a man off an action of a higher nature 219 Vsage its exposition 222 Usitatum whom it doth advantage ibid Variance what 239 Valuable consideration out of the statute 102 Vnity of possession 26 Uoluntas donatores how to be taken 77 Vexation unjust remediable how 100 Vniversity of Oxford was removed for a certain time 244 Vniversity not locall ibid Variance what 245 W WAles councell and presidents Jurisdiction 29 Wast 46 150 168 Wittall who 37 Westminster 2 chap 35 expounded 92 93 94 95 Writs 147 Warrantia chartae 169 Warranty to a tenant pur view 191 Warrantia chartae not upon two deeds 56 Writ of error 137 208 Wife joyn with her husb in feoff what shall bind 141 Wager of law 255 FINIS Case for words You are a Bastard tried by the Countrey Judgement arrested because the Plaintiff did not averr that he was an Attonrney at the time of the words spoken Case for words which dâ—d amount to but petty Larceny For calling one Witch no Action will lie If Felony be committed good cause to arrest one for it but not to speak words to defame one A Feme covert cannot convert Action upon the casebrought upon a collateral consideration and good Judgement reversed by Writ of Error because Sheriffs name was omitted on the venire fac Case for words not actionable Gase for words A man shall not be punished for mistaking the Law Case for words The like The like for Words Judgement arrested because the Plaintiff omitted to shew in his Declaration the words were spoken of himself The Defendants Justification adjudged naught because he justified for words that were actionable To do a thing allowable by Law is no conversion The Defendants Justification amounted but to Noguilty and adjudged naught Judgement arrested for want of certainty in the Count. Judgement arrested for that the consideration was not valuable Case forwords for calling an Attourney Bribing Knave Judgement arrested being mis-tried An inuendo will not maintain an Action Difference between a promise executory and executed quod nota Non cul pleaded where Non assumpsit should have been pleaded and adjudged a good Issue Action of case for words upon the statute of 1. Jac. against Invocation of Spirits Ehe Imparlannce role supplied by the Issue being perfect Judgement arrested for not shewing the Letters of Administration Judgement arrested for that the Communication did not appear but by the Inuendo Action of the Case for calling a man mainsworn fellow Moved in Arrest of Judgement because no Demand alleadged but not allowed Judgement arrested for incertainty in the Declaration By a general Pardon both Punishment and Fault taken away Promise upon condition notice not necessary Nota. Judgement arrested for incertainty in the Count and for that the promise was made by an Infant Justification for calling a man perjured dis-allowed because he was t convicted Action of the Case will not lie for calling a Currier Barretor For this word Papist no Action will lie unless spoken of a Bishop Nota. Action of the Case for double prosecution of a fieri sac Upon a non est invent returned upon an Outlary where the party escaped the Plaintiff hath his Election where to bring his Action Judgement arrested for want of an Averment Judgement arrested for the incertainty of the Count. For collateral matters which are not Duties a Request is necessary The word Witch will not bear an Action An implied promise where it is upon the reality will not lie except upon a collateral cause An Indebitat assumpsit for money ruled good without expressing for what Action against the Sheriffs of London for discharging one who was arrested coming to defend a suit depending there The Court cannot discharge one arrested except he be arrested in the face of the Court. Judgement stayed for variance between the Count and Writ to inquiry Release by the Husband pleaded in Bar to an Action brought by the Wife after his Death for money to be allowed her after his Death and adjudged no Bar. Action for calling an Attourney Champertor The Roll mended after the Record was certified by Writ of Errour it being the Clarks misprision He is a forging Knave spoken of an Attourney actionable Implyed words will not beare an action Trover brought by Administrator as of his owne goods and adjudged good Demand and demall makes a Conversion The Sheriff justifies by vertue of a Process out of the Exchequer to levy of the Occupiers of S. Lands 59. s. arrear upon the said Lands Common appurtenant cannot be divided Mis-triall the Venn being mistaken Judgement arrested for a mistake of the Jury In consideration the Plaintiff would agree the Testators son should marry the Plaintiffs daughter adjudged a good consideration Rents arrear no Plea in Covenant Difference between Covenant and Debt to bring an Action Difference between Covenant and Debt to bring an Action Breach assigned in default of the Party that never sealed the Indenture of Covenants Covenant lies against the first Lessee upon breach of Covenant made by the Assignee Difference between Covenant and Debt Covenant upon a void Lease is good Action would not lie because if the Covenant was not performed Piracy is no excuse to perform a Covenant Judgement arrested for default in the Declaration A Covenant in Law shall not be extended to make a man do more then he can A Suit in Chancery no Disturbance Judgement arrested for defects in the Declaration Breach that one entred and shews not by what Title and naught Release cannot be given in Evidence upon a Plea that the Defendant was never a Receiver of the Plaintiffs Money In Account the Process are sum Attaint and Distress In Account two Judgements and upon a Nichil Process of Vlamy lies Account against a Baily local The Defendant may wage his Law if the Receit be per manus proprias Nota. In Account the Writ abates the Death Nota. Nota. Nota. Matter in discharge of the Actions shall not be pleaded in Bar. Nota. Nota. Judgement in Account upon a special Verdict Misprision of the Clerk amended after Verdict No Tenant at the time of the Writ purchased nor afterwards and if c. no Disseisin Note upon the Kings Grant View to be there where the Office is performed Another Writ brought and hanging a good Plea in abatement Assise taken by default against Harvey and the other Tenant pleaded in abatement of the Assise that there was a Quare impedit depending Nota. The King cannot create an Office to the Queen who may bring an Assise No Costs in a non-suit in Assise The Court was denied a Supersedeas the surmise being onely matter in suit Nota. A Writ of Covenant brought against more then acknowledged and prayed to be amended and denied Lease made to one during the life two if one die the Lease is ended Nota. A case of Jointure Nota bene Difference between Tenant at will and sufferance Joynt Debt and Contract cannot have several Pleas. Nota. Nota.
is the eldest Son although they alleadge their births in severall Counties yet it shall be tryed where the Land lyes and so in that Case a Release of all his right was pleaded against him and he pleaded that he was within age and borne in another County yet it shall be tryed where the Land lyes and so adjudged 7 H. 4. 8. and 17 E. 3. 36. b. 19 H. 6. 15. Nay though the Espousals be alleadged to be in another County yet it shall be tryed where the Land lyes and adjudged 7 H. 4. 8. And Davenport inferrs from 36 H. 6. 9. A grand Cape against one he comes and pleads that he was within age at the time of the first Cape which shall be tryed where the Land lyes And another exception was taken because the Venire facias was not well awarded for it was directed to the Sheriff of Middlesex that he should cause to come twelve Coram nobis apud westmonasterium which is not good for that Court follows the King and may be removed to any place and therefore it ought to have been Vbicunque fuerimus in Anglia but all the Judges Fleming being absent after mature deliberation held the tryall at Middlesex good for they took this difference in their answer to the rule layd downe that what concernes the realty it shall be tryed where the Land lyes for when nonage or the birth are alleadged to intitle one to the Land demanded as if in an Assise the Tenant pleads a discontinuance the Demandant sayes he was within age at the time or to debarr another of Land that he was borne before marriage in these Cases because the Inheritance of the Land depends upon it although they be alleadged in another place yet they shall be tryed where the Land lyes 19 H. 6. And so it is 39 H. 6. 49. b. to be intended but if nonage or birth be pleaded as matter dehors and not to the disabling of the title to the Land but to another purpose as here it is to the person because he could not appeare by Attorney in this Case it shall be tryed where the Infancy is alleadged As if in a Formedon in the Remainder the Tenant pleads nonage in the Plaintiff and prayes that the Plea may stay untill his full age if Issue be taken upon it it shall be tryed in the place where it is alleadged And as to the Exception to the Venire facias the Roll is right which warrants the Writ and therefore they held it was but the Writers fault and should be amended and Doddridge and Cook held the Triall good if Infancy be alledged the Triall shall be by inspection during his Nonage as it is 17 E. 3. Account 121. and 11 H. 4. 115. 25. Ass 2. and 48 E. 3. 11. and the 11. Rep. f. 30. but if his Age upon inspection remains doubtfull then the Judges may swear the party and examine Witnesses And 25 E. 3. 44. and 50 E. 3. 5. but if the Infant come to full Age it shall be tried by the Countrey 33 H. 8. and they took this Difference in what place it should be tried for if the Action be reall it shall be tried where the Land lies as it is 21 E. 3. 28. 28 E. 3. 17. 44 Assis 10. 46 E. 3. 7. 13 H. 4. 3. and if both places be in one County then the venire facias shall be of both 22 E. 3. 11. H. 4. 75. but if nonage be alledged in a personall Action the Triall shall be where the writ is brought 43. H. 6. 40. in Debt the Defendant pleaded infancy and that he was born in such a place yet the Venire facias was awarded of that place where the Action was brought and 43 H. 6. 40. Prisot was of the same opinion and the Law is the same when it concerns the person as in misnomer or that he is not the same person and so in the Case in question although the Action be brought in one place and the nonage pleaded in another County yet it shall be tried where the Action was brought and therefore the Action being brought in Midd. the triall of Midd. is good for a writ of Error is of the nature of an Originall which is personall and they held the Venire facias should be amended being but a matter of Form and that it was no mistriall it being awarded at a right place and likewise the will is right which warrants it and therefore it is but a misprision and no mistriall and the Venire facias shall be amended according to the will and Judgement was given for the Plaintiff in the writ of Error Formedon BRigham versus Godwin The Formedon did abate by the death of one of the Demandants and upon a new writ brought by Journes accounts the Tenant was Essoined and it was moved by the demanded that the Essoin should be quashed because the Tenant was Essoined upon the first writ but the Essoin was allowed by the Court but it was held by the Court that if the Tenant had the view upon the first Writ he should never have the view again at the Common Law we might have had a new Essoin upon view as often as he brings a new writ and Husband held that if by the Common Law it is to be granted the Statute doth not abridge it two views do not ly upon one writ at the common Law and if this shall be accounted but one Writ the view lieth not but in this case the Tenant did relinquish the view because he had day to plead NEvill versus Nevil Mich. 15 Jac. rotulo 77. Formedon in le Discender the writ was generall and the Count was upon a Feofment made after the Statute of uses and a speciall verdict whether the Deed warrant the Count the verdict is whether upon the whole matter the said A. N. gave the moity of the third part of the Mannor c. for default of Issue of the Bodies of either the said G. and D. to the use of either of them surviving and of the Heires males of his Body to be begotten or no the Jury are wholly ignorant the writ was to the use of G. and D. and of the Heirs males of the Bodies of the said G. and D. lawfully to be begotten and for default of such issue male of the Body of either of them then to the use of either of them having issue male of his Body lawfully begotten and for default of such issue male of both the Bodies of the said G. D. or either of them lawfully to be begotten then to the use c. By Deed an implication cannot be intended if there be not apt words otherwise it is in a Will for this is but a gift to a man and his Issue for this gift is but to both of them for life and severall inheritances Bishop al. versus Cossen Trin. 16 Jac. rotulo 62. In Formedon the Tenant pleaded a warranty and pretends
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
amended upon oath 175. Partes ad finem nihil c. pleaded 179 Prescription for Common of pasture 177. Prescription to distrain for amendment in a Court Baron must be not in a Court Leet 183. Prescription in a good estate good for a thing incident though it be in grant 198. Prescription to be a Iustice of peace where good how naught 206. 207 Prescription good matter and various 215. 216 Possession how it enters 230 231. Posse Comitatus where it may be raised 240. Q. QVeen cannot be an Officer to the King 28 Quantity in a Declaration may be destroyed by a per nomen 145. Quare impedit Process in it 158 Quare impedit the Judgement in it 158 Quare impedit essoyn in it how and for whom 159. Quare impedit Iudgement in it where execution shall be by the Metropolitan 159. Quare impedit severall against severall men 161. Quod permittat 227. R. REquest where it is necessary 13 Release of Baron where it is no Bar 15 Rent arrear no plea in an action of Covenant 19 Release where not to be given in Evidence 24 Request upon a bond what is sufficient 30 Rent reserved where gone 32 Rent proportioned 33 Return of a Sheriff insufficient 37 Return of 21 Iurors naught 41 Rogue not actionable 9 Rieus per deceit 54 Release how and where good 62. 63 Repleader awarded 64 Release where good in respect of time 70 Release of all demands its force 81 116. Request to make assurance generally good 85 Release in Law 91 Reversioner received for default of Tenant for life 127 Return insufficient why 127 Replication not good 131 Rent received at Michaelmas or within ten dayes after 105 Reservation of Rent how to be construed 108 109 Record removed unto the Exchequer 145 146 Resignation by fraud takes not away the Kings Title 161 Replevin where and how 168 Replevin not within the Statute 3 Jac. 172 Returno habendo 173 Replevin place omitted not good 176 Resignation of a Benefice 201 Release to Tenant at sufferance void 201 Recognizance sued 225 S. SVit in Chancery is no disturbance 23 Sheriffe amerced for the false Re-return of another 36 Summons severance where 37 Statute preferred before a judgement where 37 38 Supersedeas granted where 40 Subboth where punishable 44 Scandall for keeping a false Debt-booke actionable 4 Suing in a wrong Court where actionable 4 Scandall for false measures actionable 4 Scandall for invocation of Spirits 8 Sheriffe his authority in executions 50 Scire facias for whom 57 Satisfaction what is not 70. where it is held naught 73 Steward of a Leet within the Stat. of Edward 6. 73 Successor not Executor when hee shall take benefit 94 Supersedeas upon a Writ of Error 153 Servant brought an Action nomine proprio part of the goods being his Masters 155 Seisin of Rent within the time of limitation not traversable 170 Surrender of a Copy-holder how it works 181 Sheriffe where his performance is good where naught 210 211 Scire Facias where it is proper 226 Seisin of a part of service is seisin of the whole 230 Submission to Arbitrators 232 Seu Assault Demesne pleaded in Battery 233 T. TRover where 12 Trover against an Administrator good where 16 Tenant at the time of Writ purchased where good 27 Tenant at will and at sufferance do differ 30 Tithes discharged where 31 Tithes where not suable for by the statute 31 Tithes in kind renewed where 32 Trees devised to pay Debts 32 Tithes where not of boughes 33 Tithes not set forth where action 34 Tales prayed denyed where 35 Tearm whole adjudged as one day 37 Trees in the high-way whose 42 Tryall where 49 Tenants in Common 83 Tithe of what trees to be paid 95 Tithes cannot be leased without Deed 99 Tryall upon Ejectment good matter vide 147 148 Tenant in taile his death where it determineth Estates by him granted 161 Tenant in tail grants a rent charge 179 Tales awarded 183 Trespass what process 193 Trespass is joynt or severall at the Plaintiffs election 196 Trespass laid in an Acre and the Iury found in a Rood yet it is good 210 Trespass difference 'twixt it and Rep'evin 214 Tort Demesne where good in issue where not 215 V. VAriance betwixt Count the writ of Inquiry 15 Ven mis-awarded 23 View to be there where an Office is performed 27 Villianage within the statute of limitation 38 Vse upon what 40 Venire Facias mendable where 43 Vsury what where not 52 Uncore Prist where pleadable 61 Verdict speciall 75 Venire Facias mis-awarded 76 Uncore Prist for to grant where naught 76 Venire Facias the Defendants name mistaken 79 Vsurious contract pleaded 86 Variance betwixt the specialty and Count 96 Verdict speciall upon non demisit 126 Venire Facias of the Parish adjudged good 130 Venire Facias to the Coroners ib. Verdict speciall in Ejectment 131 Verdict precise sometimes makes the Declaration good which otherwise would be naught 137 Venire Facias exception taken and over-ruled 161 Vsurpation upon the King 163 Venire Facias whence 176 Vsury the statute pleaded 180 Venire Facias de novo 194. 204. 219 Venire Facias vitious why 209 Verdict finding substance though not circumstances yet good 213 214. Venire one out of two places in the same County 228 W. WHere arrant not actionable 16 Words implyed not actionable 16 Will good by notes 44 Words actionable 2 3. Witch not actionable 2. 14 Warrant of Attorney 46 Words after the Clause of his testatus of what force they are 59 VVrit originall where abated by death 64 Will must be certain and according to Law 130 Will not to be avoided by averment 131 Will mistakes in many cases tollerable 132 Words void rather then the Declaration where 146 Warranty Collaterall pleaded in a Formedon 153 Writ another depending pleaded 163 Withernam awarded 167 168 Words of double intendment how to be construed 192 193 Wast where it lyeth for what judgment in it 237 238 Waste inquiry of it ibid. Waste who shall joyne in the action 238 Waste against whom it lies 239 240 Waste sparsim ibid. The times when these severall Officers of the Court of Common Pleas were admitted to their severall Offices Thomas Spencer Ar. Pasch 33. Eliz. Henery Compton Miles balnei Circa An. 5. Car. Jo. Glyn serviens ad Legem 5. Febr. 19. Car. Johannes Foorde 27. Jan. 27. Eliz. Gulielmus Nelson 15. Novem. 25. Eliz. Richardus Brownelow 9. Oct. 32. Eliz. Thomas Cory 9. Oct. 14. Car. Zacharias Scot. 9. Oct. 27. Eliz. Thomas Crompton 10. May 7. Jac. Johannes Goldesborough 7. May 11. Jac. Johannes Gulston 15. Oct. 16. Jac. Richardus Barnard 9. Febr. 19. Car. Johannes Pynsent Ult. May 20. Car. Laurentius Rardford 30. Oct. 23. Elizabeth Hugo Browker 28. November 31. Eliz. Thomas Waller 23. Jan. 5. Jac. Robertus Moyle 7. May 3. Car. Geo. Farmer 16. Oct. 14. Car. Gulielmus Anderson 12. 1. May
