands c. within the Counties of D. and C. viz. to T. and the Heirs males of his body after his decease for 500. years Provided if T. or any Issue male of his body give grant c. the premises or any parcel thereof oâ—herwise then to Lease and demise the same for any term or number of years as may or shall be determinable upon the deaths of aâ—y 2. persons c. to be made in the Leases c. then all the premises for default of such Issues males of the said T to be begotten c. immediatly upon such alâ—â—nation gift grant c. shall remain and come to W. and to the Heirs males of his body c. The devisor dyed T. entred and made a Lease for 1000. years to I. S. who never entred T. dyed without Issue male I. being his Daughter and Heir W. dyed having Issue the Plaintiff who entred upon whom I. entred In this Case it was Resolved in C. B. that the devise to T. and the Heirs males was an estate Tail and the limitation for years void 2. Resolved that there ought to be a concurrence of death without Issue male and also of alienation before the rising of the Remainder 3. That the Remainder should never rise because the particular estate was destroyed by the alienation before the Remainder could commence 4. That the Lease for 1000. years made to I. S. was not an alientation within the Proviso upon which the estate might rise to W. when T. was dead without Issue male because that T. who made the Lease was but Tenant in Tail and then the Lease was determined upon his death It was the opinion of all the Justices in C. B. that the Judgment should be for the Defendant upon which Judgment the Plaintiff brought a Writ of Error in B R. and there by all the Justices upon the matter in Law the Judgment was reversed Mich 3. Jan. Cargenter and Collins Case 1010. In Debt for Rent the Case was A. had a Son and a Daughter and devised that his Son should have his Land at his age of 24. years and gave 40 l. to his Daughter to be paid at her age of 22. years and appointed that C. should be his Excecutor and should have the oversight and dealing of his Lands and goods till his Children should come to the ages aforesaid and dyed C. the Plaintiff made a Lease to the Defendant at Will rendering Rent at Mich. and our Lady-day the Daughter entred upon the Tenant at Will the Tenant attorned to her the Son dyed within the age of 24 years the Defendant did not pay the Rent for which C. brought Debt against him It was adjudged against the Plaintiff Resolved 1. The word Oversight and dealâ—ng with his Lands and goods did not give any Interest to C. the Excecutor but an authority only and that the estate discended to the Son 2. That by the death of the Son the Interest of the Executor was determined for it was noâ— the intent of the devisor to bar the Heir of the Son untill the Son should come to the age of 24 years if he lived 3. That the Tenury at Will was determined by the entry of the Daughter because she entred by Title i. e. as Heir to her Brother Lord Aburgavenny and Edwards Case 1011. An Excommengement was pleaded in Bar and the Certificate of the Bishop of Lâ—ndaph shewed of it but doth not mention by what Bishop the party was Excommenge wherefore it was adjudged void Rastoll and Drapers Case 1012. Debt upon an Obligation for payment of so much Flemish mony the Plaintiff declared for so much English money and it was holden good by the Court. Doyly and Drakes Case 1013. A man had two Closes adjoyning time out of mind and sold one of them who should make the Inclosure the Purchasor or the vendor the Court was divided in opinion Vide 21 Eliz. Diâ—r 372. Williams and Vaughans Case 1014 Scire facias by the Plaintiff against the Defendant who was bail in Debt for I. S. who did not render his body nor pay the Debt the Defendant demurred 1. Because no Capias was sued against the principal and also because the Principal was dead before the Scire facias brought but both points overruled because the Condition of the bail was broken before Whitâ—ock and Harâ—wells Case 1015. A. and B. Sisters Joynt Tenant A. Covenanted with a stranger that he should enjoy the moyety which she held with her Sister in Joynture for 60. years from the death of her Sister if she the said A. should so long live and demised to him the other moyety from her own death for 60. years if her Sister so long lived Adjudged the Lease was void for both moyeties â—he one because of her moyety after the death of her Companion and the other is
The Spanish Ambassador and Plages Case 1040. Plage was pressed with his Ship at Lisbone to carry the King of Spains Soldiers to such a Port and had their Letters from the Vice-Roy of Portugal to trade to Brasil he performed the Service of Transportation and 14 months after traded at Brasil and freighted his Ship there for the transportation of Goods to Hamborough and was bound with Sureâ—ies in the Custom-house of Brasil to pay the customes due to the King of Spain at St. Michaels the Ship by tempest was forced into England and did not touch at St. Michaels The Spanish Ambassador pretending the Goods to be forfeit to the King of Spain sued for them in the Admiralty here and a Sentence was there for the King of Spain to have the Goods Plage sued to the Lord Chancellor here to have an Appeal from that Sentence and an Appeal was granted him Sir Thomas Palmers Case 1041. Sir Thomas Palmer who was attainted of Treason in the time of Ed 6. for natural affection 7 Ed 6 by Indenture covenanted to stand seised to the use of himself for Life the remainder to I. S. for Life the remainder to the first Son of the said I. S. in tail the remainder to his eighth Son he was attainted before I. S. had any Son It was Resolved that by the Attainder the Son of I. S. was barred which was afterwards born and the Fee-simple was in the Crown discharged of all the Remainders Jepps and Tunbridges Case 1042. The Defendant delivered a brief of the cause to some of the Jâ—rors impannelled before they appeared for their Instructions This was adjudged an offence for which he was Sentenced in the Star-chamber And in this case it was Resolved that the Plaintiff and Defendant himself may labor the Jurors to appear but a stranger cannot so do 2. That the writing of a Letter or a request by wordâ— by one not a