Selected quad for the lemma: death_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
death_n	abate_v	abatement_n	writ_n	126	3	9.5303	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A53751	The reports of that late reverend and learned judge, Thomas Owen Esquire one of the justices of the Common pleas : wherein are many choice cases, most of them throughly argued by the learned serjeants, and after argued and resolved by the grave judges of those times : with many cases wherein the differences in the year-books are reconciled and explained : with two exact alphabeticall tables, the one of the cases, and the other of the principal matters therein contained.	England and Wales. Court of King's Bench.; Owen, Thomas, d. 1598.; England and Wales. Court of Common Pleas.	1656 (1656)	Wing O832; ESTC R13317	170,888	175

Ostensum est nobis returned in the Common Bench against Lee and Lovelace upon a scire Facias awarded against them and two Nihils return'd the Fine was reversed Anderson The scire Facias is not well awarded for it ought to be brought as well against those in possession as the Conufors and this appears by the 21 Ed. 3.56 by which they in possession and those in remainder ought to be made privy Walmesley agreed for the Freehold which is in me shall not be taken from me without making me privie no lesse then if A. bring a Precipe against B. of my land and recover for I shall have an Assise upon this Also another matter is in the Case For the land now in question is alledged to be parcell of the Mannor of Andover and therefore cannot be ancient Demesne But no Iudgment was at this time given because there were but two Iustices Halling against Comand IN an action of Covenant the case was thus Comand the Defendant did covenant with the Plaintiff that at the Costs and charges of the Plaintiff be would assure certaine land for the Ioynture of the Plaintiffs wise before M●ch●e mas And the Plaintiff declared that no assurance was made nor tender before the said Michaelmas And hereupon the Defendant demurred for that the charges should have been offered before the assurance 3 H. 74.23 Eliz. Dyer Anderson in the 35 36 Eliz. F●ste● did covenant with Franke to make an assurance at the costs and charges of Franke and Franke brought a Covenant and Foster Demurred because no charges were tendred to him it was adjudge against Fester for Franke could not have cognizance what manner of assurance should be made and so could not tell what charges to tender and therefore he ought first to shew him what manner of assurance he should make and according to that he ought to tender reasonable Charges Walmesley But the charges ought to precede the assurance but the declaring of what manner of assurance should be made ought first to be done Beaumond of the same opinion Michaelm 38 Eliz. Damport against Sympson IN an action on the Case the Plaintiff declared that he had given to one Spilman certain Iewells to Traffique with them beyond the Seas and that he had not fold them but had delivered them to the Defendant who had spoild them whereupon the Plaintiff brought an action against the said Spilman and upon not guilty pleaded they were at issue and the now Defendant at that evidence did Depose upon his oath that the Iewells were worth but 200 l. whereas they were worth 800 l. by reason whereof the Iury gave indeed but 200 l. damages and for this false oath he brought this action and the Iury upon not guilty pleaded found for the Plaintiff and assessed 300 l. damages And now it was moved in arrest of Iudgment that the action would not lie no more than against those informe a Iustice of Peace of Fellony upon his oath against J. S. 20 H. 7.11 Also the party grieved hath his remedy in the Star-Chamber And Walmesley said that for perjury there was no remedy and so is it in the 7th Eliza. Dyer 243. a. for it is not to be thought that a Christian would be perjur'd and in the 2d H. 6.5 a Conspiracy will not lye against Indictors who informe their company of their oath Wherefore It was adjudg'd that this action did not lie Note that Anderson was against this Iudgment but Walmesley Owen and Beumond were against him FINIS The Table of the principall matters contained in this Book Abatement WHere the Resignation of a Bishop Dean or Parson shall abate the writ and where not 30 31 Where the writ shall abate for not naming the party according to his Dignity or Office and where not 61 In trespass against two the writ shall not abate for the death of one 107 Admirall Where he hath Jurisdiction and where not 122 123 Action and what words will beare Action Slanderous words of several kinds 13 17 18. vide Slander where the Lessee for years by intrusion shal have an Ejectment and so in case of the King 18 What Action the Lessee of an Intruder or Copyholder of the King shall have if he be outed 16 Where an Action will lye for slanderous words spoken or for any of them and of a slander in writing 30 Action of Trover good against the Husband onely though the wife made the conversion 48 Action of debt by