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 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.
Debt against Executors upon Obligation of 200 l. they pleaded a Recovery by a stranger of 200 l. upon another Obligation and averred it was a just and true Debt ultra which they had not in their hands the Plaintiff said the Recovery was by Covin It was adjudged in B. R for the Plaintiff Error brought and the Judgment reversed for it could not be by Covin if it was a just Debt and the Replication should have been absque hoc it was a just and true Debt Morses and Rosses Case 935. Assumpsit In consideration the Plaintiff would surcease his Suit which he had in Chancery against the Defendant the Defendant promised to save him harmlesse from all actions which should be brought against him for or Concerning a Lease which the Defendant had assigned to him and alledged he surceased his Suit and that a Stranger had brought an action against him in B. R. by reason of the said Lease and the Defendant did not save him harmlesse Judgment being for the Plaintiff in B. R. It was reversed because he did not shew the certainty of the Action brought against him nor that it was for any matter in esse at the time of the promise Wood and Bukleys Case 936. Action upon the Case whereas Wood exhibited his Bill against Buckley in Star Chamber containing he had nusselled Pirats Murtherers and other Malefactors he being a Justice of Peace and Vice-Admiral Wood afterwards in another place having speech with divers concerning as well of the ill carriage of the said Buckley as of the matter in his Bill against Buckley in the Star Chamber said I will Justify every matter therein to be true The Defendant Justified the speaking of the words being examined upon the truth of his Bill before I. S. and I. D. by Command of the Councell and traversed that he spake them at any other place or time upon demur being adjudged for the Plaintiff upon Error brought the Judgment was reversed because no action lying for the exhibiting of the Bill no action lay for saying the words of his Bill were true Sir Henry Berkley and Earle of Pembrooks Case 937. Action upon the Case by the Earl of Pembroke against Sir Henry Berkley and shewed he was seised of the Mannor of S. to which the Office of the Keeper of the Forrest of F. did appertain in Fee and to have omnia bona forfeited within the Forrest fugam facere bis per annum quicquid de hujusmodi fugatione accidere possit and to have Hony Wax mortuum boscum c. appertaining to his Office and the Defendant disturbed him to exercise the said Office The Defendant pleaded a Deed in Tail in Bar made by the Plaintiff In the Deed there was a Proviso viz. Provided alwayes and the said Sir Henry Berkley doth Covenant for him and the Heirs males of his body to and with the said Earl and his Heirs to preserve the game as far as commonly hath been used and that he nor his Heirs males shall cut or sell any woods there except for browse and necessary reparations and the Plaintiff said the Defendant had cut down four Oakes and converted them to his own use and averred they were not for browse nor reparations and that he entred for the forfeiture It was adjudged upon a demur in B. R. for the Plaintiff Error was brought upon the Exchequer Chamber upon the matter in Law that the Proviso was not a Condition but a Covenant but as to that point it was Resolved by all the Justices that the Proviso was a Condition 2. Error was that the damages were assessed entirely for divers things some of them being uncertainly and insufficiently alledged for he prescribed to have omnia bona forisfacta which could not be without Charter also to have de furgatione quicquid acciderit which was also uncertain and also the damages for them ought to have been severally assessed and not entirely The Court held that for that Cause the Judgment was erroneous and for that Cause only the Judgment was reversed Reymer and Grimstones Case 938. Assumpsit In Consideration he at the Defendants request had promised to wash the Defendants linnen and the linnen of his Servants and to provide meat and drink for the Defendant and his Servants the Defendant promised to pay so much money to the Plaintiff when he should require it so as it should not exceed the proportion used in O. for the like time and further declared that in Consideration the Defendant upon accompt between them made was in arrerage to the Plaintiff 18 l. the Defendant promised to pay him the said 18 l. and the Plaintiff shewed for how long time he had washed the Cloathes c. and that he required 8 l. which did not exceed the proportion in O. upon Non Assumpsit found for the Plaintiff and damages severally assessed for the Costs entirely Error was thereupon brought it was the opinion that the first Assumpsit was good and the second void and the Judgment given for the damages and Costs upon the first Assumpsit was good and the Judgment for