of Debt amounting to the sum of 80 l. Solubiles eidem querenti to be received by the Defendant at Roan in Normandy to his own use the Defendant promised to pay to the Plaintiff 60 l. and upon this matter Iudgment was given and now a Writ of Error was brought and assigned for Error because it is not shewed in the Declaration that the Bills were sealed or that they were made to the Plaintiff and here is not any consideration for the Defendant hath not any remedy to compel the Parties to pay the said debts if they refuse Godfrey If the mony be not paid at Roan to the Defendant he shall have an Action upon the Case for this is an Assumpsit in Law which Wray concessit for it is a mutual promise and agreement And it was argued to the contrary that here is not any sufficient consideration for it doth not appear that the Defendant hath any remedy for to recover the mony And 13 Eliz. it was holden that where the Plaintiff declared in an Action upon the Case that in consideration that he had delivered a Bill of Debt to the Defendant and hath made a Letter of Attorney upon it c. the Defendant promised to pay to the Plaintiff 20 l. and because that the Plaintiff notwithstanding that might release the debt or revoke the Letter of Attorney and so defeat the Defendant of the whole profit c. that the Action upon the matter did not lye Also for another cause the consideration is not sufficient for it is illegal because maintenance but if it was upon the consideration precedent it had been good enough As if J be indebted to A. and B. is indebted to me J. may assign to A. the debt which B. oweth me Golding Although the consideration be but of small value yet it is good enough And if A. in consideration B will assure to him the Manor of D. promise to pay to B. 100 l. although the Party hath not any interest or title to it yet it is good and also though the consideration be Executory yet it is valuable for if the mony be not paid at Roan the Defendant shall have an Action upon the Case against the Plaintiff It was also objected that upon the Declaration it doth not appear that the Defend if the two Bills be not paid may have an Action upon the Case against the Plaintiff for there is not any express Assumpsit on the Plaintiffs part that the monies due by the Bills to the Plaintiff shall be paid to the Defendant for if it had been so then it had been good for then there had been a reciprocal promise which is not here nor can be collected by any words in the Declaration Cook It doth not appear upon the Declaration by whom nor to whom the mony due by the two Bills shall be paid for it may be that they are due to the Defendant and then the delivery of the two Bills is not any consideration Quod Clench Gawdy concesserunt The Case was adjourned CCIV. Temps Roign Eliz. THe Case was A. enfeoffed B upon Condition that if he pay ten pound to the Feoffee his Executors and Assigns within three years next ensuing that then c. The Feoffee hath Issue three Sons whom he makes his Executors and dyeth before the day of payment The Ordinary commits Letters of Administration to J. S. during the minority of the Executors It was the Opinion of Dyer that it was the surest way for A. to pay the monies to the Executors no withstanding the administration committed to another for the Administrator in such Case is but a Bailiff or Receiver to the Executors and shall be accountable to them which Harper concessit And Manwood said That if in that Case the monies be paid to one of the Executors it is sufficient and the monies to be paid upon that conditional Feoffment are as a sum in gross and not in the nature of a Debt quod caeteri Justiciarii concesserunt CCV Temps Roign Eliz. A Lease is made of certain Lands for years Proviso that the Lessee shall not put his Cattel upon the Land from Michaelmass to St. Andrews Tide the Question was If this Proviso and Restraint shall reach for the whole Term or but to the first year Dyer Conditions are stricti juris and ought not to have liberal constructions therefore he conceived that the condition should be restrained to the first year and should not further extend Manwood If I be bound that I will not go to London between Easter and Michaelmas it shall not extend only to the first year after the date of the Obligation but for my whole life Hil. 32 Eliz. In the Common Pleas. CCVI. Doughty and Prideaux Case ACtion upon the Case by Doughty against Prideaux upon these words Thou art a wicked and perjured Fellow 3 Leon. 269. and art forsworn in the Court of Star-Chamber as it appeareth by an Exemplification here under the Seal of that Court The Defendant justified by reason of a Bill exhibited in the said Court by one Brooks against the now Plaintiff for conspiring with another to endite the said Brook of certain Felonies and the Defendant now Plaintiff in his answer to his said Bill denied upon Oath the said Conspiracy and Sentence was given in the said Court against the now Plaintiff ubi revera such Conspiracy was The Plaintiff by Replication said That the said Brook was arraigned and endicted upon the said Indictment and prayed his Clergy whereupon it appeared that the said Brook was not legitimo modo acquiet ' and the same can be no Conspiracy in the now Plaintiff to prove the said Brook to be indicted And by Walmesley and Periam the Replication is not good for it may be that Brook was acquitted and yet that the Plaintiff conspired upon which a Writ of Conspiracy perhaps will not lye but an Action upon the Case without doubt for the Replication doth not prove that the Plaintiff did not conspire but that the Plaintiff was not punishable for such Conspiracy CCVII. Pasc 33 Eliz. In the Common Pleas. AN Abbot made a Lease to three men for eighty years and in the end of the said Lease there was a clause Proviso That if they dyed within the said Term that then the Lessor might enter The Possessions of the Abby came to the King who granted the Reversion to J. S. who made a new Lease to J. D. for twenty and one years to begin after the Expiration Determination or Surrender of the former Lease The three Lessees dyed within the term If J. D. might enter before J. S. had entred was the Question It was the Opinion of the Iustices that he could not for it is in the Election of J. S. if he will take advantage of the Condition and defeat the Lease but that ought to be by Entry and none can make such Entry but the Lessor himself or by his express direction Trin. 31 Eliz. In
existen ' ut praefatur ad Warrantiam obligetur aut obligari debeat aut si idem Gilbertus aliquid pro nobis habeat aut dicere scivit quare Breve nostrum de Procedendo praefatae Eliz. in ea parte minime concederetur Qui quidem Gilbertus adtunc ibidem dixit quod praefat ' Tho. Norden non informavit praedict Gilbertum de aliquo per quod praedict Tristriamus in custodia nostra existen ' ullo modo obligetur ad warrantizand ' eidem nihil dixit aut dicere scivit potuit quia praedict Breve de Procedendo eidem Eliz. in ea parte concederetur Nos inde nolentes eidem Eliz. justiciam ulterius differre in hac parte Vobis Mandamus quod si coram vobis in placito praedict taliter sit processum allegat ' tunc in placito illo in redditione Judicii in eodem placito cum ea celeritate quam de jure secundum Legem Consuetudinem hujus Regni nostri Anglioe poteritis procedatis partibus praedict plenam celerem c. dicta allegatione non obstante Teste me ipsa c. Et super hoc eadem Eliz. petit Judicium Seisinam suam versus praedict Thomam Norden de tertia parte Tenementorum praedict cum pertinentiis Super quo visis c. Consideratum est c. Quod praedict Elizabetha recuperet seisinam suam versus praefatum Thomam Norden de tertia parte Tenementor ' praedictor ' Et quod idem Thomas expectet si praedict ' Tristriamus Tenementa praedict unde c. ei warrantizari debeat pro recompensatione valentiae tertiae partis praedict ' versus eundem Tristriamum ratione Warrant ' illius habend ' durant ' minore aetate sua Et donec manus dict' Dominae Reginae à possessione terrae ipsius Tristriami amoveantur Virtute Brevis istius mihi direct ' ultimo die c. habere feci infranominat ' Eliz. plenariam seisinam de tertia parte Messuagii viz. de una Aula parcell ' Messuagij praedict ac de una Camera sive Conclave in Messuagio praedict existent ' necnon de uno Solario ac de una parcell ' ambulatorij vocat ' a Gallery alia parcell ' dict' Messuagii necnon de tertia parte unius Molendini viz. de integro Molendino praedict ' per quemlibet tertium mensem quolibet anno durante vita c. occupand ' gaudend ' c. CCCXXIV Hil. 25 Eliz. In the Kings Bench. Traverse IN an Action upon the Case the Plaintiff declared upon certain Corn which came to the hands of the Defendant and that he converted it and supposed the coming to be to his hands in London The Defendant said That he was seized of certain Lands in R. in Berks and that the Plaintiff did thereof him disseise and sowed the Lands and before severance he himself re-entred and took away the Corn as was lawful for him to do absque hoc that any Corn came to his hands in London and by the Opinion of the whole Court the Traverse was holden to be good Hil. 25 Eliz. In the Common Pleas. CCCXXV Wingate and Sands Case EJectione firmae by Wingate against Sands It was moved upon Evidence That a Fine was levied and in one Term three Proclamations were made and before that the fourth Proclamation was made the Term was adjourned so as the fourth Proclamation could not be made the said Term It was agreed by the whole Court That by that adjournment the fourth Proclamation was not executed but should be supplyed the next Term in which the fifth Proclamation was to be made Trin. 29 Eliz. In the Star-Chamber CCCXXVI The Lord Cromwell and Townsends Case HEn Lord Cromwell Exhibited a Bill in the Star-Chamber against Roger Townsend Esq for that the said Townsend in an Action between James Tavernor Plaintiff and Ja. Cromwell Firmor of the said Lord Cromwell Defendant in Trespass in the favour or unlawful maintenance of the said Tavernor did procure a partial Iury to be retorned And upon the hearing of the Cause the matter given in Evidence was That the said Tavernor was a Copyholder