said That he promised to find meat drink and apparel for the Plaintiff and his Wife for 3 years absque hoc that he promised to find meat and drink for two servants and Pasture for two Geldings The Plaintiff Replicando said That the Defendant did promise to find c. for 3 years next following Vpon which they were at Issue and found for the Plaintiff It was moved in Arrest of Iudgment That here is no Issue joyned For the Plaintiff hath declared upon a promise to find c. for 3 years when the Plaintiff will that require The Defendant hath pleaded a promise to find apparel meat and drink for the Plaintiff and his Wife for 3 years absque hoc that he promised for two servants and two Geldings and now the Plaintiff Replicando saith That the Defendant assumed for 3 years next following so here is another Assumpsit in the Replication than that whereof the Plaintiff declared and so the Plaintiff hath not joyned Issue upon the Assumpsit traversed by the Defendant and so there is no Issue joyned for the Defendant denyeth the Assumpsit whereof the Plaintiff hath declared And the Plaintiff in his Replication hath affirmed another Assumpsit than that whereof he hath declared and that is not helped by the Statute of Jeofails For it is not a mis-joyning of Issue but a not joyning of Issues and that was holden by the Court to be a material Exception And the Lord Dyer conceived That here is a Departure for the Plaintiff in his Replication hath alledged another promise than that whereof he declared Another Exception was Because that the Plaintiff had not averred in facto that he had married the Daughter of the Defendant but by an Argument Implicative Licet but that Exception was disallowed For that the word Licet is not a bare Implicative but it is an express Averment And so it was said Plow 127. it had been ruled before See 2 Mar. Plow Com. 127 128. Buckley and Thomas Case C. Hill. 19 Eliz. In the Common Pleas. A Lease for years was upon Condition Dyer 45. 1 Roll. 214. 1 Len. 3. That the Lessee should not grant over the Land at Will or otherwise He devised the same to his Executors who accepted the same only as Executors and not as Devisees And yet it was the Opinion of the Iustices That the Condition was broken Because he had done as much as lay in him to have devised the Land. 2 Roll. 684. 1 Roll. 24. 9 Co. 94. Stiles Rep. 304 305 405. Hutton Rep. 27. Clayton Rep 85. 1 Len. 113. 1 Cro. 126. Owen 94. See 31 H. 8. 45. CI. Hodgson and Maynards Case Hill. 19 Eliz. In the Kings Bench. NOte It was said by the Iustices in this Case That if an Executor promiseth to pay a Debt when he hath not Assets no Action upon the Case lyeth against him upon such promise but contrary if he hath Assets And so it was holden That if the Heir hath nothing by descent an Action upon the Case will not lie against him upon such a promise made CII Mich. 20 Eliz. In the Kings Bench. Co. 3. Inst 1. Stat. 5. Eliz. 2 Len. 12. AN Action upon the Statute of 5 Eliz. of Perjury was brought by three and they declared That the Defendant being examined upon his Oath before Commissioners If a Surrender was made at such a Court of such a Mannor of a Copyhold to the use of A. and B. Two of the Defendants swore That no such Surrender was made c. Exception was taken to the Declaration because that the certainty of the Copyhold did not appear upon the Declaration For the Statute is That in that case the party grieved shall have remedy so as it ought to appear in what thing he is grieved Quod fuit concessum per totam Curiam Another Exception was taken because that the Action in such case is given to the party grieved And it appeareth upon the Declaration That the surrender in the Negative deposing of which the perjury is assigned was made to the use of two of the Plaintiffs only and then the third person is not a party grieved For he claims nothing by the surrender and therefore and because the two parties grieved have joyned with the third person not grieved It was the Opinion of Wray and Southcote Iustices That the Writ should abate CIII Mich. 20 Eliz. In the Common Pleas. 1 Len. 263. NOte It was said by Dyer and Manwood Iustices If one be condemned in an Action upon the Case or Trespass upon Nihil dicit or Demurrer c. And a Writ issueth to enquire of the Damages and before the Retorn of the Writ the Defendant dyeth The Writ shall not abate for that For the Awarding of the said Writ is a Iudgment And Manwood said In a Writ of Accompt the Defendant is awarded to Accompt And the Defendant doth Accompt and is found in arrearages and dieth The Writ shall not abate but Iudgment shall be given That the Plaintiff shall recover and the Executor shall be charged with the Arrearages and yet Accompt doth not lie against them CIV Mich. 20 Eliz. In the Common Pleas. 2 Len. 52. 2 Len. 282. Post 92. IN an Action upon Escape the Plaintiff is Nonsuit It was holden by the Iustices That the Defendant in that case shall not have Costs by the Statute of 23 H. 8. Note The words in the Statute upon any Action upon the Statute for any offence or wrong personal supposed to be done immediately to the Plaintiff Notwithstanding this Action is Quodam modo an Action within the Statute scil by equity of the Statute of Westm 2. which give expresly against the Warden of the Fleet Yet properly it is not an Action upon the Statute for that in the Declaration in such Action no mention is made of the Statute Which see the Book of Entries 169 171. And also here there is not supposed any immediate personal Offence or Wrong to the Plaintiff and an Action upon the Case it is not For then the Writ ought to make mention of the Escape which it doth not here And yet at the Common Law before the Statute of Westm 2. An Action upon the Case lay upon an Escape And so by the opinion of Dyer Manwood Mounson Iustices Costs are not given in this case and Manwood said That upon Nonsuit in an Action upon the Statute of 8 H. 6. The Defendant shall not have Costs 1 Len. 282. For that the same is not a Personal Wrong For the Writ is Disseisivit which is a real tort CV Mich. 20 Eliz. In the Common Pleas. IN Debt upon an Obligation to perform certain Covenants in a pair of Indentures The Plaintiff assigned the breach in one of the Covenants scil That the Defendant should do all reparations of such a House demised to him And that he had not repaired but suffered the same to decay To which the Defendant said That the
Parliament 35 H. 8. it was Enacted That the said Lady should hold part of her Inheritance and dispose of the same as a Feme sole and that the Marquess should have the Residue and that he might Lease the same by himself without his Wife for 21 years or less rendring the ancient Rent being Land which had been usually demised c. The Marquess Leased for 21 years and afterwards durante Termino praedict Leased the same Land to another for 21 years to begin after the determination of the first Lease It was moved in this Case That this last Lease was void and that for 3 Causes 1. Because the Marquess had but an Estate for life and then it could not be intended that the Statute did enable one who had but such an Estate determinable to make such a Lease which peradventure might not commence in his life-time 2. The Letter of the Statute is 21 years or under and the word Under strongly expounded the meaning of the Statute to be not to extend to such an Estate For here upon the matter is a Lease for 40 years 3. Because the Land demised is the Inheritance of the Wife And in this Case it was said That in the Case of one Heydon such a private Act was strictly construed which was That it was Enacted That all Copies for 3 Lives granted by the Lord Admiral of the Lands of his Wife should be good The Admiral granted Leases in Reversion for 3 Lives And it was holden That that Grant was not warranted by the Statute Dyer said The words are general Omnes dimissiones and therefore not to be restrained unto special Leases scil to Leases in possession Manwood said A Feme Covert by duresse joyns in a Lease with her Husband the same shall bind her CXI The Queen and Sir John Constables Case Hill. 20 Eliz. In the Kings Bench. 5 Co. Constables Case A Quo Warranto was brought by the Queen against Sir John Constable who claimed certain Wreck in the County of York The Defendant pleaded That Edward Duke of Buck. was seised of such a Mannor to which he had Wreck appendant and that he was de alta proditione debito modo attinctus and that found before the Escheator And shewed further That the said Mannor descended to Queen Mary who granted the same to the Earl of Westmerland who granted the same to the Defendant Vpon which It was demurred And Exception was taken to the Plea because the Attainder is not fully and certainly pleaded It was argued by Plowden That the Attainder was certainly pleaded scil debito modo attinctus And it is shewed That the Wreck is appendant to the Mannor and then if the Defendant hath the Mannor he hath the Wreck also and if he hath the Mannor it is not material as to the Queen how he hath it for the Queen doth not claim the same but impeacheth the Defendant for using there such a Liberty But if the Heir of the said Duke had demanded the Mannor there against him the Attainder ought to have been pleaded certainly And it was said by him That the Interest of the Queen in the Sea extends unto the midst of the Sea betwixt England and Spain But the Queen hath the whole Iurisdiction of the Sea between England and France because she is Queen of England France c. And so it is of Ireland CXII Hill. 20 Eliz. In the Common Pleas. TEnant for life made a Feoffment of White-Acre of which he was seised for life and made a Letter of Attorny to deliver Livery and Seisin secundum formam Chartae before Livery the Tenant purchased the Fee and afterwards Livery was made It was resolved by the Court in this Case That all passed But if the Feoffment had been of all his Lands in D. and the Letter of Attorny accordingly and before Livery made the Feoffee had many Lands there If he purchased one Acre after the Livery should not extend to that Acre because the Authority was satisfied by the other Acre CXIII Banks and Thwaits Case Mich. 21 Eliz. In the Kings Bench. IN an Action upon the Case the Case was That A. had pawned an Indenture of Lease for years of a Messuage and Lands to Banks Thwaits intending to purchase the same required Banks to deliver him the said Lease and he would give Banks 10 l. whether he bought it or no at what time he would request the 10 l. Post 200. And Banks delivered the same to Thwaits accordingly Post 200. And afterwards brought an Action upon the Case and declared upon the whole matter and concluded Licet saepius requisitus c. without alledging a request express in certain and the day and place of it It was said by Cook That here the monies did not grow due before Request nor is payable before Request and therefore a Request ought to be made in facto And so he said It was ruled in this Court in an Action upon the Case betwixt Palmer and Burroughs and he said that the Mony was not due by the Promise but by the Request And it was the Opinion of the whole Court That although it be a duty Yet it is not a duty payable before Request And the Request makes a Title to the Action But if A. selleth to B. a Horse for 10 l. there is a Contract and a Request in facto need not be layed And the Opinion of the Court was also That upon this matter the Plaintiff could not have an Action of Debt for there is not any Contract for the thing is not sold but it is a Collateral promise grounded upon the delivery And by Clench Here the Request is traversable And afterwards Iudgment was given against the Plaintiff And it was said It was so ruled in Alderman Pullisons Case in the Exchequer Post 201. CXIV Segar and Boyntons Case Mich. 21 Eliz. In the Common Pleas. 2 Len. 156. IN Trespass the Case was this King Henry the 8th Anno 27 of his Reign gave the Mannor of D. to Sir Edward Boynton Knight and to the Heirs Males of his body Sir Edward Boynton had Issue Andrew his eldest Son and C. the Defendant his younger Son and died Andrew Boynton Covenanted by Indenture with the Lord Seymore that the said Andrew Boynton would assure the said Mannor to the use of himself for life the Remainder to the said Lord and his Heirs The said Lord Seymore in recompence thereof should assure other Lands to the use of himself for life the remainder to the use of the said Andrew Boynton in tail who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers to the uses according to the said Agreement and before any Assurance made by the said Lord The said Lord was Attainted of Treason and all his Lands were forfeited to the King And afterwards the said Andrew Boynton made a Suggestion to Queen Mary of the whole matter and upon his humble Petition the said
him any other surety for his Debt he is contented so to do And John Stampe offered to the said P. the said B. and C. and he accepted the same and at the request of the said John Stampe granted his Interest to them 2 Feb. 22 Eliz. P. having notice of the Grant before made to the said G. Vpon which G. enformed against P. upon the Statute of 32 H. 8. It was holden in this Case by Periam and Meade Iustice That P. was not within the penalty of the Statute For P. granted his Interest to B. and C. at the suit and at the request of John Stampe who was the Mortgager for assurance of his Debt which he ought to them And therefore it shall not be intended that that Grant was made for any maintenance or for any unlawful cause against the Statute And also John Stampe who granted unto P. had possession and received the Issues and Profits of the said Lands for a whole year before the Grant notwithstanding that he was not in possession by a whole year next before the day of the date of the Grant. Godb. 450. As if a Man be in possession or hath received the Issues and Profits for a whole year and afterwards a stranger enters upon him and hath the possession for the space of a Quarter of a year or half a year yet he who was in possession by a year before may grant his Interest without danger of the Statute c. CXX Pasch 24 Eliz. In the Kings Bench. NOte Per totam Curiam 2 Len. 35. A man made his Will in this manner scil I Will and Bequeath my Land to A. And the name of the Devisor is not in the whole Will Yet the Devise is good enough by Averment of the name of the Devisor And for proof that the same is his Will If one lying in extremis having an intent to devise his Lands by Word makes such devise but doth not command the same to be put in writing but another without the knowledge or Commandment of the Devisor putteth it in writing in the life-time of the Devisor the same is a good Devise For it is sufficient if the Devise be reduced into writing during the life of the Devisor CXXI Pepy's Case Pasch 25 Eliz. In the Common Pleas. WAste was brought by F. and his Wife against Pepy and declared That the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded That the said Feoffment was to the use of himself and his Heirs in Fee c. absque hoc that it was to the uses as in the Count Vpon which they were at Issue And it was found by Verdict That the said Feoffment was to the uses contained in the Count but further found That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste scil without Impeachment of Waste It was moved If upon that Verdict The Plaintiff should have Iudgment Anderson and Rhodes Iustices conceived That he should for that the matter in Issue is found for the Plaintiff and that is the Feoffment to uses contained in the Count and this impunity of Waste is a Forreign matter not within the Charge of the Iury and therefore the finding of the same is but matter of surplusage As if I plead a Feoffment of J. S. to which the other pleads That he did not enfeoff and the Iury find a Conditional Feoffment the Court shall not respect the finding of the Condition for it was not in Issue and no advantage shall be ever had of such a Liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unque seisi que Dower c. The Tenant pleaded That before the Coverture of the Demandant one A. was seised and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail who made a Feoffment A stranger took the Demandant to Wife took back an Estate in Fee and died seised having Issue inheritable Now although upon the truth of the matter she is nâ—t Dowable de jure yet forasmuch as the parties were at Issue upon a point certain no forrein nor strange matter not in Question betwixt the parties shall be respected in the point of Iudgment But if the Defendant had pleaded it in Bar he might have foreclosed the Demandant of her Dower See 38 Ass 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Tenant came one and shewed How that the Tenant who made default was but Tenant for life of the Lands in demand the Reversion in Fee to himself and prayed to be received The Demandant counterpleaded the Resceit Dicendo That the Tenant had Fee c. Vpon which Issue was taken And it was found That neither the Tenant nor he who prayed to be received had any thing in the Land. And in that Case The Court did not regard the matter which was superfluous in the Verdict For they were at Issue upon a point certain scil whether the Tenant was seised in Fee For it is confessed of the one side and of the other that he had an Estate for life and of that matter the Iury was not charged and they are not to enquire of that And so it is found against the Demandant by which the Resceit was granted See 7 H. 6. 20. The parties were at Issue upon a Dying seised which is found by Verdict but the Iury find further That the other party made continual Claim The said continual Claim shall not be respected in point of Iudgment because it was not pleaded in Avoidance of the Disceit c. Windham Iustice to the contrary because it appeareth to us upon the Verdict That the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue the Plaintiff declares upon a Baylment by his own hands The Defendant pleads Ne Detinue pas the Iury find the Detinue but upon Baylment by another hand In that case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Anderson Rhodes and Periam conceived That in the principal Case Iudgment should be given for the Plaintiff For in no case the party shall have advantage of that liberty of impunity of Waste if he doth not plead it And the Iurors are not to meddle with any matter which is not in issue and if they do It is but matter of surplusage and to no purpose and afterwards Iudgment was given for the Plaintiff See the Number Roll Pasch 25 Eliz. Rot. 602. CXXII Skipwith's Case Pasch 20 Eliz. In the Common Pleas. IN an Action of Trespass It was found by a special Verdict Godbolt 14 143. Co. of Copy-holds 94. That the Lands were Copy-hold Lands That the Custom of the Mannor was That Quaelibet Foemina Viro Co-operta poterit