them affirmed but for the damages assessed upon the second Assumpsit and for the damages de incremento entirely give for both the Judgment was reversed Goodall and Wyatts Case 939. In Ejectione firme The Case was A. made a Feoffment of Lands to B. in Fee upon Condition if A. paid within a year after the death of the Feoffee to his Heirs Executors or Administrators 100 l. that the Feoffment should be void B. made a Feoffment over to C. and dyed and afterwards within the year it was agreed betwixt A. and the Administrator of the Feoffee that the said A. should pay to the Administrator the 100 l. and that the Administrator should repay back all to A. the Feoffee but only 32 l. which was done accordingly and then A. entred into the Lands pretending the Condition was performed it was adjudged in B. R. that his entry was not Lawfull and that this fraudulent and Covenous payment was no performance of the Condition and upon a Writ of Error brought in the Exchequer Chamber all the Justices a greed that the Judgment given in B. R. should be affirmed Vitsey and Fermours Case 940. The King granted Manerium de H. in Parochia de R. omnia terras decimas haereditamenta sua in R A. in the tenur of I. S nec non omnia alia terras tenementa haereditamenta in R praedict ' It was adjudged in B. R. that the Tythes in H. which was a Town within the Parish of R. did passe But upon Errour brought the Judgment was reversed because R. praedict shall be intended R. the Town and not R. the Parish Adams and Dixons Case 941. Assumpsit the Plaintiff was Bail for I. S. in B. R. the Defendant in Consideration that he should pay him the Condemnation promised to deliver to him the Bond made for the principal Debt and a letter of
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
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
That if the Bargainor paid a certain sum of money at a certain day and place that the Bargainee and his Heirs would stand seised of the Land to the use of the Bargainor and his Heirs and entred Recognizance to performe the Covenants The Bargainor paid the money before the day at another place and after day tendred a deed to be sealed by the bargainee containing the receit of the mony and also a Release of all his right in the Land the Bargainee refused to Seal it The Court doubted if by the Refusal the Recognizance was forfeited because he was not bound to Seal the Deed not being pertinent to the Assurance of the Land But the Court conceived that the acceptance of the money before the day was sufficient to excuse the forfeit of the Recognizance Isams Case 480. Three Women and the Husband of one of them recovered Debt in C. B. the Record was removed by Error in B. R. where the Judgment was affirmed the Husband dyed The Women sued forth a Capias against the party without first suing a scire facias It was adjudged that there ought to have been a scire facias first sued forth because the Defendant perhaps had a Release of the Husband who was dead to plead Morgan and Williams Case 481. An Administrator brought debt and declared That Administration was Committed to him by A. B. sacrae Theologiae praefessorem and doth not say loci illius Ordinarium and for that cause the Judgment was reversed Sheffield and Rises Case 482. Assumpsit In consideration that the Plaintiff had submitted himself to the Arbitrament of I. S. the Defendant ad tunc ibidem assumpsit It was said the Action did not lye because it was upon a Consideration executed But adjudged for the Plaintiff because the words ad tunc ibidem extend to the time of the Assumpsit Sir John Perrots Case 483. In Intrusion against the Lady Dorothy Perrot and James Perrot the Case though very long was thus in effect Sir John Perrot 26 Eliz. before his Attainder seised of diverse Mannors by Indenture tripartite Reciting that whereas he had 2. Sons viz. F. and W. by diverse venters for Love and affection which he bore to his said 2. Sons and such other Issue male as should be of his body and for the Love which he boâ—e to I. his reputed Son and other Considerations Covenanted that he his Heirs and Assigns and all other persons who had Interest in the said Mannors should stand seised thereof to the use of himself for life without impeachment of Wast and after to the use of W. for life and after to the use of the first Son of the said first Son for life and after to the use of all the Sons and Issues male of the said W. by his first Wife which he should Marry one after the other in such Course and forme as they successively ought to discend by due course of Law for the terme of the lives of the said Sons and Issues males and for want of such Issue Then he limited the remainder in use to F. for life and after to his first Son for life and so further as the same was limited to W. and for want of such Issue to I. and for want of all such Issue the remainder to himself and his Heirs and Assignes There was a Proviso for