an Administrator durante minoritate not good 35 VVhere a second Action for the same matter shall be brought and where not 37 For warranting sheep sound 60 VVhere a Trespass or Detinue shall lye for Goods taken and sold 70 VVhat Action for a Dogg Ferret or Hawk 94 VVhere two shall joyn in the action and where not 106 Non-suit of one Non-sult of both in a personall action 107 For a Fine in the Leet brought by the Lord 113 VVhere an action of Trover will lye for money 113 Account For fish in a Pond 19 Account will not lye where is no privity 35 36 Against a Receiver 36 Severall actions of Account 36 Administrator vide Executors Advowson VVhere by the presentment of another the King shall be said to be out of possession 43 Grant of the next avoidance by a Letter 47 Advowson appendant to a Mannor and the Mannor is granted yet the Advowson will not pass 53 VVhere the Patron shall dispose of the Advowson though thre be a deprivation 151 Age. The Heir of the Tenant in tail that is impleaded during life of the Tenant by Curtesie shall not have his age 33 Aide Difference between Tenant at wil and Tenant at sufferance in case of praying aide 29 By him in reversion 43 Where the Tenant praies in aide of a stranger it shall be a forfeiture 81 Alien Debt by an Administrator alien Born 45 Who shall be accounted an alien enemy 45 Amendment Where the Habeas Corpus distringas shall be amended though the Venire be well returned 62 Amends vide payment Annuity Where the husband shall have an action of debt for the arrears of an Annuity granted to the wife before marriage 3 Granted by him that hath no Estate what remedy for the Grantee 3 From a Corporation 75 No Dower to the Bargainees wife before inrolement 70 Where the suing or recovering of Dower shall be accounted the waving of the Assignment of Dower 150 Entry WHere the Entry of the Lessor on the Lessee shall not avoid the Covenant of the Lessee 65 The Lord shall not have a Cessavit after entry in parcell 66 Where the entry of the Discontinuee shall avoid the fine of the Tenant in tail 75 76 VVhere the discent of the Intruder on the King shall not take away the entry of the Kings Feoffee 45 Entry into a house to demand money where good 114 Error Error in Judgment whether amendable 19 VVhere a writ of Error by the husband and wife within age shall

but part of the house and Waste may be brought for part of a house 3. Error was because the other Coparcener was not joyned with him in the Action But resolved that it was good enough And the Iustices made this diversity viz. When both the parties have an equall Estate and Inheritance and when one of them hath but a particular Estate as in the 27 H. 8.13 Lessee for life and he in the remainder shall joyne in an Action of Waste but where they had equal estate of Inheritance as two Coparceners or two Tenants in Common and one makes a Lease and the Lessee commits Waste there the Writ of Waste shall be brought by the Lessor only for it is not like to a personall injury done upon an Inheritance for an action of Waste is now in the nature of the realty although that at the Common Law before the Statute of Glocester there was but a Prohibition yet the Statute gives the place wasted and damages and therefore it is mixt wherefore both of them shall not joyne and the Writ saies to his ●isheritance that made the Lease vide 22 H. 6 24. by the Court and agreeing with this resolution 4. Error was that the Waste is a permissive Waste and no such Waste lies between Coparceners for each of them are bound to contribution and reparation but the Court would take no notice of this 5. Error was in the entring Iudgment for Iudgment was entred by default whereupon a Writ of Inquiry of damages issued out to the Sheriff and the Sheriff went to the place wasted which he needed not have done And the Iudgment was Quod recuparet locum vastatum per visum Juratorum which was nought for the going to the place was Surplusage But divers Presidents were produced to prove that that was the course as Hilar. Rot. 501. between the Earl of Bedford and William Smith upon a Demurrer and a Writ of inquiry of damages and the Iudgment was Quod recuparet locum vastatum per visum Juratorum and Trin. 31 H. 8. Rot 142. and the book of Entries fol. 620. wherefore Iudgment was affirmed 34 Eliz. in Com. Ban. Gaytons Case Resignation of a Benefice RObert Gayton Parson of the Church of little Eyesingham in the County of Norfolk did by Instrument in writing resign his Benefice before Edmund Langdon publick Notary and others into the hands of the Bishop and the resignation was absolute and voluntary and to the use of Miles Mosse and Paul Britback or either of them And it was further inf●rred in the said Instrument of Resignation Protestatione sub conditione quod si aliqui eorum non admissi fuerant per assessionē Episcop infra sex menses quod tunc haec present resignatio mea vacua pro nulla habeatur nunc prout tunc tunc prout nunc and Cestuy que use came within the time limited to the Bishop and did offer to resigne to him which the Bishop