party to the Suit to the Jurors to appear is Maintenance 3. It is not lawful for the party himself to instruct the Jurors either by writing or by word nor to promise them any Reward for their appearance for it is Embracery in them aswell as in a stranger Sis Tho. Dâ—wbridgecourt and Sir Anthony Ashleys Case 1043. The Defendant was decreed â—n Chanceâ—y to pay 1000 l. to the Plaintiff after the Decree the Defendant procured the Son of Sir Thomas by a Letter of Attorney which he had from his Father to agree only the Suit for 200 l. whereof 100 l. was paid in hand and the rest to be paid at a day certain to make a Release which the Son did in his own name but not in the name of his Father It was the opinion of the Justices and also of the Lord Chancellor that this Release was void Crew and Vernons Case in the Star-chamber 1644 Sir Randolph Crew and all those whose Estate c. he had in the Mannor of Crew time out of mind c. had had Turf to born in the House of Crew-hall in a great Waste called Okehanger Moor being interâ—upted he sued in the Exchequer at Chester whereupon Affidavit of the possession 60. years his possession was established After the hearing of the Cause there Vernon interrupted the servants of Crew and with Harrows tore the Turffs for which cause a Bill was exhibited in the Star-chamber against the said Vernon and others they put in a scandalous Answer saying that the Judge at Chester ought not in Justice have made such an Order and called the Affidavit an equivocating Affidavit and affirmed the owners of the Mannor of Crew had taken the Turff but by License and Vernon affirmed to the Court that he had a Release to shew for the discharging of the Prescription but no such Prescription could be shewed nor was but a Grant of Turff to be there taken In this case it was Resolved by the Court the Prescription was not determined by the new Grant but the Grant enured as a confirmation and so the title of Prescription remained 2. Resolved that the words spoken of the Court of Chester were very scandalous and the Affidavit which he called an equivocating Affidavit was approved by the whole wherefore the Defendants were sentenced and fined by the Court and the defendants were to acknowledge their offence to the Court of Chester Sir Anthony Barkers Case 1046. I. S. exhiâ—ited a Bill in the Star Chamber against Sir Anthony Barker and divers other Gentry of Credit and charged the Defendants with the forging of the Will of M. P. and with many undue practices in drawing the said M. P. to make such a Will At the hearing of the Cause the Plaintiff relinquished the Forgery confessing it was no Forgery but would have insisted upon the practices of the Defendants for drawing the said M. P. to make the Will The Court refused to permit the Plaintiff to insist upon the practices for if he would have insisted upon the practices he ought to have confessed the Will and then have shewed the undue practises used to draw her to make such Will Wherefore the Plaintiff was fined 200 l. to the King and the Court gave Damages to each of the Defendants and the reason why they gave damages they declared to be because the Bill being scandalous no action lay for the Defendants at Law because the Bill was prefered before competent Judges to punish the Offences if there had been any and therefore it was reason by reason of such defect of the Common Law in giving damages the Court having Jurisdiction of the Cause supplied the said defect Goodricks Case 1047. Goodrick at a Tavero said to D. being a Master of Arts at Cambridge That there was late a great Contestation befor the King betwixt the Archbishop of Canterbury and the Earl of Northampton Lord Privy Seal because the Archbishop enformed that since the said Lord had been Warden of the Cinque Ports there were more Jesuites and Seminary Priests come into the Realm then before which he said was the Newes of the Court Another offence was That Ingram a Merchant had heard at Ligorne in Florence by two Students out of the Colledge at Rome that the Earl of Northampton writ a Letter to Cardinal Bellaâ—ine to pray him that no answer should be made to his book which he had Written upon the Treason of Garnet the Jesuite because he writ it only ad placandum Regem faciendum populum The Defendants were found Guilty upon their Confessions It was Resolved by the Justices it was a slander within the Statute of Z. R. 2. which moved sedition betwixt the King and his Nobles and that although the publisher did produce his author of such false newes yet he himself was punishable and if one saith there is common Rumor that such a one hath done such an act an action upon the Case lyeth although he doth produce his Author And in this Case it was agreed that if one sayes to another the effect of
Presidents cited to that purpose Apsleys Case 1067. He was brought by a Habe as corpus to the Bar It was returned that he was committed by the Court of Chancery for a contempt to the Court Resolved he should be discharged vide 9 Eliz. Astwicks case accordingly vide 13 Jac. Allen and Woods case Allen was committed to the Fleet by the Lord Chancellor for a contempt in not performing of a Decree and upon that Retorn the Court refused to deliver him Deytons Case 1068. He was committed to the Fleet by the High Commissioners for not performing of the Orders in the Common Prayer and for refusing to answer to Articles exhibited by the Commissioners unless he might have a copy of the Articles Resolved he should be delivered because the Statute upon which he was sued in that Court is penal and also because perhapps the High Commissioners had not jurisdiction of the cause Brokes Case 1069. He was committed by the High Commissioners to the Fleet because he refused Alimony to his wife and that being returned upon an Habeas corpus he was delivered Isaack and Clerks Case 1070. Action de Trover and Conversion The case was A recovery was against A. in the Court of E. and a Precept in the nature of a Fieri fac directed to the Defendant Bayliff of the Court who took three Butts of Sack in Execution The Plaintiff came to the Defendant and delivered him 22 l. in a bag as a pledge that the three Butts should be delivered to the Defendant the next Court day there