the making of Joyntures to the Sonnes Wife Proviso That Sir John by any Writing signed and sealed with his hand and seal might revoke alter change any use estate or limitation in the said tripartite Indenture that then the said Sir John and all other seised and all assurances aforesaid should be of such estate or in such manner as by such Revocation enlargement or limitation should be declared W. dyed without Issue male Sir John Perrot afterwards 35 Eliz. by writing under his hand and seal did limit the Lady Dorothy his Wife the Defendant for her Joynture a third part of the Mannors in 3. equal parts to be divided 36 Eliz. T. dyed seised in possession and Dorothy entred and took the 3d. part of the profits of the said Mannor and averred the Feoffment was by writing with and under the proper hand of Sir John and traversed the Intrusion upon which it was demurred There were many points in this Case both upon the pleading and matter in Law 1. If all the estates perpetually limited in Freehold for life to all the Sons were void or which of them were good which void 2. If Sir John in making of the Feoffment had duly pursued the Authority limited to him by the Proviso 3. If Sir John in the Assignment of the Joynture to Dorothy his Wife which is the principal title by which she Justifies had duly pursued the Authority limited to him by the other Proviso for making of Joyntures The Case was very Learnedly oftentimes argued at large and Tr. 38 Eliz. It was adjudged for the Queen against the Defendants not upon the matters in Law but upon a poynt of pleading only For it was said by the Barons that they did not take plea sufficient that he did enfeoffe such person Habend to them and their Heirs to the uses in the Indentutres unlesse it had been pleaded the Feoffment was by writing or so averred to be which shall not be intended so to be without special pleading or averment of it King and Hunts Case 484. Tenant in Tail enfeoffed his Son of full age and afterwards disseised and levyed a Fine with Proclamation before the last Proclamation the Son entred and made a Feoffment the Father and Son dyed the Feoffee made a Lease for years to a stranger and dyed seised The Issue in Tail brought a Formedon and recovered by faint pleader It was adjudged in this case because it appeared by the plea That the Fine was levyed to the Lessee for years himself and not averred it was to other uses the Terme was extinct and so he could not falsifie the Recovery East and Hardings Case 485. Note It was adjudged by the whole Court in this Case That if a Copyholder cut down Trees without a Custome it is a forfeiture unlesse it be for Reparations Barwicks Case 486. Intrusion the Case was That the Queen made a Lease to Barwick of a Mannor for 21. years he surrendered the same to the Queen Anno 23. and the Queen in Consideration of the surrender granted him the Mannor a die Confectionis of the Patent for the life of I. S. and the Lessee pur auter vye devysed the same to him for 40. years and averred the life of I. S. The Plaintiff said That after the Lease made by the Queen to him for 21. years that he granted all his estate in a part of the Mannor to a stranger and afterwards in Consideration of the surrender the Queen made the Lease pur auter vye Resolved the 2d Lease made by the Queen was void because all in the first Lease was not surrendered and so the Queen
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
he was not a person Qualified to take two benefices within the Statute of 21 H. 8. of Pluralities It was agreed that a Countesse a Widdow had power to retain two Chaplains who might purchase Dispensation for plurality But when she had once retained two she could not retain a third Chaplin who might purchase Dispensation within the Statute and therefore in the principal Case the Retainer of Priory being the third Chaplain was not good nor his dispensation good and so the Queen for want of Presentation of the Patron and Ordinary had good title to present Oldbery and Grogonds Case 729. Debt upon an Obligation for payment of certain money at a day certain The Defendant pleaded that the same was agreed to be paid for the Resignation of a Parson of his Benefices to the intent another might be presented unto it and so upon a Symoniacal agreement The Court held it no plea for that an averment shall not be that it was to be paid for other cause then the Obligation expresseth Agor and Candishes Case 730. An information was brought in the Exchequer by an Informer tam pro Domina Regina quam prose ipso upon the Statute of 8 E. 4. cap. 2. of Retainers and Judgment was there given the Informer to have one Moyety of the forfeiture and the Queen the other Moyety Error was brought upon the Judgment and assigned for Error that the Statute limits the party to sue in the Kings Kings Bench and divers other Courts but speaks not of the Exchequer It was the opinnion of the Justices that for that cause