such Estates that the Law allows them to be good against the Lords themselves they performing their Customs and Services and therfore are more commonly guided by the guides and rules of the common Law and therfore as appeareth in Dyer Tr. 12. Eliz. Possessio fratris of such an Estate facit sororem esse haeredem And to say that Estates of Copyhold Land are not warranted but by custom and every Custom lies in Vsage and without Vsage a Custom cannot be is true but in the Vsage of the greater the lesser is alwaies implyed As by Vsage three lives have been alwaies granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives only is warranted by this Custom for the use of the greater number warrants the lesser number of lives but not è converso And so Fee-simples upon a Limitation or Estates in tail are warranted by the equity of the Statute because they are lesser Estates then are warranted by the Custom and these lesser are implyed as before in the greater and none will doubt but that in this case the Lord may make a Demise for life the Remainder over in Fee and it is well warranted by the Custom and therfore it seems to them that it is a good Estate tail to John Gravenor and a good Remainder over to Henry his Brother and if so it follows that the Plaintiff hath a good Title to the Land and that Iudgment ought to be given for him And for the dying seised of Elizabeth they did not regard it for she cannot dye seised of it as a Copyholder for she had no right to be Copyholder of it And by the dying seised of a Copyholder at common Law it shall be no prejudice to him who hath right for he may enter But here in as much as she cometh in by admittance of the Lord at the Court her Occupation cannot be fortious to him and therfore no descent at common Law by her dying seised for it was but as an Occupation at Will But if it shall not be an Estate tail in John Gravenor as they conceive strongly it is yet for the other causes alledged by Gawdy and Clench Iudgment ought to be given for the Plaintiff and the Remainder which is not good shall not prejudice the Fee-simple conditionall granted to John which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs the Remainder over because that we as Iudges see that this cannot be good by Law and therfore not to be compared to the case where the Custom warrants but one life and the Lord grants two joyntly or successively there both the one and the other is void And this is true because the custom is the cause that it was void and not the Law and also it is a larger Estate then the Custom warrants which is not here and upon this Iudgment was given that the Plaintiff shall recover And by Popham it hath been used and that upon good advice in some Maâ—nors to bar such Estates tails by a common Recovery prosecuted in the Lords Court upon a Plaint in nature of a Writ of Entry in the Post 2. JUlius Cesar Iudge of the Admiralty Court brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger for saying that the said Cesar had given a corrupt Sentence And upon not guilty pleaded and 200. marks Damages given it was alledged in arrest of Iudgment where it was tryed by Nisi prius at the Guildhall by a partiall Inquest because that upon the default of strangers one being challenged and tryed out a Tales was awarded De circumstantibus by the Iustice of Nisi prius wheras as was alledged a Tale could not have been granted in this case for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English for the Statute speaks at the beginning but of such Iuries which by the Law eught to have 40 s. of Free-hold and wills that in such cases the Venire facias ought to have this clause Quorum quilibet habeat 40 s. in terris c. which cannot be intended of Aliens which cannot have Free-hold And it goes further that upon default of Iurors the Iustices have authority at the Prayer of the Plaintiff or Defendant to command the Sheriff or other Minister to whom it appertaineth to make a return of such other able persons of the said County then present at the same Assises or Nisi prius which shall make a full Iury c. which cannot be intended of Aliens but of Subjects and therfore shall be of tryals which are onely of English and not of this Inquest which was part of Aliens And further the Tales was awarded only of Aliens as was alledged on the Defendants part but in this point it was a mistake for the Tales was awarded generally de circumstantibus which ought alwaies to be of such as the principall Pannell was But Per Curiam the exceptions were disallowed for albeit the Statute is as hath been said yet when the Statute comes to this clause which gives that a Tales may be granted by the Iustices of Nisi prius and is generally referred to the former part of the Act for it is added Furthermore be it enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius c. the Sheriff c. shall return upon every Juror 5 s. Issues at the least c which is generall of all And then it goes further And wills that in every such Writ oâ— Habeas Corpora or Distringas with a Nisi prius where a full Jury doth not appear before the Justices of Assise or Nisi prius that they have power to command the Sheriff or other Minister to whom it appertains to nominate such other persons as before which is generall in all places where a Nisi prius is granted and therfore this is not excepted neither by the Letter nor intent of the Law And where it is said such persons by it is to be intended such as the first which shall be of Aliens as well as English where the case requires it for expedition was as requisite in cases for or against them as if it were between other persons And Aliens may well be of the County or place where the Nisi prius is to be taken and may be there for although an Alien cannot purchâ—se Land of an Estate of Free-hold within the Realm yet he may have a house for habitation within it for the time that he is there albeit he be no Denison but be to remain there for Merchandise or the like And by Gawdy where the default was only of strangers the Tales might have been awarded only of Aliens as where a thing is to be tryed by Inquest within two Counties and those of the one County appear but not those of the other the
Harrison Erringtons case 202p Hebborns case 206p I JEne and Chesters case 151p Jenningâ— Maystâ—â—â— case 102b Jorden Ayliffs case 168b Jenkin and Vivians case 201p K. Kettle and Masons Case 50p King and Berys Case 57p Kellies Case 104p Kirton and Hoxtons case 115p The King and Brigs case 150p Kebles case 18â—b Knights case 187b King Merricks case 2o L Lee and Browns case 128p Lewes and Jeofferies case 153p Lemasons and Dicksons case 189p Laurking and Wylds case 126p Leechford and Saunders case 194b Liverel and Rivets case 206b Lathams case 210b M MIchels case 8b Morgans case 52p Morgan and Tadcastles case 55p Montague and Jeofferies case 108p Mounson and Wests case 110p May and Kets case 129p Middletons case 131p May and Samuels case 134p Mingies case 135p Sir Arthur Mannarings case 145p Morley and Sir Richard Molineuxs case 1â—5p Millen and Fandries case 161p March and Fandries case 161p March and Newmans case 163p Mayor of Maidstons case 180p Mills and Parsons case 199b O OAks and the Lord Sturtonrs case 65b Overton and Sydalls case 120p Old and Estgreens case 160b Owen Wards case 187b P PIgots case 94p Porramor and Veralds case 101p Pollard and Lutterells case 108p Sir John Pools case 128p Powels case 139p Pack and Metholds case 160p Probe and Maynes case 192b Petit and Robinsons case 203p Ployden and Symes case 205p R ROper and Ropers case 106b Robinson Walkers case 127p Rawlinson and Greens case 127p Rones case 133p Richardson and Cabells case 142p Sir George Reynalds case 165p Ryman and Bickleys case 129p Reynor and Hallets case 187p Rochester and Rickhouse case 203p Rosse and Harvies case 206b Risley and Hains case 209p S STocks case 37p Smiths case 53p Southwell and Wards case 91p Sawyer and Hardies case 99p Stainings case 102p Scot and Mainys case 109p Strowd and Wyllis case 114p Southern and Howes case 143p Silvesters case 148p Stone and Withipoles case 152p Sary and Pigots case 166p Sharp and Rasts case 181p Snaggs case 187b Sherry and Richardsons case 15p Smithers case 169b Scheverel Dales case 193p Sanders Meritors case 200p Staple Kings case 206b Savile Wortleys case 207p Sparman Sherwoods case 222p T THompson Traffords case 8p Taunton Raries case 106p Tailours case 133p Thurman Coopers case 188p Talbot and Sir Walters Lacens case 146p Turner and Dennis case 169 V VAughans case 134p W WOod and Downings case 10p Webly and Skinners case 85p Wood and Matthews case 102p Westcot and Cottons case 130p Wrenhams case 135p Wootton and Byes case 136p Wards case 144p Webb and Paternosters case 151p Westermans case 151p Wales case 160p Welden and Bâ—sies case  Wicks case 186b Williams and Vaughans case 186b Willers case 197b Whelhorseys case 208p Woodroof and Vaughans case 210q CASES Reported by S R. JOHN POPHAM Knight Lord chief Justice of ENGLAND In the time of Queen ELIZABETH and written with his own hand in French and now faithfully done into English to which are added some remarkable CASES Reported by other Learned and Judicious Pens since his death Fenner versus Fisher Mich. 34. and 35. Eliz. Reginae in the Kings Bench IN Trespasse brought by Iustice Fenner against Andrew Fisher for a Trespasse done in the Parsonage house of Cravfords in the County of Kent 30. Maij 34. of the Queen the Defendant pleaded that one 〈…〉 was seised of the same Messuage in his Demesne as of see and being so seised the 〈…〉 day of in the same year did demise it to the Defendant for two years from such a Feast then last past by virtue of which he entred and was possessed untill the Plaintiff claiming by colour of a Deed made of the sayd Wrighâ— where nothing passed by the Deed upon which the Defendant entred c. The Plaintiff replies by protestation that the sayd Wrighâ— was not seised as the Defendant hath alledged And for Plea saith that the sayd Wright did not let it to the Defendant as the Defendant hath alledged upon which being at Issue and found for the Plaintif Ackinson moved that Iudgment ought not to be given for the plaintiff because that he hath not made any Title by his Replication for by 9 E. 4. 49. In Trespasse the Defendant pleads in Bar and gives colour to the Plaintiff it is taken for a Rule that the Plaintiff ought to make Title Cook answered that he needs not to make Title in this case but that it sufficeth to traverse the Bar without making a Title and sayd that in 22 E. 4. Fitzh Trespass It is adjudged that in Trespasse the Plaintiff may traverse the Bar without making Title in his Replication and here in as much as it is acknowledged by the Defendant that Wright did demise it to the Plaintiff and that this is a Lease ta will at the least not defeated by his own shewing but by the Lease made to Defendant this being traversed and found against the Defendant The Plaintiff by the acknowledgment of the Defendant himself hath a good Title against him to enter into the Land and by it the Defendant by his Re-entry is become Trespassâ—â— to the Plaintiff and he sayd that in 2 E. 4. fol. In Trespasse where the Defendant pleads that he let the Land to the Plaintiff for another mans life and that he for whose life it was was dead upon which he entred and it is adjudged that it sufficeth for the Plaintiff to maintain that Cestuy vie was yet living without making any other Title And yet these reasons Cleoch and Gawdy held the Replication good to which Popham sayd that we as Iustices ought not to adjudge for the Plaintif where a good formall bar is pleaded as here it is But wherby the Record it self which is before us we cannot see that the Plaintiff hath good cause of Action And therefore I agree that in Trespasse in some cases the Plaintiff may traverse the Bar or part of it without making any other Title then that which is acknowledged to the Plaintiff by the Bar but this alwaies ought to be where a Title is acknowledged to the Plaintiff by the Bar and by another means destroy by the same Bar for there it sufficeth the Plaintiff to traverse that part of the Bar which goeth to the destruction of the Title of the Plaintiff comprised in the Bar without making any other Title but if hee will traverse any other part of the Bar he cannot do it without making an especiall Title to himself in his Replication where by the Bar the first possession appeareth to be in the Defendant because that although the Traverse there be found for the Plaintiff yet notwithstanding by the Record in such a Case the first Possessions will yet appear to be in the Defendant which sufficeth to maintain his Regresse upon the Plaintiff and therefore the Court hath no matter before them in such a Case to adjudge for the Plaintiff unlesse in cases