brought against Administrators The breach was for not repairing Houses by the Administrators according to a Covenant made by the Intestate The Administrators plead divers Judgements given against them in Bar of the Covenant and that they have not Assetts over HAre versus Savill Trin. 7. Jac. rotulo Action of Covenant brought upon an Indenture upon a special Covenant to pay Rent at certain Dayes therein specified and reserved The Defendant pleads that no Rent was behinde The Plaintiff demurrs to that Plea and it was held by the whole Court to be a bad Plea in Covenant for by that Plea the Defendant confesses the Covenant broken and that Plea tends but in mitigation of Damages MOrdant versus Wats Pasch 17. Jac. vel 7. Jac. rotulo 1532. Action of Covenant brought for a Rent-charge granted for the life of an Estranger and for half a Year after to be paid at the Feasts of the Annunciation of the Virgin Mary and Saint Michael the Archangel and alledge that the Estranger died in February and that the Rent was not paid at the Feast of the Annunciation and so the Covenant broken the Defendant demurres pretending that the Rent was not due untill half a year after the Death of the Estranger and not at the Feast but the Court held the contrary And if the Grantee had died his Heirs should have had it during the Life of the Estranger because it was payable to him his Heirs and Executors If I grant an Annuity for Life and twenty years after these are two severall Grants and the Executor shall have it after the Death of Tenant for Life And Sir Edward Cook said When an express Covenant is made to pay the Rent at divers Dayes an Action of Covenant will lie before all the Dayes of Payment be past but an Action of Debt will not lie untill all the Dayes be past and that in such case Debt doth properly lie upon a Grant of an Annuity for life or years H. 7. Eliz. rotulo 908. LAm versus Tresham Hill 7 Jac. rotulo 2145. The Indentures of Covenant were made between T. Tresham E. Lord Stourton Meriel T. and the Defendant and the Lord Stourton and Meriel never sealed the Indenture and mention thereof was made in the Count Videlicet which Lord Stourton and Meriel were parties to the said Indenture but never sealed The Case was Sir T. T. conveyed one Lease to the Lord Stourton and he to the said Meriel and by the Indenture brought into the Court it was covenanted that the said T. T. M. and L. or one of them at the time of the ensealing and Delivery of the said Indenture was lawfully possessed of and in the Mannour of c. And covenant that the Defendant his Executors and Assignes might and should quietly have and injoy the said Mannour clearly and absolutely freed and discharged or otherwise upon request saved harmless from all Incumberances and former Bargains by the said T. S. E. M. and the Defendant or any of them and the breach was that the Plaintiff was damnified for that the said M. that had the State did not seal and adjudged good PYot versus Lord Saint-John Mich. 7. Jac. rotulo 3214. The Plaintiff had the Reversion of two Houses one in Fee and the other for years and makes a Lease for years with Covenant for Reparations of both Houses and Question was whether the Plaintiff should have one Action or several Actions and adjudged that he should have a joynt Action for both FIsher versus Ameers Hill 8. Jac. rotulo 1061. Action of Covenant brought against the first Lessee after he had assigned over his terme for not repairing and the Question was if an Action of Covenant would lie against the first Lessee upon a Covenant to repair the Houses c. who had assigned his terme to another whom the Lessor had accepted for his Tenant and received the Rent and he suffered the House to be consumed by fire and if the Covenant by such Acceptance were gone as Debt for the Lessor is barred of his Action of Debt for Rent against his first Lessee after he hath assigned and the Lessor accepted the Rent of the Assignee If I covenant that I my Executors Administrators and Assignes shall pay the Rent if I assigne over my terme and the Assignee pay the Rent to the Lessor yet the Covenant lieth against the first Lessee otherwise it is where Rent is reserved and no Covenant to pay it there if the Lessor accept the Rent of the Assignee the Action will not lie against the Executor of the Lessee and Judgement after a Demurrer for the Plaintiff that the Action would well lie WAlter versus Decanum Capitulum Norwici Trin. 9. Jac. rotulo 1414. Action of Covenant brought upon an express Covenant in a voidable Lease and the Question was whether the Covenant be good the Lease being void and it was adjudged Trin. 10. Jac. that the Action would lie although the Lease were void and Mapes case was cited which was Mapes made a Lease of a Parsonage of D. for seven years and did covenant to save the Lessee harmless against B. the person c. in that case it was held if the person sue the Covenant by right or wrong an Action lies upon the Covenant and Sir E. Cook said that if the Lease were originally void yet the Action of Covenant would lie for else a great mischief might happen for a Dean might as to day make a Lease to one and keep it secret and to morrow make another and covenant to injoy it and so avoid the second Lessee If a Lease be good at the beginning and become void after their terminus is the number of years otherwise where it was void at the first if a Dean and Chapter make a Lease contrary to the Statute and reserve a Rent it shall not be void against them so long as the Dean liveth but against his Successor The Lease in question was not void but voidable A Covenant in Law shall go to lawfull eviction although the Lease be void A Covenant real to Warrant and Defend there must be a Title paramount and a lawfull eviction Covenants for Lessees shall be taken beneficially for the Lessees BRight versus Cowper Trin. 9. Jac. rotulo 638. Action of Covenant brought upon a Covenant made by the Merchant with a Master of a Ship Videlicet that if he would bring his Fraight to such a Port then he would pay him such a summ and shews that part of the Goods were taken away by Pirats and that the residue of the Goods were brought to the place appointed and there unladed and that the Merchant hath not paid and so the Covenant broken and the Question was whether the Merchant should pay the Money agreed for since all the Merchandises were not brought to the place appointed and the Court was of opinion that he ought not to pay the Money because the
upon the Summons pone or Distress the Outlary lies the Process is returnable from fifteen Dayes to 15 Dayes an Essoin lies In this Action there are two Judgements the first Judgement is that the Defendant shall account because he hath not accounted before in this first Judgement the Plaintiff shall not recover Costs or Damages but a Capias ad computand shall issue and if a Non est inventus shall be returned thereupon then an Exigent and when the Defendant by the rigor of the Law is imprisoned yet the Court doth in favour of the Defendant take Bail for he shall account before Auditors which the Court shall appoint which shall be the Officers of the Court to audit the Account and he shall appear from day to day before the Auditors at every day and place assigned by the Auditors untill the Account shall be determined and before the Auditors the Plaintiff or Defendant may joyn Issue or demurr upon the Plea pleaded before the Auditors and if any of the parties shall make Default and shall not appear then if after Appearance the Defendant shall not plead or if he shall joyn Issue or joyn in a Demurrer the Auditors shall certifie that to the Court and the Court shall proceed to the matter certified by triall of the Issue if it be joyned or by arguing the Demurrer as the cause shall require and if the Plaintiff shall make Default or shall not prosecute or if the Defendant shall not answer they may commit him to the Fleet and if Verdict pass for the Plaintiff Costs and Damages shall be recovered by reason of the inter-pleadings and the Plaintiff shall recover his Goods or Moneys demanded with his Costs and Damages and a Fisa or Elegit or casa shall be awarded and if a Non est inventus be returned then an Outlary after Judgement An account against a Bailiff of Lands shall be brought in the County where the Lands lie In every case in account where an Attachment may be returned an Essoyn lies Where the Defendant is charged to account for Moneys received from the hands of the Plaintiff the Defendant may wage his Law and likewise for Goods delivered to be sold but it is otherwise where the Receit is by the hands of a Testator or of any other then the Plaintiff That after a year and a day after Judgement given every Action shall be revived by Scire facias which is given by the Statute for all Actions at Law if the Plaintiff shall not obtain his Execution within a year and a day he shall be driven to bring a new Action Or if a Defendant be charged as Receiver by Indenture he shall not be admitted to plead that he was not a Receiver If the Plaintiff die before the second Judgement the Writ shall abate and no Scire facias lies for the Executor if the Defendant die before the second Judgement If two be adjudged to account and a Ca. exfa. issue and one appear and the other be outlawed he that appears shall account alone for that the Plaintiffs Process is determined against the other and so if one die the other shall account alone and if one be adjudged to account and will not he shall be committed to the Fleet. That if I deliver Goods to one to the value of 100. l. to traffique with for my use and he sels them for 10. l. I have no remedy but if my Bailiff buy a thing for 10. l. which is not worth it he shall not be allowed it Account lies not before a Sheriff for that he can assigne no Auditors If two be joyntly possest of Goods one of the two deliver the Goods for Merchandise he onely shall bring the Action An Account lies not against an Executor or Infant An Account lies not for a Park of Deer Matter that is in discharge of an Account shall not be pleaded in Barr of the Action for the Judges are Judges of the Action and not of the Account If Money be delivered to render an Account an Account lies but if it was delivered to keep untill the Plaintiff shall require Account doth not lie but Detinue If the Plaintiff account upon Witness of the Receit the Defendant shall not wage his Law If an Account shall be brought for Goods in the Declaration the Plaintiff declares that they were in his house whereas indeed they were not it is good HArrington versus Dean Hill 10. Jac. rotulo 3230. Action of Account render brought against the Defendant for the Receit of Money by the hands of one Rotheram for 200. l. The Defendant pleads that he was not a Receiver for to render an Account the Jury finde it specially that Rotheram was indebted to the Plaintiff in 200. l. and the Plaintiff required the Defendant to receive the said 200. l. and the Defendant required Rotheram to pay the 200. l. and Rotheram upon Request to him made desires the Defendant to borrow of any person 200. l. and to pay the Plaintiff and finde that the Defendant did borrow 200. l. of one Stanhop to pay the Plaintiff and Rotheram became bound to Stanhop for the payment of the said 200. l. and that the Defendant appointed his Wife to pay the Money to the Plaintiff and if upon the whole matter c. and Judgement was given that the Defendant was a Receiver THe Earle of Cumberland against Hilton The Clerk that entred the Cause had omitted the Charge which was for 400. l. and it was omitted in the Roll and Nisi prius and after a Verdict Excepon taken and amended by the Court. Assise IN an Assise Trin. 29. Jacobi rotulo 27. brought against Thacker and Elmer the Defendants come and say that there was no Tenants of the Tenements put to the view of the Recognisors of the Assise aforesaid nor at the time of purchasing the Writ to wit such a Day nor any time after and this they were ready to verifie and pray Judgement and if so then they say that they have done no injury or Disseisin of the Tenements with the appurtenances to the said W. T. and put themselves upon the Assise and the said W. T. doth so likewise therefore the Assise was taken between them and thereupon the Recognisors of the Assise say that the said E. E. at the purchasing of the original Writ of the Assise Videlicet such a Day were Tenants of the Tenement aforefaid with the appurtenances as of his Free-hold and that the said W. T. was seised of the Tenements aforesaid with the appurtenances in his Demesne as of Fee untill the said E. did unjustly and without judgement disseise the said VV. but not by force and armes and assess Damages to 12. d. and for Costs 6. d. and Judgement given that the said VV. should recover his Seisin of the Tenements aforesaid against the said E. by the view of the Recognisors of the Assise and his
Damages c. An Assise brought and the Grant was of the Herbage and Pannage c. and whether this were good or no some held it void for the incertainty of the Grant when it should begin Sir Edward Cook held the Grant good for if the King make a Lease for Life and granteth the Land without reciting the state to one for life this is a good Grant for Life of the Reversion to begin immediately after the Death of the Tenant for Life Trin. 7. Jacobi rotulo 35. An Assise brought for the Office of a Harald at the Funeral of the Earle of Exceter and the great Question was where the view should be made and it was alledged that it should be made in the place where he exercised his Office but the Court doubted of that but they were examined of the view made in the Abbey of Westminster being the place where the Funeral was performed and the Court were of opinion that in Dower where Tithes are demanded no view lies for of things that are invisible no view lies but the Tenant in such case shall be denied it SIr William Saint Andrew brought an Assise de Darrein Presentment against the Arch-bishop of York the Countess of Shrewsbury and F. H. for the Church of O. in the County of Nott. The Archbio p and H. appeared and the Countess did not appear and though the Countess made Default yet the Assise was not taken against her by Default but a re-summons was awarded against the Countess and the same Day given to the Arch-bishop and H. and a Habeas Corpora against the Recognisors And note the Tenants that appeared pleaded in abatement that a Writ of Quare impedit for the said Church was hanging in such a Court between the same parties and the Assise was brought afterwards and with this agrees the Register and it was adjudged a good Plea The Writ was returned in this manner Pleg de prosequend John Doo Richard Roo The within named Arch-bishop and Countess are attached and either of them is attached per Pleg H. S. N. J. And the within named H. hath nothing in the Sheriffs Bailywick by which he may be attached nor hath a Baily within his Liberty nor is therein found and the residue of the Execution c. and Judgement given that the Writ should abate and the like was in the Earle of Bedfords case where two Quare impedits were brought one after another and the last Writ abated J. Lovelace versus Baronissam Despencer R. Harvey Clericum Trin. 12. Jac. rotulo 74. de Darrien Presentment for the Church of M. And the said H. being solemnly exacted came not and the Sheriff made a Return that he was summoned by J. O. and W. C. and therefore the Assise was to be taken against him by Default but the said Baromsh by T. her Attourney faith the Assise ought not to be so taken and confesses the said J. was the person last presented but conveys a Title to her self of the Mannour to which the presentation belongs and that