the Judgment was erroneous as to the Informer only Then it was moved that the Judgment might be and stand good for the whole forfeiture to the Queen for it was said that a Judgment might be reversed in part and stand for the other part and divers Presidents vouched to that purpose But the Court was of opinion because the first Judgment gave but a Moyery to the Queen this Court had not power to give more nor encrease it but only had power to affirme the Judgement Boddy and Hargraves Case 731. Debt upon a Lease for years was brought against the Administrator in the Debet detinet It was adjudged well brought because the Rent was encreased in the time of the Administrator himself But it was said That in all Cases where the Executor or Administrator brings an Action for a duty Testamentary it ought to be only in the Detinâ—t because the duty demanded ought to be Assets Layton and Garnonces Case 732. A man recovered Debt in Co. B. and had Judgment and he took forth Processe and the party was taken upon a Capias utlagatum within the year after the Judgment upon Processe continued without any discontinuance against him It was adjudged in this Case that he should be in Execution at the suit of the party without prayer because the processe was continued Parker and Sir Ed. cleeves Case 733. The Case was A. seised of three acres of equall value conveyed by act executed two of them for the Joynture of his Wife and the third he conveyed by act executed to the use of such persons and of such estates as he should declare by his last Will afterwards he devised the Land to one under whom the Plaintiff claimed In this Case it was amongst other poynts Resolved that he could not devise the Land because he had Conveyed two parts before by act executed in his life time Sydnam and Courtneys Case 734. Sir George Sydnam possessed of divers Leases for years gave them to his Daughter who was the Wife of C and to the Heirs of her body and if she dyed withot Issue that they should remain to such person of Combe Sydnam which Combe Sydnam he devised to his Cosen and his Heirs males in default of the Issue of the body of his daughter There was a Clause in the Will that his daughter should not alter the Leases but that they should remain according to the Will and made his Daughter his Executrix and dyed C. caused the Daughter to enter upon the Leases as Executrix and so waive the Legacy and afterwards the Daughter dyed without Issue Then C. caused an Administration to be taken of the goods of Sir George Sydenham which was at the Costs of C. and then to convey over the Leases to C. The Heir of Sir Geoâ—ge complained in Chancery and the Leases decreed unto him for the two fraudes which were used by C. in the Obliging of the Leases because the Daughter had them upon special trust and although it was said in this Case that the entail of the Leases was not good yet because there was a trust in the Daughter and expressed in the Will It was said the parties were compellable to execute the Trust and the Lord Chancellour resembled it to the Case where an Assignment was made of a Lease upon an expresse Trust to one and the Heirs of his body and afterwards to another and the Heirs of his body and the Assignes were Compelled to execute the Trust and to suffer the Issues in Tail to take the profits of the Lands The Countesse of Waâ—wicks Case 735. The Case was A. seised in Fee enfeoffed I. S. who dyed without Issue having Issue M. his Sister and Heir of the whole blood and T. of the half blood their Father being long before attainted of Felony dyed seised M. entred and enfeoffed the Countesse The point was if the Corruption of the blood of the Father had disabled the Course of discent and Inheritance between the Brother and Sister Quaere not Resolved Sprakes Case 736. A Copyholder makes a Lease for years Resolved that the Lessee may maintain Ejectione firme though the Lease be not warranted by the Custom Fisher and Smiths Case 737. Note It was Resolved in this Case That if a man plead a Bargain and Sale in which no consideration of mony is expressed there it must be averred that it was for mony and the words for divers considerations will not imply mony but if the deed be for a Competent sum of mony though the certainty of the sum be not expressed it is good enough Worsloy and Charnocks Case 738. A Statute Merchant was by Mâ—ttimus removed out of the Chancery in C. B. an execution awarded there super tenorem Recordi Resolved 1. That Error lyes in B. R. although the Original be in the Chancery and the Execution in C. B. 2. Resolved that in that Case the Conusor cannot alledge for Error that the Statute wants one of the Seales that ought to be to it because he hath admitted the same in C. B. 739. Debt in B. R. upon Mutuatas for 50 l. the Defendant pleaded an Attachment in London and had found pledges and because the pledges were not put in at the day of the last default but at another day it was holden No plea and Judgment was for the Plaintiff Washington and Burgons Case 740. It was holden by the