and exhibit or upon his or their Oath affirming that they have not the same nor can come by it or that it was never put in writing then the effect therof to be entred and inrolled of Record or else every such conveyance and assurance should be void and of none effect to all intents and purposes saving to every person and persons other then to parties and privies to such conveyance such as shall not exhibit the said conveyance according to the true meaning of this Act all such Rights c. wherupon the said Francis the Nephew the 20. day of Novem. 30 Eliz. in his own person affirmed upon his Oath that he had not the said conveyance nor knew not how to come by it but delivered the effect of the assurance omitting the time when it was made otherwise then that it was made after the beginning of the Queens Raign and before the Treason committed by the said Sir Francis and before the Statute made 13 Eliz. against Fugatives and omitting also the last clause of the Condition for the tender of the said King and this he offered openly in the Court of Exchequer the same day after which the Queen being moved with the said Condition made a Warrant per Letters Patens under the great Seal dated 17. Martii 31 Eliz. to Richard Broughton and Henry Bourchier Esquires for her and in her place and stead to deliver or tender to the said Francis the Nephew a King of Gold to the intent to make void the Vses and limitations limited by the said Indenture and to return their proceedings upon it into the Court of Exchequer wherupon they made a tender of a King of Gold to the said Francis the Nephew the 18. day of March 31 Eliz. which he refused to receive And the two years after the said Session of Parliament was the 23. day of March 31 Eliz. And the said Broughton and Bourchier returned all this that they had done as before with the Commissions into the Exchequer according to the Commission And upon this at the Parliament holden 35 Eliz. upon an Act which then was to passe touching the Land and Attainder of the said Sir Francis diverse questions were moved amongst all the Iudges and Barons then there wherof 1. The first was whether the effect of the Assurance made by Sir Francis was delivered into the Exchequer according to the intent of the Act because it wanted the time when it was made and also one of the Proviso's And upon good deliberation they all did agree that it was not put in according to the purport of the said Act for the time may be materiall to be known for the fraud which by the same Statute might be averred to be in the making of this Conveyance and for the better tryall of the validity of the assurance and of the cause of it therfore the true effect therof ought to de delivered or shewn in writing to be entred of Record because the Queens Councell may see and understand by it whether the Queen might have Title to it or not and how can this be if it doth not appear when it was done And for the Condition how can the Queen by presumption come to the notice of it if it be not shewn to her And this was one principall matter of the effect of the said assurance which ought to have been shewn for this shewing ought to be for the benefit and advantage of the Queen and not so much for the advantage of the party And here the effect of it which shall shew for the Queen is omitted and therfore not shewn in writing according to the purport and intent of the Statute which was that by it the Queen and her Councell may see what will make for her in the Grant Conveyance or Assurance 2. Whether this Condition were given to the Queen because that the words in this Indenture precedent to the Condition are these viz. Because that the said Francis the Nephew might happen to be of evill behaviour and government the said Sir Francis provided as before which as was alledged was founded upon a particular regard and respect which was proper to himself and therfore cannot be transferred to the Queen and it doth not appear that he yet had been of ill behaviour But this notwithstanding all agreed that this Condition is in the Queen by the attainder of the said Sir Francis as well by the Act of his Attainder as by the Act of 33 H. 8. which give the forfeiture of Conditions also expressy in the case of Treason 3. Whether there ought to be an Office for finding the performance of the Condition according to the Warrant and all agreed that there need not because that when any man is to do a thing by Warrant of Letters Patents for the Queen to be returned in any Court it sufficeth for him to return it which he hash done according to the Letters Patents with the Warrant it self and then that which is so returned is as well of Record as if it were found by Office and returned of Record and so it was agreed in the Exchequer about 16 Eliz. in the case of Edward Dacres who had made an Assignment of his Goods and Chattells to Sir Alexander Culpdpper and others who afterwards was attainted of Treason by Outlawry and the Condition adjudged to be forfeited to the Queen by the Statute of 33 H. 8. and a Warrant was made by Letters Patents to Sir Thomas George to perform the Condition who did it and returned that he had done it accordingly wherby the assurance to the said Sir Alexander and his Companions was avoided and all the Goods and Chattels of the said Edward forfeited to the Queen and all this was in the Queen without Office found for that which the Sheriff or other Minister doth by virtue of any Writ or Warrant which is to be of Record when it is returned of Record it is as well of Record as the Writ or Warrant it self so here c. 4. But the greatest question was which was not any thing in the case here whether the Estate made to Francis the Nephew were void eo instanti upon Hillary Term finished 31 Eliz. although the two year after the Session of Parliament 28 Eliz. did not end untill the 28. day of March 31 Eliz. in as much as no Term was or could be within two years after it in which the assurance or the effect of it might be shewn openly in the Court of Exchequer or that it shall tarry to be void untill the two years are fully expired as if a man make assurance of his Land upon condition that if he do not go to Rome within two years next ensuing that it shall be to the use of I. S. and his Heirs and he stay untill a week within the end of the two years in so much as it is not possible to perform it within the two years yet the use doth not change untill the two
years are past but in this case it ought to be shewn a Term within the two years which is as much as to say that if the Terms be all past so as it cannot be done after it within the two years the Assurance eo instanti upon the finishing of the last Term is become void as if an Assurance be upon condition that if in the Term time within two years he do not levy a Fine to I. S. and his Heirs c. now if the last Term passe without the Fine the Vse change albeit the two years be not expired si Parolls fort Plea And there is great diversity where an Estate is to be defeated or an Vse is to be raised upon an Act to be done or not done within a time certain within two years and where within two years generally for in the first case the Vse change upon the Act done or not done immediatly and in the other not untill the two years are finished because that by presumption alwaies within two years the Act may be done for any thing of which the Law takes conusance But if the Act to be done or not done refer to any time certain within the two years as if he do not pay 10 l. to one before the Feast of S. Michael the Arch-angel within the two years that then the Vse shall change or the Estate shall be void in these cases immediatly upon the last Feast of S. Michael the Arch-angel within the two years the Vse change or the Estate shall be void as the case is and shall not tarry untill the full end of the two years to do it for in the words themselves the diversity appeareth 8. AT the same time there was another Indenture shewn to the said Iudges bearing date the 4. day of May 1 Eliz. made between the said Sir Francis Englefiâ—ld of the one part And Sir Edward Fitton and Sir Ralph Egerton Knights of the other part and inrolled in the Exchequer according to the Statute of the 30. day of October 30 Eliz by which the said Francis for him and his Heirs covenanted with them that as well in consideration of a Marriage had and solemnised between John Englefield brother of the said Sir Francis and Margaret Fitton Sister to the said Sir Edward and for the augmentation and interest of the Ioynture of the said Margaret as for other good causes and reasonable considerations the said Sir Francis especially moving the said Sir Francis before the Feast of S. John Baptist then next ensuing would assure Lands within the County of Warwick of the value of 60 l. a year to the said Sir Edward and Sir Ralph and their Heirs to the use of the said Margaret for her life and for her Ioynture for part of it and for the remainder that it shall also be to the use of the said Margaret for her life in case that the Lady Anne then the wife of the said Sir Francis should recover her Dower of the said 60 l. a year And the said Sir Francis for him and his Heirs did further covenant with the said Sir Edward and Sir Ralph that if it should happen that the said Sir Francis shall die without Issue Male of his body the said Iohn or any Issue of his body upon the body of the said Margaret begotten then living that then after the death of the said Sir Francis as well the Mannor of Englefield as all his other Lands making especiall mention of them should be and might descend remain revert continue or be in possession or rebersion to the said Iohn Englefield and to the Heirs Males of his body upon the body of the said Margaret lawfully begotten if the sayd Iohn were then living or to the Heirs Males of the body of the sayd Iohn upon the body of the sayd Margaret lawfully begotten without any Act or Acts Thing or Things made or to be made by the sayd Sir Francis to the contrary therof And upon this it was moved that there was a variance between this Deed now shewn and this Inrolement and that therfore it doth not appeare whether this Deed was shewn in the Court or delivered there according to the Statute therof made 28 Eliz. for in the Deed it is for other good causes and this word good is not comprised within the Inrolement But as to it all the Iudges and Barons agreed that albeit these defeats hapned by the negligence of the Clerk in writing and examining this Inrollement remaines good in as much as the omissions are in matters and words which are of abundance and not in that which is any substance of the Deed. But the Lords of Parliament which were Committees of this case in the Parliament sent for the Record of the sayd Inrolement and would have had this to have been amended in the Chamber next to the Parliament but as the Officer was in doing of it the Iudges advised that it should not be done as well because this was not the place where it ought to be amended but the Court of Exchequer if it were or needed to be amended And also because that the two years after the Session of Parliament of 28 Eliz. was then past Then it was moved whether by the Covenant and considerations aforesaid the use shall passe or were raised to John Englefield or now to his Son Francis Nephew to the said Sir Francis and begotten upon the body of the sayd Margaret And all agreed that it is not for divers reasons 1. Because it is that if it happen that Sir Francis die without Issue Male that then it shall be to John as before if he be then living or to the Heirs Males of his body as before which is in the disjunctive to wit that it shall remain to John or to his Heirs Male of his body which cannot raise any use but found only in Covenant for the incertainty and also it is upon a future contingent to wit if the said John be then living 2. Because the Covenant is that it shall come or descend c. in the disjunctive and if he had covenanted that it shall descend to Iohn after his death without Issue Male it had been cleer that no use had been raised by it for it shall be but a meer Covenant to wit that he shall leave it to descend to him and here it being in the disjunctive it cannot be any other then a bare Covenant to wit that he shall suffer it to descend or otherwise by conveyance to come to John after his death without Issue Male the one or the other at his pleasure And yet further that it shall descend come or remain to John in possession or reversion so that he may make the one or the other void at his pleasure which cannot be if an Vse shall be raised by it and therfore also it enures but as a bare Covenant which he may perform either the one or the other way at his pleasure Also it is that it