of the said Lord Cromwell and that the said Lord pretending that the said Tavernor had forfeited Copyhold caused the said Ja. Cromwell to make an Entry in the right of the said Lord upon the said Tavernor upon which Entry Tavernor brought an Action of Trespass against the said Ja. Cromwell in which Action the parties were at Issue upon the Forfeiture and before any Venire Facias issued Tavernor hearing that one Steward who was Bayliff of the Liberty under the Earl of Arundel and who ought to have made the Pannel c. was purposed to have made the said Pannel not duly viz to have retorned in the same great Gentlemen of the Country who were Lords of Manors in favour of the said Lord Cromwell That he went to the said Roger Townsend who was then one of the principal Servants and Agents of the said Earl and shewed unto him That if those great Persons and Lords of Manors be returned for the trial of the said Issue peradventure they would not so easily appear for the Expedition of the said Parties as Gentlemen of an Vnder-Condition and also many of them being Lords of Manors and having customary Tenants and therefore not indifferent to try that Issue and prayed his Order to the said Steward for the making of an indifferent Pannel Vpon which said Conference with the said Steward for the making of an indifferent Pannel and shewing unto him that in doing and making of the same there was not convenient nor any equal course to retorn Knights Esquires or Lords but rather such sufficient Persons for the greater Expedition of Iustice and Indifference of Tryal And afterwards the said Tavernor exhibited a Petition shewing all the special matter and prayed him to give order for the making of an indifferent Pannel for the trial of that Cause which Petition was delivered to the Earl by the said Townsend in the name of the said Tavernor upon which the said Earl referred the said Matter and the ordering of the same to three of his chiefest Agents and Counsellors viz. Dicksey Townsend and Chrell and delivered to them the Book of the Freeholdry within the said Liberty who according to their Commission made a Pannel which was retorned and the Iury passed with the said James Cromwell in the right of the said Lord And if that intermedling of Townsend with the Matter ut supra c. especially his conference with the Bayliff be maintenance or not was the Question And by Anderson and Wray it was said for Law That because the said Townsend was in a manner a Servant to the said Earl who had the retorn of the Writs and one of his principal Counsellors and Agents and hearing ex insinuatione of the said Tavernor the misdemeanour of the
the Office. Vide Stanford Prerogat 54 55. and Vide 20 E. 4. 11. A. seized of a Mannor with an Advowson appendant is attainted of Treason the Church void the King without any Office shall have the presentment But admitting that it is not in the King without Office yet the Pardon of 23 Eliz. doth not extend to it For the words of the Pardon are Treasons Felonies Offences Contempts Trespasses Entries Wrongs Deceits Misdemeanors Forfeitures Penalties and Sums of Moneys and if by any of these words the matter be helped is to be considered and if any thing shall help it it is the word Forfeiture But I conceive that the same doth not extend to this matter for although it be an ample word yet it shall be construed to extend beyond the words accompanied with it which concern only personal things as Contempts Wrongs Trespasses as the Statute of 13 Eliz. cap. 10. which is penned by general words as Colledges Deans and Chapters Parsons Vicars and others having Spiritual Promotions that Statute doth not extend by construction to Bishops and they have Spiritual Promotion yet the Statute shall be construed to extend to the Parties named and other Inferiour Orders and Degrees and shall not be extended higher So in the Commission of the Peace ad diversas Felonias alia Malafacta c. those general words do not extend to Treason c. Vide for the Residue of this Case Venable and Harris's Case which was the same Case and is Reported in Leonard 2 Part fol. 122. Placito 169. Pasc 33 Eliz. In the Common Pleas. CCXXIX Downhall and Catesoy's Case IN a Formedon by Downhall against Catesby 3 Leon. 267. the Parties were at Issue and it was tryed by Nisi prius It was moved in Bank because that some of the Iury did eat and drink before they gave their Verdict that the Court would not receive the Postea Curia that we cannot do for we not know whether your Information be true or not and this matter ought to be examined by the Iustices of Assize or Nisi prius before whom the Trial was and they are to certifie thereof and then we shall have good cause to stay the Entry of the Postea In that Case it was said If any of the Iurors eat and drink before their Verdict at their own Costs it doth not make the Verdict void but if at the Costs of the Plaintiff or Defendant it is otherwise CCXXX Hil. 29 Eliz. In the Common Pleas. THe Sheriff took an Obligation of a Prisoner bailable upon condition that he should personally appear in the Kings Bench c. It was holden a good Condition not against the Statute of 23 H. 6. So if the Condition had been that he should appear for to answer contrary that he shall appear and answer for in the principal Case the word personally is not of substance for although he appears by Attorney yet the Condition is well performed and Iudgment was given for the Plaintiff Anderson reclamante Vide 27 Eliz. B. R. Sedford and Cutts Case 32 Eliz. In the Common Pleas. CCXXXI Haselwoods Case THe Case of Haselwood A seized of Land is indebted to the King by Obligation and enfeoffed B. of his Land And the Case of Fleetwood 15 Eliz. was vouched where it was holden That in purchase the debtor of the King was lyable But by Pigot who was of Counsel with Haselwood the Obligation in this Case was made before the Statute of 33 H. 8. or otherwise he should be charged 32 Eliz. CCXXXII Sir William Pelhams Case SIr William Pelham was Surveyor of the Ordinances and delivered of the Kings money to Painter Clerk of the Ordnance It was holden That for that money the Queen might have Account against Painter See this Case before Sect. 81. Trin. 29 Eliz. In the Common Pleas. CCXIV. Ognell and Vnderhills Case IN Replevin the Case was as appeared upon the pleading That Rob. Bouchier was seized of a certain Farm called Cruchefield Grange and leased the same to Sir William Raynsford for thirty years who dyed thereof possessed by reason of which the Interest thereof came to Raynsford as Executor of the said Sir William Raynsford who assigned the said Farm except a parcel of it called Hobbes to Sir Henry Bear for parcel of the term and afterwards assigned the said parcel called Hobbes for part of the term to Frekington and others and afterwards granted the residue of the said term not expired to the said Bear and Frekington and afterwards the said Rob. Bouchier granted a Rent-charge of 40 l. per annum percipiendum de omnibus terris renementis quibuscunque vocat the Grange of Cruchefield in the Parish of Stoneleigh in the County of Warwick nuper in tenura occupatione William Raynsford milit nunc in tenura occupatione Hen. Bear. Bouchier granted the reversion of Hobbes to Lewknor in Fee to whom Scarre releaseth all his right estate and demand in the said Land called Hobbes the Lease expired the rent behind Lewknor leased at will to R. the first Question was If the said Rent-charge shall be said issuing out of the said Lands called Hobbes for if c. then by that Release the rent is gone But the whole Court was clear of Opinion That the rent was not issuing out of Hobbes but out of the Lands then in the possession of Bear and not out of the Lands in the possession of Frekington Although it was objected by Walmesley Serjeant That the words in the Grant of the rent in tenura occupatione Bear shall be construed in the disjuncive quasi sive and then the Close called Hobbes although it was not in the Occupation yet it was in tenura of Bear. The Matter was at another day argued by Fenner Serjeant for the Plaintiff and he much relyed upon the word quibuscunque in the Grant of the Rent de omnibus terris quibuscunque commonly called Cruchefield Grange As if I grant to you all my Trees my Apple-trees shall not pass but if the Grant was omnes arbores meas quascunque they pass and that by the Emphasis of this word Quibuscunque So if I grant you Common for your Cattel in such a place none shall have Common but those which are Commonable shall have Common there contrary where the Grant is pro averiis quibuscunque And it was adjudged in the Chancery in the Case of the Bishop of Ely That where the said Bishop leased all the Demeasns of a Manor for years that by the said Lease the Park within the said Manor should not pass But perhaps if such a Lease had been Omnes singulas terras dominicales quascunque the Park would have passed And afterwards the Counsel of the Plaintiff seeing that the Court was of Opinion with the Defendant took Exception to the pleading The Defendant made Conusans ut Ballivus Administratoris of the Grantee of the Rent and doth not shew the Letters of Administration And as to
