of his Body after the decease of the said J.N. It was the clear Opinion of all the Iustices in this Case That by the said Indenture No use is changed in J N. nor any use raised to the said Son and Heir but that it is only a bare Covenant XIX Andrews and Glovers Case Trin. 4 Eliz. Rott 1622. IN Trespass by Andrews against Glover The Lady Mary Dacres being seised of the Mannor of Cowdam by her Indenture bargained and sold to the said Andrews all those her Woods More Rep. 15. Post 29. Winch. Rep. 5. Vnderwoods and Hedge-Rowes as have been accustomably used to be felled and sold standing growing being in upon and within the Mannor of Cowdam c. To have and to hold c. from the Feast of S. Michael last past during the natural life of the said Lady Mary And the said Andrews for himself his Heirs and Assigns doth Covenant and Grant to and with the said Lady her Executors c. to content and pay or cause to be contented and paid to the said Lady her Executors c. yearly during the said Term 10 l. By force of which Grant he cuts down all and singular the Trees Woods and Vnderwoods in the aforesaid Mannor growing at the time of the making of the Indenture aforesaid And afterwards the said Lady by her servants felled all the other Woods and Vnderwoods growing in the same Mannor after the said felling made by the said Andrews Whereupon Andrews bringeth Trespass And the Opinion of the Court was clear That after the Bargainee had once felled that he should never after fell in the same place where the first felling was made by force of the said Grant notwithstanding the Rent yearly reserved and notwithstanding the words of the Grant viz. To have and to hold during the life of the said Dame Mary Wherefore the said Andrews durst not Demur c. XX. 6 Eliz. In the Kings Bench. THe Case was A. is bounden to B. in an Obligation to pay to B. 20 l. at the Feast of our Lady without limiting in Certain what Lady-Day viz. the Conception Nativity or Annunciation And the Opinion of the whole Court was That the Deed should be construed to intend such Lady-Day which should next happen and follow the date of the said Obligation XXI Scarning and Cryers Case Mich. 7 Eliz. In the Common Pleas. Rott 1851. IN a Second Deliverance by Scarning against Cryer the Defendant makes Conusans as Bailiff to J.S. and sheweth More Rep. 75 That the said J.S. and at the time of the taking c. was Lord of the Mannor of A. Within which Mannor there was this Custom time out of mind c. That the Tenants of that Mannor and other Resiants and Inhabitants within the said Mannor or the greater part of them at the Court-Baron of the said Mannor at the Mannor aforesaid holden were used and accustomed to make Laws and impose Pains as well upon the Resiants and Inhabitants within that Mannor and the Tenants of the said Mannor there being as upon every Occupier of any Tenements within the said Mannor for good government there to be had and kept and for the preservation of the Corn and Grass there growing And that the said J.S. and all those whose Estate c. distringere consueverunt pro omnibus poenis sic forisfact per Juratores Curiae praed ex assensu dictor Tenent Inhabitant residentium ibid. in forma praedict assessis impositis tam super quibuscunque tenent Maner praedict aut inhabitantibus aut residentibus infra Maner illud quam super occupatoribus aliquor Tenementor infra idem Maner ' And further said That at a Court-Baron there holden That Coram Sectatoribus ejusdem Curiae by the Homage of the said Court then charged to present with the assent of other Tenants and Inhabitants of the said Mannor it was Ordained and Established That no Tenant of the Mannor aforesaid nor any of the Resiants or Inhabitants within the said Mannor nor any Occupier of any Tenements within the said Mannor from thenceforth should keep his Cattel within the several Fields of that Mannor by By-herds nor should put any of their Oxen called Draught-Oxen there before the Feast of St. Peter upon pain Quod quilibet tenens residens c. should forfeit 20 s. And further said That the Plaintiff at the time c. Occupied and had such a Tenement within the said Mannor And that at such a Court afterwards holden viz. such a day It was presented that the Plaintiff Custodivit boves suos called Draught-Oxen within the several Fields by By-herds contrary to the Order aforesaid by which the penalty of 20 s. aforesaid was forfeited Notwithstanding the said pain de gratia Curiae illius per quosd A. E. afferratores Curiae illius ad hoc jurat assess afferrat fuit ad 6 s. 8 d. And further he said That the place in which the taking c. is within the Mannor aforesaid And that A. B. Steward of the said Mannor extraxit in scriptis extra Rotulis Curiae praed the said pain of 6 s. 8 d. and delivered the same to the Defendant Bailiff of the said Mannor to