in themselves do purport And if it had been good for the matter yet it is not good for the form for want of a Traverse for without the Traverse the plea is not answered in that case which is laid to the charge of the Defendant But Popham and Clench held strongly to the contrary and that this Bar is good in matter and as the case is cannot be otherwise and that the form also is good enough and yet the two Affirmatives cannot make a good Issue but in case of two Affirmatives a Traverse shall not be but where the Affiâ—matives do not agree in one As if the Defendant in Trespasse Intitles himself by the Feoffment of a stranger and the Plaintiff reply and maintain that the same stranger did enfeoff him this cannot make a good Issue without a Traverse of the Feoffment alledged to be made to the Defendant But in the same case if the Plaintiff saith that true it is that the stranger enfeoffed the Defend an t but this was to the use of the Plaintiff and his Heirs there no Traverse shall be on the Plaintiffs part because as to the matter of the Feoffment it agrees with the Defendant in which case it shall not take any Traverse but there the Traverse shall come on the Defendants part to maintain the Feoffment to his own use Absque hoc that the Feoffment was to the use of the Plaintiff for now that which the Defendant saith albeit it be in the Affirmative yet it is a Traverse to that which the Plaintiff hath alledged and therfore he needs not traverse the plea And so a diversity where the Affirmative is to traverse that which is alledged by the other party and where not for in one case the conclusion shall be with a Traverse and in the other not Then in this case when the Plaintiff alledged that the Defendant spake these words which prima facie shall be intended to be spoken in this sence as the Plaintiff hath alledged although no Innuendo had been in the case for if it shall not be so intended without the Innuendo the Innuendo will not help it yet when the Defendant hath declared the circumstance wherupon these words were spoken and then the speaking of them therupon now he hath confessed the very words themselves to be spoken but upon the circumstance discovered to be in another sence then prima facie they are to be taken and therfore he shall not take a Traverse for he acknowledgeth the very words but not the intendment which the very Law prima facie presumes upon the words and therfore shall not take a Traverse for this intendment of Law being answered by matter expresly in the plea shall never be traversed as in the case put of a Feoffment prima facie it shal be intended to be to the use of the Feoffee yet when the other party maintains that this Feoffment was to his use he shall not take a Traverse to that which the Law intends and presumes And if a man upon speech had with a Hunter saith That he hath murthered all the Hares within 7. miles of his house and another answer and say he is a Murtherer indeed wherupon the Hunter brings an Action upon the Case against him for saying that the Plaintiff was a murtherer the Action will well lye Yet when the other shall discover the communication wherupon the words were spoken this shall be a good Bar without a Traverse yet if it be true that there were no such communication between the parties as is mentioned in the Bar the Plaintiff then hath good cause of Action and therfâ—re he may well say De injuria sua propria absque tali causa and this being sound it shall be against the Defendant So upon speech of a Butcher who had killed a 1000. Oxen in a year and one hearing it will say that he is a notable Murtherer this upon the matter disclosed is not actionable And it shall be mischievous by a Traverse or by pleading generally not guilty to put such speciall matter in the mouth of Lay-people to give their Verdict upon being ignorant and therfore easie to be miscarried in theâ—r judgment and therfore it shall be the rather admitted by speciall pleading to be put to the judgment of the barred Judges then into the mouths of lay Gents And here when Fletcher speaking of the order to be taken by the Councell upon the Petition said that the Earl would obey their order to which the Defendant answered that he knew not what the Earl would do the said Fletcher said therupon that he was a Subject and what was the intent of Fletcher in saying so no other but that because he was a Subject therfore he ought to obey and if it be so to be understood as of necessity it ought or else they were not spoken by Fletcher to any purpose which cannot be intended then shall the words following being spoken therupon by the Defendant be taken to be spoken in answer to the matter of the Speeches spoken by the said Fletcher and this is that he was sorry and it was his grief that he must be so subject as to be bound therby to obey their Order as if a man saith to another that he was sorry that he was so subject that he must obey a Iudgment against him in the Queens Court this is no cause of Action for this tends but to his subjection to the Law or good order or the like which do not give cause of Action As if one saith of another that he is of the Temple who alwaies rebell against the Governours of the said house then saith another to him Will you then say and maintain that he is a Rebell yes sayes one of the other I will do so If an Action be brought for the last words the Action will lye but if the other discover the circumstances of the Speech in the Bar wherupon it was spoken the Action will not lye And this the Defendant may well do without traversing that which is alledged because he acknowledgeth it although in another sense then the Law Prima Facie imports upon the Declaration And if in Speech between two one of them saith of a stranger that he hath treacherously betrayed his Friend in revealing all his secrets and councell wherupon the other then saith that he hath done as a Traytor therin and the other saith to him again he is a Traytor and he answering to it saith true he is a Traytor Now if the stranger brings an Action of the Case against him for saying of these last words Prima Facie it imports good cause of Action without any Innuendo as that he intended therby that he was a Traytor to the Queen because the words in common intendment have such a sence yet upon the matter disclosed by way of Bar with the circumstances how they were spoken the Plaintiff shall be barred if he cannot maintain that they were spoken without such a cause which
precedent to it which not being done the Estate of Edmund never hapned to be and therfore he who cometh in under a Discontinuance made by the said William Cocksey after the death of Martin and Giles without Issue notwithstanding the Remitter of the said Alice in the case is to have the Land against those who come in by the said Edmund and upon this point only Iudgment was given accordingly in the Kings Bench. Grenningham versus the Executors of Heydon 4. IN Debt upon an Obligation of 200. marks by Richard Grenningham Plaintiff against the Executors of one Ralph Heydon Defendants the case appeared to be this upon Demurrer The said Heydon was bound to the Plaintiff in 200. marks the Condition wherof recites that wheras the said Heydon had received of the said Grenningham 76 l. 6 s 8 d. before the date of the said Obligation of 200. marks in payment and satisfaction of certain Obligations and Bills of debt remaining in the hands of the said Heydon and specified in the Condition what they were in certain and the which said Bills Obligations the said Heydon is to deliver or cause to be delivered to the said Grenningham his heirs or assigns before the Feast of S. Michael next ensuing the date of the said Obligation or otherwise the said Heydon his Executors Administrators or Assigns or some of them before the same Feast shall make or cause to be made and delivered to the said Plaintiff his Heirs and Assigns such good and sufficient Acquittances for the payment of the said summs of money formerly mentioned as the said Plaintiff his Heirs Executors or Assigns shall devise or cause to be devised by the Counsel of the said Plaintiff his Heirs or Assigns before the Feast without fraud or deceit that then the said Obligation shall be void c. And before the Feast the said Plaintiff did not devise any acquittance Whether now the Obligation be saved by the Disjunctive without delivering the Obligations and Bills before named before the Feast of S. Michael Rot. 36 37. Eton and Monney versus Laughter 5. IN Debt upon an Obligation of 400 l. by Thomas Eton and Roger See this Case Coke lib. 5. 21. by the name of Laughters case Monney Plaintiff against Thomas Laughter Defendant who was bound together with one Richard Rainford to the said Plaintiffs the Condition of which Odligation was That if the said Richard Rainford after marriage had between him and Jane Gilman Widow together with the said Jane alienate in Fee or Fee-tail all that great Messuage of the said Jane in London in the Tenure of William Fitz Williams Esquire if then the said Richard Rainford in his life time purchase to the said Iane her Heirs and Assigns Lands and Tenements of good Right and Title and of as good value as the money raised upon the alienanation of the said Messuage amounts unto or leave to the said Iane after his decease as Executrix or by Legacy or other good assurance so much money as he shall receive or have upon the said Sale that then the Obligation shall be void after which the said Richard Rainford married with the said Jane and the said Richard and Jane sold the said Messuage in Fee by Fine for 320 l. received by the said Richard Rainford after which the said Iane died no Lands being purchased to the said Iane by the said Richard and the said Richard yet living Michaelmas Term 37 38. Eliz. Sawyer versus Hardy 1. IN an Ejectione firmae by Christopher Sawyer Plaintiff against Edmund Hardy Defendant for a Messuage in S. Martins upon a Demurrer the case was this A Lease was made of the said Messuage to one Margaret Sawyer for 40. years upon Condition that if the said Margaret should so long continue a Widow she should dwell and stay in the same Messuage the said Margaret continued a Widow and dwelt in the same house all her life and died during the said Term of 40. years making the Plaintiff her Executor and by award the Plaintiff had Judgment to recover For by Popham Gawdy and Clench this now was no Condition nor Limitation for it hath no certain conclusion upon the that if to wit that then the Term shall continue or that she shall pay so much or otherwise what the conclusion shall be none can imagine As if such a Lease be made upon condition that if the Lessee does such a thing without other conclusion it is a good Lease for 40. years for none can imagine what the conclusion shall be in such a case or that then the Lease shal be void or that he shall re-enter or that the Lessee shall forfeit so much or what shall happen upon it for which incertainty it shall be taken as a void