being so seised the Plaintiff in the Assise by usurpation presents the Clerk in the Count whereupon the Defendant brought a Quare impedit and hanging the Writ the Clerk in the Count dies and the Plaintiff presented the Clerk that made Default who by vertue of that presentation is yet Parson of the said Church by which she is seised of the Advowson as in her former Estate and so she saith that the Presentation of the said J. by the said L. made ought not to prejudice her and a Demurrer upon this Plea and that the Assise should remain to be taken c. for want of Recognisors and the Sheriff was commanded to distrain them c. and Judgement given that the Plea was good but quaere of the Declaration whether sufficient because it was not alleadged that he that presented was seised of the Advowson Pasch 8. Jac. rotulo 31. An Assise brought for the Office of Clock-keeper of and it was held that it must be an ancient Office and because they could not prove that it was an ancient Office the Plaintiff was non-suit and the Plaintiff shewed a Grant of the same in E. 6. time but that was held no ancient time Pasch 6. Jacobi It was held by the whole Court that an Assise of Sadler to the Queen would not lie being granted to one by the King but was held void by the whole Court for the King cannot make an Officer to the Queen and by the Patent no place was expressed where he should injoy and exercise his Office and take the Profits and therefore the Jury could not have the view and for that cause an Assise cannot be taken and if the King should grant the Office of Usher to his Son the Prince an Assise would not lie An Assise brought against Demetrius the Plaintiff was non-suit and Demetrius moved to have Cost and it was denied by the whole Court because an Assise is not within the words of the Statute Audita Quaerela BIrd versus Kirton Trin. 13. Jacobi rotulo 3118. An Audita Quaerela brought and the case was this Bird and Milles were bound to Kirton and Kirton makes a Bond to Milles in the summ of 100. l. that if Milles be not sued upon the first Bond then that shall be void and it was alleadged that Kirton did both sue Milles and Bird and that he had no notice of the second Bond that he might have pleaded it and so pretends that the second Bond should be a Defeasance of the first and Judgement was given for the Defendant BEck brought an Audita Quaerela and surmises the matter following that Boon Administrator of C. brought his Action of Debt upon an Obligation and before Judgement that Administration was revoked and Administration granted to another and notwithstanding the Revocation he procured Judgement and the second Administrator released and the rest brought an Audita Quaerela upon that Release and the Court would not grant a Supersedeas because the Revocation was but matter in fait for that Revocation was not under Seal and the first Administrator might appeal Cases in Law and Notes IF a Writ of Covenant be brought against two and if one acknowledge the Fine before one of the Justices and the other acknowledge by Dedimus or before another Justice that Fine cannot be proceeded upon these two acknowledgements by the opinion of the Court. A Writ of Covenant was brought against three men and their Wives and onely two men and their Wives acknowledged the Fine and the other Husband and Wife never acknowledged and the Fine was sued as a Fine acknowledged by all and it was desired the Fine might be amended and the Man and Wife that did not acknowledge might be put out but the Court would not grant it If I make a Lease for years reserving Rent during the Life of A. and B. if one of them die
Carr. The Tenant in Dower before the value inquired of and Damages found brought a Writ of Error and by the opinion of the whole Court a Writ of Error would not lie for the Judgement is not perfect untill the value be inquired upon The Demand in Dower was of the third part of two Messuages in three parts to be divided and the Judgement was to recover Seisin of the third part of the Tenements aforesaid with the Appurtenances to hold to him in severally by Meets and Bounds and adjudged naught because they are Tenants in common and the Judgement ought to be to hold to him together and in common but if it had been in three parts divided it had been good Actions in Ejectment ALlen versus Nash Hill 5. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and a special Verdict upon a Surrender of Copy-hold Land which was to the use of the second Son for Life after the Death of the Tenant and his Heirs and it was adjudged not to be good in a Surrender for though it be good in a Will yet Implication is not good in a Surrender and in Copy-hold Cases a Surrender to the use c. this no use but an Explanation how the Land shall go if the Lord grant the Land in other manner then I appoint it is void if there be found Joynt-tenants and one Surrender to the use of his Will it was a Breach of the Joinder and the Will good EYer versus Bannaster Trîn 16. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and declared upon a Lease made by Ed. Kynaston to which the Defendant pleads not guilty and the Plaintiff alleadges a Challenge that the Wife of the Sheriff is Cosin to the Plaintiff and desires a Venire facias to the Coroners and the Defendant denied it and so a Venire was made to the Sheriff and at the Assises the Defendant challenges the Array because the Pannell was arrayed by the Sheriff who married the Daughter of the Wife of the Lessor and note the first Challenge was made after the Issue joyned and at the Assises the Defendant challenged as above and a demurrer to it and Hutton held that a Challenge could not be after a challenge except it were for some cause that did arise after the challenge made and that the party ought to rely upon one cause of challenge though he had many causes observe the Defendant could not challenge the Array untill the Assises but Husband held that a Challenge might be upon a Challenge but this challenge was adjudged naught by all the Judges HIll versus Scale Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae and declares upon a Demise made to the Plaintiff by J. C. bearing date the first of January anno 15. and sealed and delivered the twelfth of January following to hold from Christmasse then last past for two years the Jury found a speciall Verdict and found the Lease and a Letter of Atturney to execute the Lease in this manner that the Lessor was seised of the Land in Fee and being so seised he made signed and sealed an Indenture of a Demise of the said Tenements and found it in haec verba this Indenture c. and they further found that the Lessor the said fifth day of January did not deliver the said Indenture of Demise to the Plaintiff as his Deed but that the Lessor the said fifth day of January by his writing bearing Date the same Day gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor and after possession so taken to deliver the said Indenture of Demise to the Plaintiff upon any part of the premises in the name of the Lessor and find the Letter of Atturney in haec verba To all c. whereas I the said J. C. by my Indenture of Lease bearing date with these Presents have demised granted and to Farm let c. for and during the Term of two years c. and they further find that the said C. such a day as Atturney to the Lessor by vertue of that writing did enter into the Tenements aforesaid and took possession thereof to the use of the Lessor and immediately after possession so taken the said C. did deliver the said Indenture of Demise upon the Tenements as the Lessors Deed to the Plaintiff to have c. and the doubt was because the Lessor in the Letter of Attorney and said that whereas he had demised and if it were a Demise then the Letter of Attorney was idle but notwithstanding the Court gave Judgement for the Plaintiff WEeks versus Mesey An Ejectione firmae brought against two and one of them was an estranger and was in the house and the principall would not appear and the other appeared and pleaded non informat and the Court was acquainted with the proceedings and the Plaintiff prayed an habere facias possessionem and the Court told the Plaintiff that by that Writ and recovery he could not remove him that had Right when a Lease is made to bring an Ejectment of Land in divers mens hands then they must enter into one of the parcells and leave one in that place and then must he go unto another and leave one there and so of the rest and then after he hath made the last Entry there he sealeth and delivereth the Lease and then those men that were left there must come out of the Land and this is a good executing of the Lease and Pasch the ninth of James the Court held that an Ejectment would not ly of Common pasture or of Sheep-gate BEamont versus Cook Trin. 13 Jacobi An exception taken in Ejectment because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court and one Goodhall brought an originall in Ejectment against Hill and three others and the Plaintiff counts against three of the Defendants and no simulcum against the fourth and this matter was moved in arrest of Judgement And the Judgement was stayed by the whole Court COronder versus Clerk Hill 10 Jacobi rotulo 3315. Action upon an Ejectment brought the Jury found it specially upon a Devise the words of the Will were to my right Heires Males and posterity of my name part and part like the question was who should have the Land and the Court held the Land must go to the Heire at the Common Law and not according to the words of the Will because they cannot consist with the grounds of Law a Will must be construed in all parts the brother cannot have it by the Devise because he is not Heir and the Daughters cannot for they are not Heirs and posterity and therefore neither of them could have it because they are not Heirs and posterity because they that take it must be Heir and posterity
goes to issue upon it for if they discend to issue upon such a Plea and it be found against the Defendant it is peremptory and he shall loose the Land but upon demurrer it is not peremptory but onely to answer over Which mark VVOrkley versus Granger Mic. 5. Jacobi An Ejectment brought for two Houses and certain Lands c. And upon a speciall Verdict The case was one Heâ— Wels and his wife nere seised of a parcel of Land to them and the Heirs of their bodies begotten as for the joynture of the wife the remainder to the Heirs of the Husband in Fee the Husband bargains and sels the Land to Stamp and his Heirs in Fee And afterwards the Husband and one Winter leavie a Fine of that Land to another who grants that Land back again to Winter for one month the remainder to the husband and wife and the heire of their bodies to be begotten the remainder to the husband and his heirs The Husband dyes the Wife survives and makes a Lease to the Defendant for ninety nine yeers if she should so long live the woman dyes and the Plaintiffe claims under the bargainee and in this Case two points were debated First what Estate passed to the bargainee and Digges of Lincolnes Inne who argued for the Plaintiffe that the bargainee had a Fee simple determinable which issued out of both the Estates as it was held by Periam in Alton Woods Case And he said that the Proclamations upon the Fine are but a repetition of the Fine as it is held in Bendlones Rep put in the Case of Fines in Cooks 3. Rep. And see Pinslees Case for then for the same cause the Issue in tayl is bound although the Fine be levied by the Husband alone by the Statute of the 4. H. 7. and 32 H. 8. because he cannot claim but as Heir to the Father as well as to the Mother and therefore his Conveyance is bound and see 16. E Dyd 332. Husband and Wife Tenants in speciall tayl The husband is attainted of Treason and executed having Issue the woman dyes the Issue shall never have the Land And if husband and wife Tenants in speciall tayl And the Husband levies a Fine to his own use and devises the Land to his wife for life which remainded over rendring Rent the husband dyes the woman enters pays the Rent and dyes the Issue is barred for two causes first by the Fine which had barred his Conveyance of the intayl secondly by the Remitter waived by the Mother 18 Eli Dyer 531. See 5 H. 7. Assise Thorp and Tirrels Case Secondly the Lease made by the woman was determined by her death and it was said that the woman had not any qualitie of an Estate tayl but onely she might take the profits during her life within the Statute of 11 H. 7. And when she dyes the Estate is denised See Austens Case Doctor Wyat Tenant in tail leased for yeers And dyed without Issue the Lease was determined See first of Eliz title Executors And 31 H. 8. Dyer Where a Bishop made a Lease for yeers and afterwards makes another Lease to one of the Lessees c. And Fleming held that if the woman survived as under Tenant in speciall tayl and made a Lease for 21. yeers it is out of the Statute of 32 H. 8. and so it was adjudged in Wattes and Kings Case LAne versus Alexander Hill 5. Jaco The Plaintiffe declares in Ejectment upon a Lease made to him by Mary Planten for three yeers the Defendant saies c. that the Land is Copihold Land of the Mannor of H. in Norff. whereof the Queen Eliz was seised in Fee and long time before the Lessor had any thing there in Court such a day that J. S. her Steward at the Court c. granted the Land to the Defendant by Copie in Fee according to the custome and so justifies his entry upon the Plaintiffe The Plaintiffe replies and saies that long time before the Copy granted to the Defendant to wit at a Court of the Mannor held such a day the 43. Eliz the Queen by Copy c. granted the Land to the Lessor for life according to the custome by force whereof he entred and made a Lease to the Plaintiffe The Defendant by way of rejoynder maintained his barr and traverses with that the Queen at the Court of the Mannor by J. S. her Steward such a day c. granted the Land to the Lessor and upon this the Plaintiffe demurred in Law generally And Yelverton moved that the traverse was good in this Case upon the day and Steward and the difference is where the act done may indifferently be supposed to be done on the one day or the other there the day is not traversable as in the Case of a Deed made such a day there the day of the Deed is not traversable for it passes by the livery and not by the Deed. And the livery is the substance and the day but a bundance 10 E. 4. And the Law is the same if the day in trespasse wherein the day is not traversable For although it be done upon another day it is not materiall But when a man makes his title by an especiall kinde of Conveyance as in this case the Plaintiffe makes his title by one Copy there all that is concerned in the Copy is materiall and the party cannot depart from it for he claims not the Land by any other Copy but by that which is pleaded as is in the 18 H. 6. 14. where an Action is brought for taking his Servant and counts that he by Deed retained with him his Servant the Monday in one week in such a case it is a good plea for the Defendant to say that the Servant was retained by him such a day after without that that the Plaintiffe did retain him the Monday And the Law seems to be concerning Letters Patents wherein the day and place are traversable being the speciall conveyance of the party from which he cannot depart And also it seems that although the day in the principall case be traversed yet the Statute of 18 Eliz of Demurrers aids it it being but a generall Demurrer and the day being onely matter of form But the whole Court were of opinion that the day was not traversable in this case For the Queen granting an ancienter Copy to the Plaintiffs Lessor then to the Defendant and the traverse should have been without this that the Queen did grant in manner and form c. to the Plaintiffs Lessor and the Case is the same in the Letters Patents for there the traverse should be without this that the Queen granted in manner and form c. And the day and place shall not come into the traverse But Justice Fennor was of a contrary opinion for the Reason delivered by Yelverton before and he also and the Lord cheif Justice held it to be holpen by the Statute of 18 Eliz for it is but