upon Request if the Plaintiff who recovered should not in the mean time be satisfied at the next Court the Butts were not redelivered nor the first Plaintiff satisfied nor any Report made It was Resolved that there was no Conversion in this case for although prima facie Denyer is a conversion of money yet when the mony is delivered as a Pledge it is a special bailment and Denyer in such case is no conversion 2. That the Plaintiff had no cause of Action because the three Butts being not Re-delivered the Defendant might detain the 22 l. and the Bag for ever 3. There needs no request in this case because the Plaintiff at his peril is to cause them to be delivered before he is enabled to have his mony again It was adjudged for the Defendant Ford and Hoskins Case 1071. Action upon the case that the custom of the Mannor of B. was that every Copyholder might name who should have his Copyhold and that the Lord ought to admit the Copyholder so named after the death of the Nominator which the Lord refused to do It was Resolved the action did not lie for that the Nominatee hath no right at all the Interest being in the Lord and the Nominatee hath neither jus ad rem nec in re and he shall not draw an Interest to himself from the Lord against his Will and if one hath the Nomination and another hath the Presentation to a Benefice if he who hath the Presentation will not present an Action upon the case will not lie against him Brownlo Cop and Mitchells Case 1072. Assise against the Defendant for a Disseisin made to the Plaintiff of the profits of the Office of making Supersedeas The King directed his Writ to the Justices reciting that he by his Letters Patent had granted the making of Supersedeas to the Defendant and required the Justices not to proceed Rege inconsulto It was argued that the Writ did not lie because the King had not any title to the thing in demand nor could any prejudice come to the King On the other side it was said That in common Right it belonged to the King to make Grants of Offices Ministerial and Judicial unless another made Title to the same by Charter or Prescription and if the Plaintiff had title to the Office or not it is matter of Title for which the King is to have search in Chancery and if nothing be found for the King against the Prescription made by the Plaintiff then a Procedendo shall issue out of the Chancery otherwise if title be found for the Patentee against the Prescription Afterwards the Supersedeas was allowed by the Court and afterwards the matter was ended by composition Keckwichs Case 1073. It was holden by the Justices If an Infant brings Error to reverse a Fine levyed by him and he is inspected and witnesses produced to prove his Infancy though he dieth after before his full Age his Heir may reverse the Fine Gold and Deaths Case 1074. Debt upon an Obligation the Condition was That if the Apprentice shall lose and embessel any of the Goods of his Master and the Master prove the same to be true by confession or other then if the Obligor pay all Sums as the loss shall amount unto the Obligation to be void In the case the Master brought in the confession of the Apprentice himself under his Hand and Seal It was adjudged that it was a good and sufficient proof and it was holden the proof might be in the Action brought Phelps and Winscombs Case 1075. In False Imprisonment The Question was whether a Constable may make a Deputy to arrest one by a Warrant to him directed by a Justice of Peace the constable himself being sick and whether upon the Defendants pleading in such case of the Statute of 7 Jac. cap. 5. he shall have double costs It was Resolved he may make a Deputy and a Deputy is within the meaning of the Statute for he is a Constable pro tempore Smith and Bulls Case 1076. In Assault and Battery The Defendant justified that the Plaintiff entred his Close and that he molliter imposuit manus upon him It was said he ought to shew what estate he had in the Close and that the Plaintiff came there to eject or disseise him otherwise the Justification is not good 1077. Tenant in Tail made a Feoffment in Fee to the use of himself and his Heirs and afterwards made a Lease for years rendring rent and died and the Issue accepted the Rent It was adjudged that the acceptance of the Rent did not continue the Lease because the Issue was remitted to the Tail by discent Roe and Woods Case 1078. It was holden by the Court that whereas the name of the Sheriff was not endorsed upon the tales de circumstanubus that was no cause to stay Judgment because the Statute which gives tales doth not provide for such Retorn and also because it is done in the face and view of the Court and of the Judges and therefore not to be doubted but the Sheriff made the Return Luke and Clerks Case 1079. If the Defendant challenge the Array for Consanguinity of the Sheriff which is found against him and after he challenge the Poles Resolved he must shew cause of challenge of every one of them presently Blandford and Blandford Case 1080. The Grandfather possessed of a Term for years devised the same to his Wife
come in Question 2. because the adjunction de in W. the Town is not but to make a certainty of the Mannor for there may be two and Mannors in W. one within it and another wwithout it Harison and Haxeys Case 1095. The defendant was Bail for B. in an Action brought by I. S. against him who recovered and had Judgement B. brought Error pendant the suit I. S. dyed the Debt not paid his Administrator brought a Scire sac against the Bail who pleaded the release after the Error brought both to him and the principal B. of all Executions and Deeds It was adjudged a good barre because the duty and debt remained notwithstanding the Error brought May and the Sheriffs of Londons Case 1096. Action upon the Case against the defendant for suffering one whom they had arrested upon a Bill of Middlesex to escape The defendant said that the Prisoner was rescued from them and adjudged no Plea and so it was said it was adjudged Pasc 43. Eliz. in Walâ—o Lamberts Case which vide Cro. 3. part 867. White and Halls Case 1097. The Guardian recovered in Debt upon an Obligation made to an infant the Defendant payd the principal and costs and prayed the Guardian might