Clause But by Popham if it had been Sub conditione si tamdiu vixerit it had been good to determine the Lease but it is otherwise of the word quod si for the incertainty as before And they all agreed that if the Lease had been for 40. years Si tamdiu sols viveret inhabitaret in eodem Messuagio that the Lease had been determined by her marriage or death In the same manner as if it had been Si tam diu vixerit And so in truth had been the case if it had been well pleaded but by pleading the advantage therof was lost and the truth not disclosed But by Popham If a Lease be made for 40. years if he shall dwell in the same for his life there it is good for 40. years upon performance of the Condition the diversity appeareth to wit where it is if he shall dwell there during the Term and where it is if he shall inhabit there during his life Goodale versus Wyat. 2. IN an Ejectione firmae by Cuthbert Goodale Plaintif against John Wyat See this Case Coke lib. 5. fol. 95 96. by the name of Goodales case Defendant for a Meadow in Aylesbury in the County of Buck. called Diggelmore upon a speciall Verdict the case was this Sir Iohn Packington Knight enfeoffed therof one Ralph Woodliff to have and to hold to him and his Heirs upon condition that if the said Sir Iohn within a year after the death of the said Ralph pay to the Heirs Executors or Administrators of the said Ralph the summ of a 100. marks of lawfull money that then the said Feoffment and Seisin made therupon shall be void Ralph Woodliff made a Feoment over to others therof and died intestate and Administration was committed to Anne his Wife and Drew Woodliff his Son and Heir who gave a Warrant of Attorney to Thomas Goodale then seised of the said Meadow by mean conveyances for the receit of the said 100. marks with Covenant that none of them shall do any act or thing that shall be preâ—udiciall or hurtfull to the said Thomas Goodale for the receiving and enjoying of the said summ after which it was certified to the said Sir Iohn Packington by
the said Goodale that this Warrant was made to him After which it was agreed between the said Sir Ioh Packington Drew Woodale that the said Tho. Drew shall have but 32 l. of the said 100. marks wherupon the said Sir Iohn Packington within a year after the death of the said Ralph Woodliff paid to the said Drew Woodliff the 100. marks and presently the said Drew delivered to the said Sir John all the 100. marks but 32 l. And the Verdict stands upon this point whether the 100. marks were well paid or not And by Popham and Gawdy this was meerly a fraud which shall never prejudice a third person for if it be agreed between the Disseisee and I. S. that a stranger shall disseise the Tenant of the Land and enfeoff the said I. S. to the intent that the Disseisee shall recover against him this Recovery shall bind the said I. S. but not him who was disseised and yet he who recovered had a good Title and paramount the other but he shall not come to that to which he had good cause of Action and Title by fraudulent means to the prejudice of a third person not party to this fraud And it was said further that to pay money and take it away again presently before that it is pursed up by re-delivery is not properly a payment but rather a colour of payment And by Fennor and Popham the force of a Deed of Feoffment once effectuall cannot become void or of no effect nor the Livery therupon by such manner of words And it is not like a Bargain of Goods or an Obligation or a Lease for years which by such words may be dissolved and made to be of no force or effect because that as by the sealing a bare Contract it may be made perfect and effectuall without other circumstances so may it be defeated by such bare means without other circumstance But so it is not in case of an Inheritance or Free-hold which cannot be effectual by the bare delivery of a Deed unlesse that Livery be made therupon And all agreed that as this case is notwithstanding the Feoffment made over by the Father the money might have been paid to the Heir to perform the Condition if they had been duly paid and without Covin and that the words had been apt to have defeated the Estate But by Popham and Clench If a Feoffment be made to one upon condition In which case a Condition shall be performed to an Assignee and not to the Heir of payment of money to the Feoffee his Heirs or Assignes and the Feoffee makes a Feoffment over and dies the money ought to be paid to the Feoffee who is the Assignee and not to the Heir for there Heir is not named but in respect of the Inheritance which might be in him but here he is named as a meer stranger to it Bartons Case 3. IN a Writ of Error sued in the Kings Bench by Randall Barton upon a Fine levied at Lancaster 7 Eliz. of Land in Smithall and else where in the County of Lancaster by Robert Barton Esquire to Leven and Browndo where this Writ was brought by the said Randall as Heir in tail to the said Robert to wit Son of Ralph Brother of the said Robert The Defendant plead a Recovery in Bar therof had after the Fine in which the said Robert was vouched who vouched over the common Vouchee And by all the Court this common Recovery with such double Voucher which is the common assurance of Lands is a Bar by reason of the Voucher to every manner of right which the Vouchee or his Heir by means of him is to have to this land which is paramount the Recovery And so it is of every manner of way wherby they are otherwise to come to the Land before the Recovery And if the recovery be erroneous it remains a good Bar untill it be avoided by error But if the Recovery be void or the Voucher not warranted to be pursuing the appearance of the Tenant but precedent to it as was pretended and so no Tenant to warrant the Voucher when the Voucher was made the Recovery shall be no bar in such a case and the case here was informed to be this for the Writ of Entry bears date 1. Mart. 7 Eliz. returnable Die Lunae in 4. septimana quadragessimae propter futur and the Voucher was made in 4. septimana quadragessimae 7 Eliz. the said first day of March being the first week of this Lent 7 Eliz. And upon this it was inferred that the Tenant was not to appear untill Munday in the fourth week of Lent 8 Eliz. which is a long time after that the Voucher appeared and vouched over But by the whole Court the Original Writ shall be taken as it is written to be returnable on Munday in the fourth week of the same Lent 7 Eliz for it shall be taken as it is written shortly most beneficially that it can be to make the Recovery good And if it had been written Proxâ—me it should refer to the week before and so good And if the word Futur had been written at large Futura it also shall refer to Septimana and therfore being written briefly it shall refer as it may best do to make the Recovery good But if it had been in Quarta septimana proximae quadragessimae at large then the word Proxime shall refer to Quadragessimae because of the case But if it had been Proxima it shall refer to Septimana because also of the case But here as the case is it shall be a good reference to make the words Tunc proxima futur to shew what fourth week of Lent to wit that next ensuing the first day of March. As if a man be bound by Obligation bearing date the first day of March to pay the 10. day of March then next ensuing this shall be taken the 10. day of this March because this is next ensuing the first day Paramor versus Verrald 4. IN Trespasse of Assault and false Imprisonment by Robert Paramor against John Verrold and others supposed to be done at such a Parish and Ward in London the 20. day of May 35 Eliz The Defendants justifie by reason of an Erecution upon a Recovery in the Court of Sandwich within the Cinque-Ports Debt and traverse Absque hoc in that they were guilty in London c. The Plaintiff reply and maintain the Assault and Imprisonment as it is said and traverses Absque hoc quod habetur aliquod tale Recordum loqueâ—ae prout the Defendants have alledged Et hoc paratus est verificare per Recordum illud and upon this the Defendants demurred in Iudgment And per Curiam the Defendants plea Prima fâ—cie was good because it was a speciall manner of Iustification which cannot be pleaded and alledged to be in any other place then where it was done in the same manner as if they had justified by force of a Capias directed to the
Abbys and yet their priviledge is not mentioned in all the Books as the Cistertians is 2. They complained to Gregory the nineth that they were not suffered to put it in ure and notwithstanding this complaint and command of the Pope to the Clergy to allow them this priviledge yet 24 H. 3. Complaint was made against them in Parliament for claiming this priviledge But the Statute of 2 H. 4. cap. 4. put this cut of doubt for this put the Cistertians in a premunire for purchasing and putting in execution Bulls of exemption of their Lands purchased afterwards Now if the Praemonstratenses had the same priviledge they should not have been omitted â—ut of this Statute then comes the Statute of 7 H. 4. cap. 6. which terrifies all from putting in execution Bulls of Exemption of their Lands not put in execution before upon which it is not to be presumed that it was put in execution afterwards But admit that the Praemonstratenses had this priviledge I say that the Plaintiff hath not applied this priviledge to himself for he hath not averred in fact that at the time c. Propriis manibus excolebat nec ad firman demitâ—ebat And this he ought to have done if he would take advantage of the priviledge as in Dickensons case Novel lib. intr 542. there it is expresly alledged in the like case as ours is here and where the same priviledge as here is claimed Quod manibus propriis excolebat True it is that it is said here that after the Feoffment to him made he was seised Et gavisus fuit in propria manutenor but he doth not say that at the time of the Tithes due gavisus fuit c. as he ought expresly to have done as appeareth by other cases If one prescribe to have common in arable Land when the Corn is reaped or in Meadow where the Hay is carried away and justifie by reason therof he ought to aver that the Corn or Hay was carried away when he put in his Cattell otherwise he hath not applied the prescription to himself So if one justifie for Common Quandocunque audia sua jerint he ought to aver that his Cattell then went in the place where c. as 17 Ass 7. So if the King pardon all but those who adhere to M. he who plead it ought to aver that he did not adhere to M. so here the priviledge is Quamdiu propriis manibus c. and therfore at the time he ought to aver that he had it propriis manibus c. Also where upon the surrender to H. 8. and the Statute they conclude that the Queen held it discharged this cannot be for this ought to be in such manner as the Abbot held it discharged but this was quamdiu c. and the King cannot be bound to such an unbeseeming condition and therfore he shall hold it dischâ—rged Like to the case where the Abbey hath the presentation and another the nomination the Abbey surrender he who hath the nomination shall have all for the King shall not present for him it being a thing undecent for his Majesty and so he concluded for the Defendant Banks contra 1. That it is a good cause of Prohibition 2. That it is well applied to us 1. That the order of Praemonstratenses is discharged of Tithes that they had once this priviledge hath been allowed by the other party by the Bulls of the Pope and that it was allowed and taken notice of he proved by this that this Bull was confirmed by King John in the 24. year of his Raign the Charter wherof he said he had under Seal and 22 E. 1. membran 5. there were 26. Abbeys of this order and the King took them all into his protection with their Immunities and 22 Rich. 2. John de Gant having Jura Regalia in Lancashire where the Abbey is confirmed to them this Bull and also this hath been divers times allowed and decreed to them in Court Christian for suit of Tithes as in the case of the Abbey of Bigham which was of the same order And as to that which was objected that if the Praemonstratenses had such a priviledge as the Castertians in 2 H. 4. that the like provision would have been against them As to this I answer that such a provision is not against the Templars nor Hospitalars and yet they have such a priviledge 2. It may be that they never enlarged their priviledged above their grant And for the Statute of 7 H. 4. our Priviledge was not then new and it was afterwards allowed in 22 R. 2. And also I conceive that if the Abbey were discharged at the time of the dissolution although not De jure yet this is a sufficient discharge within the Statute of 31 H. 8. as it is taken Co. lib. 11. 