were his Masters and part his own proper Goods and found guilty as to his own Goods and a special Verdict as to the Goods of his Master and Judgement for the Plaintiff COnstable versus Inhabitant in dimid Hundred de VValsham in Comitat. Essex Trin. 15. Jacobi rotulo 2244. The Action wabrought for a Robbery the Defendant is found guilty and it was alleadged in Arrest of Judgement that the Action would not lie because it was not brought against the whole Hundred and it was answered on the Plaintiffs behalf that the half Hundred is a Hundred by it self and the Court held the Writ should have been brought against them in this manner Inhabitantes in Hundredo de W. called the half Hundred of Waltham but the Writ was held good for the Writis so shall be intended to be brought against the men inhabiting in the half hundred of W. Judgement for the Plaintif in a special verdict the Jury found that the robbery was done upon the Sunday and it was held in the Kings Bench that the Hundred was liable NOrris versus Inhabitantes in Hundredo de G. Hill 14. Jacobi rotulo 431. And the Plaintiff declares upon a Robbery done the ninth day of October An. 13 Jacobi And the Originall bears Teste the ninth of October 14 Jacobi and after a Verdict Serjeant Harvey moved to stay the Judgement because the Writ was not brought within one year after the Robbery done according to the forme of the Statute of 27 Eliz. And the Court held it a good Exception CAmblyn versus Hundredum de Tendring Trin. 15. Jacobi rotulo 1952. The Plaintiff in his Declaration had mistaken to alleadge the very Day of the Robbery for he shewed the Robbery to be committed in October where in truth it was committed in September and the Court was moved that the Record which was taken out for Triall but never put in might be amended for the notice given to the Hundred as the Record is would appear to be before the Robbery and they granted that it should be amended Actions in Partition THe Process in Partition are Summons Attachment and Distress and the Process are returnable from fifteen Dayes to fifteen Dayes and if the Writ be brought against two or more several Essoines will lie but no View and the Sheriff upon the Distress is compellable to return the value of the Land from the teste of the Original untill the Return thereof and if the Writ be against two or more Deâ—eâ—â—iants and onely one appears the Plaintiff cannot declare against him untill the residue of the Defendants appear and Partition lies by the Statute of 31 H. 8. cap. 32. between Joint-tenants Tenants in Common Tenants for Life or for years but at the Common Law Partition was onely between Coparceners his Petit. is no Plea in Partition and in this Action there are two Judgements the first is that Partition shall be made and if the Plaintiff die after the first Jugement and before the second Judgement the Writ shall not abate but his Heir shall have a Scire facias against the Defendants to shew cause why Partition should be made and a Writ of Partition will not lie of the View of Frank Pledges and the Death of one of the Defendants abates the Writ And note the Plaintiff may have a general Writ but a special Count and if the Defendant confess part and plead Quod non tenet insimul pro indiviso for the residue the Plaintiff may have Judgement upon the Confession and a Writ to make Partition upon the Confession before the Triall and afterwards try the Issue for the residue or else he may respit his Judgement upon the Confession untill the Issue be tried but this is dangerous for if the Plaintiff be non-suit at the Assise then the whole Writ will abate and if the Sheriff return the Tenant summoned when in truth he was not an Action of Deceit lies not but an Action upon the Case because the Plaintiff shall not recover the Land by default and you shall never have a Writ of Partition against one where he cannot have one against the other thirteen men joyn in a purchase of a Mannour the Conveyance was of the moity to one of them in Fee and the other moity to the other twelve men in Fee the twelve make a Feoffment to one of twelve several Tenements and Land and that Feoffee makes twelve several Feoffments to those twelve men now the thirteenth man which had the other moity bringeth one Writt of Partition against them all pretending that they held insimul pro indiviso and by the opinion of the whole Court it would not lie but he ought to have brought several Writs and Mich. 6. Jacobi in Partition because both of them are in Possession he that is not prohibited may cut down all the Trees and no Estrepment will lie COcks versus Combstoks The Plaintiff declares that one A. was seised in Fee and demised for years to J. and L. and to the Plaintiff for term of Life and one of them demised to one of the Defendants for years the Defendant as to part pleads that he did not demise and the other pleads Non est informat and a Demurrer to the Plea of Non demisit because it is but argumentative Quod non tenet insimul and it was adjudged a naughty Plea a Writ of Error lies in Partition upon the first Judgement before the Writ be returned MIll versus Glemham The Defendant pleads that he before the purchasing of this Writ had brought a Writ of partition for the same Land against the Plaintiff which yet depends and demands Judgment if the Plaintiffs Writ were brought And the Court held that the Writ last brought is well brought for if the first Plaintiff will not proceed upon his Writ and the Defendant shall confess the Action yet the Defendant cannot sue a Writ to make partition upon that Plaintiffs Writ and therefore it is reasonable that the Defendant in the first Action may sue out a Writ to make partition and that the Defendants plea is naught and the last Writ is well prosecuted Actions upon Quare Impedit THe Process in this Action are Summons Attachment and Distress peremptory by the Statute of Marlborough cap. 13. the Sheriff must summon the Defendant by good summoners and return their names upon the original Writ and not return common summoners as John Doo and Richard Roo for a Writ of deceit lyeth in this Writ if the summons were not made indeed The Writs hereupon are returned from 15. days to 15. days The summons upon the first Writ may either be made at the Church door to the person of the Defendant And although a nihil be returned upon the first summons Attachment and Distress yet if the Defendant make default upon the Distress a Writ shall goe to the Bishop upon the title made by the Plaintiff but at the common Law
only the Tenant of the Freehold but by the Statute Tenant by Statute Merchant or Elegit may have an Assise if the Incumbent hanging the writ die and the disturber present again that writ lyes by Journes account upon the first disturbance and alwayes in a Declaration in a Quare impedit you must lay a Presentation in him from whom you first derive your Title or under some from whom he claimeth otherwise it is not good The Bishop cannot grant a Sequestration in no Case but where the Church is void but if the Clerk be instituted and inducted no Sequestration lieth CVppel versus Tansie Trin. 16 Jac. rot 3210. Quare impedit brought for the Church of Bleby the Issue was that there was no such Church and the Venire was de visu de Bleby and the Exception was because it was not of the Body of the County but the Exception was salved because in the Declaration it was alledged that one died at Bleby aforesaid and it was held that every place alledged shall be intended to be a Town and by the user of the writ it is presumed in Law to be a Parish and then if there be a Parish and a Town if the Venire facias be either of the Parish or Town it is good and it is a good Writ to demand Manerium de D. with the appurtenances Severall Quare impedits may be brought against severall Defendants as one against the Bishop and another against the Patron and Incumbent but if J. S. brings a Quare impedit against A. B. that A. B. cannot have a writ against the said J. S. if a Quare impedit abates within the six moneths the Plaintiff may bring another writ but if the Plaintiff be non-suit within the six moneths he cannot have a new writ because the Defendant upon Title made hath a writ to the Bishop and for that cause a new writ will not lie COmber versus Episcopum Cicester al. Trin. 6 Jacobi rotulo 1629. The issue in a Quare impedit was if S. Rose by covin between him and Comber and Rivers did resign into the hands of the said Bishop if the King hath Title of lapse and a resignation be made by fraud and one admitted this shall not take away the Kings Title for if the Kings Title appear upon Record then shall go out a writ for the King but otherwise it is upon matter of Evidence the King shall loose his presentation as well by resignation as by Death where he hath Title to present by lapse and doth not except the resignation be by fraud and where an avoidance is by Statute there needeth not notice to be given to the Bishop LOrd Say versus Episcopum de Peterborrow Mich. 30 Jacobi rotulo 2601. The Imparlance and the demurrer entred Hill 7. Jacobi rotulo 3458. The Case was Tenant in Tail grants the Advowson to others to the use of himself and his wife and the Heirs males of the Husband and the Husband dies and the wife survives and the Lord Say marries the woman and brought the Quare impedit the estate is determined by the death of Tenant in Tail and Judgement was given for the Bishop upon a Demurrer in a Quare impedit if any of the Defendants do barr the Plaintiff the Action is gone WAllop versus Murrey Trin. 8. Jacobi rotulo 3905. The Church became void by resignation and a presentation upon the proviso in the Statute of 21 H. 8. for the Kings Chaplains The Kings Chaplains might have three Benefices with license nay he may give to them as many as he will being of his own gift Judgement for the Plaintiff if the Incumbents Plea be found for him he shall never be removed although other Pleas be found for the Plaintiff by the whole Court Pasch 9. Jacobi If the writ abate for Form you shall never have a writ to the Bishop nor where it appears that you have one Title DOminus Rex versus Emerson Trin. 8. Jac. rot 1811. The question was where the King had Title to present to a Church by reason of ward-ship and after livery and before the King doth present under the Seal of the Court of Wards the King doth present by his Letters patents under the great Seal of England and the Clerk is admitted instituted and inducted whether the Clerk shall be removed or no and the Court held that he should not and Judgment that the Plaintiff nihil capias per breve he that getteth it first by the Court of Wards or great Seal shall have it there needeth no recitall in the grant A common person by his letter or his word may make a presentation to a Benefice to the Bishop the King may present by word if the Ordinary be present for a presentment is but a commandement if the King under any Seal present it is good It is best to plead the King presented generally and not to plead it by Letters Patents for it is the worst way and judgment was given for the Defendant and Mich. 10. Jacobi it was held by the whole Court that a presentment under the great Seal to a Church parcell of the Dutchy of Lancaster is good and needeth not to be under the Dutchy Seal CRanwell versus Lister The Defendant had been Parson for three years and pleaded plenarty generally by six moneths of the presentation of one Stiles a stranger to the Writ And the Court held the Plea to be nought because the Defendant shewed no Title in Stiles NEedler versus Winton and Needham Hill 12. Jacoci rotulo 1845. In a Quare Impedit the Case was Husband and Wife bargain and sell Land to the King this is as good as a Fine being found if it was delivered to the King but not entred of Record if it was made and delivered it was good but if the King should before it be delivered grant it out it had been void being not enrolled of record for the King in consideration of the bargain and sale of the Husband and Wife before the Deed inrolled did grant to them the Parsonage of Horsham in this case the Wife is bound as strong as by Fine and the King made the grant between the date of the deed and before inrolment If the Kings Clerk be once inducted the K. cannot remove his Clerk at the common Law before the Statute of 34. H. 8. If a Quare Impedit were brought against the Patron and Clerk the Patron might confess the Action and so prejudice the Clerk therefore by the Statute the Clerk being inducted he may plead that he is Parson impersoned and so defend himself GLaswick versus Williams Hill 9. Jacobi rotulo 854. A Quare Impedit brought of the Rectory of I. Stoneley one of the Tellers in the Exchequer was indebted to Queen Eliz. And it was found that he was seised of a Mannor ad quod c. in fee and sold it to the Plaintiff who brought a writ to
Venire facias and upon the Habeas Corpus onely twenty and three were returned and the Jury did not appear full and a Tales was awarded and tried for the Plaintiffe and good because the Venire Facias was returned full PIgott versus Pigott Mich 20 Jacobi In Replevin Avowry that Ellen Enderby was seised in Fee of three Acres in Dale and took to Husband S. Pigott and had Issue Tho Ellen dyed and the husband was in by the Curtesie the Husband and Tho the Heir granted a Rent of 10. 〈◊〉 issuing out of the three Acres to the Avowant and avows for so much behind the Plaintiffe in barrsayes that before Ellen had any estate one Fisher was seised in Fee and gave it to John E. in tayl Jo had issue Ellen who after the death of her Father entred and was seised in tayl and took a Husband as is before declared And had Issue Tho and that Tho. Tenant by the Curtesie living grants the Rent as above without this that Ellen was seised in Fee of three Acres and issue was joyned thereupon and found for the Avowant And in arrest of Judgment it was objected that in effect there was no issue joyned For the traverse of the sesin of Ellen E. was idle for no title of the Rent is derived from her but they ought to have traversed the seisin of Thomas the grantor and then the Issue had been of such a nature that it had made an end of the matter in question which was not in this case no more then if the Tenant in Formulen should plead not guilty but the Court held that though an apter issue might have been taken and that the traverse is not good yet it was helped by the statute of Jeofailes For the estate of Ellen H. was in a sort by circumstance materiall For if she were seised in tayl and that estate tayl discended to Thomas the grantor then by his death the Rent is determined after the Fee discended to Tho from Ellen there the estate was of that nature that he might grant a sufficient rent charge And although it might well be presumed that Thomas after the Fee discended to him from Ellen had altred such estate tayl yet by Popham the Courts shal not now intend that because the parties doubted nothing but whether Ellen was seised in Fee or not when he dyed And that doubt is resolved by the Verdict as if a Defendant should plead a Dâ—ed of J. S to A. and B. and that it dyed and B. survived and infeoffed the Defendant if the Plaintiffe should say that J. S. did not infeoffe A. and that they should be at issue upon that and should be found against him although this be no apt issue yet it is helped by the statute because the parties doubted of nothing but of the manner of the feoffment of J. S. whether it was made to A or not and of the same opinion was Fennor Yelverton and Williams but not Gandy CRate versus Moore Mich. 3. Jacobi In Replevin of Cattell taken in D. the Defendant avowes as Bayliffe of H. Finch And the case was thus the Lady Finch Mother of H. Finch granted a Rent charge to H. issuing out of her Mannor of N. and out of all her Lands in D. E. and is in the County of Kent belonging or appeartaining to the said Mannor And the Plaintiffe to barr the Defendant pleads an abatement in H. Finch into the Lands in D. And upon the Defendant demurrs for the Lands in D. were not belonging or appertaining to the Mannor of N. and adjudged for the Defendant For no Land can be charged by that grant if it be not belonging to the Mannor And that for two Reasons the first is because by the word aut alibi it appears that it is all but one sentence and the Aut conjoynes the words proceeding to wit all the Lands in D. S. and to put in the County of Kent in these words following to wit alibi in the said County to the said Mannor appertaining and the sentence is not perfect untill you come to the last words to the said Mannor appertaining for if the Rent be issuing out of the Land in D. c. which is not appertaining to the Mannor then the sentence must be perfect and these words County of Kent and these aut alibi must begin a new sentence which was never seen that they should make the beginning of a sentence And therefore this case is not like the case between Bacon and Baker second of King James in the prohibition where Queen Eliz. grants all her â—ith Hay c. within the liberty and precincts of St. Edmonds Bury belonging and appertaining to the said Monastery and which were lately collected by the Almoner of the said Monastery for there the latter sentence is perfect and compleat And these words in the County of Suffolke and the nec non that ensues are a new sentence And therefore the last clause And which by the Almoner c. goe only to the Tiths following the nec non and not to the Tiths contained in the first clause but it had been otherwise if the nec non had been unacum as in truth the patent was but it was mispleaded for then the unacum would have reinjoyned all and made it but one sentence The second reason was in respect of the nature of the thing granted which was but a rent And therefore if rent be granted out of a Mannor to be perceived and taken out of one acre this shall be good and nothing shall be charged but that one acre only 17. Ass but otherwise it is of Land for a Feofment of a Mannor To have c. one acre it is a void habend For here it appears that the intent of the Lady Finch was only to charge the Mannor and such Land only which were appertaining to the Mannor But Popham held the contrary for he conceived that D. S. and W. in the County of Kent were particularly named and bounded in by the name of the place and County and therefore they should be charged although they were not appertaining to the Mannor As if a man grants all his Lands in D. R. and V. in the County of M. and in Darn in the same County which he hath by discent it should only extend to Darn but denyed by the Court but he was strongly of that opinion And he held that by the first of the charge out of the Mannor all the Lands parcell or appertaining to the Mannor are charged and therefore the subsequent words if they should be limited as is above-said would be idle and frivolous And Yelverton said that the words before belonging or appertaining shall be taken to extend to the Land occupied in the Mannor although it is not parcell of it and Fenwood and Willams granted and Judgment was given that the Defendant should have a return habend TOtt versus Ingram Trin. 4. Jac. In a replevin brought by T. against I.