But all the Court held the contrary and that the Copy should bind the Feoffee and the ceremony of admittance was not necessary For otherwise every Copyholder in England might be defeated by the sole act of the Lord viz. his Feoffment But the Lord by his own act which shall be accounted his folly hath lost his advantages viz. Fines Heriots and such other Casualties Mich. 29 Eliz. In the Common Pleas. CCCLXV Boxe and Mounslowes Case THomas Boxe brought an Action upon the Case against John Mounslowe That the Defendant slandred him in saying That the said Thomas Boxe is a perjured Knave and that he would prove the said Thomas Boxe had forsworn himself in the Exchequer c. and supposed the said words to be spoken in London 4 Feb. 28 Eliz. Et praedict ' Johannes Mounslowe per Johannem Lutrich Attornatum suum venit defendit vim injuriam quando c. Et dicit quod praedict ' Tho. Boxe actionem suam versus eum habere non debet quia dicit quod praedict ' Thomas Boxe being one of the Collectors of the Subsidies before the speaking of the said words viz. 27 28 Eliz. in Curia Scaccarij apud Westm ' did Exhibt a Bill against the said John Mounslowe containing That the said John being assessed in ten pounds in Goods the said Thomas Boxe came to him and demanded of him sixteen shillings eight pence which the said John Mounslowe did refuse to pay and that demand and refusal was supposed to be in London in Breadstreet Et pro verificatione praemisiorum adâ—unc ibid ' Sacramentum Corporale per Barones praefat ' Thomae Boxe praestitit The said Thomax Boxe swore the said Bill in substance was true ubi revera the said John Mounflowe did not refuse per quod the said John Mounslowe postea viz. praedict tempore quo c. dixit de praefat ' Thoma Boxe praedict verba c. pâ—out ei bene Leuit The Plaintiff replyed that the Defendant spake the words de injuria sua propria absque causa per praefat Johannem Mounslowe superius allegata Et hoc petit quod inquiratur per Curiam praedict defendens similiter And a Venâ—re Facias was awarded to the Sheriffs of London and it was found for the Plaintiff and damages 400 l. And now it was moved in Arrest of Iudgment that there was no good Trial nor the Issue well joyned for the Issue doth consist upon 2 points triable in several Counties viz the Oath which was in the Exchequer and that ough to have been tryed in Middlesex and the matter which he affirmed by the Oath viz the demand and the refusal to pay the subsidy and that was alledged to be in London and is there to be tryed and the Issue viz. de 〈…〉 propria goeth to both for the ubi revera will not amend the Case as Penam Iustice said and both are material For the Defendant ought to prove that the Plaintiff made such Oath and also that the substance and matter of the Oath was not true for otherwise the Plaintiff cannot be proved perjured And therefore the Counties here if they might should have joyned in the Tryal And the Opinion of the Court was against the Plaintiff For Anderson and Wincham said That if this Issue could have been tryed by any one of the Counties without the other it should most properly and naturally have been tried in Middlesex where the Oath was made for the Perjury if any were was in the Exchequer But they said The Issue here was ill joyned because it did arise upon two points triable in several Counties which could not joyn whereas the Plaintiff might have taken Issue upon one of them well enough for each of them did go to the whole and if any of them were found for the Plaintiff that he had sufficient cause to recover Gawdy moved that it should be helped by the Statute of Ieofails which speaks of mis-joyning of Issues Anderson The Issue here is not mis-joyned For if the Counties could joyn the Issue were good but because that the Counties cannot joyn it cannot be well tryed But the Issue it self is well enough Windham and Rhodes were of the same Opinion but Periam doubted it Anderson said That if an Issue tryable in one Court be tryed in another and Iudgment given upon it it is Error And afterwards Lutrich the Attorney said That it was awarded that they should re-plead Nota quod mirum For first the Statute of 32 H. 8. cap. 30. speaks of mis-joyning of Process and not mis-joyning of Issues and admit that this Case is not within any of those Clauses each of them being considered by it self yet I conceive it is contained within the substance and effect of them being considered together Also I conceive it is within the meaning of both Statutes viz. 32 H. 8. cap. 30. 18 Eliz. cap. 14. for I conceive the meaning of both Statutes was to waste delays circuits of Actions and Molestations and that the party might have his Iudgment notwithstanding any defect if it were so that notwithstanding that defect sufficient title and cause did appear to the Court. And here the Plaintiff hath sufficient cause to recover if any of the points of the Issue be found for him For if it be found that the matter and substance of the Oath be found true which might be tryed well enough by those in London the Plaintiff had cause to recover Wherefore I conceive that the Verdict in London is good enough and effectual And note that Rhodes said that he was of Counsel in such a case in the Kings Bench betwixt Nevil and Dent. CCCLXVI Mich. 19 Eliz. In the Common Pleas. 3 Leon. 103. THe Case was A. granted B. a Rent-charge out of his Lands to commence when J. S. dyes without Issue of his Body J. S. dyes having Issue and the Issue dyeth without Issue Dyer said That the Grant shall not take effect for J. S. at the time of his death had Issue and therefore the Grant shall not then commence and if he dyeth then not at all by Manwood And Dyer and Manwood said If the words had been to begin when J. S. is dead without Issue of his Body then such a Grant should take effect when the Issue of J.S. dyes without Issue c. And they said That if the Donee in tail hath Issue which dyeth without Issue the Formedon in Reverter shall suppose that the Donee himself dyed with Issue for there is an Interest And there is a difference betwixt an Interest and a Limitation For if I give Lands to A and B. for the term of their lives if either of them dyeth the Survivor shall hold the whole But if I give Lands to A. for the lives of B. and C. now if B. or C. dyeth the whole Estate is determined because it is but a Limitation and B. and C. have not any Interest CCCLXVII Temps Roign
Common Pleas. LII Frice and Fosters Case IN Ejectione firmae the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before for three years and upon the Evidence the Plaintiff shewed a Lease bearing date the 13 day of January the same year and it was found by Witnesses that the Lease was sealed and delivered upon the Land the 13 day of January Variance Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant that for that variance between the Declaration and the Evidence of the Plaintiff that the Iury might be discharged Evidence good to maintain Issue But Anderson Chief Iustice said that the Evidence was good enough to maintain the Declaration for if the Lease was sealed and delivered the 13 of January it was then a Lease 14 January Quod caeteri Justiciarii concesserunt LIII Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield The Case was that A. seised of an Advowson in Fee Quare Impedit by Executors the Church voided the Bishop collated wrongfully A. dyed Collation it was holden that his Executors might have a Quare Impedit upon that disturbance and that by the equity of the Statute which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case THe Case was that the Husband seised of Land in the right of his Wife made a Lease of it for years Fine by the Husband where avoids a Lease ê contra 1 Roll. tit Charge in Marg. 389. Plow Quaer 31. 261. ib. plus and afterwards he and his Wife conveyed the Land to a stranger by Fine the Husband died Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease Gawdy contrary In case of a Rent granted or a Recognizance acknowledged by the Husband the Conusee of the Fine shall avoid any of them But in this Case the Conusee meddles with the Land it self and an Estate in the Land is conveyed by the Husband which none but the Wife or her Heirs shall avoid and if the Wife after the death of her Husband accept the Rent upon such a Lease by that the Lease is confirmed Mich. 33 Eliz. In the Kings Bench LV. Blaby and Estwicks Case IN Assumpsit It was moved in stay of Iudgment Assumpsit that one of the Defendants was dead after verdict but notwithstanding that Allegation Iudgment was given Attornment for the Court cannot take Notice of it judicially nor any of the Parties hath day in Court to plead it and therefore the Court is not to have regard to such Informations Wray It is not honourable for us upon such surmises which cannot be tryed to delay Iudgment and also the Party is not without remedy for he may have a Writ of Error 33 Eliz. In the Kings Bench. LVI Hore and Briddleworths Case HOre brought Trespass against Briddlesworth Quare clausum Domum suam fregit the Defendant pleaded and put the Plaintiff to a new Assignment i. e. a House called a Stable a Barn and another House called a Carthouse and Garnier And that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy said it was good enough for Domus in the Declaration contains all things contained in the new Assignment but if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Chief Iustice Domus est nomen collectivum and contains many Buildings as Barns Stables c. And such was the Opinion of the Court. Mich 33 Eliz. In the Kings Bench. LVII Mans Case Prohibition MAn was sued before the Commissioners in Ecclesiastical Causes for an Incestuous Marriage viz. for marrying his Wives Sisters Daughter and although it be not expresly within the Levitical degrees yet because more farther degrees are prohibited the Archbishop of Canterbury and other the Commissioners gave Sentence against him Consultation upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special that it be not within the Levitical degrees and therefore a Consultation was granted Trin. 26 Eliz. In the Kings Bench. LVIII Doylies Case Appeals IN an Appeal de Roberie against Doyly It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed and shall not be bound to bring it within a year and a day as in the Case of an Appeal of Murder Vide contr 22 Ass 97. vide Stamford 62. Trin. 26 Eliz. In the Kings Bench. LIX Ruishbrook and Pusanies Case THe Plaintiff brought Trespass for pulling down his Hurdles in his Close The Defendant justified by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield and all those whose Estate he had in the said Mannor had had a free course for their sheep in the place where c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor and that the said Beddingfield let to the Defendant the said Mannor and because the Plaintiff erected Hurdles without leave c. in the said Close he cast them down as it was lawful for him to do The Plaintiff replyed of his own wrong without cause c. It was holden by the Iustices to be an ill Plea Traverse for the Plaintiff ought to have traversed the Prescription 19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case PAr Marquess of Northampton took to Wife the Lady Bourchier Heir of the Earl of Essex Leases by a Baron contrary to Act of Parliament void 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit c. with a Grant and Render to them for Life the remainder to the right Heirs of the body of the said Lady And afterwards by Act of Parliament â—5 H. 8. It was enacted That the said Lady should retain part of her Inheritance and dispose thereof as a Feme sole and that the said Marquess should have the residue and that he might lease the same by himself without the Wife for 21 years or lesser term yielding the ancient Rent being Land which had been usually demised c. The Marquess leased the same for 21 years and afterwards durante termino praedict he let the same Land to another for 21 years to begin after the determination of the former Lease It was moved that the last Lease was void for three Causes 1. Because the Marquess had but for Life and then it cannot be intended that the Statute would enable