Lease of my House during her life and after her death I will it go amongst my Children unpreferred Peerepoint died his Wife entred and was possessed virtute legationis praedictae And took to Husband one Fulsehurst against whom Beswick recovered in an Action of Debt 140 l. Vpon which Recovery issued a Scire facias and upon that a Vendit ' Exponas upon which the Sheriff sold the Term so Devised to one Reynolds Fulsehurst died his Executor brought Error and reversed the Iudgment given against the Testator at the Suit of Beswick the Wife re-entred sold the Term and died Alice a Daughter of Peerepoint unpreferred entred And upon this matter found by Special Verdict in the Common Pleas The Entry of Alice was adjudged lawful Vpon which Iudgment Error was brought in the Kings Bench And it was argued upon the words of the Devise because here the Lease is not Devised but all his Interest in the thing Devised And it is not like to the Case between Welden and Elkington 20 Eliz. Plow Com. 519. where the Case was that Davies being Lessee for years Devised That his Wife should have and occupy his Land demised for so many years as she should live Nor unto the Case betwixt Paramour and Yardley 21 Eliz. Plow Com. 539. For there the Lessee Devised That his Wife should have the Occupation and Profits of the Lands until the full age of his Son For in those Cases the Land it self is quodam modo devised But in our Case all the Estate is Devised i. e. the Lease it self And also in those two Devises a certain person is named in the Will who should take the residue of the Term which should expire after the death of the Wife but in the Case at Bar no person in certain is appointed c. but the Devise as to that is conceived in general words Children unpreferred Ergo neither any Possibility nor any Remainder is in any person certain therefore all the whole Term is intirely in the Wife and then she may well dispose the whole But the whole Court was to the contrary and that in this Case the Possibility should rise well enough upon the death of the Wife to the Daughter Alice unpreferred Another Point was moved If the said Term being sold in the possession of the Wife of the Devisor by force of the Execution aforesaid If now the Iudgment being reversed the sale of the Term should be also avoided for now the party is to be restored to all that which he had lost And by Cook it was argued That notwithstanding the reversal of the Iudgment the sale should stand For the Iudgment for the Plaintiff in a Writ of Error is That he shall be restored to all that which he lost ratione Judicii praedict and the Iudgment was That the Plaintiff should recover 140 l. and therefore by the Iudgment in the Writ of Error he shall be restored to so much but the mean Act scil the Sale of the Lease shall stand and shall not be defeated and avoided As 7. H. 6. 42. A Statute Staple is bailed in Owel Mayn the Conusee brings Debt against the Bailee and hath Iudgment to recover the Statute and upon that Suit he had Execution and the Bailee brought a Writ of Error to reverse the Iudgment in Detinue yet the Execution shall stand and an Audita Querela doth not lie for the Conusor And see 13 E. 3. Fitz. tit Bar. 253. Accomptant found in arrearages committed to the Goal escaped and reversed the Iudgment given against him in the Accompt Ex parte talis yet an Action upon the Escape did lie And as to that Point the whole Court was of the same Opinion with Cook But that Point did not come in Iudgment For by the sale nothing passed but the Interest in praesenti which was in the Wife of the Devisor but the Possibility to the Children unpreferred was not touched by it And afterwards the Iudgment was affirmed CXXIX Bunny and Bunny's Case Hill. 26 Eliz. In the Common Pleas. IN an Action of Covenant between Bunny and Bunny the Plaintiff declared That the Defendant had Covenanted to find unto the Plaintiff Meat and Drink at the House of the Defendant The Defendant pleaded That he was always ready to find the Plaintiff Meat and Drink if he had come to his House to have taken it Et de hoc ponit se super Patriam And it was found for the Plaintiff And in this Case the Court awarded That the parties should replead For in all Cases where the Defendant pleads matter of excuse not contained in the Declaration as here he shall say Et hoc paratus est verificare in the perclose of his Plea But if the Defendant had pleaded That he had given the Plaintiff according to the Covenant Meat and Drink then the Conclusion of his Plea had been good Et de hoc ponit se super Patriam c. CXXX Hill. 26 Eliz. In the Kings Bench. IN an Action upon the Case supposing certain Goods to have come to the hands of the Defendant and that he had wasted them and shewed in what manner The Defendant pleaded Not guilty And it was found by Verdict That the Goods c. came to the Defendants hands and that he had wasted them but in another manner than the Plaintiff had declared It was the Opinion of the whole Court That upon this Verdict the Plaintiff should not have Iudgment As in an Action of Trespass the Plaintiff declared That the Defendant had distrained his Horse and travelled riding upon him And the Iury found That the Defendant did distrain the Horse and killed him In that case it was holden The Plaintiff should not have Iudgment So in an Action upon the Case the Plaintiff declares upon a Promise upon one Consideration and the Iury find the Promise but that it was upon another Consideration in such case the Plaintiff shall not have Iudgment Adjudged for the Defendant CXXXI Merry and Lewes's Case Pasch 26 Eliz. In the Common Pleas. MErry brought an Action upon the Case against William Lewes 2 Len. 53. Executor of David Lewes late Master of St. Katherines juxta London And Declared That the said David in Consideration That whereas Quaedam pars Domus fratrum sororum Sanctae Katherinae fuit vitiosa in decasu the said Merry ad requisitionem dicti Davidis repararet eandem promised to pay the said Merry all such monies as the said Merry expenderet in such Reparations And declared further That eandem partem Domus praedict reparavit c. And upon Non Assumpsit It was found for the Plaintiff It was Objected in Arrest of Iudgment That the Declaration is too general Quaedam pars Domus For the Plaintiff ought to have shewed especially what part of the House in certainty as the Hall Chamber or other Rooms But the Exception was disallowed Another Objection was Because he set forth in the Declaration That the
Commoner shall not use his Common before that the Lord hath put in his Cattel was holden to be a void Custom On the other side It was said That this Custom might have a lawful beginning and that it might be grounded upon the reason of the Common Law That a Remainder should not be without the assent of the particular Tenant and therefore that the Custom might be good And it was said That Wife should not have her Dower unless she claimed it within a year and a day that the same was adjudged to be a good Custom The Court delivered no Opinion in the Case but the Case was adjourned to another time CCCIV. Mich. 31 Eliz. In C. B. THE Case was a Man devised Socage Lands to his Brothers Son in tail to have the same at his age of 25 years and died having Issue a Daughter The Nephew after 21 years entred and levied a Fine and afterwards accomplished his age of twenty five years It was the Opinion of the whole Court That the Issue of the Devisee was barred by this Fine For the Heir in Tail and the Heir in Fee are all one by the Statute of 4 H. 7. And it was holden That this was not a Fine which doth enure by way of Estoppel but that it passeth the very right It was said to be the same Law If one who hath but a condition levyeth a Fine and afterward entreth for the condition broken c. CCCV Palmer and Smalbrook's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case The Plaintiff declared 1 Len. 132. Owen 97. 1 Cro. 178. That the Defendant had recovered a certain Debt against one A. and thereupon took forth a Capias against the said A. to Arrest his Body and delivered the said Capias to the Plaintiff being then Sheriff and prayed a Warrant for the serving of the Capias and that he would name to him one B. for a special Bayliff and promised the Plaintiff That if B. Arrested A. by force of the said Capias and suffered him to escape that he would not sue him for the said escape and further declared That he made a Warrant according to the said Capias and therein named and appointed the said B. his special Bailiff who Arrested A. accordingly and afterwards suffered him to escape and that the Defendant notwithstanding his Promise aforesaid sued the Plaintiff for the said escape and it was found for the Plaintiff And it was moved in stay of Iudgment That that Promise was against the Law to prevent the punishment inflicted by the Statute of 23 H. 8. upon the Sheriff and that it is meerly within the said Statute and so the Promise void Cook This is not any Bond or Promise taken of the Prisoner nor of any for him and therefore it is not within the Statute and it was Davies Case Wray A Promise is within the Statute as well as a Bond. But the Statute doth not extend but where the Bond or Promise is made by the Prisoner or by some for him And afterwards Iudgment was given for the Plaintiff CCCVI Wood and Payn 's Case Trin. 31 Eliz. In the Kings Bench. IN an Ejectione firmae for Entry into a Messuage sive Tenementum and 4 Acres of Lands to the same belonging Vpon not guilty pleaded it was found for the Plaintiff It was moved by Cowper Serjeant That the Declaration is uncertain Messuagium sive Tenementum quod fuit Concessum Cook We will release our damages Kemp Then your Costs are gone also Cowper You cannot have Iudgment of the 4 Acres For the Declaration is 4 Acres to the said Messuage or Tenement belonging and for the incertainty to which thing belonging But to that it was said That as to the 4 Acres it is certain enough For the words To the same belonging are meerly void And afterwards the Plaintiff released damages and had Iudgment CCCVII Bennington and Bennington's Case Trin. 31 Eliz. In the Kings Bench. BEnnington brought an Action of Trespass against Bennington for breaking of his Close c. The Defendant pleaded That long time before the Trespass supposed That it was the Freehold of one Joan Bennington and that he as her servant and by her Commandment entred upon which they were at Issue And it was found That for two parts of the Land where c. in three parts to be divided it was the Freehold of the Plaintiff and for the other part that it was the Freehold of the Defendant and by the clear Opinion of the whole Court The Plaintiff could not have Iudgment for now it appeareth That the Plaintiff and Defendant are Tenants in Common betwixt whom an Action of Trespass doth not lie and although this Tenancy in Common be not pleaded but found by Verdict yet it was the Opinion of the Court That it is all one CCCVIII Brereton and Auser's Case Hill. 31 Eliz. In the Kings Bench. JOhn Brereton of the Inner-Temple brought a Writ of Error against Auser to Reverse an Outlawry And the Case was That the said Auser had caused the said Brereton to be endicted upon the Statute of Magna Charta and divers other Statutes For that Whereas the said Auser had sued the said Brereton in a Bill of Debt in the Court of Request against the said Brereton and by the said Suit procured the said Brereton to be imprisoned Vpon which Endictment Brereton was Outlawed And Error was assigned in the Outlawry because whereas the Endictment was taken in Middlesex the Exigent upon it was in London whereas it ought to issue out of Middlesex but the proclamations issued in the County whereof he was named Nuper and that was peremptory for if he make default upon that Process he shall encur the danger of a Praemunirè And for that cause the Outlawry was reversed Also the party was discharged of the Endictment for this Suit in the Court of Requests as it appeareth upon the Endictment was before Iudgment in the Bill of Debt CCCIX Constable and Farrer's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case upon an Assumpsit the Plaintiff declared That whereas the Defendant had brought an Action against him the Issue in which ought to be tried at the next Assises at N. the Defendant in Consideration that the now Plaintiff should confess the Action aforesaid at the Assises holden the 4th of August promised that he would stand to the Arbitrament of J.S. for the said matter And upon Non Assumpsit the Iury found That the Defendant made such a Promise the 5th of August but not the 4th of August Cook I conceive That upon this Verdict the Plaintiff shall have Iudgment for in truth the Assises began the 4th of August and the Consideration was That the now Plaintiff should confess the Action at the same Assises which although they continue divers days yet in Law all is but one day And all the Assises shall be said to be holden the 4th of August
Land therefore it is in the Land or within the Land i. e. the Mannor For the King may distrain for the Fine as well in the same Land as in the Land of him who ought to pay it Dyer doubted of it and said That the Bishop could not distrain in the Land for this Fine but should have it by allowance in the Exchequer upon the Estretes and if the party would not pay it the Lessee should have a Subpoena against him out of the Exchequer And some were of Opinion That the Lessee could not have this Fine 2 Len. 179. 4 Len. 234. for that they were not Hereditaments within the Mannor but rather in the Exchequer or Court where the Record is LXXXII Mich. 15 Eliz. In the Common Pleas. THe Case was A Man seised of a Pasture in which are two great Groves and a Wood known by the name of a Wood And also in the same Pasture there are certain Hedge-Rowes and Trees there growing Sparsim Leased the same by Indenture for years And by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses And further That it shall and may be lawful to the Lessee to cut down and carry away all the same at all times during the Term. Harper The Hedge-Rowes do not pass by these words for they are not known by the name of Woods 14 H. 8. 2. contrary by Manwood For by such words Hedge-Rowes pass Mounson contrary For the words of the Grant may be supplyed by other Words Dyer The Hedge-Rowes shall pass for the Grant is general All Woods It was moved further If by those words the Lessee might cut them a second time or but once Harper Manwood and Mounson He may cut them but once Dyer contrary And so it should be if the words had been Growing upon the Premisses And this word Growing although it sounds in the present Tense yet it shall be also taken in the future Tense if not that the word tunc had been there for that is a word of Restraint The Case was argued in the Exchequer Chamber where I was present which was The Prior of St. John's Leased a Commandry Provided That if the said Prior or any of his Brethren there being Commanders will dwell thereupon then the said Lease to be void It was doubted If that Proviso did extend to the Successors for the word Being is in the present Tense And yet by the Opinion of Fitzherbert it shall be taken in the future Tense and so extend to the Successors Otherwise if the words had been Now being LXXXIII Mich. 15 Eliz. In the Common Pleas. A. Made B. his Executor and died Vid. le stat 43 Eliz. cap. 8. Office of Executors 261. B. to the intent to defraud the Creditors refused to take upon him the Executorship but caused a stranger to take upon him Letters of Administration which stranger fraudulently gave the Goods of the Testator to B. Dyer If the gift be fraudulent then by the Statute of 13 Eliz. the gift is void and then B. by the Occupation of the Goods shall be charged as Executor of his own wrong Manwood I conceive there is a difference If one makes an Executor and another takes the Goods but doth no Act which concerns the Office of an Executor as paying of Debts he is not Executor of his own wrong but a Trespassor to him who is Executor in right but if he doth any Act which belongs to the Office of an Executor then he is Executor of his own wrong Dyer That Case hath been adjudged against you and although the Books of 9 E. 4. 22 H. 6. were vouched Yet Iudgment was given against the Opinion of Manwood It was the Case of one Stoke LXXXIV Jackson and Darcyes Case Mich. 16 Eliz. In the Common Pleas. IN a Writ de Partitione facienda between Jackson and Darcy the Case was Tenant in tail the remainder to the King levied a Fine had Issue and died In that case It was adjudged That the Issue was barred and yet the remainder which was in the King was not discontinued For by that Fine an Estate in Feesimple determinable upon the Estate tail did pass unto the Conusee LXXXV Strowds Case Hill. 17 Eliz. In the Common Pleas. IN a Replevin the Case was That Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries and the King granted the Lands over In that case It was holden That the Grantee shall hold the Lands of the King according to the Patent and not of the Ancient Lord But the Patentee shall pay the Rent by which the said Land was before holden as a Rent seck distrainable of Common Right to the Lord only and his Heirs scil to him of whom the said Lands were before holden LXXXVI Tresham and Robins Case Mich. 17 Eliz. In the Kings Bench. TResham brought an Action of Debt upon a Recognizance against Robins The Condition of which Recognizance was To stand to the Arbitrament of A. and B. who made Award That Robins should have the Land Yielding and paying 10 l. per annum And that Tresham in further assurance should levy a Fine to Robins of the same Land and upon that Robins should grant and render to Tresham which is done accordingly the Rent is behind Tresham brought Debt upon the Recognizance The Defendant pleaded the special matter with this per close Unde petit Judicium if the Plaintiff should have Execution against him And by the Opinion of the whole Court the Conclusion of the Plea is not good For here is not any Execution of the same Debt but an Original Action of Debt brought in which case he ought to have concluded Iudgment Si actio It was further moved If these words Yielding and paying make a Condition And it was agreed That the words do amount to as much as So as he pay the Rent And if a Man makes a Feoffment in Fee Reddendo salvendo 10 l. for years the same is a Condition But in the principal Case It is not a Condition For it is not knit to the Land by the Owner it self but by a stranger i. e. Arbitrator but it is a good Clause to make the same an Article of the Arbitrament which the parties are bound to perform upon pain of forfeiture of the Recognizance Which Wray concessit And that this Rent should not cease by Eviction of the Land. LXXXVII The Earl of Westmerlands Case Hill. 18. Eliz. In the Common Pleas. THe Earl of Westmerland seised of a Mannor whereof the Demesnes were usually let for three Lives by Copy 2 Len. 152. 2 Brownl 208. according to the Custom of the Mannor granted a Rent-charge to Sir William Cordell pro consilio impendendo for the term of his Life and afterwards conveyed the Mannor to Sir William Clifton in tail The Rent is behind Sir William Cordell dieth Sir William Clifton dieth