14. 2. I hold that they may here prescribe to be discharged of Tithes because they are Spiritual persons and capable of cure of Souls and capable of tithes in Pernamy as if an Appropriation be made to them 3. It is not now to be argued whether they have such a priviledge for they have demurred which is a confession of all matters in Fait c. 4. If there be a matter wherupon the Prohibition may be grounded it will serve vide Dyer 170 171. Co. lib. 11. 10. And 5. The priviledge is well applied because it is shewn that they were once discharged 6. He needs not to shew how he is discharged 22 E. 4. 4. 5 E. 4. 8. 20 E. 4. 15. Also the discharges are temps dont c. and therfore not pleadable so he prayed that the Prohibition might stand Pasch 1. Car. In the Kings Bench. Bowry versus Wallington NOte that in this case upon the Statute of 50 E. 3. 4. it was agreed by the Court that if there be a Suit in the Ecclestasticall Court and a Prohibition awarded and afterwards Consultation granted that upon the same Libell no Prohibition shall be granted again but if there be an Appeal in this case then a Prohibition may be granted but with these differences 1. If he who appeals pray the Prohibition there he shall not have it for then Suits shall be deferred in infinitum in the Ecclesiasticall Courts Where severall Prohibitions may be granted in the same case and where not 2. If the Prohibition and Consultation were upon the body of the matter and the substance of it for otherwise he shall be put many times to try the same matter which is full of vexation And the case was moved again and argued by Noy which was thus Wallington livelled in the Ecclesiasticall Court against Bowry for tithes of Wool and Lamb and Bowry upon suggestion of a Modus derimandi obtained a Prohibition and had an Attachment and declared upon it and are at Issue upon the Modus which is found for the Defendant and Consultation granted wherupon Iudgment was given in the Ecclesiasticall Court against Bowry upon which Bowry appealled and prayed a new
own land as in another mans so the Warren hath existence notwithstanding the unity Dyer 326. Where the Queen was seised of Whaddon Chase and the Lord Gray was Lievtenant there in Fee and he and his Ancestors and their Keepers had by prescription used to hunt wandring Deer in the Demesns of the Mannor of S. adjoyning as in Purlieues the Mannor of S. comes into the Queens hands who grants this to Fortescue in Fee with free Warren within the Demesns c. it was holden that the unity doth not extinguish the Purlieu Dyer 295. Two Closes adjoyn the one by prescription is bound to a Fence the Owner of one purchase the other and suffer the Hedges to decay and dies leaving two Daughters his Heirs who make partition Quaere whether the prescription for the Inclosure be revived true it is that it is made a quaere but he saith see the like case 11 H. 7. 27. of a Gutter which proves our case as I will shew afterwards For the Minor proposition that the watering hath being notwithstanding the said unity I will prove it by 12 H. 7. 4. A Precipe quod reddat of Land Aqua Co-opert Mich. 6. Jac. Challenor and Moores case An Ejectione firmae was brought of a Watering-course and there resolved that it does not lye of it because it is not firma sed currit but of Terra aqua co-operta it doth lye Also I will take some exceptions to the Bar there is no Title in the Bar for the Defendant Pigot and so we being in possession albeit in truth we have no Title yet he who hath no Title cannot oust us neither can stop the said Water-course and it is only shewn in the Bar that Searles entred and enfeoffed Pigot but for any thing as yet appears the true Owner continued in possession 21 Jac. C. B. Cook against Cook in a Writ of Dower the Defendant pleads an Entry after the Darrein continuance and doth not plead that he ousted him and upon this the Plaintiff Demurs and there adjudged that it is no plea in Bar because he doth not say that the Defendant entred and ousted the Tenant 2. Exception the action is brought against four Scil. Pigot Cole Branch and Elyman and Pigot hath conveyed a Title from Searles the three other Defendants justifie but Pigot doth not say any thing but that Searles enfeoffed him 7 H. 6. an action of Wast is brought against many one answers and the other not this is a discontinuance And for the principall matter I will conclude with 11 H. 7. 25. Broo. Extinguishment 60. Two have Tenements adjoyning and the one hath a Gutter in the others Land and afterwards one purchase both and then he alien one to one and another to another the Gutter is revived notwithstanding the unity because it is very necessary and so he prayed Iudgment for the Plaintiff Bear for the Defendant I in a manner agree all the cases which have been put on the other side and I conceive that the Water-course is not Stagnum but Servitium which is due from the one land to the other It is but a liberty and therfore I agree Challenors case which is but a liberty that an Ejectione firmae doth not lye of it but Ejectione firmae lies De stagno For the first exception I answer and confesse that to alledge an Entry after the Darrain continuance without alledging an Ouster of the Tenant cannot abate the Writ for the Defendant may enter to another intent as appeareth in the Commentaries and with the assent of the Tenant But here it was alledged that a Feoffment was made and a Livery which implies another For the matter in Law I conceive that the Water-course is extinguished and it may be compared to 21 E. 3. 2. The case of a way which is extinguished by unity of possession Hill 36. Eliz. Rot. 1332. Hemdon and Crouches case Two were seised of two severall acres of Land of which the one ought to inclose against the other one purchase them both and lets them to severall men and there the opinion was and adjudged accordingly that the Inclosure is not revived but remains extinguished 39 Eliz. Harringtons case the same thing resolved and albeit in Dyer 295. is a quaere yet the better opinion hath been taken according to these resolutions H. 4. Jac. Jordan and Ayliffes Case when one had a way from one acre to another and afterwards he purchased the acre upon which he had the way and afterwards sold it and in that Case the opinion of 3. Iustices was that the way was extinguished also 11 H. 4. 50. and 11 H. 7. 25. prove this case for the said case is compared to the custome of Gavelkind and Burrough English and there the quaere is made whether by the custome it be revived and if it be a custome which runs with the Land the unity of possession doth not extinguish it Co. lib. 4. Terringhams case and 24 E. 3. 2. common appendant is destroyed by unity of possession and yet it is a thing of common right but a Water-course being a thing against common right a fortiori it shall be extinguished Now I will take some exceptions to the Declaration 1. Because he hath laid a prescription for a Water-course as to say that it was belonging to a Rectory to which c. and this is a good exception as appears by 6 E 6 Dyer 70. Ishoms case where exception was taken that before his prescription he doth not say that it was Antiquum parcum which exception as it is there said was the principall cause that Iudgment was given against him and also as the case is here it ought to be a Rectory impropriate and this cannot be before the time of H. 8. which is within time of memory for before the said time no lay person could have a Rectory impropriate and therfore I pray Iudgment for the Defendant Barksedale said that the prescription is well laid and that he would prove by 39 H 6. 32. and 33 H. 6. 26. and per curiam the prescription is good enough and albeit it is not said that it is Antiquae Rectoria yet it is well enough Mich. 1 Car. at Reading Term in Broek and Harris case he doth not say that it was Antiquum Messuage and yet resolved good Doderidge the case of 6 E. 6. differs in this point from this case for a Rectory shall alwaies be intended ancient and so is not a Park for this may be newly created and he put this case suppose I have a Mill and I have a Water-course to this in my own land and I sell the Land I cannot stop the Water-course Crew chief Iustice seemed of opinion that the prescription is gone and that the better opinion in Dyer 13 Eliz. hath alwaies been that the Inclosure is gone by unity of possession but yet the Water-course is matter of necessity Doderidge and Whitlock the way is matter of election but the course of water is
naturall Jones Iustice There is great difference between a way and a water-course as to this purpose for admit that this water-course after that it had been in the Curtilage of the Plaintiff goes further to the Curtilage of another shall not that other have the benefit of this water-course notwithstanding the unity of possession I think cleerly that he shall Doderidge my opinion is that the water-course is not extinguished by the unity of possession But some conceived that he had declared his opinion in terror to the Defendant And afterwards the same Term Barksedale for the Plaintiff said that he had agreed the case before and therfore would now only indeavour to answer some exceptions which had been taken to the Declaration 1. Exception hath been that no prescription or custom is made for this water-course but only that Currere solebat consuevit But I conceive thaâ— the Declaration is good notwithstanding this because the Plaintiff here doth not claim an interest in the Water-course but in the Land in which c. and therfore it is good and this appeareth by 12 E. 4. 9. the Prior of Lantonies case in a prescription in a Market overt generally and the reason there was because he was a stranger as in our case he is and this pleading appeareth also to be good by Cooks Book of Entries 18. Smiths case which was entred 9 Jac. Rot. 366. in this Court 2. Exception was because it is not said that it was Antiqua Rectoria 3. Exception because it doth not appear that he was a spiritual man to whom the Demise of the Rectory was made 4. Because it is not said that the Water-course Ad predict Rectoriam pertinet 5. Because the Water-course is alledged to be for his customary Tenants of the said Rectory and this is not good as appeareth by 21 Eliz. Dyer 363. Prescription Pro quolibet customar Tenente is not good but I conceive that this case is not our case for here is Customarius tenens Rectoriae and there it is agreed that Quilibet customarius tenens Maner had been good And the plea in Bar hath salved these objections and therfore he prayed judgment for the Plaintiff Jeremy for the Defendant And first for the matter in Law it seemed to him that by the unity of possession the Water-course is extinguished and the Water-course may well be compared to the case of the way for as a way is a passage for men over the land so water hath passage upon the land and a way is extinguished by unity as appeareth by 21 E. 3. 2. 11 H. 4 5. 21 Ass and Davies Reports 5. and in 4 Jac. Jordan and case it was the better opinion that a way was extinguished by unity of possession true it is that there Popham chief Iustice put the difference where the way is of necessity and where not for where the way is of necessity there it shall not be extinguished This case hath been compared to the case of a Warren in 35 H. 6. but I conceive that the cases are not a like because a Warren is a meer liberty 8 H. 7. 