Collect and Receive by force of which he required the said 6 s. 8 d. of the Plaintiff and he refused to pay it and so avoweth the taking c. And upon this Conusans of the Defendant the Plaintiff did Demur in Law And Iudgment was given against the Conusans 1. Because he pleaded That it was presented Coram Sectatoribus and doth not shew their Names 2. The penalty appointed by the By-Law was 20 s. and he sheweth it was abridged to 6 s. 8 d. and so the penalty demanded and for which the Distress was taken is not maintained by the By-Law and a pain certain ought not to be altered 3. He sheweth that it was presented that the Plaintiff had kept his Draught-Oxen and he ought to have alledged the same in matter in fact that he did keep c. XXII Dedicots Case 7 Eliz. In the Common Pleas. DEdicot seised of certain Customary Lands Dyer 210 251. Hob. 285. surrendred the same into the hands of the Lord to the intent that the Lord should grant the same de Novo to the same Dedicot for life and afterwards to Jane his Wife during the Nonage of the Son and Heir of Dedicot and afterwards to the said Son and Heir in tail c. Dedicot died before any new Grant Afterwards the Lord granted the said Land to the Wife during the Nonage of the said Heir the remainder to the Heir in tail the Heir at that time being but of the age of 5 years so as the said Wife by force of the said Surrender and Admittance was to have the said Lands for 16 years The Wife took another Husband and died And it was the Opinion of Brown and Dyer Iustices That the Husband should have the Lands during the Nonage of
John the Father in three parts to be divided And afterwards the Father by his Will devised the Lands holden in Socage unto his said Wife for life with divers Remainders over It was the Opinion of the Court in this Case that the Devise was utterly void by the Statute CLV Brett and Peagrims Case Pasch 26 Eliz. IN an Action upon the Case the Plaintiff declared that whereas he himself and the Defendant submitted themselves to the Award of A.B. and C.D. and whereas the said Arbitrators upon the hearing of the Causes between them did intend and were resolved amongst other matters of their Award to award that two Obligations by which the Plaintiff was severally bounden to the Defendant for the payment of certain sums of Mony to the Defendant should be delivered by the Defendant to the Plaintiff to be cancelled The Defendant promised in Consideration that that Article of the delivery of the said two Obligations should be left out of the Award that he himself would gratis deliver them to the Plaintiff without any Coertion or direction of the Award and further declared that the said Article ad specialem instantiam ipsius Querentis was left out by the said Arbitrators out of their Award and notwithstanding that that the Defendant had not redelivered ut supra c. but had put the same in suit against the Plaintiff In this Case upon the matter ut supra c. it was adjudged for the Plaintiff CLVI Nich. Lee's Case Pasch 26. Eliz. In the Kings Bench. 1 Cro. 26. 1 Len. 285. 1 Inst 113. Dyer 177. 219. a. 2 Len. 220. NIch. Lee by his Will devised his Land to W. his second Son And if he do depart this World not having Issue then I Will my Sons-in-Law shall sell my Land. The Devisor at the time of the Devise having six Sons-in-Law died W. had Issue John and died John died without Issue one of the Sons-in-Law of the Devisor died the five surviving Sons-in-Law sold the Land. 1. It was clearly agreed by the whole Court that although the words of the Will be ut supra If W. my Son depart this World not having Issue c. And that W. hath Issue which dieth without Issue there although it cannot be said Literally that William did depart this World not having Issue yet the intent of the Devisor is not to be restrained to the Letter but Construction shall be made that whensoever W. dieth in Law upon the matter without Issue the same Land shall be subject to sale according to the Authority committed by the Devisor to his Sons-in-Law And now upon the matter W. is dead without Issue As in a Formedon in the Reverter or Remainder although the Donee in tail hath Issue yet if afterwards the Estate tail be spent the Writ shall suppose that the Donee died without Issue a fortiori in the case of a Devise such Construction shall be made As to the other point concerning the sale of the Land Wray demanded if the Sons-in-Law were named in the Will The Clerks answered they were not See 30 H. 8. Br. Devise 31 and 39 Ass 17. Fitz. title Executors 117. Such a sale is good in case of Executors See also 23 Eliz. Dyer 371. And see 4 and 5 Mar. Dyer Land devised in tail and if the Devisee shall die without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu of A. if A. dieth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court