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
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
condition that if there should be default made of Reparations upon Warning given within 6. Months the Lessor to reenter Resolved the warning in this Case must be given to the person and not at the place and both to the person of the Lessee as the person of his Assignee Wilmot and Knowles Case 884. A. and his Wife seised of Land to them and the Heirs of the Husband bargained and sold them to I. S. upon Condition if they or any of them or the Heirs or Assignes of the Husband pay 500 l. at such a day to I. S. it shall be Lawfull for the Husband and Wife and the Heirs of the Husband to enter and to hold in their former estate and that after the payment all Fines and Assurances should be to the use of the Husband and his Heirs and to no other use A Fine was Levyed before the enrollment of the Deed the Husband dyed having a daughter married to I. D. who in the right of his Wife payed the money and entred The Defendant in the Right of the Wife of A. entred It was adjudged his entry was Lawfull because upon the point the use was revested in the Wife as it was before the Fine and the last part of the Fine declaring the use to the Husband and his Heirs was void Atkins and Longviles Case 885. King H. 8. Anno. 33. of his Raign bargained and sold Land to the Ancestor of the Defendant without any words of grant It was adjudged it was good enough by the Expresse words within the Statute of 31 H. 8. of Monasteries which makes all Patents Indentures and writings made by the King after 4. Feb. Anno 27. of Monastery Land to be made within 3. years after the Act to be good 886. In Trespas the Record of Nisi Prius was of a Trespas 12 Jan. 25 Eliz. whereas the Declaration was of a Trespas 12 Jan. 45 Eliz. found for the Plaintiff I was adjudged the Plaintiff could not have Judgment nor the Record of Nisi Prius amendable by reason of this variance Fitzwilliams Case 887. A. suffered a Recovery to the use of himself and his Wife with a Remainder to their Son Provided it shall be Lawfull for him and his Wife by their joynt Deed sealed and delivered before three Credible Witnesses to alter change revoke determine and make void any use estate or estates limited in the said Deed and to limit new uses and from thence forth the Recovery shall be to the new uses A. and his Wife made a Deed and by the same declare That it was their intent to alter change and determine revoke and avoid all the former uses to their Son and thereupon without more words they limited new uses It was adjudged it was a good revocation of the old uses and a good limitation of the new uses Vide Cook 6. part 33. Brown and Nichols Case 188. It was Resolved in this Case that a Conduit to carry Water to an house shall passe with the house by the word Appertenant and the owner may come upon the Land of another to mend it so it be done at a convenient time and that without either Prescription or Grant Pudsey and Neusons Case 889. The Condition of an Obligation was that if the Obligor make all reasonable acts c. which shall be for assurance c. to be required by the Obligee before sueh a day c. Adjudged a general request is sufficient and the Obligor at his perill is to make it otherwise if it had been to be devised by the Obligee or his Councell there he must shew that he had required such a particular Assurance viz. a Fine or a Feoffment c. Milliner and Robinsons Case 890. Ejectione firme A Lease was made by two Coparteners the Declaration was Quod demiserunt ruled not good because it is a several Lease of each of them or his part The Case further was A. devised his Land to his brother I. and if he dyed having no Son that the Land should Remain to W. for life and if he dyed having no Son to Remain to the right Heirs of the Devisor Resolved I. had an estate Tail but W. had it but for life or at least to his Heirs Females for having no Son is meer Contingent Frewwater and Rois Case 891. Tenant in Tail the Remainder in Tail Remainder to the right Heirs of Tenant in Tail Tenant in Tail Covenanted to stand seised to the use of himself and his Heirs untill marriage and after to the use of himself for life the Remainder to his Wife for life with divers Remainders over in Tail and after he suffered a Recovery and dyed It was adjudged it was a bar of the Ancient Tail because by the Covenant to stand seised there was not any alteration of the estate of the Tenant in Tail 892. A Parson sued for Tythes of Fodder the Parishioners prescribed in Non decimando because the Fodder was for their Cattell which manured their Land It was holden no good Prescription but it was agreed Tythes should not be paid for Agistments nor for Wood for hedgwood to enclose the Corne nor for Fewell Rye and Fuliambs Case 893. A. was divorced