acknowledg satisfacia Curia they can acknowledg satisfaction for so much as he returned and for so much they ordered him to acknowledge satisfaction and that no execution should issue for the rest 1098. A man devised Lands in London to his Son and heirs after the death of his Wife and if his Daughters overlived his Wife Son and his heirs they should have it for his life and after their deaths I. S. should have it paying 6. l. yearly to the Company of Merchant Taylors London to be bestowed in Charitable uses Resolved that the Wife hadan estate but for life by Implication 2 That the Son had Tail by Implication and not Fee-simple for as long as the Daughters lived the Son could not die without heirs collaterall 3. That the estate to I. S. after the death of the Daughters Was a Fee simple by reason of the annual payment of the money And in this case it was said that a Devise to A. and his successors was a Devise in Fee-simple Austin and Monks Case 1099. Scire fac Against the Bail upon the Statute 3. Jac. c. 8. the Defendant pleaded that after the Writ of Error allowed and before any default the principal rendred his Body in Execution adjudged a good barre for notwithstanding the Writ of Error may render his body and so excuse his Bail The Sheriffs of London and Michells Case 1100 Debt for 12. l. for their Fees upon the Statute of 28 Eliz. cap. 4. for doing Execution The Statute is they shall not receive ultra such a sum The Court said that implies that they may take so much as is not prohibited and although the Statue doth not give an Action for it yet because it is a duty an Action is given them by Law Linghill and Broughton Case 1101. Action upon the Case against an Administrator that the intestate was endebted to the Plantiff 100l and the Defendant his Administrator affirmed that if the Plantiff would forbear him per rationabile Temous he would pay him and alledged he forbore him 8. years Verdict for the Plantiff It was said in stay of Judgement the Declaration was not good because not shewed how the Testator was Indebted Resolved that he need not do because the promise of the Administrator is a sufficient acknowledgment of the debt 2. That the forbearance per rationabil Tempus uncertaine and adjudged the forbearance per paululum temporis was not good The Court said they might Judge of the reasonablenesse of the time not of the meaning of paululum temporis and 8. years is a reasonable time of forbearance it was adjudged for the Plantiff Babington and Lamberts Case 1102. Assumpsit In consideration the defendant had received 24l of divers persons for the Plantiffs use he promised to pay it such a day it was said the Declaration was not good because not expressed of what persons he received the money but it was adjudged good because a consideration executed and so not traversable Calimore and Jensons Case 1103. Assumpsit In consideration that the Defendant upon an Insimul Computaverunt the Defendant was found endebted to the Plaintiff judged a good Consideration Philpot and Ballards Case 1104. Resolved in this Case that if a Judgement be given against the Plaintiff and others in an inferior Court as a Hundred Court one of them onely if he be sole Tennant and hath the Damage may have a false judgment and restitution and it was holden that althoughthe Judgement was given upon a customary claim and not upon any matter at Common Law yet false Judgement did lye Eman and Mouldsworths Case 1105. A Prohibition was granted in C. B. because the Plantiff sued for defamation in the spiritual Court because the defendant had reported that he was incontinent It was said although the Plantiff alledged a general pardon yet this being a private Case the pardon did not discharge it Pease and Meades Case 1106. Condition of a Bond was that the Obligator should pay such a summe to such a person at such a place and day as the Obliger should name by his Last Will in Wiâ—ting he names none but makes the Plaintiff his Executor and dyed It was adjudged the Excecutor was not an assignee and so the Obligation by the Omission of the Obliger is discharged Yardly and Elices Case 1107. Woords spoken of an Atturney to his Clyent viz. Your Atturney is a bribing Knave and hath taken 20l. of you for a bribe to cozen me Adjudged the Action did lye for the words Fryer and Gildrings Case 1108. Two men were bound to a third person joyntly and severally the Obligee made the Wife of the Obligor his Excecutrix who Administred then the Husband of the Obligor made her his Executrix and dyed having assets to pay the debts then she dyed and the Plaintiff took Letters of Administration of the goods of the Obligee not Administred and brought debt against the Defendant being the surviving of the Obligor It was adjudged that the Action would not lie for the making of the Wife of one of the Obligors Executrix was a suspension of the Action and a personall Action once suspended by the Act of the party as it is here it shall be extinct for ever Quaere Norton and Syms Case 1109. Debt upon Obligation for performance of Covenants the Defendant being under-Sheriff to the Plaintiff Covenanted That he would not execute any Writ of Execution above 20l. nor any venire fac in severall Causes and also to acquit and save harmeless the Plantiff of all escapes of Prisoners taken in Execution and of all fines and amercements Resolved in this Case when there are in an Indentures Covenants in the Negative for not doing and in the Affimative for doing he is to plead specialy to the