refused to except c. Crooke for the Plaintiff Forasmuch as the Plaintiff may resigne on Condition as well as a particular Tenant may surrender upon condition and two Parsons may exchang● and i● the estate be executed on the one part and not on the other that Parson whose part was not executed may have his Benefice again as it is adjudged in the 46 Ed. 3. But Coke Solicitor and Godfrey were on the contrary opinion For that the Incumbent may not transfer his Benefice to another without presentation as appeares in the recited case of 46 Edw. 3. Also the resignation is not good and the Condition void because it is against the nature of a Resignation which must be Absolute sponte pure simpliciter and is not like to a Condition in Law as in the said case of Exchange in 46 Edw. 3. for the Law doth annex a condition to it but a collaterall condition cannot be annext by the parties themselves Also this is an Act Iudiciall to which a condition cannot be annext no more then an Ordinary may admit upon condition or a Iudgment be confessed on Condition which are judiciall Acts. But admitting the Condition good yet a new Induction ought to be made by the Ordinary for the Church became one time void and is not like to the case in 2 R. 2. Quare Impedit 143. where sentence of deprivation was given and the sentence presently reversed by Appeal there need no new Institution for that the Church was never void And after in Easter Tearm 36 Eliz. upon Arguments given in writing by the Civillians to the Iudges the Iudgment was entred Quod querens nihil capiat per billam Hiliar 35 Eliz. in the Kings Bench. Rot. 56. Carters Case Action on the case for words WIlliam Crow brought an Action on the Case against Warham Carter for speaking of these words The said William is forsworn and perjured in swearing at the common place Bar upon the Deeds which he then had in his hand Harris Serjeant did move in Arrest of Iudgment for that the words shall be construed according to the common and vulgar sense viz. That he is forsworne upon the Deeds But the Court was against him For the vulgar sense is that men do not use to sweare but upon a Book and the Plaintiff had Iudgment Hil. 36 Eliz. in the Kings Bench. William Bartues Case Prohibition WOodroffe and Cooke brought a Prohibition against Bartue the C se was thus The Abbot of Langley did let Land to one Raston for ninety nine years who let the same to Woodroff for sixty years who granted parcell of the said Land to Cooke during the whole terme And Bartue did libell against them both in the Spirituall Court for Tythes and they joyned in a Prohibition Godfrey They may not joyne in a Prohibition for by the Statute of 34 H. 6.13 If two men are sued in the Court Christian for slander b●ttery c. which are severall in themselves there they cannot joyne in a Prohibition but where they be sued for the finding of a Lampe c. by reason of their Land there they shall joyne but in this case the Tythes are severall But it was resolved 1. That their joyning in the Prohibition was good enough 2. That the death of one of them shall not abate the Writ of Prohibition because nothing is by them to be recovered but they are onely to be discharged of Tythes Pasch 33 Eliz. in the Kings Bench Rot. 292. Haslewoods Case Error in Avowry THe Lord of a Mannor did avow on the taking of a Gelding as an Estrey within his Mannor and had Iudgment to have return and damage to twenty pounds And hereupon a writ of Error was brought and adjudged that no Damages shall be had in such case For the Avowant cannot recover damages at the Common Law and by the Statute of the 7 H. 8. and 4. no damages shall be given to the Avowant for Damage-feasant but where he avowes for Rents

are in my possession and they are evicted by the right Owner a Covenant will lye contra if I have not possession at the time of the letting them and if I let land and J.S. enter before the Lessee the Lessee cannot have a Covenant Quod nota Et ad journe●ur 35 Eliz. Scarret against Tanner in C. B. Rot 1458. IN a false Imprisonment the Defendant justified that he was High Constable of the Hundred of E. in the County of ●…p and that the Plaintiff made an affray within the said Hundred upon one Walm who came presently to the Defendant and told him of it and took his oath that he was in fear of his life whereupon the Defendant came to the Plaintiff and arrested him and carried him to Prison untill he could finde sufficient Sureties of peace Glanvill A Constable cannot arrest one to finde surety of the peace upon a complaint made to him unless he himself sees the peace broken 7 Ed. 4. Kingsmill contr For he is at Common Law Conservator pacis 12 H. 7.18 And how can he keep the peace if he may not compell them to finde surety 44 Ed. 3. Barr. 2●2 If a man that is threatned complain to the Constable he may compell the party to finde surety for his good behaviour and may justifie the imprisoning him or putting him in the Stocks 22 Ed. 4.35 10 Ed. 4.18 where a Constable in such case may take a Bond. Anderson I grant that Constables are