That that matter could not be assigned for Error for it is not within the Record and we cannot reverse our own Iudgment but only for matter of Process See for that Fitzh Na. Br. 21. f. CXXXIX Partridge and Pooles Case Pasch 26 Eliz. In the Kings Bench. TRespass of Battery was brought by Partridge against Poole 2 Len. 79. 1 Cro. 842. and supposed the Battery at D. in the County of Middlesex The Defendant justified by reason of an Assault at S. in the County of Gloucester absque hoc that he beat the Plaintiff at D. in the County of Middlesex Vpon which traverse the Plaintiff did demur in Law. It was argued by Popham the Queens Attorny General That the traverse of the County is good And he put the Case of 21 H. 6. 8 9. In Trespass of Battery at D. in the County of York the Defendant justified by an Assault at London in such a place in such a Parish c. absque hoc that he was guilty de aliqua transgressione in Comitatu Eborum Vpon which issued a Venire facias into Yorkshire and as the Book is This traverse as to the County was taken with great deliberation See also 22 E. 4. 39. And this traverse de jure ought to be allowed For the Iury in Middlesex are not bound to find the Assault in the County of Gloucester See 2 Mar. Br. Jurours 50. In Actions upon transitory matters although they be layed in Forreign Counties yet the Iurors if they will may thereof give their Verdict but they are not bound to do it Egerton Sollicitor General to the contrary And he put a difference where the justification is local and where transitory As in False Imprisonment the Defendant justifies as Sheriff the taking of the Plaintiff by force of a Capias directed to him at D. within his County of G. Where the Plaintiff declareth of an Imprisonment in another County there the traverse of the County is good for the Defendant cannot take the Plaintiff by force of the said Process in any other County than where he is Sheriff and so the Iustification is local 11 H. 4. 157. But in our Case the matter of the Iustification is meerly transitory And at last after many Motions It was adjudged for the Plaintiff Gawdy Iustice being of a contrary Opinion And by Wray Chief Iustice clearly The Iurors upon pain of Attaint are to take notice of such a transitory thing done in another County See 2 Mar. Br. Attaint 104. 9 H. 6. 63. CXL Gerrard's Case Pasch 26 Eliz. In the Common Pleas. 2 Len. 168. 4 Len. 7. GErrard Master of the Rolls presented Chatterton Bishop of Chester to the Church of Bangor to which Church also one Chambers presented his Clerk by which several Presentments the same Church became Litigious The Archbishop of York being Ordinary of the place awarded Jure Patronatus c. depending which the Archbishop admitted the said Bishop upon which the said Chambers Libelled in the Spiritual Court against the said Bishop For that the said Archbishop praedicto Episcopo plus aequo fidens admisit dictum Episcopum pendente the Jure Patronatus in which Case by the Law of the Church the Admittance is void For pendente Lite nihil movetur And now came the said Bishop and upon this matter prayed a Prohibition and he had it because that the right of the Patronage came in debate After which came the said Chambers and prayed a Consultation because he medled not with the right of Patronage but only with the wrongful admittance To whom it was said by the Court That the awarding of the Jure Patronatus is not a thing of necessity but at the Will of the Ordinary and for his better Instruction But if he will at his peril take notice of the right of the Patronage he may receive which of them he will without a Jure Patronatus awarded And it may be in this Case That after the Jure Patronatus awarded and before any Verdict given upon it the Archbishop was satisfied of the right of the now Plaintiff in the Prohibition to the Patronage and thereupon admitted the Clerk And by the clear Opinion of the Court the Consultation was denyed CXLI Rampston and Bowmer's Case Trin. 26 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That whereas the Plaintiff occupied a Brew-House And whereas one Gilbert Bowmer was the Beer-Clark of it and had the government and disposition of the Beer brewed there by reason whereof he became indebted to the Plaintiff in such a sum For which the Plaintiff procured the said Gilbert to be Arrested and put into the Prison of the Marshalsey And whereas the said Gilbert in dicta prisona existente the Defendant tunc ibidem in Consideration that the said Plaintiff would let the said Gilbert out of Prison Promised That if the said Gilbert should not accompt with the Plaintiff and pay him all the Arrearages which upon such Accompt should be found before such a day That then the Defendant would pay it Vpon which the said Gilbert was dismissed ad largum And further declared That no Accompt had been made by Gilbert or any other satisfaction And upon Non Assumsipt the Iury found That the said Gilbert so endebted to the Plaintiff was arrested at the Suit of the Plaintiff and that after the Defendant came unto the Baily of the Marshal who arrested the said Gilbert and took upon him to the said Baily That the said Gilbert should be at the next Court holden for the said Marshalsey by force and reason of which promise the Baily suffered the said Gilbert to go at large to his House c. and that after and before such Court the Defendant promised the Plaintiff modo forma as the Plaintiff had surmised in his Declaration And upon that Verdict the Plaintiff could not have Iudgment For here the Consideration layed in the Declaration is not found by the Verdict For Gilbert was discharged of the Imprisonment before the promise of the Defendant to the Plaintiff And the Declaration is That in Consideration quod dictus Gilbertus ad largum dimitteretur c. And Iudgment was given Quod Querens Nihil Capiat per Billam CXLII Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Mannor by plaint in the nature of a Writ of Right It was moved in the Common Pleas If a Precept might be made and awarded out of that Court for to execute the said Recovery and to put him in possession who recovered with the Posse Manerii as in such Cases at the Common Law with the Posse Comitatus But it was clearly Resolved It could not be done For force in such cases is not justifiable but by Command out of the Kings Courts CXLIII Iplett and Williams's Case Mich. 26 Eliz. In the Common Pleas. I Plett brought an Action upon the Case against
the now Plaintiff To which Endictment the now Plaintiff peaded Not guilty and upon that he was acquitted The Defendant pleaded That the now Plaintiff was endicted of the said death in the County of S. scil of the stroak and of the death of the dead in the same County To which the Plaintiff by Replication said That the said J.S. was struck in the said County of S. but died in the County of D. so as this Indictment found in the County of S. is void by the Common Law and by the Statute of 2 E. 6. the party ought to be Indicted in the County where the party died and not where the stroke was given And upon that Replication the Defendant demurred in Law. Broughton The Plaintiff ought to be barred 1. The Plaintiff was not lawfully accquitted for the proceedings are not by due process For upon the Writ of Appeal no Pledges are retorned Which see 11 H. 4. 160. Then if the Appeal was not duly sued the Plaintiff was not duly acquitted and then Conspiracy or Action upon the Case doth not lie For such suit doth not lie but where if the Plaintiff had been found guilty he should have Iudgment of life and member Which shall not be upon an insufficient Appeal 9 H. 5. 2. 2. Because it is not shewed in the Declaration If the Defendant did flie or not 3. The Declaration wants these words Falso Malitiose as they are in the Writ of Conspiracy And also it is not shewed If the Plaintiff in the Appeal be sufficient or not For if he be sufficient the Abettors shall not be enquired See Westm 2. And as to the Action it self he conceived That it doth not lie by Bill but by Originial Writ against those who are found Abettors See 2 E. 2. Fitz. Action upon the Statute 28. such suit by Writ But see 25 Eliz. It was holden Such suit doth not lie by Writ And see Book of Entries 43 44. Flemming to the contrary It needs not to be shewed That the Plaintiff found Pledges ad prosequendum For without that the Writ is good enough and although that the Writ be not well executed yet it is good For our Action is not grounded upon the Record of Appeal but at the Common Law and the Record is but Conveyance to our Action And also there needs not in the Declaration falso malitiose for they are implyed in the words Abettavit procuravit And he conceived That this Action is at the Common Law and not only upon the Statute of Westm 2. Which see Stamford 172. And see 3 E. 3. Fitz. Conspiracy 13. Conspiracy lieth upon an Endictment of Trespass as well as upon an Endictment of Felony for the Law hath provided remedy in every Case where a Man is damnified As 43 E. 3. 20. A Writ of Disceit was brought for that the Defendant by Fraud and Collusion had procured J.S. to brign a Formedon against the Plaintiff of such a Mannor by reason whereof the Plaintiff was put to great charges and holden maintainable And the Statute of West 2. is in the affirmative and therefore it doth not abridge the Common Law but the subject may take the advantage of the Common Law if he pleaseth For it may be that the Course according to the Common-Law will more avail him than that upon the Statute For upon the Statute Law If the Abettors have not any thing the party is without remedy but by the Common Law the party grieved shall have excution upon the body 13 E. 2. Conspiracy holden maintainable against one who procured one to sue an Appeal against the Plaintiff See Fitz. Conspiracy 25. Fitzh Na. Br. 98. If A. procures B. to sue an Action against me to vex and molest me an Action of Disceit lieth And as to the matter of the Endictment I conceive that it is not any bar For the Endictment is meerly void because it was found in the County where the stroke was and not in the County where the party strucken died where of right it ought to be and that by the Statute of 2 E. 6. Then if the Endictment be insufficient it is as no Endictment and then the Plea cannot excuse the Defendant Which see 20 E. 4. 6. If the Endictment be not sufficient the Appellee shall wage Battail and the Abettors shall be acquitted Vide inde 19 E. 3. Coron 444. 26 H. 8. 2. And by the Common Law the Plaintiff might at his pleasure bring an Appeal where the Plaintiff was strucken or where he died but in such case the tryal shall be by both Counties And 3 H. 7. 12. Appeal was brought in the County where the party was stricken And 44 H. 7. 18. the Appeal was brought in the County where the party died and there it is said That in an Appeal the Plaintiff may declare as if the thing were done in both Counties but the Endictment ought to be in one County only And 43 E. 3. 18. A Man strucken in one County and dieth in another County the Appeal shall be brought in the County where he died In an Action upon the Case brought in the County of Essex the Plaintiff Declared That the Defendant held certain Lands by reason of which he ought to repair a Wall in the County of Essex juxta le Thames and that the Plaintiff had Land in the County of Middlesex adjoyning to the said Wall and for want of repairing the said Wall his Land in the County of Middlesex was drowned and the Writ was allowed being brought in the County of Essex See 6 H 7. 10. Clench I conceive this Action doth not lie by the Common Law For no Writ of Conspiracy was at the Common Law before the Statute And vide F. N. B. 114. F. If the Plaintiff in an Appeal be Nonsuit Conspiracy lieth but contrary if he be acquitted for he shall have his remedy against the Abettors c. Plowden This Action lieth at the Common Law and an Endictment is no Plea in this Action and it is not grounded upon the Statute as a Conspiracy is and so it well lieth although the Abettors be not Enquired Gawdy Serjeant This is an Action by the Common Law For in all cases where one procures damages to another so as the party is put to charges an Action lieth a fortiori where the procurement extends to the danger of life And see F. N. B. 116. F. Men conspire to have a false Office found of my Lands which Office is found by such procurement Conspiracy lieth And the Statute of 2 E. 6. doth not alter the Law before for it is in the affirmative See the Statute Cap. 24. Gawdy Iustice Conceived That the Endictment did not excuse the Defendants in this Action but against those who are sworn to give Evidence for the King and not others For they may well procure an Appeal malitiously notwithstanding the Endictment Walmesley Serjeant conceived That the Action doth not lie at the Common Law For in
said Accompt the said Robston demanded allowance of 20 Marks by the year for the said 8 years for the Education of the said Arthur which was allowed to him so as now he shall not be received to demand allowance for the said 8 years for the Education of the said Arthur out of the Accompt of the said 100l and that was fully proved to the Iury. It was moved How the Iury should demean themselves in their Verdict For the Issue is That the Defendant had expended the whole 100l in the Education of the said Arthur and Anne And some were of Opinion If the Defendant had expended part in the Education of the said Anne only yet the Iury ought to find for the Plaintiffs For the Issue is entire upon the expending of the said 100l in the Education of the said Arthur and Anne without saying how much for the said Arthur and how much for the said Anne But Periam and Anderson Iustices were clear to the contrary Wherefore they advised the Iury to find specially if they conceived that the Defendant had expended any part of the 100l and to find it and how much And after the Iury found against the Defendant That nothing was expended c. And gave damages 20l. And the Iustices at the first doubted If damages should be given in an Accompt But at length they received the Verdict by the manner de bene esse See 2 R. 2. Fitz. Accompt 45. 2 H. 7. 13. 10 H. 6. 18. 21 H. 6. 26. And the Book of Entries 17. in such case damages were given CC. Tooley and Preston's Case Hill. 29 Eliz. In the Common Pleas. 1 Len. 397. 1 Cro. 206. 2 Len. 105. IN an Action upon the Case by Tooley against Preston which see Mich. 29 Eliz. Reported in Leon. 1. Part fol. 297. Iudgment was given for the Plaintiff And now upon the Retorn of the Writ of Enquiry of Damages It was moved That for as much as the Damages are excessive viz. 200l that the Court de Gratia would abridge the Damages But the whole Court was against it For that they as Iudges cannot know what prejudice and damage the Plaintiff hath sustained by the wrongful detaining of the said Recognizance but the Iury may well have notice of such matter And as the Case is here the damages are but incertain upon the Assumpsit For the Defendant assumed That if he did not redeliver the said Recognizance to the Plaintiff to pay him 1000 l. so as the damages are reduced to certainty by the promise of the Defendant himself And by Anderson If I bail to you an Obligation to rebail the same to me before such a day one 10l now upon not delivery at such a day I shall have an Action of Debt for the 10l contrary by Windham And by Anderson in the principal Case If the Defendant had pleaded Non Assumpsit and the Iury had found the promise they might have given 1000l damages without danger of an Attaint notwithstanding that the Plaintiff could not prove that he was damnified one penny and that by reason of the express Assumpsit of the Defendant CCI. Bingham and Squire 's Case Hill. 29 Eliz. In the Common Pleas. BIngham brought Debt upon an Obligation against Squire 4 Len. 61 The Condition was That if the said Squire procure a Grant of the next Avoidance of the Arch-Deaconry of Stafford to be made to the said Bingham so that the said Bingham at such next Avoidance may present That then c. And the Case was That afterwards by the means and endeavour of Squire the Grant of the said next Avoidance was made to Bingham But before the next Avoidance the present Arch-Deacon was created a Bishop so as the presentment to that Avoidance appertained to the Queen It was adjudged in this Case That the Condition was not performed and that by reason of these words So that Bingham may Present And afterwards the Plaintiff had Iudgment to recover CCII. Rolt's Case Hill. 29 Eliz. In the Common Pleas. THe Case was A Lease is made to two durante vita ipsorum alterius eorum diutius vivent absque impetitione Vasti durante vita ipsorum The one of them dieth Now although some conceived there was a difference between the Limitation of the Estate and of the Liberty c. for the Limitation of the estate seems to be more liberal Yet it was agreed by the whole Court That the Liberty runneth with the Estate and shall endure as long CCIII Farmer and Dorington's Case Hill. 29 Eliz. In the Common Pleas. AN Action upon the Case for these words I will prove Farmer to be a perjured Knave It was moved The words are not Actionable for it is not a meer affirmation But after many motions It was holden by the whole Court That upon those words an Action did well lie CCIV. Allen and Hill's Case Mich. 29 30 Eliz. In the Kings Bench. 