that Reversion shall descend to all the daughters notwithstanding the half blood for the Estate for years which is made by Indenture by license of the Lord is a demise and a Lease according to the order of the Common Law and according to the nature of the demise the Possession shall be adjudged which possession cannot be said possession of the Copyholder for his possession is customary and the other is meer contrary therefore the possession of the one shall not be the possession of the other therefore there shall be no Possessio Fratris in this case Possesso Fratris But if one had been the Guardian by custom or the Lease had been made by Surrender there the Sister of the half blood should not inherit And Mead said the Case of the Guardian had been adjudged Mounson agreed And it was said that if a Copyhold doth descend to the Son he is not a Copyholder before admittance but he may take the profits and punish a Trespass before admittance CIV Pasc 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years and covenanted that the Lessee shall have and enjoy it during the said term without expulsion or any thing done or to be done by the Lessor and is also bound in an Obligation to the Lessee to perform the said Covenant Forfeiture Quaere Afterwards for not reading of the Articles he was deprived ipso facto by the Statute of 13 Eliz. The Patron presented another who being inducted ousted the Lessee wherefore an Action was brought upon the Obligation It was the Opinion of all the Iustices That this matter is not any cause of Action for the Lessee was not ousted by any Act done by the Lessor but rather for Non feasans and so out of the compass of the Covenant aforesaid as if a man be bound that he shall not do any waste permissive waste is not within the danger of it Pasc 26 Eliz. In the Common Pleas. CV King and Cottons Case IN Ejectione firmae the Case was Lessee for years the Remainder for life the Remainder in Tail to Lessee for years Lessee for years made a Feoffment in Fee with warranty and dyed he in the Remainder for life dyed the Issue in Tail entred and made a Lease to the Plaintiff It was clearly resolved by the Court in this Case Entre Congeable That the entry of the Issue in Tail was lawful notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty scil to the Estate for life Vide 50 E. 3. 12 13 46 E. 3. 6. Fitz. Garr 28. Pasc 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case BArtholomew Scot brought a Writ of Accompt against Thomas Scot Accompt Thomas Scot sum ' fuit ad respondend Barth Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum c. And declared quod cum the said Thomas Scot fuit receptor denariorum c. recepisset so much by the hands of such a one c. Cumque idem Thomas habuisset recepiâ—â—et diversa bona and shewed what ad merchandizand c. Exception was taken to the Declaration because the Writ and Declaration is general against the Defendant as Receiver whereas for such goods as the Defendant had received ad merchandizand he ought to have been charged as Bayliff Quod Curia concessit Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges whereupon several Issues were joyned and both found for the Plaintiff And as to the monies with the Receipt of which he was charged as Receiver the Plaintiff had Iudgment and as to the others Abatement of Writ which he received ad Merchandizandum the Writ abated And it was said by the Court That the Writ should have abated in the whole unless the several Issues had helped the matter because the Plaintiff might have had an Action for part in other manner Vide 9 H. 7. 4. by Brian 17 Eliz. In the Star-Chamber CVII Morgan and Coxes Case MOrgan exhibited a Bill of Perjury in the Star-Chamber against one Cox setting forth that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench and he in discharge of the said Recognizance had obtained a Writ De Fama gestu to enquire of his Conversation and therefore at the Sessions in the County of Devon where the said Morgan was dwelling the grand Iury charged with the said Matter the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance and upon the Evidence given by Cox the said Bill was conceived It was moved by the Counsel of the Defendant That that Bill upon the matter did not lye for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance and that to the grand Iury which was charged for the Queen But as to that it was said by the Lord Chancellor and both the Chief Iustices that the Writ De fama gestu Brief de Fama gestu is an especial Writ at the Suit of the Party and not of the Queen and the Court cannot deny it to him who asketh it and the grand Iury as to that matter shall be accounted a special Iury c. Mich. 16 Eliz In the Common Pleas. CVIII Jackson and Darcys Case Tail barred by a Fine 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy the Case was Tenant in Tail the Remainder to the King levied a Fine had Issue and dyed it was adjudged that the Issue was barred and yet the Remainder to the Queen was not discontinued for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail passed to the Conusee Trin. 17 Eliz. In the Common Pleas. CIX Stroads Case Tenures IN a Replevin the Case was Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries The King granted the Lands over unto another it was holden in this Case that the Patentee should hold of the King according to his Patent and not of the ancient Lord but the Patentee should pay the rent by which the said Land was before holden as a Rent-seck distrainable of Common right to the Lord and his Heirs of whom the Land was before holden CX Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life and after her decease Estate she to give the same to whom she will He had Issue two daughters and died Devises Leon. 121â— the wife granted the Reversion to a Stranger and committed waste and the two daughters brought an Action of waste In this Case it was holden that by that Devise the wife had but an Estate for life but she had also an authority
taken to it because in the Margent was written Middlesex and in the Indictment they both were named of London and afterwards in the proceedings the words are That Weshbourn and Brown entred in such manner in Com. praedict and that is incertain what County is intended Middlesex or London but the Exception was not allowed for London before is not expressed to be accounted but only implyed Another Exception was because they had not any addition but it was not allowed for it appeared to the Court. And after it was moved upon the Statute of 31 Eliz. cap. 11 that no Restitution upon such Indictment should be granted if â—he party indeed had had the Occupation or had been in quiet possession for three years next before the day of the Indictment and in the Case at Bar the Master hath been in possession by three years but the Parties indicted being his Servants had been with him but for one year it was thereby holden by the Court that upon the matter Restitution should not be granted for the possession of the Master in this Case takes away all Restitution and that by the Statute Mich. 32 Eliz. In the Common Pleas. CXXIX Canons and Osborns Case A. Seized of a Rent in Fee granted the same by Fine to B. to the use of C. It was moved to whom the Ter-tenant should attorn And by Walmesly Periam and Windham there needs not any Attornment to the Conusee because all the right of the Rent is out of the Conusor Attornment and transferred to Cestuy que use instantly And Walmesly cited this Case to have been lately adjudged A Reversion in Fee upon a Lease for years was granted by Fine to A. to the use of B. B. without Attornment brought an Action of Waste and it was adjudged that the Action did well lye CXXX Mich. 32 Eliz. In the Common Pleas. A Lease for years is made by Deed Indented rendring Rent and the Lessor covenants that the Lessee paying his Rent shall enjoy the Land demised for the whole term the Lessee did not pay the Rent and afterwards is ejected by a Title peramount By Walmesly and Windham Iustices that the Covenant is conditional and that the Lessee should not have advantage of it if he did not perform the Condition which is created by this word paying Periam Iustice was strongly to the contrary viz. that the word paying did not create a Condition Mich. 32 Eliz. In the Common Pleas. CXXXI Thetford and Thetfords Case THe Case was an Action of Debt for Rent reserved upon a Lease for years the Plaintiff declared that Land was given to A. and B. his Wife Leases and the Heirs of their Bodies and that he and his Wife leased for years to the Defendant Baron and Feme and that the Donees were dead and that the Plaintiff as Heir c. for Rent behind c. And upon Non dimiserunt the Iury found that the Husband and Wife dimiserunt by Indenture and that after the Husband died and the Wife entred and within the term died Agreement Disagreement Now upon this matter Anderson Iustice conceived clearly that the Iury have found for the Defendant scil Non dimiserunt for it is now no Lease ab initio because the Plaintiff hath not declared upon a Deed and also the Wife by her disagreement to it and