from his Wife for Incontinency he after took another Wife living the first Wife Adjudged the second Marriage was void because the Divorce was but à Mensa Thoro and not à Vinculo Matrimonii Ward and Sudmans Case 894. The Case was The Bishop of Exeter in Consideration of service and other Considerations gave Lands to T. his Servant and to S. his Kinswoman in Tail Quaere if it was a Joynture within 11 H. 7. because no Consideration was expressed but service and the Consanguinity is but a Consideration implyed The Court doubted of it The Case was not Resolved Errors Short and Hellyars 895. Trespas Quare clausum fregit blada tritici ad valent ' 40 l. messuit conculcavit consumpsit nec non herbam ad valent ' centum solid ' pedibus ambulando conculcavit Consumpsit found for the Plaintiff Error assigned 1. Because the Venire facias was returned upon Sunday which was not dies juridicas 2. Because he supposed the Continuance of the Trespas inâ—depasturatione herbae whereas the Trespas is not supposed in the pasturing but only in conculcatione consumptione herbae pedibus ambulando The Court held the first was amendable by the Statute of 18 Eliz and for the second they said it was but surplusage Sir George Hennage and Curtis Case 896. Trespas for Trespas done in his Close in H. the Defendant justified and prescribed by reason there was a Common Foot way from H. thorow the said Close unto another Foot way from H. to K. in the same County Issue was upon the Prescription the Venire facias was only of H. whereas it ought to have been of H. and K. and for that cause the Judgment was reversed Holt and Tilcocks Case 897. Assumpsit against the Defendant
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
Negatives that he hath not broken them and to the Covenants in the Affirmative that he hath performed them 2. When the Covenants Negative are against Laws and the Affirmative Lawfull there he may plead performance generally and the Court is to take notice that the Covenants in the Negative were void and against Law 3. That the Covenants that he would not do any Execution nor Execute any Writs here as venire fac were against Law 4. When some Covenants are void by the Common Law and others not void an Obligation taken for the performance of Covenants stands good for those that are good and not for the other Gresley and Luthers Case 1110. Assumpsit The Defendant was a Suitor for Marriage of the Daughter of I. S. the Mother of the Daughter was sollicited by the Defendant for her assent and furtherance of the Marriage and the Defendant promised that if she would agree that her Daughter should Marry the Defendant that he would give to the Mother 100l she gave her assent and the Marriage took effect It was Resolved that the Agreement of the Mother was a sufficient consideration to ground the Assumpsit upon Fosters and Jacksons Case 1111. Scire fac Against an Executor to have Execution of a Judgement against the Testator the Defendant pleaded that the Testator was taken in Execution for the same Debt and dyed in Execution It was Resolved that was a discharge of the Debt vide Laud and Williams Case Pasch 44. Eliz adjudged accordingly Harecote and Wrenhams Case 1112. The Case was The Father in his life time had conveyed a Lease in Trust to F. and made his Son his Executor who recvered 100l in Chancary against F. which he had and came to his hands as Executor The Question was if this 1000l should be Assetts in the Executors hands Resolved it should be Assetts Selby and Chutes Case 1113. The Lessor Covenanted that the Lessee should enjoy the Land without the disturbance Let or hindrance c. of the Lessee The Lessor sued the Lessee in Chancery suggesting the Lease was made to him in trust to try a Tittle onely In Covenant brought the Lessee assigned this in breach of the Covenant Adjudging no breach because it was a Suite in Equity and not at Common Law Sir Henry Rolls and Sir Robert Osborn and his wives Case 1114. Warrantia Charta against Husband and Wife that the husband and wife levied a Fine 2 Jac. to the Defendant and his Heirs with Warranty the Defendant pleaded that the same Term a common Recovery was had by a Stranger in a Writ of entry against the Plaintiff who vouched the husband only which Recovery was to the use of the Plaintiff for part of the Land for his Life with divers Remainders in tail with the Remainders in Fee to the Plaintiff and his Heirs In this case these points were Resolved 1. the wife one of the Defendants died pendant the Writ that the Writ should not abate because the Warranty was by the Husband and Wife so as by the death of the wife the Warranty as to her was determined and it stood for the Husband and his Heirs 2. Resolved that the Warranty was determined by the Severance and Division of the Land 3. Resolved that if the Plaintiff be impleaded in which he might vouch if he did not vouch that he might have Warrantia Charta 4. Resolved that because