1 Cro. 238. IN an Ejection Firme by Allen against Hill of a House in Cornhill in London Vpon Not guilty pleaded The Iury found this special matter viz. That one Francis Beneson was seised of the said House in Fee and 4 Eliz. devised the same to Anne his Wife for life in full satisfaction of all her Thirds in London and after her death to Tho. Beneson his Brother in Fee Proviso That if Anne clearly the words of the Verdict are totaliter depart out of London and dwell in the Country that then she shall have a Rent out of the said House And the Iury found further That Francis died without Issue and that afterwards Thomas died Robert being his next Heir And that 14 Eliz. Anne clearly departed out of London and went to Melton in the County of Suffolk And that afterwards Robert before any Entry released unto Anne and afterwards against his Release entred It was argued for the Defendant That by this Proviso and the departure of Anne out of London the Freehold was not out of her and vested in Robert before the entry of Robert For if it were out of Anne then is she but Tenant at sufferance to whom a Release made cannot enure And the words of the Will are not That her Estate shall cease And here as the case is Anne cannot be Tenant at sufferance to him in the Remainder betwixt whom and her there is not any privity See 18 E. 4. 25 26. Tenant for the term of the life of another the Remainder over in Fee Cestuy que vie dieth The Tenant remained Tenant until he in the Remainder entred upon him And so in our Case although Anne hath clearly departed out of London c. yet the Freehold of the House doth continue in her until the Entry of Robert and then the Release made to her is good Also the Breach of the Condition is not fully found For the Proviso is If she clearly departs out of London but it doth not stay there and dwell in the Country c. And
of the said Lands A. brought an Action of Covenant The Defendant pleaded That before the day of payment the Plaintiff put the said B. out of his Farm It was moved by Godfrey That the same is no plea For this is a Collateral sum and not for Rent issuing out of the Land Also the Defendant is a stranger to the Contract for the Farm. But the Opinion of the whole Court was clear to the contrary For the Defendant hath Covenanted That the Lessee shall pay for the said Farm and Occupation 40 l. so as it is as a Conditional Covenant and here is Quid pro quo and here the Consideration upon which the Covenant is conceived scil the Farm and the Occupation of it is taken away by the Act of the Plaintiff himself and therefore the plea is good and the Action will not lie CCVII. The Archbishop of York and Morton's Case Pasch 29 Eliz. In the Common Pleas. THe Archbishop of York recovered in an Assise of Novel Disseisio against one Morton before the Iustices of Assise 1 Len. 55. upon which Iudgment Morton brought a Writ of Error retornable before the Iustices of the Common Pleas And after many Motions at the Bar it was adjudged That a Writ of Error upon such Iudgment doth not lie in the said Court. Which see 8 Eliz. Dyer 250. See also N. B. 22. e. That upon Erroneous Iudgment given in the King Bench in Ireland Error shall be in the Kings Bench in England 15 E. 3. Error 72. And Fenner who was of Counsel with the Archbishop demanded of the Court How and in what manner the Record shall be sent back to the Iustices of Assise so as the said Archbishop might have Execution To which the Court answered That the surest way is to have a Certiorari out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by a Mittimus to the Iustices of Assise But Fenner made a doubt to take such Course for such remanding Then Anderson Chief Iustice said Sue Execution out of the said Record for in as much as the Record came before us by Writ of Error it shall also be removed and sent back by Writ And so it was done CCVIII The Queen and Hurleston's Case Hill. 29 Eliz. In the Kings Bench. 2 Len. 194. THe Queen brought a Scire facias against Hurleston to Repeal a Patent made to him of the Constableship of Chester and Iudgment was given for the Queen And now Hurleston brought a Writ of Error against the Queen in the Kings Bench. And it was moved by Gawdy Serjeant That the Writ did not lie for the manner for that he ought first to have sued to the Queen by Petition See 22 E. 3. 3. 23 E. 3. Fitz. Error 9. If the King recover by an Erronious Iudgment a Writ of Error cannot be granted upon such a Recovery sine gratia Regis speciali And he said That in Chester they have Courts of Common Pleas Kings Bench Exchequer and Chancery And that if Iudgment Erronious be given in the Chancery at Westminster It cannot be reversed but by Parliament and so it is of an Erronious Iudgment given in the Chancery at Chester Also he said They have a Custom in London That within one month they may reverse their own Iudgment See 23 Eliz. Dyer 376. Erronious Iudgment given in the 5 Ports cannot be reversed in the King Bench but it is reversable in the Court of the Guardian of the 5 Ports Clench Here both the parties claim by the Queen therefore there needeth no Petition for valeat quantum valere poterit it is no prejudice to the Queen Cook There needs no Petition here for the Attorny General hath subscribed our Writ of Error Egerton Sollicitor General It was the Case of Eliz. Mordant who was to reverse a Fine levied during her Nonage and the proceedings were stayed because she had not sued to the Qeen by Petition See the Case of 24 E. 3. 35. the Case of William de Ingularby who sued to reverse a Iudgment given against him in a Writ of Conspiracy in the Eyre of Derby and there it was said by Thorp Iustice That he must first sue to the King by Petition Wray An Outlawry may be reversed by bringing a Writ of Error without suing Petition to the King. CCIX. Beckwith's Case Hill. 29 Eliz. In the Common Pleas. 5 Co. 19. ROger Beckwich by Indenture Tripartite between him of the first part William Vavasour Frances Slingsby and Elizabeth Sister of Roger of the second part George Harvey and Frances Wife of the said George the said Frances being another of the Sisters of the said Roger of the third part Covenant with the aforesaid William Vavasour and Frances Vavasour his Daughter and with the aforesaid George and Frances cum quolibet qualibet eorum That the said Roger at the sealing and delivery of the said Indenture was lawfully and solely seised of the Rectory of Aldingfleet in the County of York discharged of all Incumbrances Francis Vavasour took to Wife Frances Slingsby And Note That by the same Indenture Roger Beckwith Conveyed the said Rectory to the said Francis Vavasour Francis Slingsby and Frances his Wife brought an Action of Covenant against the said Roger Beckwith and assigned the Breach in this That the said Roger was not seised of the said Rectory And Note That the Plaintiff declared of an Indenture bearing date at the Castle of York And upon the breach of the Covenant they were at Issue which was found for the Plaintiff and damages assessed and Iudgment given for the Plaintiff And Note That the Venire facias was de Vicineto Castri de York And upon that Iudgment a Writ of Error was brought in the Exchequer upon the new Statute and Error was assigned because all the Covenanters ought to have joyned in the Action of Covenant notwithstanding those words cum quolibet cum qualibet which words do not make the Covenant to be several And for that cause the Iudgment was Reversed Another Error was assigned because the Issue is not well and duly tryed For the Issue is upon the seisin of the Rectory of Aldingfleet in which case the Venire facias ought to have been de Vicineto de Aldingfleet And of that Opinion was Manwood and Anderson Iustices CCX Young and Ashburnsham's Case Hill. 29 Eliz. In the Common Pleas. IN an Action of Debt brought by the Administrators of Young against Ashburnham The Defendant pleaded Nihil debet And the Enquest was taken by default And upon the Evidence given for the Plaintiff the Case appeared to be this That the said Young was an Innholder in a great Town in the County of Sussex where the Sessions used to be holden And that the Defendant was a Gentleman of Quality in the Country there And he in going to the Sessions used to lodge in the house of the said Young and there took his lodging
and have day to plead CCXX Dicksey and Spencer's Case Mich. 29 Eliz. In the Common Pleas. THe Case between Dicksey and Spencer see H. 29 Eliz. Notwithstanding the Opinion of the Court of Common Pleas The Mayor and Aldermen of London reversed the Iudgment given in an Assise of Freshforce Vpon which Dicksey sued a Commission directed to Anderson Manwood and Periam to examine the said Iudgment ad errorem corrigendum And the Case was often Argued The principal matter was That Lessee for years in an Action of Debt brought against him for the Rent reserved claimed Fee by bargain and sale of his Lessor the which bargain and sale the Plaintiff traversed And it was argued Because this bargain and sale was traversed there was not any forfeiture in the Case for upon that both parties are at large As in a Praecipe quod reddat The Tenant disclaims and the Demandant avers him Tenant he shall not enter for that Disclaimer But all the three Iustices were clear of Opinion That notwithstanding the Traverse it is a forfeiture for the very claim is a forfeiture which cannot be saved by matter subsequent See 9 H. 5. 14. If Tenant for life be impleaded in a Writ of Right and joyns the Mise upon the meer Right it is a forfeiture Another Error was assigned Because where it is found that both the Defendants Disseisiverunt the Plaintiff but Spencer only with force and the Iudgment in the Assise of Freshforce was that ambo Capiantur where no force is found in Clark one of them yet such a Iudgment is good enough For the Assise have found a Ioynt Disseisin and that Clark was present at the said Force and then he particeps Criminis And of that Opinion were all the 3 Iustices And it way Objected That forasmuch as Clark is Convicted of force upon the matter for both ought to be taken therefore the Damages ought to be trebled against both And the Court was in some doubt of that But clearly the Incrementum shall be trebled as well as the Damages taxed by the Assise And after many Arguments the said Iustices moved the parties to a friendly course to compound the matter For if we reverse the Iudgment given in the Hustings Then Spencer may have his Writ of Error upon the Iudgment in the Assise of Freshforce sic infinite And afterwards the parties put themselves to the Mediation and Order of the said 3 Iustices who at length made an end of the matter betwixt the said parties CCXXI The Lady Newman and Shyriff's Case Mich. 29 Eliz. In the Star-Chamber 4 Len. 25. THe Lady Newman Sister of James Wingfield lately deceased Exhibited a Bill of Complaint in the Star-Chamber against one Shyriff dwelling in Ireland and two others setting forth That the said Shyriff had forged a Deed purporting That the said James had by the same given to him all his goods and also that the said James had assigned to the said Shyriff a Lease for years of Lands in Ireland And also that the said Shyriff had procured the said two other Defendants to depose upon their Oath before the Town-Clerk of London That the said Deed was sealed and delivered by the said James as his Deed. It was moved by the Counsel of the Defendant's That these matters of Forgery are not within the Statute of 5 Eliz. nor also the Perjury or the procurement of it Whereupon the Lords of the Council referred the Consideration of the said Statute to both the Chief Iustices who the next Court-day declared their Opinions upon the said Matters 1. That the said Statute did not extend to forgery of a Deed conveying a gift of Chattels personals Which see by the Statute which as to that point extends but to Obligations Bills Obligatory Acquittance Release or other discharge And also a Deed of an Assignment of a Lease of Land in Ireland is not within the said Statute And also the said Iustices were of Opinion That this Perjury and the procurement of it is not punishable by the said Statute because the Oath was taken Coram non Judice For the Town-Clerk of London cannot minister an Oath in such case no more than a private person But because the Bill in the perclose and Conclusion of it was contrary to the Laws and Statutes of this Realm The said Chief Iustices were of Opinion That the said Court might punish those offences as misdemeanors at the Common Law but not according to the Statute And afterwards Shyriff paid for a Fine 3 l. and by Order of the Court was set in the Pillory CCXXII Middlemore's Case Mich. 29 Eliz. In the Kings Bench. MIddlemore brought an Action upon the Case for these words scil Middlemore is a Cosening Knave for he had me to Coventry and there cosened me of 40 s. And afterwards had Iudgment to recover And now the Defendant brought a Writ of Error in the Exchequer-Chamber and there the Opinion of the whole Court was That the said words were not actionable And the Case of one Egerton was remembred Thou art a Cosening Knave Coroner For thou hast Cosened me of my Land. The Plaintiff in that Case could not have Iudgment For he was not particularly charged in respect of his Office. And Note That in this Case of Error the Defendant pleaded an Outlawry in the Plaintiff and being barred in that he pleaded now an Excommengement in the Plaintiff and shewed the Letters of Excommunication Vpon which it appeared That the Plea was pleaded before the Outlawry was pleaded And it was Ruled by the whole Court That this Plea lieth not for the Defendant For he cannot have two Pleas to the person of the Plaintiff but where his second Plea is matter of later time since the first Plea And afterwards the said Iudgment was reversed CCXXIII. Barns Executor of the Bishop of Durham and Smith's Case Mich. 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of Durham 2 Len. 21. brought Debt for Arrearages of Rent reserved upon a Lease for years of certain Mines demised to Smith scil Mines called Argill and Mines called Greenbourn and it was against the Executors of Smith The Defendant pleaded as to parcel Non detinet and as to other parcel of the Arrears That in the Indenture of demise there is a Covenant Quod si contigerit that the said Lessee impeditus fuerit quominus Mineris praedict gaudere possit That then so much of Rent should be deducted amounting to the value of the Mines he could not enjoy c. And pleads in facto quod impeditus fuit quo minus gaudere potuit Mineris praedictis c. And it was found for the Plaintiff And it was moved by Cook in arrest of Iudgment That here is not any place shewed where these Mines were so as Non constat from what place the Visne shall come As if in an Action as here the Plaintiff Declares of a Lease made of Land called R. in