Occupation of the Land after the Death of her Husband had made it to be the Lease of her Husband only Trin. 31 Eliz. In the Common Pleas. CXXXII Acton and Pitchers Case IN a Writ of second Deliverance by Acton against Pitcher Leases within 32 H. 8. It was moved if a Lease made by a Prebendary were within the Statute of 32 H. 8. cap. 28. because the said Statute speaks of men seized in the right of their Churches and a Prebendary is seized in right of his Prebend and not in right of the Church But it is the Opinion of the whole Court that he was within the Equity of the Statute Trin. 32 Eliz. In the Common Pleas. CXXXIII Curtises Case IN a Writ of Error it was holden in the Common Pleas Amendment that if a Writ of Error be brought and delivered to the Chief Iustice de Communi Banco and allowed by him under his hand that afterwards the Record cannot be amended by Prothonotary Attorney or Clerk of the Court although that no Record be entred upon the Roll upon which the Writ of Error is brought Mich. 31 Eliz. In the Common Pleas. CXXXIV Scots Case SCot brought a Formedon against A. who made default after default Resceit Anders 133. and now came B. and surmised to the Court that C. was seized of the Land in Demand and gave the same to A. in Tail the remainder to the said B. in Fee and prayed to be received and afterwards the Court upon advice ousted him of the Resceit 28 Eliz. In the Common Pleas. CXXXV Terrets and the Hundred of c. Case IN an Action upon the Statute of Huy and Cry against the Hundred of c. the Defendants pleaded Not Guilty Action upon Statute of Huy and Cry. And in Evidence the Plaintiff to prove that he was robbed offered to the Iury his Oath in verifying his Declaration which Anderson and Periam utterly refused to accept of but Windham Iustice affirmed that such an Oath had been accepted of in the Case of one Harrington Oaths where the Plaintiff could not have other Evidence to prove the Cause in respect of secresie for those who have occasion to travel about their occasions would not acquaint another what monies or other things which they have in their journey and we see that the Law doth admit of the Oath of the Party in his own cause where the Oath shall make an end of the cause as in Debt where the Defendant wageth his Law. Periam That 's an ancient Law but we will not make new Presidents for if such an Oath be accepted of us in this case by the same reason in all causes where is secrecy and no external proof whereupon would follow great inconvenience and although such an Oath hath been accepted of and allowed here yet the same doth not move us and we do not see any reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de Denariis ipsius querentis and upon the Evidence it appeareth that the Plaintiff was Receivor of the Lady Rich and had received the said mony for the use of the said Lady And Exception was taken to the same by Shuttleworth but it was not allowed of for the Plaintiff is accomptable to the Lady Rich for the said mony And it was agreed that if he which was robbed after he had made Huy and Cry doth not further pursue the Felons yet his Action lyeth Mich. 26 Eliz. In the Kings Bench. CXXXVI Townsend and Pastors Case Feoffment by Coparceners Cestuy que uses NOte It was holden in the Common Pleas by
all the Iustices in the Case between Townsend and Pastor two Coparceners are in the use of a Manor after the Statute of 1 R. 3. the one of them enters and makes a Feoffment in Fee of the whole Manor that this Feoffment is not only of the moiety of the Manor whereof she might lawfully and by the said Statute make a Feoffment but also of another moiety by disseisin Mich. 26 Eliz. In the Kings Bench. CXXXVII Bulwer and Smiths Case BUlwer brought an Action upon the Case against Smith and declared how that H. H. had recovered against the Plaintiff in the Common Pleas 20 l. and before Execution died and that the Defendant knowing that at D. in the County of Norfolk malitiose deceptive machinans to Outlaw the Plaintiff upon the said Iudgment in the name of the said H.H. c. in performance of his said purpose at W. in the County of Middlesex took out a Capias ad satisfaciend in the name of the said H.H. against the now Plaintiff upon the said Iudgment directed to the Sheriff of London and Non est inventus being returned upon that took out an Exigent in the name of the said H.H. which Writ by the procurement of the Defendant was retorned and then the Plaintiff was Outlawed and afterwards the Defendant in the name of the said H. H. took out a Capias utlagatum against the Plaintiff directed to the Sheriff of Norfolk by force of which the Plaintiff was arrested and imprisoned for two months until he had gotten his Charter of Pardon by reason of which Outlawries the Plaintiff had forfeited all his Goods and Chattels and upon the said Declaration the Defendant did demur in Law and the principal cause of the demurrer was because that the Action might have been laid in Middlesex where the wrong began scil the Capias ad satisfaciend the Outlawry for this imagination at D. in the County of Norfolk set forth in the Declaration cannot give to the Plaintiff this Action But if divers conspire in one County for to indite one and they put the same in Execution in another County the Party aggrieved may lay his Action in which of the said two Counties he pleaseth 22 E. 4. 14. for a Conspiracy is more notorious than an imagination imaginatio est unius conspiratio plurimorum And in this Case the Deliverance of the Capias at D. in Norfolk is but accessary and the suing of the Process aforesaid at Westminster is the principal upon the part of the Plaintiff it was said that such an action might be laid in the County where the Plaintiff was wronged and the Plaintiff is not tied to lay his Action in the County where the original matter which was but conveyance to the said wrong was done A imprisoned upon a Capias ad satisfaciend in Middlesex escapes into Surrey the Action upon the escape shall be laid in Surrey Reteiner of a Servant in one County who departs in another County the Master shall lay his Action in which of the said Counties he will 15 E. 4. 18 19. 41 E. 3. 1. A Writ of Disceit was brought in the County of York and the Case was that in a Praecipe quod reddat of Land the Tenant shewed forth a Protection at Westminster the which was allowed for a year and within the year the Tenant stayed in the County of York upon his own occasions the said Writ of Disceit was holden to be well laid for there the wrong began notwithstanding that the Original i. e. the casting of the Protection was in Middlesex for the disceit is that the Tenant contrary to the pretence of the Protection continued at York for the Protection was quia Moraturus And always where the cause of the Action consists of two things whereof the one is matter of Record and the other is matter of Fact there the Action shall be laid in such County where the matter in fact may be more properly tried Vide 11 R. 2. Fitz. Action sur le Case 36 Br. Lieu 84. in the principal Case at Bar the Court was of Opinion that the Action was well brought in the County of Norfolk Another Exception was taken to the Declaration because the Plaintiff hath there set forth whereas his true name is John Bulwer by which name he now sues he was sued and outlawed by the name of John Buller and then the now Plaintiff upon that matter was never sued nor outlawed and then is not grieved by the Defendant but John Buller for here in his Declaration there is not any averment that John Bulwer and John Buller are one and the same and not divers Persons But the Exception was disallowed for the whole Court held that for As much as the Plaintiff hath declared that he by the name of John Buller was sued and Outlawed the same is an averment in Law c. and amounts to so much Another matter was objected because it appeareth in the Declaration that H. H. was dead before this Process was sued and then the Outlawry was erronious and so the Plaintiff is not at any mischief but that he may reverse the Outlawry by Error as in Conspiracy the Defendant pleads that the Indictment upon which the Plaintiff is arraigned is vitious and erroneous and so his life was never in jeopardy But as to that it was said by the Court that the erronious proceedings of the Defendant shall not give advantage to himself but because the Plaintiff was vexed by colour and reason of the Outlawry and put to his Writ of Error which cannot recompence the loss and damage by him sustained by reason of the Outlawry aforesaid it is reason that the Plaintiff have his Action wherefore Wray Chief Iustice ex assensu Sociorum gave Iudgment for the Plaintiff CXXXVIII Mich. 27 Eliz. In the Kings Bench. Upon the Statute of 23 Eliz. of Recusancy CErtain Persons were indicted upon the Statute 23 Eliz. for refusing to come to the Church and upon the same were Outlawed and now they came to the Kings Bench ready to make their submission and to conform themselves according to the said Statute and thereupon they prayed to be discharged But the Court would not receive such Submission but advised them to purchase their Pardon for the Outlawry and then to tender their Submission which they did accordingly and at another day came again and shewed to the Court their Pardon whereupon the Clerk of the Court asked them if they would conform themselves according to the said Statute who said they would wherefore they were discharged Mich. 27 Eliz. In the Kings Bench. CXXXIX Christian and Adams Case Action for words AN Action upon the Case was brought for speaking these scandalous words of the Plaintiff scil the Plaintiff did conspire the death of the Defendant it was found for the Plaintiff and moved in Arrest of Iudgment that upon the matter the Action did not lye for the bare conspiring of the death of a man