when the Vendee had once cut down the Woods and Underwoods that he could not cut them again if Woods were standing and growing notwithstanding the words in the Grant viz. To Have c. for the life of the said A. Wilson and Wise Case 56. In Trespass for taking of his Cow The Defendant justified that he was seised and held of I. S. as of his Mannor of C. by Fealty rent suit of Court of I. S. And that within the said Mannor the Custom was That the Lord of the Mannor time out of mind c. after the death of every Tenant of any Messuage or Tenements of the said Mannor dying seised used to seise the best Beast of the Tenants found within the Mannor for an Heriot and if the Tenant had no Beast or if it were esloyned out of the Mannor before the Lord seized it Then the Lord had used to seise the best Beast Levant and Couchant upon the Messuage Lands and Tenements It was demurred upon the Custom and it was adjudged that the Custome was void and unreasonable and Judged for the Plaintiff 57. An Infant by his Prochin Amy brought a Scire facias to execute a Plea by Fine limited to his Grandmother The Defendant prayed that the Attainder might demur Resolved it should not But if the Defendant had pleaded the Deed of the Ancestour of the Infant in Barre there the Plea should have stayed 3 Eliz. Austin and Bakers Case 58. Attaint was brought into the Common Pleas upon the Statute of 23 E. 3. cap. 3. against the Executors of I. S. and the Terre Tenants and adjudged it was well brought although the Statute is that the Attaint shall be between the Parties of the first Judgement 59. A Subsidy is granted by Parliament That every one who expends in Land above 20 s. shall pay A man is assessed and before payment he dyes the Lands in the hands of the Heir shall be charged with it because it is a Duty upon Record and the Land chargeable with it 60. Judgement being against two upon an Avowry in Replevin They brought an Attaint depending which one of them dyed It was adjudged that the Writ should abate and it differs from the Case of Nonsuit for the Nonsuit is the Judgement of the Court that the Heir may proceed in Suit but when one is dead it is not so for then no act is done by the Court. 61. Note It was resolved That after a Verdict given it is no Plea for to say that the Jurors did eat and drink mean between the Court and their Verdict given but such Exception ought to be before the Verdict given 62. A Lease for years the Remainder for Life the Reversion in Fee Lessee for years committed Waste he in Remainder for Life dyed It was holden by the Justices That he in the Reversion in Fee should have an Action of Waste for waste done before the death of him in the Remainder because that the mean Remainder was the Cause that he could not have the Action at the first but when that Estate is ended the Action is maintenable because it was to the dis-inheritance of him in the Remainder in Fee 63. Tenant in Dower had power to cut down the Trees growing upon the Land and she covenanted with him in the Reversion that it should be lawfull for him every year to cut down 20. Trees and afterwards she cut down and destroyed all the Trees It was the opinion of the Justices That an Action of Covenant did lye against her and it was agreed by them That if a Covenant be that it shall be lawfull for the Covenantee to take the Trees and sell them or imploy them to his own use That in that Case the Covenantor cannot cut down the Trees because he hath given a propriety in the Trees to the Covenantee Mich 2 Eliz. 64. Trespass The Case was A man made a Lease for years of Lands a Stranger entred upon the Land let and cut down Trees growing and made them Tymber and carryed unto the Land where the Trespass is supposed and then gave the Timber to the Plaintiff and the Defendant entred into the Land and took the Timber It was the opinion of the Justices That in all Cases where a thing is taken wrongfully and altered in form If yet that which remains is the Principal part of the Substance the Notice of it is not lost and therefore if a man takes Trees and makes Boards of them The Owner may retake them quia major pars substantiae remanet and so in the principal Case But if an House had been made of the Timber there it had been otherwise 65. Father and Son made a Feofment in Fee with VVarranty the Father dyed The Feoffee impleaded brought a Warrantia Chartae against the Son unde Chartam Patris sui habet cujus haeres ipse est and in his Count shewed the Deed was made by them both It was the Opinion of the Justices the Count was agreeable to the VVrit and that the VVarranty against the Son was double the one of his Father the other of himself and that each of them warranted the whole so the Action well brought 66. Resolved by the Justices If Lessee for Life makes a Lease for years and afterwards purchaseth the Reversion and dyeth within the Term the Lease for years is determined But if one who hath nothing in the Lands makes a Lease for years and afterwards purchaseth the Lands and dyes if it be by Indenture his Heir is estopped to avoid the Lease 67. Two Copartners are one grants her Part and warrants that the Grantee shall have and hold it in common without partition It is a void Warranty because it is against Law 68. A Lease was made to Husband and VVife for years Provided that if the possession of the Lands came to the hands of any ther than the Husband and VVife and their Issues then upon tender of 100 l. it shall be lawful for the Lessor to reenter the Husband dyed the Wife took an other Husband the Lessor tendred the 1000 l. It was the greater opinion of the Justices That the Condition was not broken because that the second Husband was not possessed by vertue of the Lease but in the right of his Wife But the Court doubted of it It was adjourned 68. A Capias ad satisfaciend was awarded and an Extent and between the date of the Writ and before the Sheriff took the Inquisition the Defendant sold his Goods It was the Opinion of the Justices That the Sheriff might extend the Goods which were sold and it was said That if the Tenant in a Precipe allien after the date of the Writ and before the Retorn yet he continnes Tenant to the Action 69. Note it was holden by the Justices That if an Infant for Monies by Indentures bargain and sells Lands and afterwards levyes a Fine Sur Conusans de droit with Proclamations the Indenture is not void but voidable and