all which he lost c. Wray The Bishop shall joyn for Conformity of Law and for privity of Record and the Plea of the Bishop is not so strong as a Disclaymer For in case of a Disclaimer the Iudgment is That the Plaintiff shall take nothing by his Writ but in the case of the Bishop here the Iudgment is Quod querens recuperet praesentationem suam versus dictum Episcopum ad Ecclesiam praedictam See 35 H. 6. 4. Fitz. Error 35. And afterwards in the principal Case the Writ of Error was awarded good CCXXIX Williams and Linford's Case Trin. 29 Eliz. In the Kings Bench. EDward Williams brought an Action upon the Case against Linford 2 Len. 111. for slanderous words concerning the Title of the Plaintiff's Lands viz. Williams is nothing worth and do you think that the Mannor of D. is his It is but a Compact betwixt his Brother Thomas and him And declared further That at the time of the speaking of these words there was a Communication with one J.S. to give the said J.S. the said Mannor of D. for his Mannor of R. and that by reason of the said slanderous words 1 Cro. 346.787 the said J.S. durst not proceed in the said intended exchange It was Objected That upon this matter an Action upon the Case did not lie because the slanderous words were not spoken to him who should be purchasor of the Lands but unto a stranger For in the Case betwixt Smith and Johnson Johnson was in speech with one to sell his Land to him and Smith said to him who should be the purchasor of them Will you buy Johnson's Land Why it is troubled with more Charges and Incumbrances then it is worth Wray There is not any difference be the words spoken to the parties or unto a stranger for in both Cases the Title of the Plaintiff is slandered so as he cannot make sale of it It was adjudged for the Plaintiff CCXXX Mich. 29 Eliz. In the Common Pleas. A Poor Woman brought an Action of Trespass for breaking of her Close and declared of a Continuance by 6 years And upon Nihil dicit had Iudgment to recover Vpon which a Writ of Enquiry of Damages issued forth and now came the Woman and shewed to the Court That the Iury had found too little Damages scil but 40 s. whereas the Land was worth 5 l. per annum and that the Trespass had been continued for 6 years and prayed that the said Writ might not be received and that the Court would award another Writ to have a better Enquiry of the Damages But the whole Court denyed it For so there might be infinite Enquiries But some time at the request of the Defendant when excessive Damages are found or any misdemeanour is alledged in the Plaintiff in procuring or using such a Writ of Enquiry of Damages We use to relieve the Defendant with a new Writ but never the Plaintiff because it is his own Act. And by Rhodes The late Countess of Darby brough a Writ of Dower and had Iudgment to recover and she surmised That her Husband died seised and prayed a Writ of Enquiry of Damages and had it And because too small Damages were found she would have suppressed the said Writ and procured another but she could not have it And at the last she was driven to bring in the said Writ Which she did accordingly CCXXXI Lawson and Hare's Case Mich. 29 Eliz. In the Common Pleas. 2 Len. 74. IN a Replevin by Lawson against Hare of the Temple who Avowed because he himself was seised of a Hundred And that he himself and all those whose Estate he hath in the said Hundred have used to hold a Leet within the said Hundred at such a place every year And that at every time such Leet should be holden The Inhabitants within the said Precinct have used to pay to the Lord of the Leet 16 d. for the Leet-Fee and that they have used to distrain for the same And shewed That at a Leet there holden 5 July 26 Eliz. c. The Plaintiff replyed absque hoc that they used to distrain And it was found for the Defendant And it was moved in arrest of Iudgment Because the Defendant in making his Title to the Leet by Prescription Conveys the Hundred to him by a Que Estate without shewing a Deed of it See 11 H. 4. 242. Quod fuit concessum per Anderson Windham Periam and Rhodes contrary But if the Hundred it self had been in Question then the Exception had been material but here the Defendant intitles himself to a thing by reason of the Hundred and then it is sufficient for him to say That he is seised of the Hundred be it by right or by wrong Admit That by this not shewing the Avowry be vitious and defective It is to be considered if it be not helped by the Statute of Jeofail's 1 Cro. 217.245 18 Eliz. And therefore it is to be considered If an Avowry be within the meaning of the said Statute Anderson Although that the Avowant be quasi an Actor to have a Retorn of the Cattel if the Distress be adjudged lawful yet in truth he is Defendant and not Plaintiff And if the Defendant will justifie the taking and not avow he is meerly Defendant And although that he avow to have a Retorn yet he cannot be said Plaintiff no more than the Tenant who voucheth over another to recover in value may be said Plaintiff And therefore an Avowry cannot be said a Count or Declaration but a Answer to the Count or Declaration Windham and Periam conceived That an Avowry is within the Statute For it comprehends title And an Answer to an Avowry is said a Bar to an Avowry and an Avowry is in the place of a Declaration Admitting That an Avowry is within the Statute If the not shewing of the Deed be such a defect which may be helped by the Statute Anderson conceived That it was But the Plaintiff might have demurred upon the Avowry for not shewing of the Deed and have had iudgment But when he hath traversed the Prescription as to the point of the distress and the same is found against him Now it shall be intended that the Avowant hath a Deed although he hath not shewed it Windham The Title of the Avowant to the Hundred is the Foundation and ground of the Suit for if the Avowant hath not a Deed to make him a sufficient title to the Hundred he cannot have the Leet and if no Leet then no Leet-Fee and then the Avowant hath no cause to distrain Another Exception was taken to the Avowry because the Avowant hath not shewed any Seisin of the Leet-Fee And by Periam Such a seisin ought to be shewed in some person certain For although it needs not always to lay a Seisin in shewing by whose hands the seisin was had for the Inhabitants are charged and no person certain yet the seisin ought to be
and it was assigned for Error because that in the Declaration it is alledged That the Wife Administred the Goods of the Intestate and did not shew that she was Administratrix c. and took Letters of Administration 2. It is not alledged That the Wife had Goods of the Testator at the time of the promise for otherwise she shall not be bound For it is but Nudum pactum for Executors or Administrators not having Assets shall not be charged And it was holden here That Request is not necessary for the debt was before the promise so as the Request is not any cause of the Action CCLIII Matthews's Case Pasch 30 Eliz. In the King Bench. NOte That a Bill of Perjury upon the Statute of 5 Eliz. was sued by the Queen and the party because that the Defendant being one of the Homage c. did present with the rest of the Homagers That the Plaintiff had cut down certain Trees c. Whereas in truth he had not cut down any And it was holden by all the Iustices That for this matter the Bill did not lie upon this Statute For this branch of the Statute is to be intended of Perjury in Depositions only And by Tanfield A Bill doth not lie upon the Statute upon Perjury committed in an Answer to a Bill in Chancery See 41 Eliz. Flower 's Case CCLIV Trin. 30 Eliz. In the Common Pleas. Co. Rep. Gatewards Case IN a Replevin The Defendant avowed for Damage Feasant The Plaintiff in bar of the Avowry shewed That every Inhabitant in every Messuage in the said Town had used to have Common in the place where c. Glanvile argued That the prescription was not good for want of Capacity in the party who pretends Interest for it is not certain but applyed to a Multitude and he put divers Cases in proof of it 22 H. 6. 21 H. 7. 1. Mar. Dyer 100. The King grants a Rent probis hominibus of Islington the same is void for they are not capable Harris I conceive That the Prescription is good And he granted That a confused Multitude cannot prescribe in a matter of Interest but in an Easement or discharge As in a Way to the Church and that by reason of Custom in the Land and not in the persons See 7 E. 4. 26. Where it is pleaded That all the Inhabitants within such a Town time out of mind c. have used to have Common there c. And for a Township to have a Way to the Church And good by Danby And by Littleton it ought to be pleaded by way of usage And 18 E. 4. 3. All the Inhabitants of such a Town may well prescribe And he cited Bracton 222 223. Communia quandocunque ex longo usu sive constitutione cum pacifica possessione continue non intermixta ex scientia negligentia patientia Dominor ' ita etiam amitti potest per negligentiam non usum And he vouched Britton fol. 144. Common is obtained by long sufferance and also it may be lost by long negligence c. CCLV. Pye and Grunway's Case Mich. 30 Eliz. In the Common Pleas. IN Trespass brought by Pye against Grunway and one B. The Plaintiff declared against Grunway only who pleaded not guilty And it was found for the Plaintiff And in Arrest of Iudgment it was moved That the Plaintiff in declaring against one only had falsified his own Writ To that it was said That at the uttermost it is but a discontinuance so but matter of form and so relieved by the Statute of 18 Eliz. But it was said by the Court that it may be That B. was outlawed at the Plaintiffs suit and then the proceedings is determined as against him And the Court demanded of the Clerks If the use of the Court be not so in such case to declare That Grunway simul cum B. utlagat ad sectam Querentis did the Trespass Who answered Not in this Action but in an Action of Debt it is otherwise And afterwards notwithstanding that Exception Iudgment was given against the Plaintiff CCLVI. Thorp and Wingfield's Case Trim. 30 Eliz. In the Common Pleas. IN Waste the Plaintiff declared upon a Lease for years generally and the truth of the Case was That the Plaintiff had made a Lease for years to one A. which Lease being in force for two years he Leased the same Lands for years as he hath declared to begin presently and the Waste which is assigned in the Declaration was done during the first Lease And now If the Defendant upon this matter might plead No waste done was the Question And it was said by the Court That such a plea should be perilous for the Defendant for it shall be found against him and if he pleadeth the special matter aforesaid scil The former Lease in esse at the time of the Waste committed after the expiration of which Lease no Waste was done If the second Lease be not by Indenture it should be a good Plea but if by Indenture then the Plaintiff would estop him by the Indenture to shew that the second Lease hath another beginning than the Indenture purports and then the Waste shall charge the Defendant And although the Plaintiff had not declared upon a Lease by Indenture yet if the Defendant pleaded the special matter aforesaid he by way of Replication shall estop the Defendant to plead any other beginning of the Term than the Letter of the Indenture doth purport and the same shall be no Departure for it is matter which strengtheneth the Declaration CCLVII Botham and the Lady Gresham's Case Pasch 30 Eliz. In the Common Pleas. IN a Prohibition by Botham and Couper 1 Len. 94. 1 Cro. 71. 1 Len. 128. Post 265. against the Lady Gresham who had impleaded them in the Spiritual Court for Tythe-Hay and made their Suggestion That time out of mind c. they had paid to the Vicar of the said Parish 4 d. for the Tythe of Hay of every Acre It was moved That upon that surmise a Prohibition ought not to be granted for that a Modus Decimandi shall never come in Question But the party ought to have pleaded the same matter in the Spiritual Court scil That the same doth appertain to the Vicar and not to the Parson and then if the Vicar sueth for the Tythe of the Hay the Modus Decimandi will come in Question and although that he hath averred in his surmise that the Tythe-Hay belongeth to the Vicar yet that is not material And afterwards a Consultation was awarded CCLVIII. Rush and Heighgate's Case 30 Eliz. In the Exchequer 2 Len. 121. Co. 4. Rep. Palmers Case PRocess was awarded out of the Exchequer against Rush for the levying of the sum of 200 l. which he owed to the Queen Vpon which It was found by Office That Rush 22 Junii 22 Eliz. was possessed of Lands for the Term of divers years then and yet to come And the Debt of the Queen began
12 Feb. 17 Eliz. And upon the Retorn of this Office came one Heighgate and shewed That the said Rush 16 Eliz. was possessed of the said Lease and the same year assigned the same to the said Heighgate and traversed the Office. Exception was taken to the Inquisition Because that the Lease is not certainly set forth scil the number of the years in certainty Cook The Office is sufficient enough notwithstanding this Exception for the Queen is a stranger to the Lease and therefore she shall not be driven to set forth the certainty See 7 E. 6. Plowden 85. Partridge's Case upon the Statute of 32 H. 8. concerning pretended Titles c. there the Informer declared That ihe Defendant had Leased Lands for years against the said Statute c. without shewing the number of the years and the Information was holden good enough for it is impossible that a stranger have notice of every certainty c. and it is dangerous to meddle with such a particular certainty of the Lease and to miss it And in this Case for as much as Heighgate comes to this Lease not by voluntary Contract but by compulsory means scil by Execution upon the Statute he cannot by common Intendment have notice of every particular Circumstance and Article of the Lease as he may in case of a voluntary Contract And also although in pleading the number of the years ought to be expressed yet in an Inquisition such precise pleading is not requisite See 15 H. 7. 7. An estate tail and dying seised of it was found by Office without shewing of whose gift it was and good enough CCLIX Trin. 30 Eliz. In the Exchequer ONe exhibited a Bill in the Exchequer Chamber upon the Statute of 2 E 6. Cap. 13. to have the treble value for not setting forth his Tythes according to the said Statute But it was clearly holden by the Court That the Bill did not lie upon that matter for the Plaintiff hath his remedy for the same in the Court of Pleas in the Exchequer And also for that there shall be no suit or proceedings according to the Order of the Exchequer Chamber in Cases of Conscience upon any penal Statute CCLX Body and Tassell's Case Trin. 30 Eliz. In the Exchequer NOte That in the Case between Body and Tassell It was holden by Baron Clark That if a Man lendeth Mony and for the forbearing of it contracts for more than 10 l. in the 100 l. That the Bond made for it is void presently and that if he doth receive excessive Interest that he shall forfeit treble the value CCLXI Markham and Pitts's Case Trin. 30 Eliz. In the Kings Bench. IN an Action upon the Case upon a Trover by Markham against Pitts the Defendant after an Imparlance pleaded an Outlawry of the Plaintiff And it was holden by some to be a good Bar and therefore it may be pleaded after Imparlance As 16 E. 4. 4. in Debt upon a Specialty But not in Debt upon a Contract Trespass Battery Imprisonment c. for such matters the King shall not have by Outlawry CCLXII Crane and Juniper's Case Trin. 30 Eliz. In the Kings Bench. THomas Crane brought an Action upon the Case against Juniper and one John Matthew upon an Assumpsit and declared That in Consideration that the Plaintiff took upon him That whereas William Matthew was endebted unto him in divers sums of Mony at the time of the death of the said William that he would not molest the said Defendants being Executors of the said William Matthew before the 10th day of May next following the Defendants promised to pay to the Plaintiff debitum praedict at the said 10th day of May And declared further Quod non molestavit and yet although saepius requisit the Defendants had not paid him c. And upon Non Assumpsit pleaded It was found for the Plaintiff And it was Objected That the Plaintiff had not maintained nor averred his Assumpsit for the words of it are Non molestavit nominatos Executores Testamenti ultimae Voluntatis William Matthew but he ought to have averred more specially quod non molestavit Juniper Matthew named Executors of William Matthew nor any of them by their names Also he ought to have pleaded Quod non molestavit before the said 10th day of May according to his promise And also he ought to have shewed in his Declaration how that he did not trouble them for the Debt of the Testator c. CCLXIII Walcot and Powell's Case Pasch 30 Eliz. In the Kings Bench. THe Case was That in an Action of Debt brought against the Husband and Wife The Plaintiff declared upon an Obligation made by the Wife dum sola fuit and the Writ was in the Detinet tantum And upon Iudgment given in that Action a Writ of Error was brought in the Kings Bench And that matter was assigned for Error And by Cook The Writ ought to be in the Debet Detinet for the Husband hath the Goods of the Wife in his own right and so is the Register 140. CCLXIV Wigmore and Wells's Case Pasch 30 Eliz. In the Kings Bench. THree were bound in a Bond by these words Obligamus nos quemlibet nostrum Conjunctim And it was holden by the Court to be a joynt Bond and not several for the word Quemlibet is expounded by the word Conjunctim CCLXV. Pasch 30 Eliz. In the Exchequer IT was holden by the Court in this Case That if a stranger entreth upon the Farmor of the Queen that by such Entry he hath gained the Estate for years and if he doth make a Lease unto another his Lessee may maintain an Ejectione Firmae CCLXVI. Abbot's Case Pasch 30 Eliz. In the Kings Bench. ALice Abbot brought an Action upon the Case upon 5 several Assumpsits and in the close of her Declaration it was Et praedict J.S. licet saepius requisitus c. and so there was but one licet saepius requisitus to all the 5 Assumpsits whereas every several Assumpsit ought to have his several demand for one general Request for all is not sufficient For it hath been adjudged Where one is endebted to me severally in several sums of Mony made upon request or demand made And I go to him and say to him Pay me what you owe me the same is not a sufficient demand or request Wray If one lendeth me Mony to repay it when he shall be required Licet saepius requisitus is not sufficient but if the Plaintiff declareth upon a Cum indebitatus fuisset the Defendant assumed to pay there Licet saepius requisitus is sufficient CCLXVII Stackford's Case Pasch 30 Eliz. In the Kings Bench. STackford was endicted for disclosing the Counsel of the Queen and of his Companions being sworn upon the Grand Enquest for the County of Middlesex in this manner It was intended by the Iury to endict the Brother of the said Stackford as a common Barrettor and he disclosed the same to