it appeared by the Plea in Bar that the use of the Recovery was to the Plaintiff but for Life so as the Plaintiff is in of another estate that he could not have a Warrantia Charta to recover upon a Warranty in Fee It was adjudged against the Plaintiff Cownden and Clarks Case 1115. In Ejectione firme the case was A seised of Lands in Fee in Soccage had Issue I. his Son and E. his daughter who was married to I. D. by whom she had Issue two daughters M. and F. he made his Will and devised out of his Lands Annuities to his Grand-children M. and F. and gave a Legacy to G. his brother of 20 l. and his Lands he devised thus My meaning is that my Land I now stand seised of and that of right I have shall discend to J. my Son but my Executors shall take the profits of it till his age of 24. years Provided If the said J. die without Issue of his body thâ—n the Land go to the right Heirs of my name and posterity equally to be divided part and part like and then to the said M. and F. I. died without Issue G. his brother entred and made the Lease It was Resolved in this case that the Devise to the right Heirs of his name and posterity was void and by consequence the Reversion in Fee discended to I his Son and from him to his two Daughters as his general Heirs and that appeared to be the intent of the Devisor for he did not intend his brother should have the Land for the words be part and part like and he did not intend his two daughters should have the Lands because he devised them Annuities Rowrth and the Bishop of Chesters Case 1116. It was Resolved in this case that after an Induction an Institution is not to be examined in the Spiritual Court but by a Quare Impedit only But yet the Justices if they see causa may write to the Bishop to certifie concerning the Institution Tisilate and Sir William Esex Case 1117. Covenant was brought upon the words Covenant Premise and Agree that the Lessee should quietly occupy and enjoy the Lands demised for during the term of Seven years and the Plaintiff shewed that a Stranger entred upon the Land but did not shew that he entred by title and for that cause it was adjudged against the Plaintiff and the difference was taken betwixt a Covenant implied as here it was in the words demise c. but upon a Covenant expressed there the Lessor is to gard the Land against every person Harrington and Deans Case 1118. Accompt A. was endebted to the Plaintiff 200 l. The Plaintiff required the Defendant to receive it of A and prayed the Defendant to borrow so much for him and pay it to the Plaintiff the Defendant did borrow 200 l. of I. S. and A. was bound for the repayment of it It was adjudged that the Defendant should account for this mony for that he had a Warrant from the Plaintiff to receive the mony of A. and by the direction of A. he received it of I. S. for A. therefore he was to account for it The Earl of Cumberland and Countesse of Cumberlands Case 1119. Waste in 3. Several Townes A. B. C. There were 29. Issues joyned and tryed 14. for the Plantiff and 14. for the Defendant One was if certaine Oakes cut down were imployed in reparation of the Castle of A. which Issue was tryed with the Defendant It was moved in stay of Judgement that the Visne was of the Town of A. where it ought to
Administratrix of W T. her Husband and that W. T. by his Bill such a day c. promised for him and his Executor to deliver to the Plaintiff 5000. Tyles before the Feast of All-Saints and to pay to the Plaintiff tantum quantum incrementuÌ„ and gaines which the Defendant should receive of the said Tyles for a year and averred the said W. T. received of the gaines 8 l. and that the Defendant in consideration the Plaintiff would suffer the Defendant to take and have the sole and only Administration of the goods of her Husband and give her day for the payment as well of the 8 l. as of the 5000. Tyles promised to pay the mony and deliver the Tyles upon request all which the Plaintiff did and yet the Defendant had not performed her promise Judgment upon Nihil dicit against the Defendant Error was brought it was adjudged that the consideration was insufficient because by the Law the Administration was to be counted to the Wife and it doth not appear that the Plaintiff had any Administration committed to him or that he exhibited any Caveat into the Spiritual Cour to hinder the Wife of the Administration and as to the giving day of payment that was not good because the Defendant was not his debtor nor chargeable in Law to pay him and for these causes the Judgment was reversed Hog and Blocks Case 898. Assumpsit The Defendant was indebted to the Plaintiff 10 l. and in consideration the Plaintiff would not sue him for the said 10 l. he promised to deliver to the Plaintiff 14. Quarters of Barley upon request Issue was joyned the Clerk of the Assizes returned the Postea and therein put John Puckering before a Serjeant which was omitted which was assigned for Error but