abate upon the Plaintiffs own suing Strowde and Willis Case 521. Debt upon an Obligation The Condition was If the Obligor shall pay the Rent of 37 l. yearly at two Feasts according to the intent of certain Articles of Agreement made between the Obligor and Obligee during the Term that then c. The Defendant pleaded the Articles did contain That the Obligor Dimisit ad forman tradidit to the Defendant omnia talia domus tenementa terras in Parochia de Y. in quibus the Obligee had an Estate for Life by Copy according to the custom of the Mannor Habendum for 21. years if the Obligee should so long live rendring to the Obligee during the Term 37. l. to be paid at the Castle of C. and further pleaded That at the time of the making of the Articles the Obligee had not any Estate in any Lands Houses c. in Y. for term of Life by Copy upon which Plea the Plaintiff demurred There were two points in the case 1. If nothing passed by the Articles and so the Reservation of the Rent is vod 2. If the Obligation for payment of the Rent was void It was Resolved upon the first point That no Rent is reserved for the Lease did never begin and therefore the Rent should not For the second point the Court differed in opinion Fenner Justice held the Condition of the Bond is to pay the Rent according to the Articles which is That if the Lessee have not the Land the Lessor shall not have the Rent Papham cont That the Obligor is bound to pay it although nothing was dimised to him for that by the Bond he hath made it a Sum in gross and it is altered from the nature of a Rent and he is bound to pay the Rent or Sum and if this be either of them he must pay it Qu. There is no Judgment in the Case upon that point Alsop and Claydons Case 522. Assumpsit That the Defendant upon good consideration promised to pay the Plaintiff 5 l. when he should be required The Jury found that the Defendant promised to pay but found no Request wherefore it was adjudged against the Plaintiff Perin and Corbets Case 523. In an Appeal the Defendant was acquitted of the Murder and found guilty of Man-slaughter It was agreed in that case that the Plaintiff could not be Nonsuit Brown and Brinckleys Case 524. The Plaintiff declared that he was produced for a Witness the Defendant said he was disproved before the Justices of Assize by the Oath of K. innuendo that he was disproved in his Oath Adjudged that the Action did not lie for the innuendo cannot supply such intendment Adderby and Bouthbyes Case 525. Assumpsit in consideration the Plaintiff would be Bail for one F. in a Plaint that Adderby had brought in London against F. the Defendant did promise to save the Plaintiff harmless touching the Bail and shewed a Recovery was against F. and 2. Cap. returned non est inventus upon which Process issued against the Bail who paid the money and the Defendant had not saved him harmless It was found upon Non assumpsit the first Action was entred by the name of Adderby and the Bail accordingly and that the Decleration was by the name of Adderley It was adjudged that although the Jury found the Assumpsit yet the special matter proves the Plaintiff had no cause of Action for he was not damnified by reason of the Bail at the Suit of Adderby for which the Assumpsit was but he was wrongfully taken if he was Bail for Adderley against whom the Recovery was had whereas in truth he was not Bail for him wherefore it was judged against the Plaintiff Austin and Twins Case 526. The Patronages of two Churches adjoyning within one mile were belonging to one Parson and both being void and of the value of 7 l. in the Queens Books the Ordinary made an union of them at the request of the Patron which was afterwards confirmed by the Patron and the Queen Qu. If a good union Tusking and Edmonds Case 527. A Lease was made of Tythes rendring Rent at a place out of the Parish with clause to be void upon non payment Adjudged the Lessor is to make his demand of the Rent at the place and for not payment the Lease is void Broughton and Mulshoes Case 528. False Imprisonment The Defendant justified that he was Constable and the Plaintiff being in the presence of a Justice of Peace not having opportunity to examine him commanded he Dedant to take the Plaintiff into his custody till the next day which he did accordingly It was adjudged a good Justification though not alledged what cause the Justice had to imprison the Plaintiff Megs and Griffins Case 529. Words viz. I. S. told me that he heard say That thou didst poyson thy first Husband and that he died of that poyson with an averment that I. S. near told the Defendant so Yet adjudged that neither words nor the averment of them were sufficient to maintain the Action Brokes Case 530. Words spoken of a Merchant viz. He is a false man and I will prove it and be keepeth a false Debt-book for he charged me with a Piece of three Piled Velvet which I never had Adjudged the Action did not lie without saying That by disswasion of Customers or other they did not deal with him nor that they would not trust him The Lord de la Ware and Pawlets Case 531. Words spoken of the Plaintiff in open Sessions viz. You have perverted Justice and to your shame and dishonour I will prove it adjudged the words actionable Weekes and Taylors Case 532. Words viz. he hath laid in wait to rob and was one of them that would have robbed me adjudged actionable though he was not robbed Carters Case 533. Words viz. Carter is a proging pilfring Merchant and hath pilfred away my coâ—n from my Wife and my Servants and this I will stand to adjudged the words are not actionable Bowyer and Jenkins Case 534. Action upon the case for words spoken at B. in the County of S. the Defendant justified that he spake the worda at C. at a Tryal there being produced as a Witnesse by Subpoena and sworn The Plaintiff said de injuria sua propria and found for the Plaintiff and because the venire was from B. whereas it ought to have been from C. where the Justification was It was adjudged Error Penniman and Rawbanks Case 535. Action for slandring his Title That the Plaintiff was seised of Land and put it to sale and the Defendant said I wish not any man to deal with the Land for I know one that hath a good Title to it and the parties will not depart with their interest for any reason The Defendant Justified that he had a Lease in Reversion of it and at will of other part It was replied de injuria sua propria and found for the Plaintiff Resolved by the Justices If