to prevent all acts and charges made mean by the Vendor yet it shall not relate to vest the Estate from the time of the delivery of the Deed For the Vendee cannot punish a Trespass Mean And if the Vendee hath a Wife and the Vendee dieth before Enrollment and afterwards the Deed is enrolled she shall not be endowed but here shall be some descent to take away an Entry yet the Heir shall have his age But in our Case it is otherwise for by the Waiver the Ioynture was waived ab initio And he cited Carrs Case 29 Eliz. in the Court of Wards The King granted the Mannor of C. to George Owen in Fee tenend in Socage and rendring 94 l. per annum And afterwards granted 54 l. parcel of the said Rent to the Earl of Huntington in Fee to be holden by Knight-service in Capite and afterwards purchased the said Rent in Fee And afterwards of the same Mannor enfeoffed William Carr who devised the same for the payment of his Debts And it was holden That the devise was good against the Heir And the King was not entituled to Livery or Primer Seisin And therefore the Defendant was dismissed But peradventure the Queen shall have benefit of the Act. See Cook 3 Part 30 31. Butler and Baker's Case The King gives Lands unto A. in Fee to hold by Knights-service during his life and afterwards to hold in Socage He may devise the whole For at the time when the devise took effect he was Tenant in Socage Lands holden in Knight-service are given to J.S. in tail scil to the Heirs Males of his Body the Remainder to the right Heirs of J.S. J.S. deviseth these Lands and afterwards dieth without Issue Male the same is good for two parts yet during his life he had not an Estate in Fee in possession The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite and afterwards purchaseth a Mannor holden in Socage and deviseth the said Mannor and dieth his Heir within age the Devise is good for the whole and the King shall not have Wardship of any part and that in respect of the Remitter and yet it is within the words Having sole Estate in Fee of Lands holden and within the Saving Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service seised of two Acres in Fee holden ut supra makes a Lease for three Lives of the Acre entailed reserving the accustomed Rent and afterwards deviseth the other two Acres in Fee and afterwards dieth seised of the Reversion and Rent The same is a good devise of all the two Acres And here is an immediate descent of the third part for the same is within the words In Possession Reversion or Remainder or any Rent or Service incident to any Reversion or any Remainder See the Statute of 34 H. 8. A Man seised of three Acres of equal value holden by Knight-service in Capite assureth one to his Wife for her Ioynture by Act executed and deviseth another to a stranger And the third to his Wife also The King in this case shall have the third part of every Acre But if the stranger waiveth the devise the King shall have the Acre to him devised and the Wife shall retain the other two Acres and it shall not go in advantage of the Heir So if he deviseth the said three Arces severally to three several persons to each of them one Acre and the one Waives the devise in one Acre The devise of the other two is good Or otherwise the King shall have the third part of every Acre c. CCCLXVII Mich. 35 Eliz. In the Common Pleas. 5 Co. 29. THe Case was An Enfant was made Executor And Admimistration was committed to another viz. A. durante minori aetate who brought an Action of Debt against the Debtor and recovered and had him in Execution and now the Executor came of full age It was moved What should be done in this Case and how the party should be discharged of the Execution for the authority of the Administrator is now determined and he cannot acknowledge satisfaction or make an acquittance Windham Although the authority of the Administrator be determined yet the Record and the Iudgment remain in force But peradventure you may have an Audita Querela But he conceived That an Administrator could not have such Action for that he is rather a Bailiff to the Enfant than an Administrator See Prince's Case 42 Eliz. Cook 5 Part 29. Which Rhodes concessit A. was bounden unto B. in an Obligation of 100 l. upon Condition to pay a lesser sum The Obligee made an Enfant his Executor and died Administration was committed durante minori aetate to C. to whom A. paid the Mony It was doubted If that payment was rightful or If the Mony ought to have been paid to both Windham Doth it appear within the Record That the Enfant was made Executor and that Administration was committed ut supra To which it was answered No. Then Windham said You may upon this matter have an Audita Querela In this Case It was said to be the Case of one Gore 33 Eliz. in the Exchequer in a Scire facias by an Assignee of a Bond against an Enfant Executor He pleaded That the Administration was committed to A. and his Wife during her minority And it was adjudged no Plea. CCCLXVIII Mich. 35 Eliz. In the Common Pleas. NOte It was the Opinion of all the Iustices Jones Rep. 243. That if Lessee for 20 years makes a Lease for 10 years that he may grant the Reversion without Deed but in such case if there be a Rent reserved there ought to be a Deed and also an Attornment if the Rent will be had And it was agreed by them all That if there be Lessee for years and the Lessor granteth the Land to the Lessee and a stranger that the Reversion shall pass without Livery or Attornment and that by the Acceptance of the Deed by him who ought to Attorn But whether he shall take joyntly or in Common or whether in a moyety or in the whole the Iustices were of divers Opinions Ideo Quaere for it was not Resolved FINIS A TABLE of the principal Matters contained in the Third Part of LEONARD'S Reports A. ABatement of Writ Page 2 4 77 92 Ex Officio Curiae p. 93 Accompt p. 38 61 63 Damages given in it p. 150 Damages given in it not expresly but the Court shall give Quoddam Incrementum p. 192 Brought by the Grantee of the King against an Executor where maintainable where not p. 197 Generally brought where good p. 230 Acquittance Must be shewed upon payment of Debts by Executors p. 3 Action upon the Case For stopping of a way p. 13 Against one for proceeding to Judgment and awarding of Execution in an inferiour Court after an Habeas Corpus awarded p. 99 Where lieth
for procuring a Warrant from a Justice of Peace upon a surmise to arrest one upon suspition of stollen Goods p. 101 For stopping of a River whereby the Plaintiffs Lands are drowned though the Plaintiff had no Title in the Land at the time of the first stopping of it p. 174 Lieth not for the not delivery of a Greyhound upon an Assumpsit made thereof p. 219 For publishing a scandalous Bill p. 138 Either the Action or an Assise at the election of the party for a disturbance of him to take his Common p. 263 For Words p. 171 269 Action upon Statutes Brought upon the Statute of 2 Ma. the Defendant shall not have costs in it by the Statute of 23 H. 8. p. 92 Upon the Statute of 21 H. 8. of taking Lands to Farm by spiritual persons to what Leases it shall extend p. 122 A Bill in the Exchequer-Chamber lieth not to have the treble value upon the Statute of 2 E. 6 cap. 13. p. 204 Upon the Statute of Hue-and-Cry lieth not against the Hundred for a Robbery committed in the persons house p. 262 Advowsons Where by grant of Advowson the Rectory Appropriate doth not pass p. 111 Agreement Made by a Parson with a Parishioner in consideration of 20 s. per annum he shall be discharged of Tythes during the life of the Parson not good without Deed p. 257 Amendment Of the Proclamations upon a Fine levied p. 107 Amercement Of the Hundred for the escape of a Felon where not good p. 207 Annuity Pro consilio impendendo not grantable over p. 185 Appropriation and Disappropriation Of a Church must be by a judicial Act and not by a private Act of the party Apportionment Not of a Release p. 13 Arbitrament and Award To perform an Act to be done by a stranger not good p. 62 To pay Mony such a day to a stranger or his Assigns and he dies before the day it must be paid to his Administrator or his Assigns p. 212 Assumpsit Where and in what Case lieth against an Executor where not p. 69 Where the consideration is not good to ground an Action upon it p. 88 128 The Plaintiff declares upon one consideration and the Jury find that promise was upon that and another consideration the Plaintiff cannot have judgment p. 91 Declaration in it where not good because levied so general p. 91 For the performance of an Award where good p. 105 Where binds an Enfant though there be no present consideration p. 164 To forbear a Suit per paululum tempus no consideration in it p. 202 Within the Statute of 23 H. 8. of Sheriffs as well as an Obligation p. 228 Assignment Of a Debt to the King where good and how it shall retake p. 197 Upon an Assignment of a Debt to the King a Lease is found by Office the King not bound to set forth in the Inquisition the certainty of the Term p. 204 Attachment Cannot be by the Custom of London of a Debt which is depending in the Kings Courts of Record p. 210 236 244 Cannot be by the Custom before the Debt is due p. 236 Attornment what p. 17 Tenant by possibility of Issue extinct not compellable to Attornment p. 121 Upon a surrender of the Reversion and Rent by a Copyholder to the use of a stranger where it passeth without Attornment p. 197 The Lessor granteth the Reversion to the Lessee and to a stranger the Reversion passeth without Attornment p. 279 Averment That the Tenant was not seised where not good p 92 Not against a Deed enrolled p. 176 B. BAil Of an Enfant condemned and Execution for Debt where shall pay the Mony recovered p. 107 Bar In Avowry where not good p. 92 In Trespass where good where not p. 122 Recovery in one Action where a Bar in another p. 194 Outlawry pleaded in Bar after Imparlance where good p. 205 Bill Upon the Statute of 5 Eliz. for Perjury doth not lie upon a Perjury committed in an Answer in the Chancery p. 201 C. CErtificate Of the Ordinary of the inability of a Clerk refused by him he must certifie the particular cause of his refusal and a general Certificate is not good p. 199 Chancery After Judgment at Law cannot grant Injunctions p. 18 Chauntry What shall be said a Chauntry within the Statute of 2 E. 6. p. 115 Cinque-Ports Certiorari granted further to certifie a Record p. 3 Common Where obtained by long sufferance may be lost by long negligence p. 202 Common recovery Where not bar the issue in tail p. 143 Tenant in tail rendring rent suffers a common recovery of the Land if the Rent be gone p. 261 Condition Proviso where a Condition where not p. 16 Where broken where not p. 67 Where the words in a Will are viz. shall go about to sell his part shall for ever lose the same the words for ever shall be referred to perdere and not to vendere p. 181 None can enter for a Condition broken but the Lessor or one by his direction p. 269 Conspiracy Where it lieth upon an acquittal in an Appeal p. 140 Constable Cannot compel strangers who pass to Watch nor set them in the Stocks for refusing so to do p. 208 Constat Where must be made of a Patent enrolled vacated p. 165 Tenant in tail of the gift of the King surrenders his Letters Patents and a vacat is made of the enrolment it shall bind the issue in tail p. 165 Conusans of Pleas In a Writ of Right must shew before whom to be holden p. 148 Not grantable to an inferior Court against the priviledge of the Court of King-Bench p. 149 Of Pleas to the University of Camb. if they shall have Conusans upon an information upon the Statute of 7 E. 6. cap. 5. p. 214. 217 Copyhold and Copyholder For years shall go to Executors p. 9 Makes a Lease for years and afterwards surrenders the reversion and rent to a stranger who is admitted it passeth without attornment p. 197 The admittance by the Lord of a stranger to a Copyholder is no disseisin to the Copyholder for that an Estate at Will only passeth p. 210 Corporations Cannot stand seised to an use but may charge their Possessions with an use p. 176 Covenant To make Assurance how to be expounded p. 27 A. Covenanted to convey the Freehold to a Copyholder in consideration of a Covenant performed and the Copy-holder covenanted to pay such a sum he is bound to pay the sum before the Assurance made otherwise it was of a Covenant to be performed p. 219 Custom That the Lord of the Mannor might grants Copies in remainder only with the assent of the Tenants and not otherwise if good p. 227 Of the Mayor and Aldermen of London to make Acts and Ordinances to bind the Citizens and Free-men where good where not p. 264 D. DAmages Where Judgment is given for the Plaintiff and upon a Writ of Enquiry excessive damages are given by the Jury which Writ is
awarded not good p. 100 Two Matters are in Issue the Jury find the one and says nothing to the other if a good Verdict p. 149 Where eating and drinking of the Jurors at their own charges doth not make the Verdict void otherwise if at the charges of any of the parties p. 267 Unity Of possession where shall extinct a Common p. 127 Usurpation Where puts the King out of possession where not p. 17 W. WAger of Law Where cannot be upon an Agreement that one Creditor be acquitted against the other for Debt p. 212 258 Warrants Of Attorny to acknowledge a Deed not good p. 84 Warranty Tenant in tail of an Advowson in gross grants the same in Fee a collateral Ancestor releaseth with Warranty a bar to the Issue p. 212 Wasts p. 7 60 What a sufficient Plea in it what not p. 9 Wills General words in a Will where not enlarge special words before in it p. 18 Words in a Will or Testament conditional where construed not to give tail by Implication Upon a Devise for three where the words of the Will shall be taken distributively and not jointly p. 117 Not to be taken by Implication p. 131 In a Will a thing implyed shall not control a thing expressed p. 167 Withernam Upon return of a Withernam if the Plaintiff tendereth the Damages he shall have a special Writ to restore his Chattel p. 236 Writs In a recovery upon a Writ in the Court of a Mannor the party who recovered in it cannot be put in possession with the Posse Comitatus p. 99 In the nature of a Scire Facias out of the Court of Admiralty to repeal Letters Patents of an Office is good p. 192 FINIS An Exact TABLE to the Three Parts of Reports of Mr. William Leonard And a Correction of divers Mistakes in Printing of Cases and other Matters in all the Three BOOKS A Denotes the first B the second and C the third Book A Abatement of Writs IF one of three Executors die pend brevi the Writ abates A. 44. Administrator sued as Executor may abate the Writ if the Administrat was committed before Action brought A. 69. A Feme sole Plaintiff takes Baron the Writ is not abated but abateable A. 168 169. If matter of Abatement appear in any part of the Record the Court after Judgment will reverse the Judgment A. 255. Action does not abate if the Defendant die after the first Judgment in Trespass and before the Return of the Writ of Enquiry A. 263. Death after Issue joyned no cause of Abatement in the Civil-Law A. 278. The Writ shall abate if it appear the Plaintiff cannot recover the thing in demand A. 333 334. In what Real Actions two Tenants may plead several Tenancy B. 8. It an Action shall abate after the Verdict if it appear to be brought before time A. 186 187. B. 20. Writ shall abate if the Feme be put before the Baron B. 59. Where upon pleading Joyntenancy or Villenage the Writ shall abate without any answer to the Pleas B. 161 162. Where a Writ shall abate Ex Officio Curiae B. 162. A Writ of Deceit not abated by the death of one Defendant C. 3. Abeyance In what Cases a Use may be in Abeyance B. 18. C. 21 22 23. The like of a Remainder B. 73. Acceptance Where the Issue of him in Remainder accepts the Rent of Tenant for life it is a good affirmance of his Estate A. 243. What Acceptance of Rent by Lessor shall bar him of his Re-entry for non-payment A. 262. The Acceptance of Rent by the Feme confirms the Lease of the Husband C. 271. The like by Issue in Tail of a Lease not warranted by the Statute C. 271. The like by an Infant at his full Age C. 271. The like of a Lease by a Predecessor and the Successor accepts the Rent C. 271. By the Wives Acceptance of Dower out of Lands exchanged she agrees to the Exchange C. 271. One disclaims and after the Lord accepts the Rent of the Tenant the Lord is barred of his right Sur Disclaimer C. 272. Pending a Cessavit Tenant aliened the Lord accepts Services from the Alienee he is barred C. 272. Accord and Concord No Bar if not executed A. 19. C. 212. Account Duresse a good Bar to it A. 13. Capias ad Comp. after a former executed A. 87. The power of Auditors A. 219. Of what things an Auditor by Deed may make Allowance A. 219. The power of an Auditor deputed by a private person A. 219. The difference of an Auditor deputed by Parol and by Deed A. 219. After Account and the Defendant found in Arrear and then the Defendant dies yet the Plaintiff shall recover A. 263. Lies not for the profits of Lands if the Defendant were in by Title A. 226. C. 24. If the Jury ought to assess Damages A. 302. B. 118 196. C. 150 192 230. What may be pleaded in Ear or must be pleaded in discharge before the Auditors B. 30 31 195. If a Factor account to one of many joynt Traders it is sufficient B. 75 76. If the Defendant plead that the Plaintiff gave him the Goods he must traverse that he was Bailiff to render account B. 195. If it lies against a meer Trespasser or wrongdoer C. 24. Where Account or an Action upon the Case lies against one who receives Mony to buy Cattle and does not buy them C. 38. In some Cases it lies against an Apprentice C. 62. Action upon the Case for Tort See Nusance Trover Slander For Erecting a Fould-course in disturbance of the Lord who had one by Prescription A. 11. By a Father against the Master of his Son for beating and laming his Son whereby he was disparaged in Marriage A. 50. Where it lies for malitiously indicting of Felony A. 107 108. Lies and not Trespass for pulling down Hurdles in a Market A. 108 109. Lies against an Under-Sheriff who took Mony to return but did not return a Summons A. 146. Against a Justice of Peace for Arresting one for Felony without accusation A. 187. Against a Mayor for not taking Bail to an Action A. 189. By Tenant in ancient Demesne for taking Goods for Toll A. 231 232. B. 190. By a Sheriff against a Prisoner who escaped out of Execution satisfaction being acknowledged A. 237. If it lies for retaining anothers hired Servant A. 240. Lies for a Tenant in Fee for a Nusance though he may have an Assise A. 247 273. Con. C. 13. If it lies for diverting a Mill-stream without Prescription A. 273. If it lies against a Justice of Peace for refusing to examine one who is Robbed A. 323 324. For conspiring with a Factor to cheat the Plaintiff who was a Joynt Trader with the Defendants in Account B. 75 76. For laying too much weight on a Floor which fell into the Plaintiffs Wares B. 93. An over-loading a borrowed Horse B. 104. By a Commoner for over-charging the Common with Conies B. 203. Against