747. An Action of waste brought in the Tenuit against the assignee of the Term by the assignee of the Reversion for wast committed in digging of Sea Coals the Defendant pleads in Barr that the first Lessee opened the ground and granted to him all his Interest in the Land with all profits except and alwayes reserved to him his Heirs and Assigns all the Title of the Coal-Mines in the said parcell of Land and all Timber Trees and averres that the Mine in the Land at the time of the Grant made was and yet is open and adjudged no Barr for he had no power to intermeddle with the digging for coals and to except with which he had no power to meddle is void exception and the Defendant was punishable for the waste by the whole Court LAshbroke against Saunders Pasch 41. El. rotulo 1532. or 2592. in waste the Case was in the Lease there was this Proviso to wit povided that the Lessee shall not fell the wood the Defendant pleads the Proviso and saith he hath not demised it and the Question was whether these words provided and agreed are an exception or no and adjudged that the word provided is no exception and the wood was demised The End of the Book An exact Table Alphabetically pointing out the most necessary and pertinent matters of this Treatise contained for the â—ase of the Reader A. AVerrment where necessary 1. 13. Attorney called Champertor where it is actionable 15. Account what processe in it 24. Account against a Bailiff locall 25. Account where the Writ abateth by death 25. Account lyeth not before a Sherif 25. nor against Executor nor an Infant ibid. Account what is a Barre 26. Account where it lies not but detinue 26. Account Judgment upon speciall verdict 26. Accountant shall not wage his law where 26. Auditors their Certificate 25. Allowance to a Bailiff where 25. Action to be revived by Scire Facias 25. Assize for the Office of Clock-keeper 28. Assize in Costs upon non-suit 29. Audita querela 29. Audita querela supersedeas denied where ibid. Administration dur minor 31. Attornment not necessary for acts in Law 33. Assets a difference 34. Action upon penall Statutes not upon the Statute of Jeofails 36. Audita querela bayle put in in the Chancery and good 38. Audita querela for a Purchasor 39. Assumpsit upon marriage 40. Alyen borne no plea in a Writ of Errour 42. Admiralty its Jurisdiction 42. Amendment after tryall 43. Ancient Demesne tryable by Dooms-day Booke 43. Attorney put out of the Roll 44. Attorney scandalized 1 2. Arrest for Felony good where words importing a Felony actionable 2. Attorney called bribing Knave 6. Attornment of an Infant 47 Administration revoked 92 51. Action in England for service beyound Seas 54. Attachment ad satisfaciendum 54. Amendment after imparlance 57. Action for non-performance of an Award 58. Action upon the 24. H. 6. for Election of Burgesses 59 Attachment forraign pleaded 60 Arbitrium nullum pleaded 62 90. Award where void 63 Apprentice when to be sent beyond the Seas 65 Amendment of Imparlance denyed after Errour 69 Award of a thing not in the submission void 69 Appearance on another day saves the Bond where 75 Assets what shall be 77 Acceptance doth confirm an Estate where 79 Appearance pleaded de novo when nought 92 Award void for incertainty 93 Assurance devised to be made by the Plaintiff 94 Abatement for not naming an Infant Executor 102 Action sur le Stat. 32. H. 8. pur Rent arrear 103 Action sur le Stat. 32. H. 8. where it lies not 103 Action lies though a stranger doth carry away the Corn before severance 124 Amendment of Originall after tryall 130 Award where good notwithstanding all do not award 112 Abatement how traversed 144 Amendment in a writ of Errour before the Record removed 144 Avowry in a Rent charge 169 Avowry for an Amerciament in a Court Leet 170 Avowry amended after entry by consent 174 Amends made by a Bayliff not good 173 Avowry exception too late after Judgment entred 171 Avowry for damage feasant 177 Attornment where it is of necessity where not 179 Annuity granted by Will 182 Apportiament where 187 Agreement verball where to be averred where not 191 Advowson will passe per concessionem Ecclesiae 102 Ancient Demesne whether extendible 234 Annuity 235 B. BArretor where actionable 11 Bankrupt Knave where it is not actionable 16 Breach assigned 20 81 Bar where naught 22 Breach that one entred and doth not shew by what title not good 23 Breach by non-payment 24 Bailement upon Habeas Corpus where no cause is expressed 44 Bastard where it is actionable 41 Baron chargeable for femes cloaths 47 Bond pleaded in satisfaction 47 Bona notabilia 62 Bond by the under Sheriffe to the high Sheriffe where good 63 64 Breach assigned in Covenant 73 Breach what 79 Barre another action of the same nature pleaded 82 Breach when not specially to be alledged 90 Bond joynt or several at the Plaintiffs Election 122 Breach upon award not good where 123 Breach not assigned the Plaintiff shal never have Judgement though he have a verdict 105. Bishops Plea shall not prejudice the Incumbent 164 Beasts of a stranger where they are distrainable 170. Battery 134. 195 196. Barr where good 222. Badger may be hunted but not digged for in another mans ground 224 C. COunt incertain 13. Court where it may discharge one arrested 15. Clerks misprision helped 16. Common appurtenant cannot be divided 17. Covenant against an Administrator 19 Covenant and Debt where they differ 19. Covenant against the first Lessee after Assignment 20. Covenant upon a void Lease where it is good 21. Covenant in Law how extendible 22 Covenant against an Executor 24. Covenant against two to levy a Fine various acknowledgement 29 Covenant against more then did acknowledge the Fine amended 29. Commander in trespass liable to Action 31. Copy-hold extendible upon the Statute of Banckerupt 34. Charter of priviledge pleaded 36. Commission high de authority 45 Conversion what makes it 5. Collaterall Consideration where good to maintain Action 3. Count uncertain 6. Consideration not valuable 6. Conspiracy where it will not ly 7. Costs where to be given 46. Count insufficient 48. Creditor administring 52. Costs none upon the Statute of perjury 69. Custome speciall pleaded 69. Contract usurious what not 74. Costs omitted in the Roll Error 76 Costs none against an Executor 80 Costs to be considered multi fariam 100. Challenge insufficient 128. Copy-holder must act according to Custome 133. Concord with satisfaction good Plea in ejectment 133. Court Roll of a Copy-hold traversed adjudged naught 140. 141. Copy-hold purchaser cannot surrender without admittance 134 Chaplains priviledged 162. Court Baron incident to a Mannor 175. Common appendent need to be prescribed 178. Common when it s well found by a Iury 178. Challenge denied 234. Copy-holders their Priviledges within the Mannor 231. Copy-holders custome is above the
Lords Estate 231. Copy-holder what Action he shall have ibid. Capiatur upon a Judgement assigned for Error where 211. Common appendant apportionable aliter appurtenant 180. Copy-holder barred by a Fine if not claiming within five years 181. Cognisance as Bailiff 181. Commoner may take the Cattell of the Lord damage feasant where 187 Common in a field and Acres unsown sowing of parcell shall not destroy the Common 189. Consideration to raise an use 193. Challenge where it lyeth 194. 195. 196. Challenge none against the Jurors returned by the Eslizors 194. Commoner what Actions he shall have and how 227. Commoner may have an Assise against the Lord 227. Common is incident to a Copy-hold Estate 220. Commoner cannot chase the Lords Cattell if they surcharge the Common 208. Confession after Issue joyned refused 196. Commoner cannot bring an Action but the Lord may 197. Constable cannot detain one but for Felony 198. Continuando where proper 223 224. 234. Cursus aque granted 229. D. DOuble prosecution for one thing actionable where 12. Demand and deniall makes a good conversion 17. Denis age pleaded to a Bond 30. Distresse where good ratione concessionis non posaessionis 32. Devastavit may be by paying of money upon an usurious contract 33. Distresse in a Court Baron by prescription 36. Devise Executory where good 41. Devise of Land in Tail conditionally 45. Demand not necessary 10. Debt how and where it lies 50 Devastavit returned where 50. Debt lies for money levied 51. Debt against a Sheriffe for an Escape 51. Debt in Debet and detinet where 56. Default of the clerk amended 56. Demand alledgable ibid. Debt for performance of covenants 61. Debt upon Obligation in Italian 62. Debt for non performance of award 65. Damages from request 70. Deprivation given in Evidence 73 Dammages where to be severed 73 Debt lies not for fees of a Sollicitor 74. Debtee take Administration 74. Demand necessary in nomine penae 76. Devise of the profits good of the Land it self 80. Debt against an Executor after full age for Devast of an Admistrator duravit minor aetate 81. Debt lies for him for use money is delivered 83. Debt upon the Statute of perjury 83. 84. Debt against the Bailiff 86. 87. Debt upon the Statute of Edw. 6 for Tithes 87 Debt for Rent Arrear 89. Debt for Flemish money but demanded by English value 91 Demand of Rent where to be 97 Debt for Tithes Plaintiff need not to be named Rector 99 Debt for Tithes the statute mistaken is not good 101 Debt by a Bill for money received to anothres use 104 Debt for non-performance of Covenants 114 Devastavit when it ought to be retained 117 Debt upon a Lease made to an Infant 121 Debt for Tithes after the toarm ended 124 Demurrer to an action for non-performance of an Award 125 Dower against the Heir or Committee 127 Dower of Tythes how 172. Demand when to the Parson when to the Land 135 Debt contingent cannot be discharged where 110 Deed of gift good against him who makes it non obstante 13. Eliz. and against his Executors and Administrators 111 Demand of Rent to avoid a Lease where to be made 138. Discontinuances 155. Darraign Presentment where 159 160. Demurrer for doublenesse of Plea 164. Devise for years in confidence 196. Demand not necessary in Replevin for Rent 171. Distresse of a thing intire by two no return in Replevin adjudged 171. Distresse for Common Right 177 Distresse where it is good for the Rent but not for the nomine penae without demand 179 Demand of Rent-service how 181. Demurrer to part of the declaration what it effects 92 Disseisin of a Common what 197. Damages for Trespass locall cannot be mitigated by the court 204. Declaration shall not abate for false Latine 206. Damages none in partition 209. Damage where it shal be intire 233 Damage released for part 235. E. ELegit how executed 38. Elegit from the Teste binds Goods and Chattells 38. Extent upon Extent 39. Estovers 44. Entry Writ filed after the death of the Tenant 44. Error as to Costs where 3. Exception to a Declaration 8. Executor at what age 46. Exceptions to an Award 48. Exceptions to a Plea 51. Exception to a Venire facias 52. Estoppell 57. Error assigned 65 66. 59 Executor an Assign in Law 78 Executor de seu tort shall not prejudice the rightfull 79 Escape against a Bailiffe of a liberty 80 Executor his election for part is not good 83 Escape lies not against the Sheriffe where 85. 119 120 Executor de seu tort cannot retain money to pay himselfe 104 105 Election of Execution either against Principall or Baile 122 Error lies not before 〈◊〉 value 〈◊〉 inquired of 〈…〉 Executor shall not paâ—… 4. Jac. cap. 3. 107 Elegit to a forreign Sheriffe upon a testatum in London 107 108 Ejectment doth not lye De aequae cursu 142 Ejectment sufficient by a servant in present Relation 143 Ejectoris in traverunt and after he did expulse in num singulari 149 Essoine lyes by Writ of Journeys accompts though allowed in the first Writ 152 Essoine where it lyeth 154 Extinguishment of Common by inclosure where 174 Exceptions to an Avowry 179 Evidence what shall be given 207 Enquiry of Damages the Plaintiff not bound to prove the property of his goods taken but the value only 214 Estovers if the Owner cut all the wood downe what remedy 220 Exception taken for incertainty 232 Estray how to be used and the nature of it 236 F. FRench Pox actionable 11 Filching fellow not actionable 13 Forsworn Knave where it is actionable 13 Forging Knave where actionable 16 Feme where not bound to performe the Covenant of her Husband 31 Fraud not â—â—nended 45 Feme Covert cannot convert 3 Feoffment to uses 60 Feme Covert cannot make a letter of Attorney 134 Formidon in descender 152 153 Felony committed is good cause for to arrest one suspected but not to defame one 2 Feme cannot plead without her Husband 197 Free Warren what 228 G. GRant by the King where good 27 Grant not enlarged by a bare recitall 32 Guardian in socage who 40 Gift by Deed void quoad chose and Action 40 Goods not saleable upon execution out of a Court Baron without Custome 41 Guardian of the spiritualties who 43 Generall release pleaded 54 Grantee of a Reversion what action he shall have 56 H. HAbeas Corpus to the Marshalsey 61 Hue and Cry 155 Hundred charged in Robbery 156 Hundred not chargeable after the yeare and day 156 Hundredors in a Jury how many necessary 193 Husband and Wife where they shall be joyned and where severed in an action 209 I. INcertainty in the Declaration 10 Justification disallowed 11 Indebilatque assumpsit where good 14 Iustification by the Sheriffe 17 Judgment arrested for default in the Declaration 21. 23 Judges of the fact who 36 Inquisitions where naught 38 Juror appearing cannot be discharged 41 Issue cannot be bastarded after death
if a man devise his Lands to his Wife and after her death to his Son and the remainder to his sayd Wife in Fee-simple the Husband of the Wife having Issue shall not be Tenant by the Curtesie for alwayes the Judges have made such favourable construction of Wills that if Estates devised by Will might be created by act executed in the life of the party then it should be good by devise and to the objection that conclusion and agreement is uncertaine and so for that shall be voyd he saith that it is not so uncertaine as going about or resolve and determine an attempt or procure as in Corbets Case first of Coke 83. b. or as attempt or endeavour as in Germins and Arscotts Case there cyted fol. 285. a. See 6 Coke 40. a. Mildmayes Case and also the words subsequent are repugnant that the Estate tayle shall cease as if the Tenant in tayle were dead and not otherwise which is absurd and repugnant for the Estate tayle doth not determine by his death if he doe not dye without Issue And also he sayd that it is more reasonable that the perpetuity in Scholasticas Case for here the limitation depends upon agreement which is a thing certaine upon which the Issue may be joyned and also the condition doth stand with the nature of the Estate tayle and for the preservation of it and Recovery is against the nature of it for this destroyes the Estate tayle and is onely a consequent of it and not parcell of the nature of the Estate and this is the reason that Littleton saith That an Estate tayle upon condition that he should not alien is good for that preserves the Estate and also preserves Formedon for him in reversion if there be a discontinuance and with that agreed 13 H. 7. 23. 24. and he sayd that there was a Judgement in the point for his Clyent for another part of the Land and he cyted 31 Edw. 5. Fitz. Feoffment placito the last and Fitzherberts Natura brevium Ex gravi querela last Case and so concluded and prayed judgement for the Plaintiff and this Case was argued againe by Shirley Serjeant for the Defendant and he intended that the agreement is voyd to the Wife and shall be intended the agreement of the Husband onely for a marryed Wife cannot countermand Livery 21 Assis 25. and if a Woman makes a Feoffment upon condition to enfeoff upon request made by her and she takes a Husband she cannot make request after coverture 35 Assisarum So that he intended that this shall be intended the agreement of the Husband onely and not of the Wife and yet he argued that Declaration of a use by a marryed Wife shall be good according to Beckwiths Case But he sayd That the reason of that is for that that she is party to the Recovery which is a matter of Record and as long as the Record remaines in force so long the Declaration of the use shall be good and also he argued that if the condition being that if the Wife conclude or agree to any act to make discontinuance that then c. that that shall be intended unlawfull acts and Recovery is no unlawfull act and for that shall not be within the restraint of the Condition as the Earl of Arundels Case 17 Eliz. Dyer 343. and admitting that it is a limitation yet it shall be of the same nature as a condition and as well as a condition that Tenant in tayle shall not suffer Recovery is voyd So also is such Limitation void and so it was intended before the Statute of Donis Conditionalibus and it appeares by the pleading that the parties did not intend to take advantage of the agreement for it is pleaded that at the time of the Recovery suffered the youngest Daughter was seised of an estate tayl the which could not be if her estate were determined and destroyed by the agreement and conclusion so that the last words make the Forfeyture for the first are not unlawfull and before the execution of the Recovery the estate tayl is determined and so he concluded and praied Judgement for the Defendant Barker Serjeant argued for the Plaintiff It shall be intended a Limitation and not a condition for a Will shall have favorable construction according to the intent of the Devisor for a Joyntenant may devise to his Companion 49. Ed. 3. and Fitz. Na. Bre. Ex gravi querela last case A man devises Land to his Wife for life upon condition that if he marry that it should remain over to his Son in tayl and the Wife marries and the Son in remainder sues Ex Gravi querela by which it appeares that it was a Limitation and not a condition and 34 Ed. 3. devise was to one for life upon condition that if his Sonn disturbed him that then it should remaine over in taile upon disturbance he in Remainder in tail brings Formedon by which it appears it was a Limitation and with that agrees all the Justices in 29 Assisarum 17. And Wellock and Hamonds Case cited in Barastons Case before and 18. Eliz. Dyer If Land be limited to no third person by the Devise then the Heir shall enter for breaking the condition and also he said that it appears by Littleton and 13 H. 7 23. and 24 and 20 H. 7. and 17 Eliz. 343. the Earle of Arundells case which conditioneth that Tenant in taile shall not alien standeth with his Estate but not with Fee simple and so it is adjudged in Nowes and Scholasticas Case which is adjudged in the point which as he saith cannot be answered and the Words of the Condition are not that her Estate taile shall cease as if shee had been dead but as if she had not been named which is not so repugnant or absurd as the other and this compared to 34 Ed 3. Where the Estate was limited till it was disturbed And he also argued that the agreement of the Wife shall be a forfeiture notwithstanding the coverture for when the Estate is granted upon such condition he which hath the estate shall take it subject to the condition as if two Lessees are and one Seals the Counterpart onely yet the other shall be bound by the Covenants contained in it and 33 H. 6. 31. a Woman disavows to be Executor notwithstanding that shee was marryed and if Precipe had been brought against the Husband and Wife the default of the Husband shall binde the Wife and so she shall be punished for waste made during the coverture and so concluded and prayed judgement for the Plaintiff Foster Justice that an Estate of Free-hold shall not cease by agreement or conclusion without entry for it is a matter of Inheritance and Free-hold and it is not like to 33 H. 6. 31. which concerns Chattels and Goods and Walmesley Justice accorded with him Warburton Justice it hath been adjudged in Scholasticas Case that the condition was good and therefore he would not deliver his