Devisees took their estates respectively by the Will or by the Feoffment if by the Will it was void for a third part and a Tenancy in common If by the Feoffment it was good for the whole 2. point when the use of the Feoffment is expressed to such persons as should be declared by the Will and he deviseth the Land if the same shall be said to be a limitation of the use according to the Authority The case not Resolved because the Justices were divided in their opinions It was adjourned Prat and Phanners Case 652. Debt upon Obligation The condition was Whereas Suits have bin brought prosecuted betwixt the Defendant and A his Wife which controversies are now finally to be ended betwixt them if the Defendant do not from henceforth commence and prosecute any Suit or Action in any Court or Courts Spiritual or Temporal against the said A. his Wife for any matter precedent or cause from the beginning of the World but shall from henceforth during the natural Lives of him the Defendant and A. his Wife account of use and maintaine the said A. as his lawful wife to all intents c. then c. The Defendant pleaded he had not brought any Action in any Court against the said A. after the said Obligation and that before A. was married to him she was married to I. S. who is yet alive for which cause he cannot accept of and maintain the said A. as his lawfull wife according to the Form of the Condition upon which it was demurred It was Resolved that the material part of the Condition did consist in the first part of the Condition if he do not prosecute any Suit and the Defendant having pleaded an Issuable Plea to that it is not material if he plead to the latter part of it or not and if his Justification be insufficient the Plaintiff ought not to have demurred upon it But the Court held his Justification to be good because the Condition as to that part is against the Law of God and so the Obligation void And whereas it was objected that he is estopped to plead the special matter of her former Marriage because in the Condition she is called A. his wife The Court said he was not estopped by it because he may confess and avoid it for she may be his Wife as to some purposes but as to use her as a lawfull wife she is not his wife Lloyd and Wilkingsons Case 653. In Ejectione firme the case was A. Rector of C. by Indenture between him of the one part and E. R. W. and T. of the other part devised the same to E. for 80. years if she should so long live and should not alien the premises and if she should die within the Term or should alien that then her Estate should cease and that then the same should remain to R. pro durant ' residuo praedicti termini praedict ' 80. annorum and if he should alien c. ut supra then his Estate should cease and then the same should remain to W. pro durant ' tot annis praedict termini 80. annorum si c. and if he should alien ut supra then his Estate should cease and then the said A. concessit praemissa durante tot annis praedict ' 80. annorum quod ad tunc continuarent remanerent in expiratis to T. his Executors and Assignes A. died F. died E. and R. died The Administrator of F. entred and assigned over the same In this Case it was Resolved That the Demise to R. and W. were void because that the Estate which E. had was not for 80. years absolutely but sub modo under a condition and then the Demise to them pro tot annis quot remanerent after the death of the said E. pro durante residuo termini praedict ' 80. annorum was void for there could not be a residue of the said Term because that determined by the death of E. 2. Resolved That the Lease and Limitation to F. was void for the uncertainty for it was uncertain at the making of the Lease how many years should be behind at the time of the death of E. 3. Resolved That the Demise and Limitation to T. was not good because that R. and W. survived F. which was against the express Limitation for his Estate was limited upon two Contingents Pigot and Hearns Case 654. In Trover and Conversion the case was this The Lord of the Mannor of B. in the Parish of D. did prescribe that he and his Ancestors and all those whose Estate c. had used from time to time whereof c. to pay to the Parson of D. the now Plaintiff and his Predecessors 6 l. per an for all manner of Tythes growing within the said Parish and that by reason thereof he and all those whose Estates c. Lords of the said Mannors had used time whereof c. to have Decimam garbam decimum cumulum garbarum of all of his Tenements within the said Mannor It was in this case Resolved that it was a good Prescription and that a Modus decimandi by the Lord for himself and all the Tenants of his Mannor from barring the Parson to demand tythes in kind is a good Prescription because it might have a lawful commencement 2. It was Resolved That it was a good Prescription to have Decimam garbam in or Decimum cumulum garbarum or gramorum or the tenth Shock for he hath it as a profit appender and not as Tythes 3. Resolved in this case that if the Queen be Lady of the Mannor she might prescribe to have Tythes for that she is capable of them she being Persona mixta capax Spiritualis Jurisdictionis Holcrofts Case 655. A seised of Lands in Fee levyed a Fine thereof to the use of himself for Life the Remainder to B. his Son for the Term of his Life only so long and untill he attempt to alien and then to the use of C. and the Heirs Males of his Body during the Life of B. and immediately after his death to the use of the first begotten Son of B. then after to be begotten and the Heirs Males of his Body and so successively to his Second Third or Fourth Son to be begotten in lawful Marriage and if it fortune the Fourth Son to die without Heir Male of his Body then to the use of C. and the Heirs Male of his Body with diverse Remainders over in tail the remainders to the right Heirs of A. A. dyed B. having only one Son born after the Indenture and Fine which dyed without Issue Male joyned in a Fine with C. to I. S. and I. D. who rendred the Land to B. for 80. years next following if the said B. so long lived and immediately after his Decease to the first begotten Son of the said B. or which afterwards he should beget and the Heirs Males of his Body and so successively to the Second or Third