an Under-Sheriff proceeding after an Habâ—as Horpus delivered C. 99. If one whose Goods are stole desire the Justice to examine one no Action lies unless he charge some one positively C. 100 101. Lies no for exhibiting an Indictment which purported that the Plaintiff was a Disquieter of the Neighbors C. 123. For prosecuting a slanderous Bill against the Plaintiff to the King that the Plaintiff had got 100 l. by Forgery C. 138. For procuring J. S. to sue an Appeal of Death against the Plaintiff C. 140 141. For maliciously indicting the Plaintiff of what offences it lies C. 140 141. If such Action lies if the Appeal were Erroneous C. 140 141. A. 279. Action upon the Case for Assumpsit See Consideration and Request Lies for Rent where the Action is changed from the Baron and Feme to the Baron only A. 43. Lyeth in consideration to forbear parum tempus A. 61. Where it lies not for a Rent A. 155 156. contra B. 107. To pay Mony at two or more days when the Action must be brought A. 319. B. 108 221. If in such Action the consideration be laid to be at the Defendants request the performance of the Consideration must be averred to be done at his request B. 53. C. 91. If it be a good Bar that the Plaintiff did discharge the Defendant B. 214 203 204 If it lies against Bailee of the Plaintiffs Bailee who receiveth Mony to buy Goods and bought them not C. 38. Where this Action or Account lies C. 38. If the Defendant may plead in Bar another promise and traverse part of that in the Count C. 67. A special Assumpsit must be precisely found and averred else the Plaintiff shall not have Judgment C. 99 205. By a Sheriff for that the Defendant promised not to sue him for an Escape upon a Special Warrant granted at the Plaintiffs denomination C. 227 228. Action Popular Is vested in the Informer and the King or his Attorny cannot enter a Nolle pro sequi as to the Informer A. 119. In what Cases it must be brought in the Parties Name only or for the King and Party C. 237. Action upon the Statute Of 32 H. 8. cap. 9. of buying pretended Titles its necessary to alledge that the Defendant knew the Vendor had not been in possession A. 167 208. If the Action be brought pro parte gravata the Statute of 31 Eliz. 5. does not limit him to any time C. 237. Addition Must come before the Alias Dictus else it doth not satisfie the Statute B. 183. School-Master and Scrivener both good B. 186. No utlary without an Addition according to the Statute B. 200. Administrator and Administration Durante minori aetate of three ceaseth by the full age of any one A. 74. Husband Administrator to his Wife A. 216. The Ordinary may commit administration to whom he will if he will incur the penalty of the Statute A. 240. How to alledge Administration granted by a Chancellor or Vicar-General A. 312. Granted by a Bishop where the Intestate had bona notabilia c. is ipso facto void B. 155. If impleading Admistration granted by the Metropolitan bona notabilia must be alledged B. 155. It is the safest to pay Mony upon a Mortgage to the Infant and not to the Administrator durante minore aetate C. 103. Are assigns in Law and a Duty is payable to them though they be not and named in the specialty C. 2 2. Administrator during the minority c. hath one in execution and then the Infant comes of age the Administrator cannot release the Defendant nor acknowledge satisfaction C. 278. Admiralty No remedy there for extortion done on the Land A. 107. If they proceed by the Civil Law where the Common Law can decide the matter a Prohibition lies B. 103. How the Admiral Grants his Offices B. 115. Suit there for a moyety of prize Goods taken by two Ships whereof one did but stand still while the other seised B. 182. If by a Libel there it appear they have not Jurisdiction a Premunire lies B. 183. Action may be sued there upon a Bond made in France and no Prohibition lies C. 232. Advowson In gross cannot be made appendant A. 26. By what words the Advowson of a Vicaridge may be granted A. 191. Whether it pass from the King by the words Bona Catalla A. 201 202. To what it may be appendant A. 207 208. How an Advowson appendant to a Mannor may be granted A. 208. B. 26. C. 17 18 193 196. How an Impropriation may be disappropriated B. 80. Age. At what age a Man and Woman may consent to Matrimony A. 54. The second Vouchee in a Cui in vita shall have his age though the first should not B. 138. Agreement and Disagreement see Acceptance What shall vest in any person before or after Agreement A. 130. B. 223. If the Lords agreement to avoid admittance makes it good A. 288 289. Where an Interest shall be devested by Agreement en pais where not B. 72 73. To what time Agreement to a Disseisin or Feoffment shall have relation B 223. If an Agreement en pais to an Estate be good to devest an Estate C. 271 272 273. Amendment Of a Christian Name in a Plea in Bar after demurrer A. 24. What shall be amended by the Statute of 27 El. cap. 5. A. 80 81. Shall be to affirm a Judgment or Verdict not e contra A. 134. Of a Sheriffs Retorn A. 145. None of the Christian Name of a Juror after Verdict A. 267. Of a Judgment which was Ideo videtur Justic quod quer recuptret B. 1 2. If the Proclamation of a Fine which were wrong with the Custos Brevium and right with the Chirographer C. 106 107 183. Amerciament see Fine Annuity The Judgment therein B. 52. If the Term for which that is granted expire this Action lies not B. 51 52. An Annuity pro Consilio impendendo cannot be granted nor forfeited by attainder B. 122. Appeal Damages recovered in Trespass is a good Bar to an Appeal A. 319. Lies not for the Heir where the Feme poysons her Husband for it is Treason A. 326. If the Defendant shall be arraigned at the Suit of the King if the Appellant die before Judgment or be non-suited B. 83. Where auterfoits acquit or convict is a good Bar B. 83 160. If it be a Bar the Indictment being erroneous B. 160. Where it must be brought if the party die in another County than where the stroke was C. 140 141. See the Statute 2 E. 6. cap. 24. and W. 2. cap. 12. Of Appeals Defendant pleads Ne unques accouple c. Et si trove ne soit Not Guilty C. 268. If an Appeal from a Sentence in the High Commission Court B. 176 177. Appearance The form of recording it to save the Ball bound A. 90. Appendant Appurtenant and Parcel If Tithes pass by Grant of a Rectory cum pertinentiis A. 281 282. Issue if an Advowson be
C. 64. The manner of swearing the Jurors C. 162. Upon Issue upon the meer Right the Tenant must first give evidence C. 162. In a Writ of Right Sur Disclaimer it is a good Bar that the Lord since accepted the Rent from the Tenant C. 272. Duresse A good Bar in an Action of Account A. 13. It may be pleaded without a Traverse C. 239. What is what is not Duresse 239. Dutchy A Case thereof and of Grants made under that Seal B. 151 152 162 163 164. E. Ejectione Firme LIes of Title in London A. 19. Lies not de Tenemento A. 118. Where it lies not but upon an actual ouster A. 212. If the Plaintiff hath no Title nor the Defendant any the Plaintiff shall not recover A. 215. Et bona catalla cepit A. 312. Lies not of Copyhold upon the Lords Lease but of the Copyholders Lease A. 328. Where one pleads and the other demurs and the dem is adjudged for the Plaintiff the Plaintiff cannot relinquish the Issue and take Judgment as in Trespass B. 199. De uno Cubiculo better than de una Camera C. 210. De Romea C. 210. De Messuagio sive Tenemento is not good C. 228. The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment for the other C. 228. Ejectione Custodie For a Lord of the Heir of his Copyholder A. 328. Election Of an Acre in a great Field sold to a Corporation how they must make Election A. 30. To whom given where the condition is in the disjunctive A. 70. Devise of an Acre in a Field the Devisee must make his election in his life A. 254. Grant of a Mannor except B. Arce where is two of that name the Grantor hath the election A. 268. Award in the disjunctive and one part is void yet the other must be performed A. 305. Where one hath election to claim an Estate by two manner of Conveyances by one Deed C. 16 17 128. Covenant to stand seised of Lands in S. of the yearly value of 40 l. who hath the election C. 27. Cannot be transferred over to the prejudice of another C. 154. Elegit Vide Extent and Execution If after Elegit retorned that the Lands are already in Extent the Plaintiff may have a Capias A. 176. If it be executed but not retorned Quid operatur A. 280. B. 12 13 49 50. Granted against an Executor upon Devastavit retorned B. 188. Lessee for years may pay his Rent to the Plaintiff before Suit C. 113. Embleament If Conusee of a Statute or Recognizance or the Conusor shall have the Corn sowed B. 54. Entry Estraying of Beasts sua sponte no Entry A. 110. What Act is an Entry what not A. 209 210. Entry of him who claims by Devise or Condition broken where not taken away by a descent A. 191 209 210. Semble cont B. 147. An Heir may bring an Action for Nusance without Entry A. 273. Husband Leases the Land of his Wife Tenant in Tail and dies the Feme must enter before she make Leases A. 122. In what case Cestuy que Use is put to his Entry A. 258. By death of Tenant in Tail without Issue the Freehold vests in him in Remainder without Entry A. 268. Where Trespass is maintainable without Entry A. 302. B. 47 97 98 137. Where the Entry of him in Remainder upon forfeiture of Tenant for life is lawful B. 61 62 63. The Patentee of the King must enter where there is an Intruder B. 147 148. The Lessee levies a Fine to the use of himself and his Heirs if he may re-enter without Attornment C. 103. Disseisee must re-enter before he can licence one to put in Cattle C. 144. He in Remainder after the death of Cestuy que vie may bring Trespass without Entry G. 152 153. By entry of a Stranger upon the Kings Farmer he who enters hath gained the Term of the Farmer C. 206. He who hath an under Lease in Reversion of part of the Term from a Lessee of a greater Term cannot enter to defeat the former Estate but the Lessee may C. 269. Two Tenants may plead several Tenancy in this Action B. 8. What is demandable in a Writ of Entry A. 169. Entry sur disseisin in London C. 148. Error Upon a Bill of Intrusion in the Exchequer A. 9. B. 194. By Journies accompts in a real Action against an Heir upon the death of his Ancestor Quaere A. 22. Judgment for the Defendant reversed and Judgment given pro quer ' A. 33. Of an Assise A. 55 255. Where it lies of a Judgment in Ireland A. 55. C. 159. Lies not in the Common Bench A. 55 159. Nor upon the first Judgment in Trespass or Account A. 193 194 309. B. â—68 What Heir shall have it to reverse a Recovery A. 261. 291. Of a Quid juris clamat A. 290. Upon a Judgment in a Writ of Disceit A. 293. Who must joyn or sever in Error in the realty A. 293 294 317. It is Error in a Judgment in an Inferior Court if no Plaint be A. 302. To reverse a Fine for Infancy and reversed in part A. 317. By an Executor to reverse an Uâ—lary in Felony against their Testator A. 326. Where by reversal of one Record another is annulled A. 325 326. A second Writ of Error in nature of Diminution to remove part of a Record B. 2 3. De recordo quod coram vobis residet B. 2 3. C. 107. The principal shall have no Writ of Error upon the Judgment against the Bail B. 4. In fact viz. the death or infancy of one of the Defendants after Verdict upon a Judgment in the Kings Bench B. 54. C. 96. Upon a Judgment in the Exchequer by whom allowed B. 59. Lies of a Judgment in London Sessions upon an Indictmenr B. 107. If Error lies against the Queen unless the party petition for the Writ B. 194. Upon a Judgment in a Scire facias in the Chancery of Chester B. 194. There must be two Writs to reverse two Fines B. 211. If in such case the one Fine may be pleaded to the one Writ and the other Fine to the other Writ B. 211. If upon a Writ of Error of Fine the Plaintiff is non-suit a Stranger may have a Writ de recordo quod coram vobis residet C. 107. Commission to three Judges to examine a Judgment which was given in London and reversed in the Hustings there in Assise of Fresh-force C. 169. If the Bishop who pleads that he hath nothing but as Ordinary must joyn in the Writ of Error upon a Quare Impedit C. 176. He who disclaims shall not have Error C. 176. Escape Lyeth against the Sheriff although the Execution might be avoided by Audita Quereia or Error A. 3. B. 93 86. In what case a Vill shall be amerced for the escape of a Felon A. 107 C. 207. The Sheriff lets one escape whom he took by Cap. Utla when he had a Capias
shall vest the Estate by Livery and prevent the operation of Inrolment A. 6. C. 125. By Letter of Attorny cannot be made by parcels unless so limited A. 34. What is a good Livery what not A. 207. Where the particular Tenant and he in remainder joyn in a Livery how adjudged A. 262. How it must be made by Attorny of Land in several Counties or of a Mannor A. 306 307 308. Made to three where the Feoffment was to four is good in some cases B. 73. Feoffment by Tenant for life and before Livery made by Letter of Attorny the Feoffor purchaseth the Fee and then Livery is made the Fee passeth C. 73. But that shall not pass other Lands purchased by the Feoffor in the same Vill where the Feoffment was of all his Lands in D. C. 73. Livery ouster le main What Leases or Conveyances an Heir may do before Livery sued A. 157. London Scire facias there ad discutiendum debitum A. 52. Quo Warranto lies against the City if the Mayor use authority not agreeable to Law per Gawdy A 106 107. Upon a Recognizance taken before the Mayor by custom Debt lies not but in their own Courts A. 130 131. The custom that a Feme sole Merchant may sue without her Husband A. 130 131. The Statutes of 32 34 H. 8. of Wills how far they extend to Lands in L. A. 267. The Courts at Westminster take notice of their Customs A. 284. It had no Sheriffs in the 13th year of King Edw. the First Ibid. Debt lies in the Common Pleas upon a Recognizance there Ibid. Hustings may be holden every Week B. 14. Upon Indictment at the Sessions Error lies B. 107. The Custom there Quod concessit solvere debitum alterius B. 156. Custom that every Surety shall be chargeable pro rata B. 166 167. If an Action there by Custom be removed to Westm it shall be remanded B. 167. They ought not to be impleaded in real Actions but in their own Courts C. 147. Their Liberties seised and re-granted by King Richard the Second and re-granted for 10000 Marks C. 264. M. Maihem Cutting off any Finger is a Maihem A. 139. Maintenance See Stat. 32 H. 8. For desiring a Juror to appear and to do according to his Conscience done by a Stranger B. 134 135. Against a Counsellor at Law C. 237. Mannor Whether a Rent-Charge may be parcel of a Mannor A. 14. Extending into several Vills a Grant of the Mannor in one Vill how adjudged A. 26. Granted cum pertin another Mannor which holds of it passeth Ibid Where by Grant of part of the Services of Freeholders and Demesnes a Mannor will pass A. 26. B. 41 42. A Lease of a Mannor except all Casualties and Profits of Courts the Court is not excepted A. 118 119. How it may be dissolved and after become a Mannor again A. 204. A moiety thereof by what words conveyed A. 204. B. 42. Whether a Steward of a Mannor deputed by parol may take Surrenders extra curiam A. 228. If Lessee of a Mannor attorn to the Grantee of the Reversion the Mannor passes A. 265. B. 221 222. If the Tenants pay their Rent to a Disseisee they are discharged A. 265. The Service of a Tenant may be changed from one service to another A. 266. What will pass by Grant by name of a Mannor B. 41 42 43. By what name a Mannor may pass B. 47. A Mannor in two Vills is devised to the Heir and the Lands in the one Vill to A.B. he shall have that devised to him B. 190. Lease the Demesnes the Reversion passes not by grant of the Mannor without the Lessees Attornment B. 222. The Services pass not without Attornment C. 193. Market If a stoln Horse be sold by J. S. by the name of J.D. and so entred it alters no property A. 158. Mesne The form of the Count B. 86. If it be extinct by the Lords purchasing the Tenancy Monstrans de Droit Where it lies A. 195 B. 122. Or where only a Petition de Droâ—t B. 122. C. 15. Petition of Right for a Rent-Charge granted out of Lands which are since vested in the Crown C. 190 191. All the Estates must be truly set down else all is void after Judgment C. 242. Monstrans de Faits Upon pleading a Grant of a Reversion the Deed must be shewed A. 310. And upon pleading of an Estate in an Hundred B. 74. Mort vie If the Plaintiff die after Verdict within the time that the Court takes to consider of the Law the Court may if they will give Judgment as at the first day in Bank A. 187. If the Defendant die after the first Judgment in Trespass before the Writ of Inquiry retorned yet the Action does not abate A. 263. C. 68. If one of two Defendants in Assumpsit die before Judgment if Error B. 54. Murder To leave ones Child whereby it perishes by Famine A. 327. N. Name OF a Corporation ought to be strictly alledged as to the substance A. 134 162. C. 18 19. Joan and Jane all one Name A. 147. A Corporation makes a Lease by the same name in substance and sense but not in words yet good A. 159 160 161 162 163 215. B 97 165. C. 220. Garret King of Arms and the manner of his Creation A. 249. What are Names of Dignity and what of Office only Ibid. B. and Nether B. a Vill A. 272. Executor of Executor how named A. 275. If the word Heir be a good name of purchase A. 287 288. Where the names of the Heads of what Corporations must be shewed in pleading A. 307. The best way is to sue the Defendant as he is named in the Bond though his Name be otherwise A. 322. What is a Name of Dignity and must be put in the Writ what not B. 49 In pleading any matter done before Suiters of a Court-Baron if their Names must be shewed C. 8. Ne admittas Where it lieth A. 235. Negative pregnant Defendant pleads that he permitted J.S. to have ingress into all such Lands which lay fresh adjudged good A. 136. That J. G. did not disturb the Plaintiff but by due course of Law B 197. How to avoid the pleading of a Negative praeg by a Modo forma B 198. Nisi Prius If grantable per Proviso pro Def. upon an Information at the suit of the party B. 110. Nolle prosequi As to part before Verdict in a joynt Action if it discharge the whole B. 177. Nomine pene The Heir shall not have Debt for it reserved by his Ancestor B. 179. Nonsuit The Plaintiff may be Nonsuit after Demurrer A. 105. C. 28. No Nonsuit for part of a Writ or Bill B. 177. Non est factum Where the Defendant may plead it or the special matter A. 322. By this Plea the date of the Bond nor the sealing of it at another day than which the Plaintiff declares cannot prejudice the Plaintiff C. 100. Notice How