opinion without argument Coke cheif Justice that the agreement is void to a Woman married for then she was married to a Husband whom in her life she could not contradict and a Devise upon Condition that if she conclude or agree as this Case is is void for it is a bare communication upon which the Inheritance doth not depend and so he said it hath been twice adjudged 6 in Corbets Case and Germins Case and Arscots Case and Richells Case in Littleton it was upon condition that he should not alien and this was adjudged to be void but yet if the condition were if he alien and not if go about or intend or conclude or agree as in the case at the Bar for there is no such case in all our Bookes as this Secondly For that that the Words are if they do any act that then the Estate shall cease and this is repugnant for when the Act is done then the Estate tayle is Barred and cannot cease but if it had been but a Feoffment then the right had remained and he said that such a condition had been void before the Statute of Donis Conditionalibus when it was but Fee simple Conditionall be it a Condition or a Limitation and he said that Scholasticas Case is of Fine which is only discontinuance till the Proclamations are past and if dead before may be avoided by Remitter in Germins and Arscotts Case the Condition was that if he go about or indeavour and this was adjudged to be void though that it be in devise in respect of the uncertainty and he said that the agreement or conclusion is so uncertain and may be well compared to that for here the Estate shall cease by the agreement as well as it may cease by the going about also he seemed that the Freehold cannot cease without entry for if use cannot cease without entry as he intends much lesse a Free-hold cannot though it be by Devise and he seemed that it shall be no limitation but a Condition and Judgment accordingly if cause be not shewed the next Tearm and in Trinity Tearme then next insuing this Case was argued againe by Dodridge Serjeant of the King for the Plaintiff and he said that there are three questions to be disputed First If it be a good limitation Secondly If the recovery be a breach of that Thirdly Admitting that it may be broken if the agreement of the Husband and the wife shall be said to breake it and to the first he seemed that it is a limitation and not a condition and such a Limitation that well might be with the Law and that it is a Limitation it is agreed in Scholasticas Case Commentaries and the reason of the Judgment there is that if the intent of the Devisor appears that another shall take benefit of that and not the Heire that then it shall be but a limitation and not a Condition and he in remainder shall take benefit of that and for that in the principall case Mary the Eldest Daughter to whom the Remainder was limited shall take benefit of that and with this agrees the case of Fitz. Na. Bre. Ex gravi querela last case that if a man devises Lands to his Wife for life upon condition that if she marry that the Land shall remain over and after she marryes and he in Remainder sues by Gravi querela by which it appears that it is a limitation and not a condition and with this agrees 2. and 3. P. and M. 127. Dyer Jasper Warrens Case where a man devises land to his Wife for life upon condition to bring up his Sonn Remainder over and agreed to be a limitation and not a condition and so he concluded this first point that it is a limitation and not a condition Secondly that it is a lawfull limitation for there is not any repugnancy in that as it is in Corebts before cited for there are no words of going about for he agreed that this is absolutely uncertain and void and so is Germin Arscots case where ther is not only a going about but repugnant going about for he ought to go about and before discontinuance and then his Estate shall be void from the time of the going about and before discontinuance but here it is upon conclude and agree plainly and apparently and conclude and agree is issuable and a Jury may try that and it will not invegle any man but the Law will not suffer Issue upon such uncertainty as going about or purposing but Attornements and Surrenders are but agreements and yet are Issuable And so in the principall case and in Mildmayes Case 6 Coke it is agreed that a condition that a Tenant in taile shall not suffer a Recovery is void for Recovery is not restrained by the Statute of Westminster 2. but here it is not so but in generall that he shall not conclude or agree to alien or discontinue but that which cannot be a condition good in the particular may be good in the generall as Littletons Case gift in taile upon condition that he should not alien is good otherwise of Fee simple with which 10 H. 7. 11. and 13 H. 7. 23. 24. accordingly Thirdly That it is a breach of the limitation Condition that alienation and discontinuance be by Recovery which is a lawfull act and it is a priviledge incident to the Estate taile and though that the agreement was made by the Husband and the Wife during the Coverture and so should be if the Husband and the Wife had levied a Fine see 10 H. 7 13. Condition that if the condition had been expressed that they should not levy a Fine had been void and here this verball agreement betwixt the Husband and the Wife and the third person shall be for Forfeiture of their Estates for this is the agreement of the Wife as well as of the Husband as it appears by Becwithes Case 2. Coke before cited where the Husband and the Wife agree to levy a Fine and that the Fine shall be to the use of the Connusee this is good declaration of the use though that it be of the Land of the Wife and during the Coverture and cannot be avoided by the Wife after the death of her Husband for it was the agreement of the Wife though it be not by any Indenture to declare the use of the Fine so many acts in the Country made by the Husband and the Wife shall be intended the act of the Wife as well as of the Husband as in the 17 Ed. 3. 9. The Abbot of Peterboroughs Case the Husband and Wife granted Rent for equality of partition and this shall binde the Wife after the death of the Husband for it is her act as well as the act of the Husband and shall be intended for her benefit and so here by the Recovery the Wife shall be Tenant in Fee simple which was Tenant in taile before and 34 Ed. 3. 42. feoffment to a married Wife upon
Daughter or with another person shall make agreement and the other person of necessity shall be intended her Husband and so this agreement by the Husband and the Wife is within the words of the Condition And also he saith that it is argued in Becwiths Case 2. Coke that a married Wife may declare a use of a Fine which is levied of her Inheritance and if the Husband declare uses the Wife may controlle them And if an Estate be conveyed with power that the Husband with the assent of his Wife may revoke that the assent of the Wife to such revocation is good So if Proviso be that a married Wife only without her Husband may make revocation of uses and declare new this is good and revocation made by the Wife and declaration of new uses are very good and he agreed that in matters of Record the Husband cannot prejudice the Wife without her consent as Warrant of Attorney upon a Quid Juris Clamat or Per que servitia or other Act which concernes her Inheritance as in 9. H. 6. 52. 46. Ed. 3. 11. 43. Ed. 3. 5. and 27. H. 8. If a married Wife joyne with her Husband in a Feoffment of her owne Land rendring Rent and after the Husband dies and the Wife accepts the Rent this shall bind her which proves that it was her Feoffment as well as the Feoffment of the Husband Secondly he considered the words of the Condition which are Conclude and agree c the which he intended not to be so uncertaine as going about but they are Issuable and triable as it is agreed in 5. Ed. 4. 6. Com. 56. a. Wyrbish and Taylbois Case consent to a Ravishment within the Statute of 6. R. 2. is Issuable and triable so of consent and agreement within this Condition for though that the words are consent and agree yet it ought to be otherwise an Act subsequent that is reconvey suffer or other such Act or agreement shall not be forfeyture for to make Elopment which shall be a forfeyture of Dower there ought first to be consent but that is not sufficient but there ought to be also departure from the Husband and then the Law adjudges upon all the Act So here when it is an agreement and another Act subsequent which is executed then the Law shall judgeupon altogether and for that this agreement consists of two parts first when the Wife upon the motion of the Husband concludes and agrees to do the Act which is the beginning of the agreement and then when the Husband and the Wife upon that joyne in Deed indent as in this case this is a consummation and makes a breaking of the condition and this is not like the condition in Myldmaies Case where every going about ought to breake that as if he goe to Councell to be advised upon his Estate Thirdly he intenâ—ed that the condition is not repugnant to the Estate in respect that an other thing is to be done before the forfeyture and after the concluding and agreeing for the Wife remaines in Seisin after the agreement till the Recovery or other Act be executed And also he argued that before the Statute of 4. H. 7. of Fynes Tenant in tayl might be restrained of alienation of his Estate for untill that he could not Barr the Issue in tayl So at this day he intended that a gift in tayl upon condition that he shall levie a Fine without proclamations this is good and out of the power which is given to Tenant in tayl to Barr the Estate tayl by the levying of a Fine And levying of a Fine without proclamations is only a discontinuance and so tortious so when a Condition doth not extend to all acts but only to all unlawful acts and for that it doth not extend to a Recovery for that is a lawfull Act as it is agreed in Scholasticas Case 10. H. 7. 10 11. H. 7. 6 7. 21. H. 7. and 28 H. 8. Leomans Case If an ecclesiasticall person hath a Tearme with this condition that he shall not alien and after comes the Estate which inflicts punishment upon him for keeping of a Farme and yet it seemes it is a good condition But so upon the Statute of 4. H. 7. of fines If aman hath agift in tayl with condition that he shal not alien And after the Statute of 4. H. 7. is made which inables him to barr the Estate tayl by fine yet he intended that the condition should restraine him from all unlawfull Alienations And he intended as well as such a condition annexed to a Lease for life is good so is it being annexed to an Estate tayl for as well as it is in one case for the preservation of the reversion So is this in the other case and as in 6. Eliz. Dyer 227. Grant of Rent Proviso that it shall not charge the person of the Grantor shall not extend to the Executors of the Grantor but shall be determined by the death of the Grantor And so as a condition that a married Wife or an Infant shall not alien is good insomuch that this is wrong so he intended that if this were a good condition at the Common Law that Tenant in tayl shall not alien the Estate by 4. H. 7. and 37. H. 8. doth not inable Tenant in tayl to make alienation against such condition And it hath been agreed that if a man make a Feoffment in fee of the Mannor of D. And after makes a gift in tayl of the Mannor of S. upon condition that the Donee shall not alien the Mannor of D. this is a a good condition and in the 21. H. 7. 12. it is agreed that if a man make a Feoffment Causa Matrimonij Prolâ—cuti and after Divorce is sued there the free-hold shall be devested out of the Husband without entry And also he intended that a man might make a thing by devise the which he could not make by Act executed as Authority to sell his Lands to his Executors it good and yet in all cases of Authorities by Acts executed the Authority shall cease with the life of the party And for that there shall be one Law of devises and another Law of Acts executed by the party in his life as 29. assis 17. and Fitz. Na. Bre. in ex gravi querela last case the particuler Estate being created by devise ceases and remainder takes effect And then to the exception that the estate shall cease and remaine to him which had the next remainder the which is repugnant as it was intended and so is Jermy and Arscotts Case But here the words are that the Estate shall cease as if the party to which that is limited were dead without Issue from the time of the Contract and agreement and the remainder to him which hath the next remainder and not the Issue of him which made the forfeyture and also this Remainder from the time of the agreement and conclusion and not from the time of the Act
shall be barred And the second those which have Right title or interest accrued after the Fine levied by reason of any matter which preceded the Fine and in both cases the Estate which is barred ought to be turned into a right or otherwise it shall not be barred the which cannot be here for the estate is given by the Custome and it is to have his beginning after the Death of the first Tenant and though that the first Tenant commit Forfeiture yet he in remainder cannot enter for his time is not yet come as in 45 Ed. 3. is a collaterall Lease with warranty to the Tenant for life in possession this shall not be a barr insomuch that it is made to him which hath possession so if a man make a Feoffment upon condition and the Feoffee levy a Fine with proclamations and five yeares passe and the condition is broken the Feoffee may enter at any time otherwise if the Fine had been levied after the condition broken and so if the Lord be intituâ—ed to have Cessavit and Fine is levied by the Tenant and five yeares passe he shall be barred and this was the cause of the Judgment in Saffins case insomuch as the Lessee had present interest to enter and this was altered into a Right by the Feoffment and then the Fine was a Barr but here he in Remainder hath no right till after the Death of him which was the first Tenant and then his right to the possession begins and then if a Fine had been levied with proclamation this shall be a Barr and so he concluded that Judgment should be entered for the Plaintiffe Coke cheife Justice accordingly and he agreed also that the sole question is if by acceptance of a Bargaine and sale by the first Tenant for life the Remainder be turned into a right and he sayd that right sometimes sleepeth but it never dyes but this shall be intended the right of the Law and not right of Land for that may be barred by Writ of Right at the Common Law and he intended that Copy-holdes are within the Statutes of Fines be they Copy-hold for life yeares in tayl or in fee for the third part of the Realme is in Copy-holdes and two parts in Lease for yeares and if these shall not be within the Statute then this doth not extend to three parts of the Realme and it is agreed in Heydons case 3 Coke 8. a. That when an act of Parliament doth not alter the Tenure Service Interest of Land or other thing in prejudice of the Lord or of the custome of the Mannor or in prejudice of the Tenant there the generall words of such act of Parliament shall extend to Copy-holds and also it is resolved to be within the Statute of 32 H. 8. Of Maintenance and also it is within the expresse Letter of this which containes the word Interest and Copy-holder hath interest and so also of Tenant by Statute Merchant then the question will be if the acceptance of a Bargaine and sale turnes that to a right and he intended that his Estate for life remaines though that it is only passive in acceptance of Bargain and sale and for that it shall not be prejudice more then if Tenant at will accepts a Bargaine and Sale for his Estate at will this notwithstanding remaines but if Lessee for years or life accepts a Fine upon conusance of right this is a forfeiture insomuch that it is a matter of record and it shall be an estoppel to say that he did not take Fee by that doth not