keepers of the peace at the Common Law and are to keep the peace as much as in them lyes and that is to take men that they finde breaking the peace and to carry them to a Iustice of peace to finde surety but the Constable cannot take security nor recognizance nor bail for he is not an Officer upon Record and if he do take a Bond how shall he certifie it and unto what Court Walmesley contr Who said that the Constable might take security by bond although not by recognizance or bail Beaumond A Constable may put him that breaks the peace within the Stocks but it must be where the breach of peace is committed in his view for he hath no authority to take an oath that a man is in fear of his life and then the foundation of his justification doth fail Owen The oath is not material for although he cannot take such oath yet his taking of surety is good and before Iustices of peace were made the peace was preserved by Constables and the Statute that creates Iustices does not take away the power of Constables and therefore he may justifie Sed adjournatur Pasch 38 Eliz. Worsley against Charnock in C. B. IN an audita quaerela the Case was thus The father and son were bound in a Statute-Merchant to Charnock who sued out an Execution against them and their lands were severally extended and they supposing that the Statute was not good because it was not sealed with both their seals according to the Statute they both brought a joynt audita querela and whether they could joyn in this Action or not was the question Warburton They shall not joyn for in all cases a man must make his complaint according to his grief and here their grief is several as it two men be imprisoned they shall not joyn in a false imprisonment The same Law in a Battery 8 Ed. 4. 18 H. 6. 10 Ed. 4. It J.S. hath goods of divers men they shall not joyn in a Replevin and 33 H. 6. two men shall not joyn in an audita quaerela unless the land in execution is in them joyntly and 29 Ed. 3. two Ioynt-tenants Infants alien they shall have several Writs of Cum fuit infra ae●atem But he confessed the Case in 30 Ed. 3. Fitzherbert audita quaerela where two men were in Execution and the Conusor did release to one and then to another by another Release yet both shall joyn in an audita quaerela but this is not Law and besides they cannot recover damages joyntly by reason of their several vexations and this Action being personal damages cannot be severed Vid. 2 Ed. 3. Execution 45. 9 Ed. 4.31 12 Ed. 4.6 Harris contra And as to the last reason the Book in the 20 of Elizabeth is that no damages shall be recovered in an audita quaerela which if it be Law then is the doubt at an end And whereas it hath been said that they shall not joyn because their griefs are several methinks there is no reason but that if he that survives shall be charged with the whole that they shall joyn also in their discharge for if their charge be joynt their discharge shall be joynt also And in the 34 H. 6. and 30 Ed. 3. where an audita quaerela may be brought joyntly and he resembled this to the Case of a Monstraverunt where if a Tenant in antient demesn be distreyned all the Tenants shall joyn because the grievance to one may be a grievance to all the rest Yelverton of the same opinion Tho suing of the Execution was the cause of the audita quaerela but not the ground for the ground was the Statute-merchant and therefore it is here brought according to the Statute Anderson If two men do me several Trespasses yet I may have a joynt Action against them and the death of one of them shall not abate the Writ but if two are Plaintiffs in a personal Action the non-suit of one shall be the non-suit of the other and in our case the Statute was joynt and also the Execution then if all the Writs are so the audita quaerela which is to discharge them shall be joynt also especially in this Writ where they are as it were Defendants and therefore he resembled this Case to a Writ of Errour or an Attaint brought by two joyntly and one is non-sued yet this shall not abate the Writ because they are in a manner Defendants Walmesley contr The Action ought to be brought according to the cause of the wrong and the wrong begun in suing the Execution and that was several and therefore the audita quaerela ought to be several also but if this Statute had been good and had been discharged by release or defeasance then the audita quaerela might be brought joyntly for then the ground of the execution was joynt but here is but a colourable Statute and the cause of the Action is not begun before the Execution sued Owen and Beaumond agreed and after by assent of Anderson Iudgement was given that they ought to have several Writs Note Pasch 36 Eliz. in B. R. Rot. 323. or 521. between Curteise and Overscot If A. did recover against B. by two several Iudgements whereby B. is in Execution it was adjudged that he shall not have one audita quaerela but two several Writs Pasch 37 Eliz. Sawer against Hardy in B. R. Rot. 254. IN an Ejectment the Case was this A woman was Lessee for forty years sub