is not punishable by the Law of the Land no more than if many conspire to indict one but do not put it in Execution it is not punishable but if A. saith that B. lyeth in wait to kill him or rob him there an Action lyeth for insidiatores viarum are punishable But the Opinion of the whole Court was that because these words sound in great discredit of the Plaintiff it is reason he have his Action and so Iudgment was given for the Plaintiff Mich. 27 Eliz. In the Kings Bench. CXL The Lord Stafford and Sir Rowland Heywoods Case THe Lord Stafford brought an Action upon the Case against Sir Rowland Heywood Kt. Abatement of Writ Exception was taken to the original Writ viz. ad respondend c. Quare colloquium quoddam habebatur inter Dominum Stafford Row. Heywood de assurando Castrum to the said Lord Stafford by the said Sir Rowland c. Dictus Rowlandus Castrum illud non assuravit c. where the said Writ said cum colloquium quoddam habebatur for the cause of the Action is not colloquium habitum but the not assurance of the Castle according to the promise made super colloquium praedictum and for that cause the Writ was abated CXLI Mich. 27 Eliz. In the Kings Bench. NOte by the Court If one who is not a common Informer be barred in any Information or Action upon a penal Statute he shall pay costs notwithstanding the Preamble of the Statute of 18 Eliz. cap. 5. be for the redressing of divers Disorders in common Informers but if pars gravata be barred in such case he shall not pay costs Trin. 32 Eliz. In the Exchequer CXLII Robinsons Case GEorge Robinson Lessee for years of the Manor of Drayton Basset the Reversion to the King devised his term to his wife as long as she should keep her self a Widow with the Remainder over if she married or died and made his Wife and his Son William his Executors the said William being within age and therefore the administration was committed to the Wife alone and she only proved the Will and afterwards the Wife granted all her Interest to the said William and dyed And by Cook nothing passed by this Grant for William had the same before for every Executor hath the whole Interest Popham contrary for at the time of the Grant the Son was within age and had not administred nor proved the Will therefore in effect the wife was sole Executrix and by Egerton Solicitor if during the said Executorship by the wife one doth trespass upon the Lands the wife only shall have the Action of Trespass without naming her Co-Executor which Cook denied and he cited the Case 10 H. 7. 4 where two Executors are and the one only is possessed of goods of the Testator and a Stranger takes them our of his Possession to whom the other Executor releaseth and after the Executor out of whose possession the goods were taken brings an Action of Trespass against the Trespasser who pleads the Release of the other Executor and it was holden a good Plea for the possession of the Plaintiff was also the possession of his Companion The Case was further that Thomas Robinson in pleading shewing that G. Robinson was possessed and the same devised to his wife who granted to William Robinson who devised it to the Defendant And the other side shewed that the said Thomas granted the said term to Paramour and upon that grant they were at Issue if now against his own pleading Thomas might give in evidence that Thomas could not grant for that he had not any thing to grant for if the gift made by the wife to William was void and he had the term as Executor then he could not devise it but his devise to Thomas was void and then Thomas could not grant it and so Ne grant pas It was also shewed that the said Thomas granted the same to Paramour by Indenture if now against that Indenture he might give in evidence such special matter ut supra and if the Party shall be concluded if the Iury shall be concluded to give the Verdict Secundum veritatem facti for they are sworn to say the truth and by Popham and Egerton as well the Iurors as the Parties are bound and concluded by the confession of the Parties on the Record and here all confess that William devised to him virtute cujus he was possessed The Queens Attorney to that said That true it is that Thomas Robinson was possessed but further said that the said Thomas granted it to Paramour and so the Interest of Thomas is confessed on both sides Therefore the Iury shall not be received to say the contrary And by Manwood Chief Baron if the Parties admit a thing by not gainsaying it Jurors where bound by confession of the parties where not the Iury is not bound by it but where upon the pleading a special matter is confessed the Iury shall be bound thereby And afterwards the Issue was found against Robinson the Defendant 33 Eliz. In the Kings Bench. CXLIII Applethwait and Nertleys Case IN an Action upon the Case the Plaintiff declared that the Defendant promised in consideration that the Plaintiff at the request of the Defendant would marry his Daughter to give to the Plaintiff 40 l. and said he had married his Daughter and yet the Defendant Licet saepius requisitus would not pay it It was moved by Cook in stay of Iudgment that the Declaration is vitious because there is not set forth the place and time when the request was made for the Assumpsit being general it is by Law to be paid upon request Fenner If the promise was expresly to be paid upon request the Declaration was not good And afterwards Iudgment was given for the Plaintiff Hil. 30 Eliz. In the Common Pleas. CXLIV Wats and Kings Case SAmuel Wats Plaintiff in Ejectione firmae against W. King upon a Special Verdict it was found that W. Wallshot was seized in Fee and he with one Oliver Shuttleworth Octab. Mich. 3 4 Phil. Mary levied a Fine Sur Conusans de droit c. to John Hooper who granted and rendred by the same Fine to Oliver for a month the remainder to the said W. Wallshot and to one Anne Cook and the heirs of their bodies c. the remainder to the right heirs of the said W. Wallshot in Fee and that with Proclamation William and Anne intermarry have issue John now alive W. Wallshot 4 5 Phil. Mary levy a Fine with Proclamation to Edward Popham Esq to the use of the said Edward and his heirs W. Wallshot 18 Eliz. died Anne took to husband Richard Stephens and they in the right of the said Anne entred and by Indenture demised the said Land to Richard Hoose the Father Richard the Son and Mary his wife for the term of their lives rendring to the said Richard Stephens and Anne his wife and to the heirs of the body
of the said Anne and of the right heirs of the same W. Wallshot Anne died and if this Lease should bind the Conusee was the question for it was agreed by all that the Issue in Tail was bound by the Fine Quaere the Case was only put but not resolved CXLV Trin. 30 Eliz. In the Common Pleas. UPon a recovery in a writ of Entry sur disseisin of two Acres of Lands an Habere facias seisinam was awarded the Sheriff as to one Acre returned Habere feci and as to the other tarde And that return was shewed to the Court Amercement of the Sheriff and all the Iustices but Periam held that the Sheriff should be amerced for that return being contrary repugnant in it self but Periam said it may be that the Acre of which no seisin is had was so distant from the other Acre whereof the seisin was had that the Sheriff in time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the case was such Then might the Sheriff make Execution in one Acre in the name of both Acres And if upon a Capias ad satisfaciend against two the Sheriff retorn as to one a Cepi and as to the other Tarde he shall be amerced for his several retorns cannot stand together Mich. 29 Eliz. In the Common Pleas. CXLVI Lees and Lord Staffords Case COmpton made Conusans as Bayliff to Edward Lord Stafford and shewed that Henry Lord Stafford Father of the said Edward and Ursula his Wife were seized of the place where and let the same for years to Edward Lees the Plaintiff Robert Lees and Elizabeth Atwood upon Condition they nor any of them should alien the said Term nor any part of the same without the leave of the Lord or his Heirs Henry Lord Stafford and Ursula died and that the Reversion thereof descended to Edward Lord Stafford and shewed further that the said Edward Lees the Plaintiff had aliened To which the Plaintiff in bar of the Conusans said that the said Edward now Lord Stafford gave License that the said Edward Lees Robert or Elizabeth might alien and that was without Deed. It was conceived by some that this Licence was not of any force to dispense with the Condition because it is uncertain and doubtful in the disjunctive and it was resembled to the Case of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty But all the Court was to the contrary For here the thing which is given is but a Liberty and is not to be resembled to a Gift or Interest and the intent of the Lord Stafford was that one of them might alien but not all of them and afterward Iudgment was given for the Plaintiff Trin. 31 Eliz. In the Kings Bench. CXLVII Limver and Evories Case LImver as Administrator of one A. brought Debt against Evory and the case was F. made G. his Executor and G. made H. an Infant his Executor and died and during the minority Administration was granted to the Plaintiff who as Administrator of G brought an Action of Debt upon a Bond made to the first Testator and that was assigned for Error for the Plaintiff ought to bring his Action as Administrator of the first Testator vide 10 E. 4. 1. 26 H. 8. 7. and for that Cause the Iudgment was reversed Mich. 33 Eliz. In the Kings Bench. CXLVIII Knevit and Copes Case KKnevit brought Ejectione firmae against Cope and declared 3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May 32 Eliz. had let to him a House and two yard Lands containing forty Acres of Land Meadow and Pasture at Tithingham de forecomb in the Parish of Steep c. and upon Not Guilty the Visne was of Tithingham de Forecomb Exception was taken by Cook that the Declaration had not certainty for it is not shewed certain how much Meadow Land and how much Pasture is contained in the said two yard Lands and the Iury may find the Defendant Guilty as to so much Land but not to the residue also he hath not shewed in the Declaration when the Lease was made but only saith that by Indenture bearing date 20 May c. but doth not shew any day of delivery of the Indenture for then is the demise To which Exception it was said by the Iustices That the Declaration as to that was good enough for it shall be intended to be delivered at the day of the date Another Exception was taken to the Visne because that the Visne ought to have been from the Parish and not from Tithingham 11 H. 7. 