admit the Reversion to be in another also insomuch that the Bargain and sale was executed by the Statute for this cause it shall not be prejudice as it was adjudged in the Lady Greshams case in the Exchequer 28 Eliz. Where two severall conveyances were made with power of Revocation upon tender of ten pound and adjudged by act of Parliament that a revocation was good and also that no license of alienation shall be made insomuch that it was by act of Parliament which doth no wrong and it is for the Trespasse for which the party ought to have license and if it be not Trespasse there need no license before hand nor pardon afterwards So if a man makes a Lease for yeares remainder for yeares the first Lessee accepts Bargaine and Sale this shall not turn these in remainder to prejudice Thirdly it seemes to him also that notwithstanding the acceptance of the Bargain and Sale the first Copy-hold Estate for life remains in Esse and is not determined For this differs from an Estate of Land for it shall not be subject to a Rent granted by the Lord the first Estate remaines till all the remainders are determined for the first tenant for life cannot surrender to the Lord also it is customary estate for by the Common Law this being granted to three successively this shall be determined and extinct for the third part for they three take into possession and the word successively shal be taken as void but here the Custome appoints that the remainder shall not have his beginning till the death of the first-first-Tenant and that they should take by succession and for that there is a difference between this customary Estate and other Estates at the Common Law and other surrenders for if a Copy-holder surrender to the use of another for life nothing passeth but for life only the Lord hath not any remainder by this Surrender and if this Tenant for life commits forfeiture he in reversion shall not take advantage of that and if at the Common Law Tenant for life remainder for life or in fee be and the first Tenant for life makes a Feoffment and after levies a Fine and resolved that he in reversion should not be bound till 5 years are incurred after the death of the 1. Tenant for life for then his title of Entry first accrues in apparancy and before that is in secrecy of which he in remainder is not held to take notice and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first Tenant and the rather insomuch as the first Estate remaines for that that the first Tenant was only passive and not active and so he concluded that Judgement shall be given for the Plaintiff insomuch that the Fine was no Bar and upon this concordance of all the three Justices in opinion no other Justices being present this Tearm Judgment was entered accordingly Pasche 1612. 10. Jacobi in the Common Bench. Danyell Waters against the Deane and chapter of Norwich IN covenant The case was this in 37 H. 8. the then Deane and Chapter of Norwich made a Lease to one Twaits for fifty yeares which ended 35 Eliz. in time of Ed. 6. The then Dean and Chapter surrendred all their possessions to the King which those newly endowed and incorporated by the name of Deane and Chapter of the foundation
Common Law mâ—â— be done by Custome and that an Estate may be created by such nomination it appeares by the case where a Remainder is Limited to him which the first Tenant for life shall nominate and it is very good and to prove that the Custome is good he remembred the custome of Millam in Norfolke where he was borne that is that if any Copy-holder will sell his Land and agree of the price that at the next Court when a surrender is to be made the next of his blood and if he will not any other of his blood may have the Land and so every one shall be preferred according to the neerenesse of his blood and with this also agreed the Leviticall Law as it appeares Leviticus 25. chap. verse 15. which appoints this to be at the yeare of Jubile and the Common Law within one yeare after the Alienation and upon this he infers that if Custome may appoint Heire in the life of the party then a Fortiore he may appoint Successor after his death and he conceived that at the beginning the Copy-holders might have had absolute Fee-simple of the Lord and they rather made choice to have such Estate insomuch that they did not know if their Children would be towardly or not and for that content themselves with the nomination of a Successor only and so is the Custome at Hamm also in Middlesex if any Copy-holder will sell the next Cleivener which is he that dwelleth next unto him shall have the refusall giving so much as another will and he which Inhabits one the East part first and the South and the West and last the North shall be preferred is the only way in his course and there the Successor is nominated by the Heavens and by the quarters of the Earth and so is the custome in Glocester And if any Husband hath an Estate for twelve yeares his Wife shall have it for twelve years also and so ad Infinitum and this makes nomination and so of Free-hold and so if it be good without nomination it shall be good by nomination And if the Estate determine by the Death of the Tenant without nomination when the Lord revives the Copy-hold Estates the priviledge also shall be revived But he conceived that the Tenant cannot nominate part to one and part to another nor that divided in fractions And he saith that this point hath been adjudged in the Kings Bench by foure Judges against Popham 5. Jacobi between Ball and Crabb And so he concluded this point and to the second custome he said he would speake to that Transitive but not Definitve and that it hath been adjudged 45. Eliz. between Powell and Peacock that bare Copy holder for life could not prescribe to cut and â—ell the Trees otherwise of Tenant in Fee-simple for he hath them cherished and fostered And it is against common reason incongruent and against the Common Law that a Copy-holder for life may cut and sell the Trees and custome ought to have reason and congruence for 10. Ed. 3. 5. Leete cannot be belonging to a Church insomuch that it is Incongruent and so in Writes Case 2. Coke Tythes cannot be appurtenant to a Mannor insomuch that it is incongruent and a spirituall thing shall not be pertinent to a temporall and so è Converso And so in the 5. Assis 9. and Hill and Granges Case Com. Turbary cannon be appurtenant to Land insomuch that it is incongruent but it ought to be to a house so in time of Ed. 2. Tenant of the Mannor prescribes to have free Bull and Bare and it is not good for the reason aforesaid otherwise it is of the Lord of a Mannor and 9 H. 5. 45. custome in Leete to present common and adjudged that it it is not good insouuch that it wants congruity for it is not proper to the Court and upon this he concluded that bare Tenant for life cannot prescribe to cut Trees for it is not congruent that such an Estate shall have such a priviledge and this for three reasons First insomuch that Trees growing are parcell of the Inheritance Secondly in respect of the perdurablenesse of them for it shall be intended that they will indure forever and so will not his Estate for this is as a shadow as Job said and 't is absurd that shadow should cut downe the Tree And also it is for necessity of habitation and Plow and Husbandry And it is for the Common Wealth that Copy-holder of Inheritanc might cut them by such custome for otherwise he would not be incurraged to plant and preserve them And notwithstanding that in this Case the custome be generall that the Copy-holder may cut down all yet that shall have a reasonable construction avd that this notwithstanding he leave sufficient for House-boot as if a man grants Common without number yet the Grantor shall not be excluded but shall have his Common there for excesse shall not be allowed As if a man which distraines another for Rent he shall not take excessive distress the Lessee for life excessive Tallage of villaines nor upon excessive Fines of Copy-holders and so it was adjudged in Heyden and Sir John Lenthorps Case that the Lord shall not take all but leave sufficient for reparations and so was the opinion of Wray cheife Justice in the 33 of Eliz. In evidence to a Jury but here he is in nature of Tenant in Fee-simple and it shall be intended that he hath cherished the Timber and every Copy-holders Estate granted is as a new Grant and hath affinity with Tenant in Fee-simple and he agreed that if Lessee for life the Remainder for years Remainder for life be and the first Lessee for life makes a forfeiture he in Remainder for years shall take advantage of that and that it hath been adjudged that the Lord of the Mannor shall take advantage of forfeiture made by the Copy-holder without presentment made by the Homage and in one Bacon and Flotsims Case and so Lessee for yeares of a Mannor shall take advantage of Forfeiture notwithstanding the Imbicillity of his Estate but the principall matter upon which he relyed was that the Trees were severed from the Free-hold and if the Lessee dy his Executors shall have them insomuch that they are meer Chattells and this First in respect of the Words of the Lease that is demise and to farm let the Mannor but bargain sell give and grant the Timber Trees to be felled and carried away at his Will As if a man makes a Lease for years except the Wood and after grants the Trees the Lease determines the Lessor shall not have the Trees again Secondly They are in two divided Sentences and also in respect of divided properties for the Executor of the Lessee shall have them and Quando duo Jura concurrunt in una persona equum est ac si esset in diversis also past at severall times for the Trees pass by the delivery of the Deed and the Land
Thirdly The third point was that after the disseisin of the Tenant for life he that had future Interest of a Tearme to begin after the death of the Lessee for life during the disseisin assignes over all his Interest if this assignement be good or not and he argued that not for by him the disseisin of the Tenant for life the future Interest to commence after the death of the Tenant for life is converted into a Right and Right of a Tearme cannot be transferred over for though that Lessee for years to begin presently may grant over his Interest before his Entry and it is well for that that it is an Interest forth with yet if before his Entry the Lessor be disseised by a stranger yet by him now he cannot grant his Interest over for that it is converted into a Right of a Tearme but he ought to re-enter before that the Lessee may grant over his Tearme so in our case though that before the disseisin of the Lessee for life the future Interest was transferrable over for that that it was Interest though that it was not a Lease in posaession yet when the Tenant for life was disseised then his Interest of a Tearme was turned into a Right of a Tearme and then it is not transferable over till the re-entry by the Lessee for life and he said that it was resolved by the 2. cheif Justices in the Star-chamber as he hath heard that if Lessee for years be and before his entry a stranger enters and disseises the Lessor that now the Lessee cannot grant his Tearme before that the Lessor hath entred or he himselfe hath gained the Tearme in posaession And so it seemes to him that the future Tearme doth not passe by this assignement and then it is extinguished by the purchase which commeth after and then the Justification of the Defendant as Servant to the Assignees not good And so upon all the matter he praied Judgement for the Plaintiff Williams Justice said that it was cleer if a man have a Lease for years to begin after the death of a Lessee for life as is the case at the Barr that though that the Lessee for life be disseised yet the Interest remaines good Interest to the Lessee and is not turned into a Right of a Tearme and for that he may grant it over notwithstanding the disseisin and so is Sapphins case 5. Coke 104. Otherwise if the Lessee for years had been any time in posaession by force of his Lease and it is Adjourned At another day the same Tearme the case was argued againe by Yelverton of Grayes Inne of the other part that is for the Defendant and first he said that the Plaintiff which claimes under the Wife of Hlobeame hath not any right to one Moytie cleerely for the Husband and the Wife were Joynt-Tenants before the coverture So that they take by Moyties and not by Intirities and when the Husband bargaines and sells all that is a seperation of the Joyntenancy and his Moytie is gone for ever as it appeares by 3. M. Dyer 149. 82. So that for one moytie it is cleer that the Plaintiff hath not any right any way how ever the case prove for the other Moytie and this Moytie which was conveied by the Husband is discended to the Defendant which hath no speciall outer found by the Verdict But only that he entered which he well might having the other halfe and then no Trespasse found by the Jury and also the Damages found by the Jury are Intire and then being no cause of Damages for part there shall be no Judgement for the residue And the first point that he moved was if after this disseisin and feoffment over the Feoffor might tender the money to cease the first Estate and it seemes that not for the Free-hold cannot accrue as it seemes to him by any tender after his disseisin and so it hath been agreed to him as he said by the Councell of the other part and then by him this condition consisting of two parts this is Disseisin of one Estate and Accruing of the other Estate if by this desseisin the condition be distroied for the accruing of the Estate it seemes also that it shall be distroied as to the ceasing of the first Estate for if a condition be distroied in part it shall be distroied in all for it is Intire and cannot be apportioned and by consequence if one Estate cannot accrue the other shall not cease And he resembled it to the cafe in the 14. H. 8. 17. And Perkins condition being in the Coppulative one part being dispenced with the other was a discharge so when a man hath election to do one of two things if one be discharged though that it be by the Act of God as by death c. Yet the other shall be discharged by the Law as it was in Langtons Case 5. Coke 22. a Fortiore when one is discharged by the Act of the party also by him if he had made any Feoffment after this desseisin yet the very disseisin would destroy the accruing of the Estate for though that he do not gaine Fee by the disseisin but only Estate for life and retaines his old reversion in him according to 9. H. 7. 25. Yet the Fee and the Free-hold are so conjoyned by discent of that Estate alters an entry as it appeares by 3. Ed. 3. Entry Congeable 58. And if he in reversion disseise Tenant for life the Contingent uses shall never rise by Chidleys Case first of Coke 158. Condition that he retaine his old remainder no more of the accruing of the Fee in our Case for by him it appeares by 10. Assis and Nicholls Case Com. That Estate ought to accrue upon posaession or at least upon an Estate in being and not upon a right of an Estate only And for that he cited 6. R. 2. Pleasingtons Case Lease for years upon condition that if the Lessee be outed he shall have Fee though that he be outed yet he shall not have Fee for that that at the time of the condition performed he had but a right of Tearme and no Tearme in posaession so is our case after the disseisin he having but right the Estate cannot accrue Secondly if the Grantee or he to whose use may performe the Condition either by the Common Law or by Statute Law And he conceived that none of these might performe that for first at the common Law though that Grantees of reversions may take advantage of a Condition by way of cesser of Estates upon the condition performed yet this is only when the condition was to be performed of the part of the Lessee and so was the case cited by Serjeant Nicholls of 11 H. 7. but if the condition were of the part of the Lessor otherwise it was as the Book is in 26 H. 6. Entries And then a Fortiori here the Assignee of a Disseisor cannot performe the condition which may be performed of the part