for Life the Remainder to his Son T. and L. his wife if they have Issue male and if it shall please God to send them Issue Male then it to be reserved and put out for the benefit of such Sons or one of them and died The wife entred as Legatee and died and after T. and L. had Issue Male. It was Resolved that the Issue Male should have the Term and was not restrained to any Term to be born in the Life of the wife and it is a good Devise to the Issue Male though the Term be not expresly devised to the Issue Male. Curtyes Case 1081. Assault and Battery by husband and wife against the Defendant a Constable and two others The Defendant justified that the wife was presented in the Leet to be a common Scold and he Steward made a Warrant to the Constable to punish her according to Law and the Defendants went to the Plaintiffs house to execute the Warrant and the wife assaulted the Constable wherefore he commanded the other Defendants to lay hands upon her which they molliter did It was holden by the Justices to be a good justification although they neither shew the day when the Leet was holden nor that the Plaintiffs house was within the Jurisdiction of the Leet nor shewed the Warrant of the Stewards for that these were all but Inducements to the Justification Herbert and Binghams Case 1082. Error to reverse a Fine because the Writ of Covenant bare teste after the Dedimus potestatem the Defendant pleaded the Land descended to him within age and prayed his age Iâ— was Resolved by the whole Court he should have his age because he was Terre-tenant otherwise he should not have his age in Error Harvyes Case 1083. In Dower Judgment was given by default Error assigned that the Tenant was within age Adjudged no Error for age is not grantable in savorem dotis 1084. A Justice of Peace recorded a Force but did not Fine or commit the Offenders It was adjudged that in such case the Record of the Force was void and the Offenders upan that Record cannot be afterwards Fined nor Imprisoned Moody and Garnons Case 1085. A man made a Lease for years of Land part Fee-simple and part in Lease for years rendring Rent and if it was behind 40. days it should be lawful to restrain and if there should not be sufficient then to reenter Resolved it was not any condition because restraint is not limited to any thing which should be restrained as in Land or chattel and it shall not be taken to distrain and also because no person is expressed who should reenter Caries and Franklyns Case 1086. A seised in Fee made a Feoffment to I. S. Habendum to him and the Heirs of his body to the use of him his Heirs and Assigns It was adjudged he was Tenant in tail because the use to him his Heirs and Assignes shall be intended such Heirs which he had limited before which are Heirs of his Body Buckham and Dendriges Case 1087. Debt upon Obligation The Defendant pleaded to the Jurisdiction that he was a Tinner and pleaded the Grant of King Edward the First that the Tinners of Cornwall should be sued for contracts rising within the Liberty of the Stanneries and not elsewhere and the contract upon which the Debt was brought did arise within the Liberties c. It was Resolved a good Plea but then he must show the Patent or Charter Barrey and Perins Case 1088. Debt upon Obligation The condition was if the Obligor stands to the Arbitrament of four men so as the same be made by four or three of them c. then the Obligation to be void the Arbitrament was made by three It was Resolved the Arbitrament was good for upon consideration of all parts of the Submission the intent appears that four or three might make the Arbitrament and Arbitraments shall be taken by Equity so as all parts may stand Mary Powel and Hermans Case 1089. A sentence was in the Ecclesiastical Court that upon a Contract the Defendant should Marry the Plantiff he did not do it for which cause he was Excommunicated The Defendant Appealed to the Delegaties which was remised to the first Court who sentenced him againe and there also he was excommunicated for not performance of the Sentence He Appealed to the Audience and then had absolution He was taken by a Capias Excom upon the first excommunication upon an Habeas Corpus It was Resolved that the absolution for the Latter had not purged the first Excommunication quia Ecclesia decepta fuit 2. That the Appeal did not suspend the Excommunication although it might suspend the Sentence Don Diego Serviente de Acune and Giffords Case 1090. The Plantiff Embassador for his Master the King of Spaine recovered in an Action upon the Case the Defendant brought Error and removed the Record and then upon the second Scire fac the Bail brought in the body of the Defendant Resolved 1. That the removing of the Record did not so stop the Court that they could not accept of the body of the Defendant in Execution 2. Resolved that the body might be accepted only upon the first Scire fac and not upon the second Roe and Ledshams Case 1091. In False imprisonment in the Stannary Court The Defendant said the imprisonment was at Totnes out of the Jurisdiction Issue being upon it the Viâ—ne was from Totnes and not de Corpore Comitatus and adjudged good upon Error brought Moyslyn and Pierces Case 1092. The Plantiff recovered 200l dammage against the Defendant in B. R. in Assault and Battery and had the body of the Defendant in Execution The Defendant brough Audita Querela in Chancery that the principal had paid the money and thereupon had upon Sureties found a supersedeas to the Sheriff commanding him to discharge the Plantiff out of Execution but the Sheriff did not obey it He brought Habeas Corpus in B. R. and had another Audita Querela and prayed he might be bayled but ' the court would not grant it without Affidavit of payment of the money Coke Chief Justice said upon a Judgement in another Court Audita Querela did not lie in Chancery Eliz. Wilmots Case 1093. She brought Trespasse by the name of a Widdow the Defendant said she was a Feme Covert viz. the Wife of I. Wilmot who was living at Lisborn in Pertugall The Plea was disallowed by the Court for impossibility of Tryall Simonds Case 1094. Trespase for Batterie and entring his Close in B. The defendant justified the entry because it was a Copyhold within the Mannor of W. in W. and to the Battery pleaded Not guilty upon which the Issue was joyned The visne was de B. de Manerie de W. in W. It was Objected it ought to have been of B. only where the Batterie was also de Manerio de W. in W. is double and uncertain But the Court held the visne good because the Custom might