23 24. Forcible Entry in the Manor of B. in B. the Visne shall not be from the Manor of B. but of B. Gawdy You shall never have a Visne of the Parish for divers Towns may be in one Parish but here the Visne is well of Tithingham for it may be that it is a Town Cook It is but a Vill conus from which a Visne cannot come CXLIX Trin. 28 Eliz. In the Common Pleas. Rot. 1027. MIlbourn brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex it was found by Special Verdict that the Plaintiff was robbed 23 Aprilis inter horam secundam matutinam tempore nocturno ante Lucem ejusdem diei and the Opinion of the Court was clear that the Plaintiff should be barred for the said Statute provided for ordinary Travel as in the Case of Archpool who came to his Inn post Sunset ante noctem in tempore diurno which is an usual time for travelling to come to his Inn but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours for it is the folly of the Traveller to take his journy so out of season and the Inhabitants are not bound to leave their Houses and to attend the ways tempore nocturno and another reason was alledged by the Iustices because the said Statute appoints watch to be kept in the time of night à Festo Ascensionis usque ad Festum Sancti Michaelis and this Robbery was done the 23 of April so as it was out of that time and afterwards Iudgment was given against the Plaintiff Mich. 26 Eliz. In the Common Pleas. CL. Barkers Case Estrepement in Partition A Writ of Partition by Barker heir of Gertrude Marquess of Exceter who devised all her Lands to Blunt by which the third part was descended to the Plaintiff and he prayed a Writ of Estrepement and it was the Opinion of the Court that the Writ ought not to be granted for that the Plaintiff might have a more proper remedy upon the Statute cum duo tres c. and in a Writ of Partition no Land is demanded Trin. 29 Eliz. In the Kings Bench. CLI Megot and Davies Case
Assumpsit MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit and it was found by Nisi Prius for the Plaintiff and afterwards before the day in Bank Broughton dyed and after Iudgment given Davy the other Defendant brought a Writ of Error in the said Court scil in the Kings Bench where Iudgment was given and assigned an Error in fact scil the death of Broughton depending the Writ vide 2 R. 3. 21. and this Case is not like to Trespass for Trespass done by many are several Trespasses but every Assumpsit is joynt If the Court may reverse their own Judgment and if the Court upon this matter might reverse their own Iudgment was the Question the Case was not resolved but adjourned CLII. Trin. 31 Eliz. In the Common Pleas. IT was found by Office that J. S. held by the Queen and dyed without Heir whereas in truth he had an Heir scil A. S. who leased the Lands for an hundred years and afterwards traversed the Office Office trove and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner in behalf of the Sheriffs of London before whom the matter depended to whom it was said by Anderson Chief Iustice Conveyance by the Heir upon Entrusion That where the King is entituled by an Office to a Chattel as to a wardship c. there if the Heir without any intrusion bargain and sell levy a Fine or lease for years during the possession of the King it is void against the King but shall bind the Heir but where the King is intituled to the Fee-simple as in this Case such a Conveyance is meerly void Hil. 31 Eliz. In the Kings Bench. CLIII Samuel Starkeys Case HOmine replegiando by Samuel Starkey to the Sheriffs of London Who returned that the said Starkey was indicted to be de mala fama deceptione Domini Regis with divers other general words and namely that he had deceived J. S. a Clothier and that he was a common Cozener and thereof being found guilty Iudgment was given by the Mayor and Recorder That he should be disfranchized of his Freedom and should be fined and imprisoned for a year and further said that he had not paid his Fine nor the year expired Cook Such Return hath not been seen and it is directly against the Statute of Magna Charta Wray Chief Iustice gave a Rule that the Sheriffs should make their Return at their perils before such a day Hil. 31 Eliz. In the Kings Bench. CLIV. Bushy and Milfeilds Case IN Error brought by Bushy and Milfeild It was assigned for Error that where in the first Action the Iury gave four pence Costs and the Court gave de incremento three and twenty shillings that in the Iudgment the four pence was omitted Error It was the Opinion of the Court That for that Cause the Iudgment should be reversed although it be for the advantage of the Party so where the Iudgment is quod sit in misericordia where it ought to be Capiatur Hil. 29 Eliz. In the Common Pleas. CLV Bingham and Squires Case BIngham brought Debt upon an Obligation against Squire Obligation 3 Leon. 151. The Condition was If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham so as the said Bingham at the said next Avoidance may present that then c. The Case was That afterwards by the means and endeavour of Squire the Grant of the next Avoidance was made to Bingham but before the next Avoidance the present Archdeacon was created a Bishop so as the presentment of that Avoidance belonged to the Queen It was adjudged in this Case that the Condition was not performed and that by reason of these words scil So that Bingham may present And afterwards Iudgment was given that the Plaintiff should recover Hil. 26 Eliz. In the Common Pleas. CLVI Mansors Case A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December he to whom the Assurance was to be made scil the Obligee the said last day before Sun-setting came to the Obligor with a Deed ready to be sealed and prayed him to seal it who said to him that he was a man unlearned and said he would shew the same to his Counsel and then he would seal it And if the Obligation was forfeited or not because he did not seal it presently was the question And Fenner argued that it was not for when a thing is to be done upon request then he who makes the request ought to give sufficient and convenient time to perform the Condition I agree That where the Condition is absolute there if the Condition be not performed he shall not be excused by the default of another As if a man be bounden to marry A.S. and she will not marry him or to enfeoff J. S. and he refuseth as 3 H. 6. is the Obligation is forfeited Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment or he will not marry A. S. the Obligation is not forfeited So in our Case for by his late request it is impossible for me to perform the condition for before my Counsel shall have perused it the time will be past If a man be bound to enfeoff one of Lands in Barwick request ought to be made so long time before that after that he may go to Barwick So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day that the mony may conveniently be told This Case was in question A man made a Feoffment of the Manor of D. with the Appurtenances to which an Advowson was appendant and covenanted that the Manor upon request should be discharged of all manner of Incumbrances and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died the Clark of the Grantee was instituted and inducted the Feoffee requested the Feoffor to discharge the Incumbrance The opinion of many Sages of the Law was that he had not made his request within convenient time So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body If the Obligee demand Assurance after the death of J. S. without Issue yet the Obligation is not forfeited In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use where he could not have more speedy notice of his death he shall not be a Trespassor In 15 Eliz it was holden in Wottons Case That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall and tendred to him a Writing
or his Servant had put the Horse to grass and afterward the Horse is stollen there an Action upon the Case doth lye Trin. 29 Eliz. In the Common Pleas. CXCVII Neals Case IN a false Imprisonment by Neal against the Mayor Sheriffs Citizens and Commonalty of the City of Norwich the Original Writ was directed to the Coroners of the said City And Exception was taken to the Writ because it was not directed to the Sheriffs of the said City but to the Coroners Sed non allocatur for the Sheriffs are parcel of the Corporation as it is to see by the name by which they of Norwich are incorporated And also it hath been adjudged That a Sheriff cannot summon himself and therefore by the Award of the Court the Writ was allowed to be good Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands the Kings Silver was entred and the Conusans taken but the Fine was never engrossed and now he who claimed under the Fine came in Court and prayed that the Fine might be engrossed and the Court examined them upon their Oaths to what use the Fine was levied and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine Vpon which Examination it appeared fully to the Court that the Party to whom the Fine was levied was seized after the Fine and suffered a Common Recovery of the Land and that the said Land had been enjoyed according to the said Fine at all such times since c. Whereupon the Court commanded that the Fine be ingrossed Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer CXCIX The Lord Dacres and Philip Fines Case THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite levied a Fine thereof without Licence 3 Leon. 261. and Process issued against the Tenants for Life It was holden by all the Barons that by Plea he should be discharged it was holden That if the Conusor had any other Lands ubicunque in Anglia the Fine for Alienation should be levied upon them But it was moved If the Tenant should be driven to plead it because it appears upon Record that the Conusor was but Tenant in Tail in Remainder and that was in an Office containing such matter which was pleaded by another in another Cause before by which Office it appeared that the Lord