that the sale by the manner aforesaid was good and Iudgment given accordingly CLVII Rag and Bowley's Case Trin. 26 Eliz. In the Kings Bench. ERror was brought upon a Fine and the Error was assigned in the Proclamations Whereupon issued a Certiorari to the Custos Brevium who certified the Proclamations by which Certificate it appeared that two of the said Proclamations were made in one day upon which the Defendant prayed another Scire facias to the Chirographer in whose Office it appeared that all the Proclamations were well and duly made It was the Opinion of Wray Chief Iustice in this Case that the Defendant ought to have his preyer for the Chirographer maketh the Proclamations and he is the principal Officer as to them And the Custos Brevium hath but the abstract of the Proclamations and we may in discretion amend them upon the matter appearing But the other Iustices seemed to be of a contrary Opinion for that the Proclamations being once certified by the Custos Brevium who is the principal Officer we ought not afterwards to resort to the Chirographer who is the inferior Officer And afterwards the Clerks of the Common Pleas were examined of the matter aforesaid by the Iustices of the Kings Bench and they answered according to that which was said by Wray Chief Iustice Wherefore it was awarded by the Court that a new Certiorari be directed to the Chirographer who Certified the Proclamations to be well and duly made And thereupon the Court awarded that the Proclamations in the Office of the Custos Brevium should be amended according to the Proclamations in the Custody and the Office of the Chirographer Note In the same Case before the Writ brought a stranger had brought a Writ of Error against the same Defendant upon the same Fine upon which the transcript of the Fine and Proclamations are removed in Banco and after the Plaintiff is Non-suit Now another who hath Cause may have a Writ of Error quod coram vobis residet CLVIII Taverner and Cromwell's Case Trin. 26 Eliz. In the Kings Bench. UPon an Evidence unto a Iury 3 Cro. 353. containing difficulty and matter in Law it was found viz. that the Bishop of Norwich 10 H. 8. was seised of the Mannor of Northelman in the right of his Bishoprick and at his Court holden within the same Mannor granted parcel of the Demesnes of the said Mannor to one Taverner and his Heirs where of the said Land in truth there was not any Demise by Copy before And so the said Land continued in Copy until 23 H. 8. at which time Taverner committed a forfeiture which being presented the Bishop seised the Land as forfeited and granted the same again by Copy to Taverner in Fee And so from thence it continued in Copy until 8 Eliz. which Interval between 23 H. 8. and 8 Eliz. amounted to 47 years It was the Opinion of the whole Court in this Case that the Continuance for 50 years is requisite to fasten a Customary Condition upon the Land against the Lord. It was also agreed by the Court that although the Original Commencement and that Customary Interest did commence 10 H. 8. ut supra from which time unto 8 Eliz. 60 years passed yet the seisure for a forfeiture which happened 23 H. 8. interrupted utterly the Continuance from the time which might by the Law have perfected the Customary Interest So
and it was assigned for Error because that in the Declaration it is alledged That the Wife Administred the Goods of the Intestate and did not shew that she was Administratrix c. and took Letters of Administration 2. It is not alledged That the Wife had Goods of the Testator at the time of the promise for otherwise she shall not be bound For it is but Nudum pactum for Executors or Administrators not having Assets shall not be charged And it was holden here That Request is not necessary for the debt was before the promise so as the Request is not any cause of the Action CCLIII Matthews's Case Pasch 30 Eliz. In the King Bench. NOte That a Bill of Perjury upon the Statute of 5 Eliz. was sued by the Queen and the party because that the Defendant being one of the Homage c. did present with the rest of the Homagers That the Plaintiff had cut down certain Trees c. Whereas in truth he had not cut down any And it was holden by all the Iustices That for this matter the Bill did not lie upon this Statute For this branch of the Statute is to be intended of Perjury in Depositions only And by Tanfield A Bill doth not lie upon the Statute upon Perjury committed in an Answer to a Bill in Chancery See 41 Eliz. Flower 's Case CCLIV Trin. 30 Eliz. In the Common Pleas. Co. Rep. Gatewards Case IN a Replevin The Defendant avowed for Damage Feasant The Plaintiff in bar of the Avowry shewed That every Inhabitant in every Messuage in the said Town had used to have Common in the place where c. Glanvile argued That the prescription was not good for want of Capacity in the party who pretends Interest for it is not certain but applyed to a Multitude and he put divers Cases in proof of it 22 H. 6. 