agreed in the 21 H. 7 In Kellawaies Reports by Frowick that there is no difference between Harriot and Releife and Releife shall be extinct and so he concluded that the Harriot is extinct Danyell Justice accordingly and he said that this purchase shall be as strong as release And if the Lord hath released the service intire for part it shall be extinct for all and if Tenant holds by Suite to the court of the Lord and the Lord purchase parcell of the Tenancy the Suit is extinct as it appeares by 27. H. 7. and Fitz. Na. Bre. And so concluded that the Harriot service is extinct by the purchase aforesayd Warburton accordingly And saith that in Littletons Case the Homage and Fealty shall remain for they are personall services and for that shall remaine intire and of Rent shall be an apportionment by the Statute of Westminster 3. De quia emptores terrarum But for other intire services by the purchase of the Lord be they annuall or casuall and they are extinct and 21 Edward 4 was a Suite for a Hawke which was kept back twenty yeares and so for Suit if the Tenants make a feoffment to diverse they shall make but one Suit but they all shall make contribution to the Suit but if the Lord purchase parcell he cannot make contribution And though that the Homage and Fealty are personall services the Horse and Hawke are of the nature of land so the Harriot is of his goods and if the Tenant hath no goods the Lord shall loose it and for that he concluded as above Walmesley accordingly And he said if a Tenant hold by intire services of two Lords and one purchase parcell of the Tenancy all the intire services shall not be extinct but the other Lord which did not purchase shall have them for Res inter alios acta nemini nocere debeat To which Coke cheife Justice agreed and he said if Harriot custome be due peradventure it shall not be extinct by purchase of parcell of the Tenancy for that is personall and it is not Issuing out of land but for intire services which are Issuing out of land he said there is no difference betwixt annuall services and casuall services which are intire and so he concluded as above Coke cheife Justice accordingly and he said there is no difference between annuall intire services and casuall so that they are services to be paid at the death or alteration of every Tenant or otherwise but he said there is no doubt but that Rent service shall be apportioned though that the Lord purchase parcell be that in the Kings case or of a common person and this by the common Law without the aid of any Statute for there is not any Statute that shall aid that if it be not remedied by the Common Law and he said that some Intire services may multiply as if a man holds by payment of a payre of gilt Spurrs or of a Hawke or a Horse or others such like and makes a feoffment of parcell the Feoffee shall hold by the same intire services But if the Tenant hold by personall services as to cover the Table of his Lord or to be his Carver or Sewer at such a Feast or such like these personall services cannot multiply if the Tenant makes a feoffment of part for by this the Lord may be prejudiced for peradventure at his house he will not include them but he may distrain every of them to make the service And he saith the reason for which Knights service shall be apportioned is for that it is for the publick good and for the good of the Common Wealth But so are not the other personall services and in the principall case he conceives that if the Tenant had made a feoffment first to a stranger and after the stranger had infeoffed the Lord that by that all the intire service shall not be extinct for by the feoffment of the estranger was severence of the services and he holds by a Harriot as well as his Feoffor and for that nothing shall be extinct but the Harriot due by that parcell of which the estranger was infeoffed and he agreed with Walmesley that a Harriot custome shall not be extinct where the custome is that every Tenant shall pay a Harriot for there it is paid in respect that he is Tenant and custome shall not be drowned by unity of Tenancy and Signiory And for that he concluded that the Harriot for that that it was intire service though that it were casuall and not annuall that yet it shall be extinct and Judgement was given accordingly Hillary 7. Jacobi 1609. In the Common Bench. Michelborne against Michelborne UPON a motion made for consultation upon Prohibition awarded It was said by the Lord Coke that no Subject of the King may trade with any Realme of Infidells without licence of the King and the reason of that is that he may resinquish the Catholick faith and adhere to Infidelisme and he said that he hath seen a licence made in the time of Ed. 3. where the King recited that he having speciall trust and confidence that his Subject will not decline from his Faith and Religion licenced him ut supra And this did rise upon the recitall of a licence made to a Merchant to trade into the East Indies Hillary 7. Jacobi 1609. In the Common Bench. Reade against Fisher IN debt the Defendant exhibits his suit in the Court of Requests and there the Plaintiff in that Court denied that the debt was paid and the Court of Request awarded an Injunction and upon Information of that this Court awarded a Prohibition to inhibit the Suit there Hillary 7. Jacobi 1609. In the Common Bench. Mors against Webbe IN Replevin the case was this A man was seised of two Virgates of Land and prescribed that he and his Ancestors and all those whose Estates he hath in the said Virgates of Land have used to have common in the feilds c. That is when the feilds are fallow all the yeare and when they are sown with Corn or otherwise severall when the Crop is mowed and removed for two Horses four other Beastes and a hundred and twenty Sheep as appertaining to the said two Virgates of Land The Defendant traverseth the prescription and upon this they are at Issue and the Jury found that there is such prescription But further they say that the Plaintiff made a Lease of six Acres parcell of the said two Virgates of Land in one of the feilds of c. with the Common of that thereunto belonging for the Tearme of ten years and the Beastes for which the Replevin was brought were in another feild of c. And if the prescription be suspended or remaines they praied the advise of the Court and it was agreed that common appendant and appurtenant was all one to the severance for if such a Commoner grant parcell of that Land to which the Common
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill
Nota. If I command one to do a Trespass an Action will lie against him Wife not bound to perform Covenants of the Lessee Nota. No Action for small Tithes Administration granted during minority not within the Statute 21 H. 8. Nota. Ordinary cannot make a Divident of themselves Legacy of Land shall not be sued for in Court Christian Nota. For Tithes Nota. Nota. Recitall shall not inlarge the Grant Nota. Money paid by an Executor upon a usurious Contract is a Devastavit Proportiament of Rent No Attornement necessary for Acts in Law Nota. For Tithes Nota. Note how far Proof extends Nota Difference Nota. Nota. Nota. Nota. Copy-hold land extendable upon Statute of Bankrupt Being a member of the Cinque Ports will not free one from Arrest Difference of things that are in Prender and that are in Render Nota. Omission in awarding the venire of these words Quoad triand c. held good Local things shall not be made transitory A Tales prayed by the Defendant upon the Plaintiffs Distring in another Terme but denied If Chamberlain of Chester make an ill Returne the Sheriff shall be amerced No Distress in a Court Baron but by Prescription Actions upon penal Statutes not within the Statute of Jeofailes Nota. Judges not meddle with matters of fact Nota. Information against three and two appear may declare against those two Nota. Return of a Sheriff insufficient upon a Statute Merchant for omitting that he had no other Lands c. Nota. A Statute first acknowledged shall be preferred before a Judgement afterwards retained The case of Villainage within the Statute of Limitation Nota in Elegit Two Inquisitions taken at several Dayes by several Juries upon one Writ naught Nota. All Goods and Chattels bound by the Teste of the Elegit and cannot be sold afterwards Audita Quaerela and Bail put in in the Chancery and held good The Act of E. 6. for Dissolution reaches onely to such that are regular Nota. Nota. Nota. Nota. Deed of Gift for things in Action Supersedeas granted because Capias ad satisfaciendum was not returned Nota. Nota. A Juror who hath appeared cannot be passed by and to swear others Goods cannot be sold upon a Levari facias in a Court Baron without a Custome Sheriff returned but 21. upon a Venire facias and naught Nota. Judgement that it was a good Devise The property is not altered upon the Sheriffs taking of goods upon a Fieri facias but remains in the Defendant Nota. Alien born no Plea in a Writ of Error Nota. Issue cannot be bastarded after Death Nota. Where the principal is omitted cannot be supplied by Writ Nota. King could not grant precedency in publique things Nota. Ancient Demesne tried by Doomesday Book The Venire facias was Album Breve and denied to be amended Lessee at will cannot grant over his Estate Note difference between Tenant at will and sufferance Nota. One committed bailed being no cause expressed Attorneys name put out of the Roll for a mis-demeanour Nota. Nota. Nota. Writ of Entry filed after the Death of the Tenant Ordinary to place and displace in the Church Fraud shall never be intended except apparent and found Nota. High Commission nothing to do with matters of instance for Tithes Nota. Nota Master shall not be corporally punished for his Deputies Offence Nota. Nota. Nota. One at seventeen years old may be an Executor No new notice needs if the Attorney be living If no place of Payment be in a Will must be a Request Nota. Warrant of Attorney filed upon a motion after Writ of Error brought and Error assigned Nota. Warrant of Attorney filed after Writ of Error by Order of Court Attornement of an Infant is good An Attorney ought to have no Priviledge as on Attorney Husband shall pay for his Wives Clothes though bought without his privity A mans Wife or Infant cannot be examined One Bond cannot overthrow the other Exceptions to an Award pretending the Arbitrators had exceeded their Authority but adjudged good Judgement for the Defendant for insufficiency in the Count. Judgement ' for the Defendant upon a by-law The Defendant at his perill ought to make Payment If part of a Condition be to be performed within the Realm and part without ought to be triable here Defendant pleaded six Judgements in Barr and two found to be by fraud and Judgement for the Plaintiff The Sheriff cannot break open the outward Door to do Execution but that being open he may break open any other Exception taken to the Defendants Plea Nota. Debt lies for Money levied by the Sheriff upon a Levari Nota. Nota. Exception taken because the Venire facias was of the Town and not of the Parish but ruled good Creditor administred and is sued ought to plead fully administred generally Debt brought for 60. l. tr be paid at the Return of a Ship from New-found-land to Dartmouth onely 50. l. lent is not Usury Plea made good by Verdict Nota. Judgement against both of the Testators Goods and Damages of him that appeared onely Nota. Nota. If no time of Payment in an Award due upon Demand Though two appear by one Supersedeas yet they may vary in Plea The Imparlance amended after Triall upon the Attorneys Oath Nota. Bene case A Servant hired to serve beyond Sea may have his Action in England Nota. Nota. Outlary in the Executor no Pled Outlary in the Testator in Barr adiudged naught A wrong man of the same name offers to wage his Law Lessor and Lessee for years one Assignes his terme and the other grants his Reversion Grantee of the Reversion shall have Action of Debt against the Assignee Nota. Nota. Default of the Clerk amended and afterwards upon advice made as it was at first A Bill to pay Money upon Demand must lay a special Demand Amendment of Issue Roll by the Imparlance Roll. Estoppell Repleader awarded Money due upon a Mortgage payable to the Heir and not to the Executor Money to be paid fifteen Dayes after return c. he proving his being there Court divided which proof shall be precedent or subsequent Condition that an Vnder-Sheriff shall not intermeddle with Executions of such a value held void Judgement arrested because the whole matter laid was found and part was not actionable Bail discharged upon the principals rendring his Body in another Terme after a case returned Quaere An Award good in part and naught for part and Breach assigned in the good part and held good If the Plaintiff be non-suit yet no Cost upon the Statute of Perjury Nota. Amendment of the Imparlance demed after Error brought A thing out of the Submission awarded and void Nota. Defendant wage his Law upon a Recovery in a Court Baron A man cannot send his Apprentice beyond Sea except he go with him Vpon a nul tiel Record though some Variances yet the Debt and Damages agreeing Judgement for the Plaintiff Bond taken to appear in the Court of Request void Return of the Habeas
which was Obligamus nos vel quemlibet nostrum adjudged to be joint and severall at the Plaintiffs Election Action of Debt upon an Obligation to perform an award and the breach assigned for exhibiting a chancery Bill and adiudged no Breach Action of Debt for Tithes the Defendants time ended before the Coâ—n carried yet held good for the Plaintiff An Action will lie against a stranger that shall carry away the Corn before the Severance Dower may be brought against the Heir or Committee of the Ward Nota. He in Reversion received after Default made by Tenant for Life Return of the Sheriff adjudged insufficient being too general No Writ of Error lies untill the value be inquired upon Implication not good in a Surrender though it be in a Will Challenge because the Sheriff married the Daughter of the Lessors Wife and held no cause Nota. How to execute a Lease to try a Title the Land being in many mens hands Originall against four and count against 3. without a Simulcum and held naught The intent of a will must be certain and agreeable to Law Nota. How to execute a Lease by Letter of Atturney A Venire facias of the Parish adjudged good A mistake of the Cursitor in the Originall amended after Triall Nota. Though the Defendants Plea be naught yet the Plaintiff shall not recover because he shewed not any Title by his replication The question is upon the Statute of 32 H. 8 upon Feoffements made by Husbands during the coverture A verbal averment shall not overthrow a will The mistaking of the Town not hurtfull in a Will Property of Goods cannot be in obayance Difference between Prescription and Custome Copihold Land cannot be demised for three years without license or custome Record of Nisi prius amended by the Roll. Concord with satisfaction a good Plea in Eiectment Misconveyance of process what it is and helped by the Statute A feme covert cannot make a Letter of Atturney to deliver a Lease upon the Land When a demand shall be made to the person and when upon the Land A Lease made to three for their lives with a Covenant that the Land should remaine to the survivor of them for ninety yeares a good interest in the survivor A precise Verdict makes the Declaration good which otherwise is naught A demand of Rent to avoid a Lease upon a condition ought to be in the most open place After an Imparlance cannot plead in abatement 22 H. 6. 6. Foxlies Case 5 Rep. 111. The day of a Copihold of Court roll traversed and adjudged naught Houses in London passe by the delivery of a bargain and sale without inrolment An Ejectment will not lye de aquae cursu A Servant is a sufficient Ejector if he dwell with the pretended owner He that is a Purchaser of Copihold hath nothing in it nor can he surrender to another before admittance How an Abatement shall be traversed 1 E. 4. acr 1 E. 4. 9. acr The Bill amended after a Writ of Error brought and before the Record was removed Where the Prenomen destroyesthe quantity inthe declation Where words in a Declaration shall be voyd rather then the Declaration shal be voyd Nonage shall be tryed where it is alleadged and not where the Landlyes Essoin lies in a writ brought by Journes account although he was essoined upon the first Writ By Deed an implicationbe intended Nota. By the Name of a Mannour the Land in all the Villiages will pass Nota. Action brought by the Servant in his own name part of the Goods being his Masters Nota. Nota. The Record of Nisi prius amended upon motion The Process in Partition Error in Partition upon the first Judgement Defendant pleads he had brought a Writ for the same land and adjudged no plea. Process in a Quare Impedit Exception taken to the Venire and over-ruled Severall Quare impedits may be brought against severall men Admittance of a Resignation by fraud takes not away the Kings Title The state is determined by the death of Tenant in Tail A presentment by words good Nota. A subsequent debt to the Qu. related to award an assurance made upon good consideration The King hath lost his presentation by the Clerks death Defendant pleads another writ depending against the said Bishop good The Bishopsplea shall not prejudice the Incumbent Nota. Liberty to make Leases A devise for years in confidence the condition must goe to the estate and not to the use The scisin of rent reserved upon a Feosment within the time of limitation not to be traversed Nota. The beast of a stranger shall not be distreined for rent except they have been upon the land some time Demand not necessary in a Replevin for rent Nota. Exctâ—tion to the advowry too late after judgment entred Replevin not within the statute of 3. Iac. Iudgment arrested for that the plea was naught Nota. Nota. The Plea naught for want of amendment Amends made to the Bailiff not good If one inclose part it is an Extinguishment of Common for cause of vicinage Avowry amended after Entry by consent One of the Juroâ—s names mistaken in the Pannell of the Return and amended upon the Sheriffes Oath that he was the same man If two men distrain one Mare and both have Judgement no Return Court Baron in order to the Mannor Nota. Nota. A lease for life to three to hold successively naught The pannell of the Habeas Corpus amended upon Oath Nota. Atturnment not necessary for a Copy-holder Demand necessary for a Nomine pene Common Appurtenant and purchase part the Common is gone but not if Appendant Nota. Nota. Demand of Rent service upon the Land sufficient Nota. A Commoner may take the cattell of the Lord damage fesant Judgment arrested for not shewing in what place the Messuage did lye to which the Common did belong Common when the field and acres unsown the sowing of parcell shal not debar him of his common in the residue When a Deed is perfected and delivered as a Deed one agreement after pleaded in defeasance thereof and when the agreement is parcell of the Original contract it may be pleaded The Defendant in his Demurrer â—nswers not the whole Declaration and Judgement reversed The mistake of the day of an Act by way of Bar not prejudiciall A confession after an issue joyned refused A Constable cannot detaine one but for Felony Marshalsey hath no authority to hold plea in debt except both are of the Houshold Judgment before a wrong Officer erroneous The Court could not mitigate damages in trespass which was locall The Defendant justifies the imprisonment by the command of the Maior of London and naught Just of Peace cannot command his servant to arrest in his absence without warrant in writing If a servant be beaten dye the Mr. shall not have an action for the losse of his service Declaration shall not abate for false Latin A man cannot prescribe to be a Justice of the Peace If