5. A man may have a Warren in his own Land and Co. lib. 7. Buts case by a Feoffment of Land a Warren doth not passe but this Water-course hath its originall out of the Land and this case cannot be compared to an ancient Water-course running to a Mill for notwithstanding the unity it shall passe with the Mill for otherwise it shall not be Molendinum aquatinum so that the water there is parcell of the thing and so of necessity ought to passe with the thing but here it doth not appear that it is a Water-course of necessity and for any thing that appeareth it may be filled with another Water-course Also I conceive that the Declaration is not good 1. Because neither prescription nor custom is laid for the Watercourse and it appeareth in Co. Book of Entries Holcome and Evans case and the old Book of Entries 616 617. Mich. 1. Car. Rot. 107. Turner and Dennies case in this Court in trespasse for breaking his Close c. the Defendant justified for a way c. and that he was possessed for years and for him and his Occupiers had a way over the Land the Plaintiff demurred and resolved that the prescription is not good 2. The Declaration is insufficient being an action upno the case for the stopping of a Water-course and it is not Vi armis nor Contra pacem Co. lib. 9. 50. the Earl of Shrewsburies case when there are two causes of an action upon the case the one Causa causans the other Causa causata causa causans may be alledged Vi armis for this is not the immediate cause of the action but Causa causata F. N. B. 86. H. and 92. E. in the end of the Writ of action upon the case shall be Contra pacem 3. Also he hath prescribed for the Tenants of the Rectory which is not possible for no Lay-man could be Tenant of a Rectory or of Tithes before the Statute of H. 8. and therfore I pray Iudgment for the Defendant Whitlock chief Iustice conceived that the declaration was good the bar is naught both for the form matter the question here is of Aqua profluens and I conceive that there needs no prescription or custome in this case for water hath its naturall course and as is observed by Brudnell in 12 H. 8. Natura sua descendit it may be called Usu captio or Vsage and he conceived that the action upon the case very well lies in this case like to the case where a man bath a house and windows in it and another erect a new house and stop the light then I may have an action upon the case but true it is that I shall not only count for the losse of the aire but also I ought to prescribe that time out of mind light have entred by these windows c. see 7 E. 3. If there be a School-master in a Town and another erect a new School in the same Town an action upon the case doth not lye against him because Schools are for the publike benefit and every private man may have a School in his house And for the exception that a Lay man cannot be possessed of a Rectory I conceive that the Declaration is good notwithstanding for a Lay-man may have a Rectory by Demise And for the Plea in bar it is not good for the form because that Searles entred and enfeoffed Pigot and it is not said that he entred and Expulit and if a man enter and make a Feoffment the owner being upon the Land the Feoffment is void and therfore an actuall Ouster ought to be shown And for the matter in Law he conceived that the Bar was not good for by the unity of possession the water-course is not extinguished and yet I agree the cases of a way and common upon the differences of Rights which are
was given this day The same Term in the same Court. Goodwin versus Willoughby GOodwin brought an action upon the case against Joane Willoughby wife of Thomas Willoughby and upon non Assumpsit pleaded it being found for the Plaintiff it was moved in Arrest of Iudgment 1. That the Plaintiff shews that Thomas Willoughby was indebted upon account and doth not shew that Joane Willoughby is Executrix or Administratrix and yet that she promised to pay wheras in truth she hath no cause to pay for there is no consideration and so Nudum pactum Jermy for the Plaintiff for the first because it doth not appear for what cause he accounted I answer that this is but a meer conveyance And for the second that she does not suppose that the Feme is executrix c. But here is a good consideration which is that she shall not sue or molest and that he gave day for payment this is a sufficient consideration But Stone of counsell with the Defendant said that the first is the ground of the action and therfore he ought to shew for what he accounted Crew chief Iustice two exceptions have been taken 1. For the alledging the manner of the account which I conceive is good enough and he need not shew the cause of the account And as to the second because it doth not appear that she is Executrix or Administratrix and so no consideration and so no Assumpsit But here she assumes to be Debtor and makes a promise to pay which is an acknowledgment of the Debt by inference and therfore he conceived that the Assumpsit was good Doderidge Iustice for the first it is good enough yet Cum indebitatus existit is no good Assumpsit but here he shows a speciall way of Debt and it would be long and tedious to describe his account For the second there is no cause of action because it doth not appear that she is Executrix or Administratrix or Executrix of her own wrong If I say to one do not trouble me and I will give you so much this is not actionable for there ought to be a lawfull ground and for this cause the Declaration Where forbearance without cause of action is no ground of an Assumpsit is void for it is only to avoid molestation Give me time c. this is no good Assumpsit for forbearance is no ground of action where he hath no cause to have Debt Jones Iustice agreed in the first with them because a generall action upon the case sufficeth and in truth it is but an inducement to the action but for the other part he doubted and he cited one Withypools case an Infant within age promised to pay certain money he makes an Executor and dies within age the Executor saith to him to whom the promise is made forbear and I will pay you and there an action upon the case did lye against the Executor upon this promise and yet it was a void Contract but there was colour of action forbear till such a time now the other hath lost the advantage of his Suit But he gave no opinion Crew It is a violent presumption that he is indebted But by Doderidge here is no colour to charge her but only by inference that she is Executrix If a stranger saith forbear such a Debt of J. S. and I will pay it it is a good consideration for the losse to the Plaintiff and in this case it appears not that there is any cause and Broom Secondary said that Withypools case before cited was reversed in the Exchequer Chamber Jones If an Infant makes a promise it is void and he may plead non Assumpsit which Doderidge did not deny But upon his Obligation he cannot plead Non est factum for he said that he shall be bound by his hands but not by his mouth The same Term in the same Court Drope versus Theyar IN Debt by Drope against Theyar an Inne-keeper upon Issue joyned and a Verdict for the Plaintiff Bolstred moved in Arrest of judgment for the Defendant and the matter was that one Rowly who was servant to Drope lodged in the White Heart at S. Giles and there had certain Goods of his Masters which were stoln from him in the night and Drope the Master brought an action therupon and it was moved by Bolstred that the Plaintiff was without remedy 1. Because it was in an Inne in London for the Register 105. is Quando quis depraedatus euns per patriam which as he said could not be extended to an Inne in London 2. It ought to be an Inne as Inne-keeper 3. He ought to be as a Guest lodging and this appeareth in Culeys case in 5 Jac. in Celly and Clarks case which was entred Pasch 4. Jac. Rot. 254. It was adjudged that where the Guest give his Goods to his Host to deliver to him three daies after and the goods are lost that an action is not maintainable against the Inne-keeper for them and this was in an Inne in Uxbridge And in one Sands case where the Guest came in the morning and his Goods were taken before night he shall have an action against the Inne-keeper 4. The Goods ought to be the Goods of the party who lodgeth there for the words are Ita quod hospitibus damna non eveniunt and here the Master who brought the action was not Guest But admit the Master shall have the action yet he ought to alledge a custom that the Master shall have the action for the Goods taken from his Servant Trin. 17 Jac. Rot. 1535. Bidle and the Master brought an action for Goods taken from the Servant and there it was resolved that he ought to conclude that Pro defectu c. and apply the custom to him being Master Sec Co. Book of Entries 345. And that a custom that for other mens Goods in the custody of Guests the Owner shall have an action against the Inne-keeper if they be stollen Ob. This is the Common Law and therfore ought not to be alledged Answ Where a man takes upon him to shew a custom he ought to shew it precisely he cited Heydons case Co. lib. 3. 28 H. 8. Dyer 38. And it was said for the Plaintiff that Goods are in the possession of the Master which are in the possession of his Servant and so here the Master might have had action well enough 8 E. 4. my Servant makes a Contract or â—â—ies Goods to my use I am liable and it is my act By the Court an Inne in London is an Inne and if a Guest be robbed in such an Inne he shall have remedy as if he were Enns per patriam But the cheife point was whether the master shall have the action in the case where the Servant lost the goods and by Jones Justice in 26 Eliz. in C. B. upon the Statute of Hue and Cry it was resolved that if the Servant be robbed the Master may have the Action and so by him
one he would pay it where good where not this he may implead him presently Mich 12. Jac Kebles Case A man promiseth to pay so much in consideration of a Lease at Will and it was holden no good consideration for by the same breath that he creates it he may defeat it Pasch 8. Jac. Austins Case A man promise that in consideration he would forbear another he would pay it and no time was limited and therefore it was holden no good consideration Trin. 38. Eliz. Rot. 523. A man promise quod non implacitabit and avers quod non implacitavit and because of the uncertainty it was holden no valuable consideration Doderidge Justice If there be no consideration at the time or no cause of Action the forbearance afterwards will not make it actionable and he said that it had been adjudged in this Court that a consideration to forbear for a little time is not good but by some to forbear for a reasonable time is good But in the principall Case upon the hearing of the Declaration read it appeared that it was that he should never implead him upon the said obligation so that if the Plaintiff brings an Action upon the obligation the Defendant here may have an Action upon the Case against him Also it was non implacitabit and this shall be taken indefinitely quod nunquam implacitabit and therefore the Iudgement was affirmed for otherwise the Plaintiff shall both take advantage of this promise and of the bond also and here he hath in a manner forsaken the benefit of his bond and hath betaken himselfe to the benefit of this Assumpsit By Jones and Whitlock Iustices if A. be bound to me and I enter into bond to him that I will not sue this Obligation I cannot sue him upon the first Obligation without forfeiture of my bond and by Doderidge if an Obligation be forfeited and I say to the Obliger do not sue the Obligor or do not implead him an Action upon the case lies against me The same Term in the same Court. Arnold versus Dichton IN an Action upon the Case and Non-Assumpsit pleaded it was found for the Plaintiff and Noy mooved in arrest of Iudgement that there was no consideration to maintain this Action the Case being thus Arnold having married the Daughter of the Defendents Testator the Testator promised to give him 40 l. and meat â—nd drink for a year and a Featherbed and Bolster and afterwards the Testator in consideration that the Plaintiff would Assumpsit forbear to sue him all his life for it promised that he should have as good a portion at his death as any of his children and the Plaintiff declares that he gave to one Tho. P. one of his Sons 200 l. and that he left him at the time of his death but 