21 H. 7. 1. Mar. Dyer 100. The King grants a Rent probis hominibus of Islington the same is void for they are not capable Harris I conceive That the Prescription is good And he granted That a confused Multitude cannot prescribe in a matter of Interest but in an Easement or discharge As in a Way to the Church and that by reason of Custom in the Land and not in the persons See 7 E. 4. 26. Where it is pleaded That all the Inhabitants within such a Town time out of mind c. have used to have Common there c. And for a Township to have a Way to the Church And good by Danby And by Littleton it ought to be pleaded by way of usage And 18 E. 4. 3. All the Inhabitants of such a Town may well prescribe And he cited Bracton 222 223. Communia quandocunque ex longo usu sive constitutione cum pacifica possessione continue non intermixta ex scientia negligentia patientia Dominor ' ita etiam amitti potest per negligentiam non usum And he vouched Britton fol. 144. Common is obtained by long sufferance and also it may be lost by long negligence c. CCLV. Pye and Grunway's Case Mich. 30 Eliz. In the Common Pleas. IN Trespass brought by Pye against Grunway and one B. The Plaintiff declared against Grunway only who pleaded not guilty And it was found for the Plaintiff And in Arrest of Iudgment it was moved That the Plaintiff in declaring against one only had falsified his own Writ To that it was said That at the uttermost it is but a discontinuance so but matter of form and so relieved by the Statute of 18 Eliz. But it was said by the Court that it may be That B. was outlawed at the Plaintiffs suit and then the proceedings is determined as against him And the Court demanded of the Clerks If the use of the Court be not so in such case to declare That Grunway simul cum B. utlagat ad sectam Querentis did the Trespass Who answered Not in this Action but in an Action of Debt it is otherwise And afterwards notwithstanding that Exception Iudgment was given against the Plaintiff CCLVI. Thorp and Wingfield's Case Trim. 30 Eliz. In the Common Pleas. IN Waste the Plaintiff declared upon a Lease for years generally and the truth of the Case was That the Plaintiff had made a Lease for years to one A. which Lease being in force for two years he Leased the same Lands for years as he hath declared to begin presently and the Waste which is assigned in the Declaration was done during the first Lease And now If the Defendant upon this matter might plead No waste done was the Question And it was said by the Court That such a plea should be perilous for the Defendant for it shall be found against him and if he pleadeth the special matter aforesaid scil The former Lease in esse at the time of the Waste committed after the expiration of which Lease no Waste was done If the second Lease be not by Indenture it should be a good Plea but if by Indenture then the Plaintiff would estop him by the Indenture to shew that the second Lease hath another beginning than the Indenture purports and then the Waste shall charge the Defendant And although the Plaintiff had not declared upon a Lease by Indenture yet if the Defendant pleaded the special matter aforesaid he by way of Replication shall estop the Defendant to plead any other beginning of the Term than the Letter of the Indenture doth purport and the same shall be no Departure for it is matter which strengtheneth the Declaration CCLVII Botham and the Lady Gresham's Case Pasch 30 Eliz. In the Common Pleas. IN a Prohibition by Botham and Couper 1 Len. 94. 1 Cro. 71. 1 Len. 128. Post 265. against the Lady Gresham who had impleaded them in the Spiritual Court for Tythe-Hay and made their Suggestion That time out of mind c. they had paid to the Vicar of the said Parish 4 d. for the Tythe of Hay of every Acre It was moved That upon that surmise a Prohibition ought not to be granted for that a Modus Decimandi shall never come in Question But the party ought to have pleaded the same matter in the Spiritual Court scil That the same doth appertain to the Vicar and not to the Parson and then if the Vicar sueth for the Tythe of the Hay the Modus Decimandi will come in Question and although that he hath averred in his surmise that the Tythe-Hay belongeth to the Vicar yet that is not material And afterwards a Consultation was awarded CCLVIII. Rush and Heighgate's Case 30 Eliz. In the Exchequer 2 Len. 121. Co. 4. Rep. Palmers Case PRocess was awarded out of the Exchequer against Rush for the levying of the sum of 200 l. which he owed to the Queen Vpon which It was found by Office That Rush 22 Junii 22 Eliz. was possessed of Lands for the Term of divers years then and yet to come And the Debt of the Queen began