the Court held it no Error and the Judgment was affirmed Levine Vanvive and Michael Vanvies Case 899. Debt upon Obligation to perform the award of A. and B. of for and upon all Actions and other Demands whatsoever had stirred depending having been between the parties till the date of the Obligation The Arbitrators awarded the Defendant should deliver to the Plaintiff before the last day of June next six Kentish cloaths which were battered by I. S. for the thred of the said Levine Issue was upon the deliver of the cloaths and found for the Plaintiff Error brought and assigned the arbitrament was of a thing out of the Submission It was adjudged it was within the Submission and the party was tied to the performance of it The Judgment was affirmed The Lord Mordant and Bridges Case 900. Action upon the case for these words viz. The Lord Mordant did know that Proud robbed Shotbolt and at such time as Proue should be arraignes therefore be willed Bridges to compound with Shotbolt for the same Robbery and told Bridges he would see him satisfied therefore if it cost him 100 l. It was found for the Plaintiff and damages a 1000 l. and the Lord Mordant had Execution by elegiâ— of the Lands of Bridges Bridges died the Administrator broughâ— Error in the Exchequer Chamber the Lord pleaded in abatement oâ— the Writ of Error his Execution by elegit and so the Administraton could not have Error Resolved the Writ of Error did lie for the Administrator because it might be the Land might be evicted and then the Plaintiff might resort to the Goods 2. It was assigned foâ— Error that words were not actionable in themselves for it waâ— said that one may compound for a Robbery knowing of it but noâ— for the Felony and the words are not to compound for the Felony Also it was said that it doth not appear in the Declaration that thâ— Lord was a Justice of Peace at the time of these words spoken tâ— Bridges although he was at the time that Bridges spake the words oâ— him in the Declaration upon the Writ of Error it doth not appeâ—â— if the words were actionable or not for it doth not appear in the boâ—â— that the Judgment in B. R. which was given for the Lord was affirmed or Reversed ideo quaere Callard and Callards Case 801. Ejectione firmae in B. R. The Case was E. C. seised of Lands in Fee in consideration of Marriage of Eustace his Son and Heir apparent being upon the Land spake these words to Eustace viz. Stand forth Eustace I do here reserving an Estate for my own and my Wives Life give unto thee and to thine Heirs for ever these my Lands and Barton of S. And afterwards he enfeoffed R. his younger Son in Fee with Warranty and died Eustace entred and demised to the Plaintiff It was there holden that the words did amount to a Feoffment and Livery being spoken upon the Land and the use to be to the Feoffor and his wife for their Lives and after to Eustace and his Heirs upon that Judgment Error was brought in the Exchequer Chamber and there the former Judgment was reversed for that the greater part of the Justices agreed that it was not any Feoffment executed because the intent was repugnant to Law to pass an Estate Eustace reserving any particular estate to himself and his wife and an use it could not be for the purpose was not to raise but use but by an Estate executed which took not effect and they all agreed if it was an use it could not rise upon natural affection without a Deed. The Judgment was reversed Westby Skinner and Catchers Case 902 A. was in Execution severally under the Sheriffs of London at the Suits of B. and C. the old Sheriffs delivered the body of A. by Indenture in which the Execution of B. was only mentioned and the other was omitted A. in the time of the new Sheriffs escaped It was adjudged in B. R. that the old Sheriffs should be charged in an Action for the Escape They brought Error in the Exchequer Chamber and the Judgment was affirmed because it was not found that the new Sheriffs were Sheriffs at the time of the delivery of A. to them and because they did not give notice to the new Sheriffs of all the Executions which were against A. Sacksord and Phillips Case 903. Assumpsit A. was endebted to the Plaintiff 460 l. the Defendant in consideration the Plaintiff would forbear to sue A. for the said Debt promised to the Plaintiff to pay it before Michaelmas next Upon non assumpsit it was found for the Plaintiff But in the postea the Verdict was not certified that the Plaintiff sustained damage by reason of the not performance of the promise for 460 l. for which the Plaintiff had judgment That was assigned for Error and also because the Declaration did not mention the forbearance of Suit at the Defendants request the Court ordered the postea to be amended and affirmed the Judgment Wiseman and Jennings Case 904. The case upon the matter in Law was this Tenant for Life the Remainder in tail the Remainder in Fee Tenant for Life suffered a common Recovery