30 l. but when he gave to Tho. P. the 200 l. appeares not peradventure it might be in his life time and this promise doth not extend to that which he had given before as if a man be bound to keep a Goale and that no prisoner shall escape this only extends to a future keeping and future escapes and not to other escapes which were before True it is that sometimes the Law will alter the sense as in the Case of 32. H. 6. where a man is bound that his Feoffees c. And at another day Doderidge said that the first promise was but an inducement to the second and the Defendant hath pleaded Non Assumpsit to the last promise and then comes the Plaintiff and shews that he gave to such a one 200 l. and doth not shew when this was given and this may be before the promise and therefore I conceive the Declaration is not good Jones agreed that the Declaration is not good for admit that in this case he had given to all his children but one great portions before the said promise and had given a small portion to one after the promise the Plaintiff now shall have but according to the said promise and it is alledged here that he gave to such a one 200 l. which may be before the promise and therefore the breach not well laid Whitlock contra and that the Plaintiff shall have according to the best gift in this case whether it were before or after the promise and that upon the intention of the promise for the intention is that the Plaintiff should have as good a marriage or portion with his Daughter as any other of his children should have But by Doderidge this construction cannot be made without offering violence to the words for then daret should be for dedisset and for any thing which appeareth he had a portion before and this was but a superaddition Jones put this case I am bound to enfeoff J. S. of so much Land as I will enfeoff J. D. this extends not to a Feoffment which I have made to J. D. before but only to a Feoffment which I shall make to him afterwards which was not denied by Whitlock and it was adjourned The same Term in the same Court. Barker versus Ringrose BArker brought an Action upon the Case against Ringrose and declared that whereas he was of good fame and exercised the Trade of a Wool-winder the Defendant spake these scandalous words of him that he was a Words Thou art a bankrupt Rogue Bankrupt Rogue and it was moved in arrest of Iudgement that those words were not actionable for the words themselves are not actionable but as they concern an Office or Trade c. and it appeareth by the Statute of 27. E. 3 that a Wool-winder is not any Trade but is but in the nature of a Porter so that the Plaintiff is not defamed in his function because he hath not any also it is not averred that he was a Wool-winder at the time of the words speaking Jones Justice If one saith of a Wool-winder that he is a false Wool-winder action upon the Case lieth and it was demanded by the Court A Wool-winder wâ—at he is what a Wool-winder was and it was answered that in the Countrey he is taken to be a Wool-winder that makes up the fleece and takes the dirt out of it and a Wool-winder in London opens the fleeces and makes them more curiously up and in London they belong to the Mayn of the staple Doderidge If one saith of a Sher-man that he is a Bankrupt Action lyes and so it hath been adjudged of a Shoo-maker and note that if one saith of any man who by his Trade may become a Bankrupt within the In what case to call a man Bankrupt is actionable Statutes that he is a Bankrupt an Action lies as of a Taylor Fuller c. And the Court seemed to incline that in this case being spoken of a Wool-winder in London the Action lies But Mich. 3. Car. the Case being moved again the Court was of opinion that the Action could not lye and would not give
As to the first words Base Gentleman they are but words of choller 2. The next words He hath four Children by his servant Agnes cannot be actionable for although she were once his servant yet she might be afterwards his Wife 3. The Plaintiff hath averred in his Declaration that he hath lived continently and then he cannot have children by his servant Agnes and then the words are not actionable And 4. For saying he hath killed them is not actionable and upon this he cited one Snags Case Co. lib. 4. who brought an Action for these words Thou hast killed thy Wife and it appeared by the Declaration that his Wife was alive and therefore it was resolved that the words were not actionable And as to the last exception it was said by Ashley Serjeant on the other side that albeit the Plaintiff hath averred in his Declaration that he lived continently and so in a manner confessed that he had no children this is but for the aggravation of the offence of the Defendant as when an Action is brought for calling one Thiefe he avers that he lived honestly and yet the Action will lye But I confesse if the Plaintiff had averred that he never had any child then it would be like to Snags Case Co. lib. 4. 16. a. and that the Action would not lye But in Anne Davyes Case there she averred that she was a Virgin of good fame and frée from all suspition of incontinency and the Defendant sayd that a Grocer had got her with child Owen Wards Case in Cook Book of Entries hath the same Declaration as this and it was the President thereof But Jermy moved another exception upon these words he hath killed them and doth not say Felony which is not good for he migt kill them in execution of Iustice which is justifiable Trin. 2. Jac. Willers Case in the Court it was adjudged that for these words Thou hast stollen a peece and I will charge thee with Felony an Action lies not because a péece is a word of doubtfull signification And Trin. 20. Jac. It was resolved that these words Agnes Knight is a Witch were not Actinable but it was answered of the other side that upon the whole frame of these words they cannot be intended but to be spoken malitiously and there can be no pretencâ— of lawfull killing of children Doderidge all the words joyned together are actionable but these words only considered he hath four children by his servant Agnes are not Actionable and albeit he doth not alledge it felony yet this is a scandall and good cause of Action Jones agreed and yet he conceived that for saying singly that one hath a Bastard an Action lies not albeit the having of a Bastard be punishable by the Statute of 18. Eliz. cap. 1. But by him he hath killed the King shall be taken in pejori sensu otherwise it is if the words of themselves be indifferent as Pope and this word shall not be the rather taken in pejori sensu having relation to all the sentence for the contrariety of the Declaration it seems to me that the Declaration is good enough but if one saith Thou hast killed J. S. where in truth there never was such a man it is not actionable But here the Averment of the Plaintiff is more generall Ubi re vera he is not guilâ—y or incontinent which is a general allegation but if he had averred ubi re vera he never had any child there peradventure the Action would not lye but here it will Whitlock Justice agreed and he sayd that the first words hath had four children by his Maid Agnes are actionable and for the other matters they agreed whereby Iudgement was given for the Plaintiff The same Term in the same Court THis Term in the Common-place Sargeant Hendon cited this Case to be adjudged 4. Jac. A Copy-holder made a Lease for yeares by License and the Lessee dyed that this Lease shall not be accounted assets in the hands of the Excecutors neither shall it be extended But the Case was denyed by Iustice Hutton and others and that an Ejectione firmae lies of such a Lease But he said that if a Copy-holder makes a Lease for yeares by License of the Lord and dyes without Heire the years not expired the Lord notwithstanding this may enter for the Estate out of which this Lease was derived is determined But Yelverton Iustice was contra because this License shall be taken as a confirmation of the Lord and therefore the Lease shall be good against him and there as I heard it was argued by all that if a Copy-holder makes a Lease for a yeare this is a Lease by the Common-Law and not customary and shall be counted assets in the hands of the Executors of the Lessée The same Term in the Kings Bench. NOta upon evidence to a Iury between Buffield and Byburo the Case appeared to be this upon a Devise with these words I will and devise that A. and B. my Feoffees shall stand seised and be seised to and of Iohn Callis for life the remainder c. And the truth was that he had no Feoffees and the opinion of the whole Court nullo contradicente was that this is a good Devise to John Callis by reason of the intention 38. H. 8. Bro. Devis 48. 15. Eliz. Dyer 323. were urged for the proofe of it and by Doderidge the Case of 15. Eliz. is more strong then our Case is Linyen made a Feoffment to his own use and afterwards devised that his Feoffees should be seised to the use of his Daughter A. who in truth was a Bastard and yet this is a good Devise of the Land by intention for by no possibility they can be seised to his use Mich. 2. Car. Lemasons and Dicksons Case in the Kings Bench. Trin. 2. Car. Roll. 1365. THe Case was this One Parcevall Sherwood was indebted to Susan Clarke who brought an Action of debt by a Bill of Middlesex which is in nature of a Writ of Trespas against him and Sherwood upon a mean Proces was arrested by the Defendant being Bayliff of the Liberty of White-Chappel and being in his custody he suffered him to escape Afterwards Susan Clarke made the Plaintiff her Executor and dyed and then the Plaintiff brought an Action upon the Case against the Defendant upon the said escape and upon issue joyned it was found for the Plaintiff And Calthrop of Councel with the Plaintiff moved that the Action will well lye for the Testator himselfe might have had either an Action of Debt or upon the case upon the sayd Escape and therefore the Executor may have the same remedy and that by the equity of the Statute of 4. E. 3. cap. 7. which gives an Action to Executors pro bonis asportatis in vita Testatoris And by 14. H. 7. 17. this Statute shall be taken by equity and Administrators who are in the same mischiefe shall have the same remedy albeit they
that it was good enough for although it were a joynt command yet the parties commanding having severall titles it shall be taken as severall commands reddendo singula singulis and for the third it is good enough being in a Plea otherwise if it had been in a Writ But for the second Exception the bar is not good enough because incertain so that although upon other Exceptions moved by the Defendant the Replication of the Plaintiff was not good yet the Defendants Bar being ill the Plaintiff shall have Iudgement upon tâ—e Declaration And the Plaintiff had Iudgement accordingly The same Term in the same Court Risley versus Hains IN an Action upon the Case upon an assumpsit the Plaintiffe declared upon the Sale of several parcells of Tobacco to wit for one parcell so much for another parcell so much and so forward and in the Conclusion he saith quae quidem separales summae in toto se attingunt to 55. l. which being computed is lesse then the pariculars and upon non assumpsit it was found for the Plaintiffe and now Andrewes moved in arrest of Judgement for that the particulars and the summing up of them differs and this being in a Declaration which ought to contain truth it is not good and so there appears to be no cause of action 35. H. 8. Dyer 55. And Grices Case in the very point Mich. 17. Jac. in this Court but by Jones and Whitlock Iustices onely present the Declaration is good enough for there is a particular promise for every parcell and the summing up of particulars is only surplusage and officiousness of the Clark therefore the Iudgement was affirmed And nota that Jones said obiter in this Case that upon a contract the Party to whom payment is to be made need not make request and afterwards it was agreed by the whole Court that it should be amended otherwise it had been more The same Term in the same Court A Great multitude of Welsh-men were Indited for the death of a man by an Inquisition taken before the Coroner in the County of Mountgomery in Wales and Littleton of Councel with the Welsh-men took some Exceptions to the Inquisition as 1. That the Coroner cannot take any Inquest unlesse it be super visum corporis and to this purpose he cited Britton 6. Ric. 2. Coron 107. 