Dacres was Tenant in Tail the Remainder in Tail to Philip Fines and now Fines had levied a Fine sur Conusans de droit c. and because the same appeared on Record Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed Trin. 29 Eliz. CC. Paston and Townsends Case IN Trespass by Paston against Townsend The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized and the Land descended To which the Plaintiff replyed and said c absque hoc that Tindal was seized in Fee upon which they were at Issue On the part of the Defendant to prove the Issue it was given in Evidence to prove the Issue in his right that the said Tindal long time before his death was seized and aliened and never after was seized It was said that that Evidence did not prove the Issue for the Defendant for the Seisin in Fee intended in the Issue is in the nature of a dying seized and so Periam conceived that the Defendants Plea did not intend any other Seisin a dying seized and the dying seized is taken by Protestation to avoid the doubleness So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal and Seisin at large or a general Seisin at any time during the life of Tindal quod Anderson concessit Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case ERror by Griffith against Price upon a Iudgment in Chester in Ejectione firmae and the Error assigned was because the Original bore date 16 April 28 Eliz. and the Plaintiff declared of an Ejectment 17 April 28 Eliz. So as it appeareth that the Action was brought before there was any cause of Action and that was holden to be Error And also Ejectione firmae is not a personal Action and afterwards the Iudgment was Reversed Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls and upon that Error was brought in the Kings Bench quod nota For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior Vide â— N. B. 22 23. And Wray asked Wherefore the Writ of Error was brought here To which it was answered by Dodding Clark that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant to the purpose to bring a Writ of Error quod coram vobis residet And the Error was assigned in this that by the Statute of 18 Eliz. cap. 5. it is enacted that upon every Information that shall be exhibited a special Note shall be made of the Day Month and Year of the exhibiting of the same into any Office or to any Officer who lawfully may receive the same And here upon this Information there is not any such Note according to the said Statute And in truth no Information may be exhibited for there is not any Officer there appointed for that matter for the entry in such Cases in that Court is Talis venit deliberavit hic in Curia Miloni Sands c. But in the Case at Bar the Entry is Talis venit deliberavit in Curia but without shewing to whom But note that the words of the said Statute of 18 Eliz. are in the disjunctive into any Office or to any Officer and that such Information shall not be of Record but from that time forwards and not before wherefore here this Information is not upon Record and then no Iudgment can be given upon it Cook This Information may be well sued in London for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King And the Court in London is a Court of Record of the King and every Court of Record hath an Officer to receive Declarations and Pleas and if it be delivered into the Office it is good enough 2. The Offence is laid in the Parish of Bow in Warda de Cheap alibi in Civitate London and so there is not any place laid where the Offence shall be tryed Cook This Alibi is a Nugation Trin. 31 Eliz. In the Kings Bench. CCIII Peuson and Higbeds Case IN Assumpsit the Plaintiff declared that in consideration that he by his Servant had delivered to the Defendant two Bills
for 21 years to begin at Michaelmas before and in pleading it was shewed That virtute cujus dimissionis posterioris the Plaintiff entred fuit possess crastino Michaelis which was before the making of the Lease and the Plaintiff in his Declaration declared That the Defendant in consideration that the Plaintiff had assigned to him the said Leases had promised to pay to him 630 l. It was found for the Plaintiff Cook For where the Plaintiff in an Action upon the Case declares upon two Considerations in such Case although the one be void yet if the other be good and sufficient the Action is maintainable but the Damages shall be given without respect had to the Consideration insufficient and the Plaintiff was to declare upon both Considerations for the Assumpsit upon which the Action is conceived was in consideration that both the Leases were assigned to the Defendant and our Declaration ought to be according to the Assumpsit and it was not material although that one of the Considerations was utterly void Another Exception was taken Because the Lease is set forth to be made 18 October and that by virtue thereof the Plaintiff entred Cro. Mich. Then the Plaintiff entring Cro. Mich. was a Disseisor and then being in by disseisin he could not assign his Interest to another and that appears clearly to the Court upon the whole matter But Cook said That shall not hurt us for it is but matter of surplusage to say Virtute cujus c. As 20 H. 6. 15. the Plaintiff in Trespass supposed by his Declaration that the Trespass for which the Action was brought commenced 10 H. 6. with a Continuando until the day of the Action brought viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris Anno 17 H. 6. And Exception was taken to the Declaration because the continuance of the time was not put in certainty But the Exception was not allowed for it is certain enough before the viz. the day of Writ brought and so the viz is void and all that which follows upon it And so here this Clause Virtute cujus est totum sequitur est omnino void 7 H. 4.44 Br. Action upon the Case 37. The Writ was Quare Toloniam asportavit illud solvere recusavit Exception was taken to the repugnancy for it would not be carried away if it were not paid before yet the Writ was awarded good and the first word Toloniam asportavit holden void So here in the principal Case As to the other Exception it is clear That here is not any Disseisin upon this Entry of the Plaintiff before the making of the said Lease for there was a Communication betwixt the Parties of such a Lease to be made or of such an Assignment and peradventure the Entry was by assent of the other part and then no Disseisin And posito it should be a Disseisin yet the Plaintiff hath assigned all the Interest quod ipse tunc habuit according to the consideration and delivered to the Defendant both the Indentures of Demises and so he hath granted all that which he might grant And if it be a void Assignment or not is not material for quacunque via data the Consideration is good and then the Assumpsit good also Egerton Solicitor contrary In every Action upon the Case upon Assumpsit three things ought to concur Consideration Promise and breath of Promise and in this Case the Assignment of the Lease to begin after the death of the Lessor is void being but Tenant for life and no Consideration upon the confession of the Plaintiff himself And upon the second Consideration it appeareth the Lessor viz. the Wife who held for life had but a right to the Land demised for she was disseised for he to whom the Land was after let entred before the Lease was made for it doth not appear that he entred by force of any agreement made before the Lease therefore by his Entry he was a Disseisor It was also moved That here was not any sufficient consideration for by a bare or naked delivery Nihil operatur and here is not any word of Give or Grant. To which it was answered That the delivery of the Indenture was not a bare Bailment but a Delivery to the use in the Indenture and so it is pleaded and therefore thereby an Interest passed for such a delivery cannot be countermanded An Indenture with an Averment shall never make an Estoppel Clench Iustice If I deliver any thing to one for his proper use an Interest passeth but if it be to the use of another no Interest passeth The party may have usum but not proprietatem CCLVII Mich. 18 Eliz. In the Kings Bench. Contract IF a Contract be made betwixt two here in England scil that one of them shall carry certain Goods of the others to Burdeux in France and sell them there and with the mony thereof coming shall buy other Goods for the use of him who was the owner of the first Goods and safely them deliver to him in London If now the party sell them in Burdeux and buyeth others with the monies thereof and brings them into England and there converts them to his own use upon this matter an Action lyeth at the Common Law for the Contract and the Conversion being the cause of the Action was made in England But if the Contract only was in England and the Conversion beyond the Seas the Party at his Election may sue at the Common Law or in the Court of Admiralty And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath sent to him and to Merchandize with them for his use if the Factor receiveth them and converts them to his own use the Father shall be sued in the Admiralty 25 Eliz. CCLVIII. The Earl of Huntington and the Lord Mountjoyes Case IT was agreed by the two Lord Chief Iustices 1 And. 308. upon conference had with the other Iustices in the Case between the Earl of Huntington and the Lord Mountjoy That where the Lord Mountjoy by Deed indented and inrolled bargained and sold the Manor of Camford to Brown in Fee in which Indenture a Clause was Proviso semper and the said Brown covenants and grants cum and with them the Lord Mountjoy his Heirs and Assigns That the said Lord his Heirs and Assigns might dig for Ore in the Wasts of Camford And also to dig Turf there to make Allom and Copperice without any contradiction of Brown his Heirs and Assigns that now here is a new Grant of an Interest to dig to the said Lord and his Heirs in the Lands aforesaid and not a bare Covenant and it was holden also that the said Lord could not divide the Interest granted to him in form aforesaid viz. To grant to another to dig one part of the said Waste c. But they were of Opinion That Brown his Heirs and Assigns notwithstanding