21. E. 4. 70. 2. Ric. 3. 2. This also is the reason that if a man drown himselfe and cannot be found the Coroner cannot enquire of the death of this man but for the King to have a forfeiture of his Goods an Inquisition ought to be taken before the Iustices of Peace as it was resolved in this Court Trin. 13. Jac. upon which the first exception was that the Inquisition was taken at D. in the time of King James super visum corporis in D. in the time of this King and for this he cited two presidents out of Cookes Booke of Eâ—tryes Another Exception was because the Inquisition was per Sacramentum probor legal hominum Com. predict whereas by the Stat. of 4. E. 1. this inquest ought to be by men of the four Towns next adjoyning and this ought to appear in the Inditement also Hill 10. Jac. Rot. 3. Co. lib. Intr. 354. And day was given to the Attorney General to maintain this Inquisition But afterwards Pasch 3. Car. the Inditement was quashed especially for the first exception The same Term in the same Court King versus Merrick In an Action upon the Case for these words I charge you King with Felony and you Constable inuendo Thomas Legat to apprehend him And a verdict for the Plaintiff It was moved in arrest of Iudgement by Bacon that the words are not actionable The first words are not because they are not an expresse affirmation and for this he cited Mich. 11. Jac. in this Court Powel and Bauds case where an action was brought for these words I have arrested Powel of Felony for stealing sheep of mine and adjudged not actionable Also the Plaintiff did not shew in his Declaration what kinde of felony this was and it may be such a felony for which an Action will not lie for there are divers kinds of felony and a Mayhem is one kind as appears in 40. Ass Pl. 4. 6. H. 7. 1 and in this case it shall be taken in mitiori sensu and it shall not be intended such a felony for which he may be hanged If one charge another with felony because he hath committed a Mayhem it is cleer that an action will not lye And the other words I charge you Constable to apprehend him are not actionable and the words are onely spoken to the Plaintiff Also the words are layd to be spoken in London and it appears that the Constable was of a Town in Norfolk who cannot apprehend any one in London Earle for the Plaintiff It hath been argued that the words are not actionable because felony is a generall word and contains in it selfe a mayhem also But I conceive that in this case felony shall be taken according to the general and common acceptation which is such a Felony for which a man may loose his life and for this he cited Co. lib. 4. 15. b. Yeomans charged Hext for my ground in Allerton Hext seeks my life and if I could find Iohn Silver I do not doubt but within two dayes to arrest him upon suspition of Felony and it was adjudged that for the last words the Action lies because he shall be imprisoned for suspition of felony and felony is there taken according to the common acceptation of the word It hath been objected that there is no expresse affirmation of the Felony but I conceive that there is 39. Eliz. Action was brought for these words I will call him in question for poysoning my Aunt and adjudged that it lyes and Mich. 37. and 38. Eliz. Woodrofe and Vaughans case for these words I did not know Mr. Woodrofe was your Brother I will prove him perjured or else I will bear his charges and adjudged actionable And Hill 44. Eliz. Rot. 351. This man inuendo Iohn Latham hath cut my Wives purse and his Father knowing of it received it of him and the Money and Rings theein and therefore I charge him of flat Felony and resolved that for these words did cut my Wife's purse no action lies for the cutting of ones purse only is not felony unlesse it be taken from the person and to receive one is not Felony but resolved that the last words were actionoble and then it was agreed that if one say that I. S. did see such a one that had committed felony and did suffer him to slip away I charge him of Felony these words are not actionable and Mich. 20. Jac. in this Court that these words beare witnesse I arrest him of felony are actionable and therefore he prayeâ— judgement for the Plaintiff Doderidge Iustice the words are not actionable And Hexts case comes not to this
shall take effect by Livery where by Jurolist 49 Grants of the King  Where voyd 61 H HEire Where he shall be charged where not 152 153 I JMparlance  Not before a Declaration is entred 150 Imprisonment  Where justifiable 13 Indictments 107 134 210 taken before Coroners Where quashed 202 Upon the Statute of 8. H. 9. of forcible entry of copy-hold Lands 205 Inn-keepers 128 179 may detain a Horse untill he be satisfied for his meat 127 Inquisition  by the Coroner in case of death must bee Super visum corporis per sacramentum proborem legatum hominum where not hood 210 Indiciments  for stopping a Church-way where good 206 For being a Night-walker where good 208 If good in one part shall not be quashed  Joyâ—ture  where it may be waived 88 Joynt-tâ—nants â—6 Justâ—fication 13. 161 Justices of Peace of Gaol delivery and Nisiprius and their power 17 Judgmâ—nts 211. 212 by Nihil dicit 153 Where a Judgment reversed without Errour brought where noâ— 181 Entred in the Book as a Memorandum stayed by a subsequent order of Court 181 L. Lâ—ases 99. 106. 57 Void by Acceptance 9 Where in Reversion good 9 By Tenants for life or years to begin after his death 96 By a Copyholder upon a License 105 Where determined without entry 27. 53. 64. Lessce for life without impeachment â—f Wast may make a Lease excepting the Trees 193 What interest he hath in them ib. Leeâ— 141 Libels  Where a privaâ—e Letter is punishable aâ— a Libell 139 Legacies not payable but upon demand 104 Livery of Seâ—sin 103 Where words spâ—ken upon the 〈◊〉 do amount to a Livery 47 49 Liâ—â—se  〈◊〉 couâ—termandable 151 〈◊〉 a Copâ—holder to make Leaâ—es 150 〈◊〉  〈…〉 by Bargain and Sale by word 48 Lunatick  The Action must be brought in his name 141 M. MAgis dignum continet in se minus 35 Mayhem 115 Market Overt  Where the Sale shall be good where not 48 In a Scriviners Shop of Plate void 84 What kind of Sale alters the property 84 Monstrans of Deeds 113 Melius Inquirendum  Where it shall issue where not and what to be found upon it 54 55 Misnosme 151 In Grains 57 Of a Corporation 58 N. NOtice 37. 151. Of a condition of payment where to be given 12 Taken strongly against the Party 12 Of one Sheriff to another Sheriff of the persons in Execution 85. 86 Where requisite 136. 164 Nusance 166 Errecting a Dove-coat by a Freeholder no Nusance 141 O. OBligation 165. discharged by the act of God 98 not to be avoided by the act of the Obligor himself 40 To the use of a Feme Covert shall go to her Administrator not to the Husband 106 One forfeited revived and good 16 Office and Officers  Where an Office is void Ipso facto 28 Forfeited and by what act 117 Of his own wrong 149 Office Trove 25 26 Where Lands shall be in the King without Office 19 Relates 20 helps the King to the meane profits 30 Countervailes an Entry And where no entry is requisite in case of a common person There needs no Office found for the King 53 Where an Estate shall be devested out of the King without Office 63 Where not 64. without Returne or Monstrans de droit 64 Oyer  Where of a condition where not 202 P. PAtents 16 Where the Patentee shall take advantage of a condition to avoid a Lease 27 Void for the generality in the Grant 61 Void notwithstanding the words Ex certa sciaentia 61 Perjury where not punishable 144 Pleadings 28. 42. 101. 109. 152. 150. 160. 163. 206. Void because double Plea 113. 114 Nul tiel in rerum natura no Plea in appeal of Mayhem 115 Perpetuities 97. not tollerable 80 Plenarty by Induction of a Lay-man 37. Binds not the King 133 Proviso How to be construed 27 For a Limitation 53. 117. 118 119 Where repugnant and void 87 Possessio fratris 35 Principall Accessare 107 Prisoners Must be delivered over at the Gaol 85. 86 Presentation 132 Proofs What Proofs are to be allowed in the Ecclesiasticall Court 59 Priviledges  Grant by the Pope not allowable 157 Prescription 169 For Common for Vicinage good 101 Difference betwixt it and Custome and how to be taxed 201 â—roperty 38 What kind of Sale alters the property 84 â—rohibition 59. 126. 159. 197 For a Seat in the Church 140 Severall Prohibitions in one Cause 156 Prerogative 26 Q. QViâ— juris clamat 63 〈◊〉 warrantâ— 150. 180 Quare Impedit by an Executor for a disturbance in vite Testator 189. 190 191 R. RAvishment of Ward by an Executor 190. 191 Recovery 6. 5 Releaâ—es 28. 132 Exâ—cuted where avoided by Proviso 16 Of all demands will dischaâ—ge a rest in â—uturo 136 Relation 12 Of a Baâ—l 132 Of Entry of Judgement 132 Return of the Sheriff of a Capias upon a day not Dies faci good 205 Request 160. 211. 212 Upon payment upon a Contract is not necessary 211. 212 Remainder 97 in Fee not good upon a Lease for years 4. 82 Must take effect when the particular Estate determines for life wiâ—hout impeachment of Wast whether he may cut Trees duâ—ing the life of Tenant for life 196. 74 Rents  Rent and Pension all one in a Demand in a â—ecovery 23 Where the Executor shall have the rent upon a Lease of the Wâ—ves land 145 Restitution  Of an Alderman to his place 134 Of one put out of his Office 176 Reservatâ—on 145 195. how construed 17 Revivor 167 S. SAvingâ— in an Act of Paâ—liament how construed 17 Scire 〈◊〉  Lâ—es â—â—t against the Bail till a Capiaâ— be awarded of the Principall 186 Seals 161 Scandalum Magnatum 66 Sheriffs Oâ—e Sheriff must deliver over the Prisoners to the other by Indeâ—ture 85. 86 Surplusage  shall not abate a Writ 24 Surrender 9. 31. 84. 110. 125 129 Of the Husband of the land of the Wife no discontinuance 38 39 Of an Infant Copyholder void 39 Of an Alderman of his place 134 Of Tenant for life in remainder good without Deed 137 138 T. TAles  where awarded of Aliens 36 Tender  where not good to avoid a condition 20 Title  where must be made 1 2 Trusts not abridged 8 Their difference from Uses 77 Traverse 1. 101. 103. not necessary where there are two Affirmatives but where they do not agree 67 Traverse upon a Traverse 101 Circumstances not traversable 161 Treason 122 Triall  Of the same person upon another Indictment after Attainder upon a former Indictment 107 Transporting Corn 149 Trespasse 161 Where Vi armis e contr 192 Tithes 140 Where discharged by Prescription or Priviledge 156 De animalibus inutilibus animalibus utrilibus and the difference 197 Of Sheep and their pasturing wool c. 157 V. VErdict 19 void 202 Found for thâ— Deâ—endants because no 〈…〉 â—â—tred for one of them 145 Volenti non fit injuria 9 Use and Uses  What a Use is 71 How to be construed 3 Not to be abridged 8 Void upâ—n a tender 18 Raised by word upon a good consideration where good where not 47 49 Raiâ—ed upon Contracts 48 Considerations to raise Uses 48 49 A bare Covenant writing without consideration will not raise an Use 50 What persons cannot stand seised to Uses 72 Uses contingent not executed by the Statute of 27. H. 8. 72 Uâ—es contingent destroyed by a Feoffment 72 Uses grounded upon fraud 77 Use cannot râ—â—e out of a Uâ—e 81 Uses in contingency barred by a Release of the Feoffees 83 Use upon a Bargain and Sale for years passeth without inrolement of the Deed 38 Use amerced upon a Fine upon render without a Deed 105 W. WAger of Law 127 Words  Where the King shall have a third part of the Land of the Ward and of other land setled upon a marriage 54 Wast 24. 25 47 Damages in Wast 24 Warrants  When a Warrant is returned upon Record in case of the King it is as strong as an Office found 20. 28 29 Warranty  doth bind an Infant if his Entry is not lawfull 71 cannot enlarge an Estate 138 Wills 152 Words which make a condition in Wills 8 Writ  of enquiry of damages 24 Where not abated 24 Originall shall be taken as they are written 101 FINIS