Wife the Executrix should be charged for the not Reparations as well in the time of her Husband as in her own time And if she do make the Reparation depending the Suit yet thereby the Suit shall not abate but it shall be a good cause to qualifie the damages according to that which may be supposed that the party is damnified for the not repairing from the time of the purchase of the Reversion unto the time of the bringing of the Action And it was said by Manwood That by the Recovery of the damages that the Lessee should be excused for ever after for making of Reparations so as if he suffer the Houses for want of Reparations to decay that no Action shall thereupon after be brought for the same but that the Covenant is extinct LXXIII Easter Term. 15 Eliz. In the Common Pleas. LOvelace moved the Court that in the Kings Bench this case was argued upon a Demurrer there A Feoffment was made by one Coxley who took back an Estate for life the remainder to him who should be his Heir at the time of his death and to the Heirs males of his body begotten And afterwards the Tenant for life after the Statute of 32 H. 8. suffered a Recovery to be had against him that that Recovery was good as it was at the Common Law Because the Statute doth not speak but that it shall not be a bar to him who hath the Reversion at the time of the Recovery but this remainder was in Abeyance until the death of the Tenant for life and that in the same Court it was adjudged accordingly in an Ejectione firmae and because the same was a discontinuance the Plaintiff had here brought his Formedon in the Remainder and therefore Lovelace prayed That they might proceed without delays because the Plaintiffs Title appeareth without Essoigns and feigned delays Which Dyer Iustice conceived to be a reasonable request and that it should be well so to do because as he said This Court is debased and lessened and the Kings Bench doth encrease with such Actions which should be sued here for the speed which is there And he said That the delays here were a discredit to the Court so as all Actions almost which do concern the Realty are determined in the Kings Bench in Writs of Ejectione firmae where the Iudgment is Quod recuperet terminum and by that they are put into possession and by such means no Action is in effect brought here but such Actions as cannot be brought there as Formedons Writs of Dower c. to the Slander of the Court and to the Detriment and Loss of the Serjeants at the Bar. And Lovelace shewed That divers mean Feoffments were made c. LXXIV Mich. 15 Eliz. In the Common Pleas. NOte This Case was in Court An Heir Female was in Ward of a common person who tendred to her a marriage viz. his younger Son and she agreed to the Tender and the Guardian died The Heir married the younger Son according to the Tender The Executors of the Guardian brought a Writ de Valore Maritagii supposing the Tender by the Lord to be void by his death But the Court was of a contrary Opinion because the Tender of their Testator was executed LXXV Riches Case Mich. 15 Eliz. In the Common Pleas. ELizabeth Rich brought a Writ of Dower against J.S. who pleaded and Iudgment given for the Defendant and afterwards the Iudgment was reversed And she brought a new Writ of Dower and the Tenant pleaded That he always was ready and yet is c. Against which the Demandant pleaded the first Record to estop the Tenant To which the Tenant pleaded Nul tiel Record It was the Opinion of the Court That here the Demandant cannot conclude the Tenant by that Replication to plead Nul tiel Record For the Iudgment is reversed and so no Record and it cannot be certified a Record But if the Tenant had taken Issue upon the plea of the Tenant absque hoc that he was ready the same might well have been given in Evidence against the Tenant Note That the Case was That the Demandant after the death of her Husband entred into the Land in Demand and continued the possession of it 5 years and afterwards the Heir entred upon which she brought Dower It was agreed in that Case That the Tenant needed not to plead Tout temps prist after his re-entry for the time the Demandant had occupied the same is a sufficient recompence for the Damages LXXVI Vavasors Case Mich. 15 Eliz. In the Common Pleas. NIcholas Ellis seised in Fee of the Mannor of Woodhall Leased the same to William Vavasor and E. his Wife for the life of the Wife the remainder to the right Heirs of the Husband The Husband made a Feoffment in Fee to the use of himself and his Wife for their lives the remainder to his right Heirs The Husband died the Wife held the Land and did Waste in a Park parcel of the Mannor It was moved to the Court If the Writ of Waste should suppose that the Wife held ex dimissione Nicholai Ellis or ex dimissione of her Husband It was the Opinion of the Court That upon this matter the Writ should be general viz. that she held de haereditate J.S. haeredis c. without saying any more either ex dimissione hujus vel illius For she is not in by the Lessor nor by the Feoffees but by the Statute of Vses and therefore the Writ shall be ex haereditate It was also the Opinion of the Iustices That the Wife here is not remitted but that she should be in according to the Term of the Feoffment Note in this Case The Waste was assigned in destroying the Deer in the Park And Meade Serjeant conceived That Waste could not be assigned in the Deer unless the Defendant had destroyed all the Deer And of that Opinion also was Dyer Manwood said If the Lessee of a Dove-house destroyed all the old Pigeons but one or two couple the same is Waste And if a Keeper destroy so many of the Deer so as the ground is become not Parkable the same is Waste although he doth not destroy them all See 8 R. 2. Fitz. Waste 97. If there be sufficient left in a Park Pond c. it is enough LXXVII Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought against Executors They were at Issue Vpon nothing in their hands It was given in Evidence on the Plaintiffs part That a stranger was bound to the Testator in 100 l. for performance of covenants which were broken For which the Executors brought Debt upon the Obligation depending which Suit both parties submitted themselves to the Arbitrament of A. and B. who awarded That the Obligor should pay to the Executors 70 l. in full satisfaction c. and that the Executors should release c. which was done accordingly And it was agreed by the Court That by the Release it
confirms it is a void Confirmation And 7 E. 6. Br. Grants 154. A Man possessed of a Lease for 40 years grants so many of the said years which shall be to come at the time of his death it is a void Grant for the incertainty Afterwards Shuttleworth moved another point viz. The Plaintiff hath declared of a Trespass done 1 Januarii 23 Eliz. The Defendant shews in Evidence a Lease for years to him made 14 Januarii the same year which is 13 days after the Trespass whereof the Plaintiff hath declared and it shall not be intended that the Plaintiff had another Title than that which he hath alledged and forasmuch as he hath not disclosed in himself any Title Tempore transgressionis the Plaintiff should punish him in respect of his first possession without any other Title And although it may be Objected That where the Defendant hath given in Evidence That Williamson leased to the Defendant that is not sufficient and the words subsequent 14 Januarii are void as a nugation and matter of surplusage Truly the Law is contrary for rather those words ante Transgressionem shall be void because too general and shall give way to the subsequent words after the videlicet because they are special and certain As the Case late adjudged The Archbishop of Canterbury leased three parcels of Land rendring Rent of 8 l. per annum viz. for one parcel 5 l. for another 50 s. and for the third 40 which amounts to 9 l. 10 s. It was adjudged That the videlicet and the words subsequent concerning the special reservation of the Rent was utterly void because contrary to the premisses which were certain viz. 8 l. and that the Fermor should pay but 8 l. according to the general reservation but in our case the words precedent are general i. e. ante Transgressionem and therefore the words subsequent which are special and certain shall be taken and the general words rejected As in Trespass the Defendant pleads That A. was seised of the Land where and held it of the Defendant and that the said A. 1 die Maii 6 Eliz. aliened the said Land in Mortmain for which he within a year after viz. 4 Maii Anno 7 Eliz. entred now the same is no bar for upon the evidence it appeareth that the Lord hath surceased his time and the words within the year shall not help him for they are too general and therefore at the subsequent words viz. c. Cook on the Defendants part took Exception For it appeareth here upon the Evidence of the Defendant which is confessed by the Demurrer of the Plaintiff That upon this matter the Plaintiff cannot punish the Defendant for this Trespass for he was not an immediate Trespassor to the Plaintiff for the Plaintiff hath declared upon a Trespass done 1 Januarii 23 Eliz. And it is given in Evidence on the part of the Defendant and confessed by the Plaintiff c. That 22 Eliz. Cordell Savell levied a Fine to Williamson by force of which the said Williamson entred and was seised and so seised 14 Januarii 23 Eliz. leased to the Defendant Now upon this matter the Plaintiff cannot have Trespass but the Defendant for Williamson was the immediate Trespassor to him for he entred 22 Eliz. And at length after deliberation had of the premisses by the Court The Court moved the Plaintiff to discontinue his suit and to bring de novo a new Action in which the matter in Law might come into Iudgment without any other Exception But the Plaintiff would not agree to it Wherefore it was said by Wray Chief Iustice with the consent of his Companions Begin again at your peril for we are all agreed That you cannot have Judgment upon this Action CXXVI Mich. 26 Eliz. In the Kings Bench. THe Case was A. made a Feoffment in Fee to the use of his younger Son in tail and after to the use of the Heirs of his body in posterum procreand and at the time of the Feoffment he had Issue two Sons and after the Feoffment had Issue a third Son The younger Son died without Issue Vpon a Motion at the Bar it was said by Wray Iustice That after the death without Issue of the second Son the Land should go to the third Son born after the Feoffment for this word in posterum is a forcible word to create a special Inheritance without that it had been a general tail CXXVII Smith and Smith's Case Mich. 26 Eliz. In the Kings Bench. LAmber Smith Executor of Tho. Smith brought an Action upon the Case against John Smith That whereas the Testator having divers Children Enfants and lying sick of a mortal sickness being careful to provide for his said Children Enfants The Defendant in Consideration the Testator would commit the Education of his Children and the disposition of his Goods after his death during the minority of his said Children for the Education of the said Children to him promised to the Testator to procure the assurance of certain Customary Lands to one of the Children of the said Testator And declared further That the Testator thereupon Constituted the Defendant Overseer of his Will and Ordained and appointed by his Will That his Goods should be in the disposition of the Defendant and that the Testator died and that by reason of that Will the Goods of the Testator to such a value came to the Defendants hands to his great profit and advantage And upon Non Assumpsit pleaded It was found for the Plaintiff And upon Exception to the Declaration in Arrest of Iudgment for want of sufficient Consideration It was said dy Wray Chief Iustice That here is not any benefit to the Defendant that should be a Consideration in Law to induce him to make this promise For the Consideration is no other but to have the disposition of the Goods of the Testator pro educatione Liberorum For all the disposition is for the profit of the Children and notwithstanding That such Overseers commonly make gain of such disposition yet the same is against the intendment of the Law which presumes every Man to be true and faithful if the contrary be not shewed and therefore the Law shall intend That the Defendant hath not made any private gain to himself but that he hath disposed of the Goods of the Testator to the use and benefit of his Children according to the Trust reposed in him Which Ayliffe Iustice granted Gawdy Iustice was of the contrary Opinion And afterwards by Award of the Court It was That the Plaintiff Nihil Capiat per Billam CXXVIII Amner and Luddington's Case Mich. 26 Eliz. Rot. 495. In the Kings Bench. A Writ of Error was brought in the Kings Bench by Amner against Luddington Mich. 26 Eliz. Rot. 495. 2 Len. 92. 8 Co. 96. And the Case was That one Weldon was seised and leased to one Peerepoint for 99 years who devised the same by his Will in this manner viz. I Bequeath to my Wife the
Williams and declared Whereas one J. had affirmed a Plaint of Debt against the Plaintiff in the Queens Court of her Mannor of D. in the County of Cornwall and demanded against him 100 l. And whereas the Defendant now Plaintiff sued a Corpus cum Causa c. and delivered the same to the now Defendant being then Vnder-Steward of the said Court That notwithstanding that the now Defendant proceeded to Iudgment and awarded Execution against the Plaintiff and his Sureties by force of which the Goods of the Plaintiff and of his Sureties were taken in Execution Vpon which Declaration the Defendant demurred in Law because the Iudgment was given in a Court-Baron which could not hold plea above the sum of 40 s. And notwithstanding that Exception and notwithstanding also that the Action was brought against the Vnder-Steward c. The Plaintiff had Iudgment to Recover CXLIV Denton and Goddard's Case Pasch 26 Eliz. In the Kings Bench. DEbt was brought against Denton Administrator of the Goods and Chattels of James Newton and the Plaintiff declared upon an Obligation made to the Intestate bearing date the 4th day of April 24 Eliz. The Defendant prayed Oyer of the Deed and Condition and then pleaded to the Action For he said That the aforesaid James Newton ante Confectionem praedicti suppositi scripti scilicet ultimo die Septembris 23 Eliz. apud N. obiit and so Non est factum c. The Iury found That the said Deed was delivered to the Intestate 3 July 23 Eliz. in the life of the Intestate bearing date 24 Aprilis 24 Eliz. before which day the Intestate died And upon the whole matter Iudgment was given for the Plaintiff CXLV Lichfield and Gage's Case Pasch 26 Eliz. In the Kings Bench. 2 Len. 167. IN an Ejectione firmae the parties were at Issue And by Order of the Court the Tryal was stayed And yet the Plaintiff against the Order obtained privily a Nisi Prius Vpon which Gawdy Iustice being informed of it after the Term awarded a Supersedeas to the Iustices of Assise before whom c. And notwithstanding that the Enquest at the Instance of the Plaintiff was taken and found for the Plaintiff All this matter was shewed to the Court in the Kings Bench and there examined and proved And it was Ordered by the Court That the Verdict should not be entred of Record nor any Iudgment upon it And so was it put in execution in a Case between Vernon and Fowler And then the Counsel moved and took Exception to the Supersedeas because it was not subscribed by the hand of Iustice Gawdy But it was not allowed because his Seal was sufficient CXLVI Fuller and Cook 's Case Pasch 26 Eliz. In the Kings Bench. 1 Roll. 111. IN an Action upon the Case the Plaintiff declared That the Defendant had informed one Tho. Colby a Iustice of the Peace That the Plaintiff had stollen the Defendants Hoggs By force of which the said Colby ad Querimoniam Defendentis made a Warrant and directed it to the Constable of H. to apprehend the Plaintiff and to bring him before the said Colby By force of which the Plaintiff was Arrested and brought before the said Colby and there was examined upon the said matter and bound over by Recognizance to appear at the next Sessions and there to Answer at which Sessions he appeared And Proclamation was made That if any one would inform against the Plaintiff c. and none came For which the Plaintiff was discharged and so by this matter he was discredited c. And all this matter was found by Special Verdict And thereupon Iudgment was given for the Plaintiff And in this Case the Court took a difference Where one whose Goods a stollen comes to are Iustice of Peace and shews him the matter and prays that the matter be examined and that such a one is examined upon it here in this case No Action lieth But if such a person in such case will expresly say That such a one hath stollen c. Hob. 192. and procure a Warrant from a Iustice of Peace upon such Surmise to arrest the party upon such matter an Action upon the Case will lie CXLVII The Queen and the Lord Lumley's Case Trin. 26 Eliz. In the Exchequer IT was moved in the Exchequer 2 Len. 80. Hob. 304. That Queen Mary seised of the Rectory of D. granted Advocationem Ecclesiae de D. If now by this Grant the Advowson should pass as now disappropriate Or that the Rectory it self should pass as appropriate Or that nothing at all should pass And by Manwood Chief Baron the Advowson shall not pass but remain appropriate as it was before For the Church as it was appropriate by a Iudicial act so without such an Act it cannot be disappropriate And he said That by the Grant of the said Advowson the Rectory did not pass For by the Appropriation the Advowson was gone and it was not in esse and by consequence could not be granted And it is not within the Statute of 4 5 Philip Mary of Confirmations of Grants of the King For the said Statute helps not but misrecital misnaming c. But here there is not such a thing in rerum natura as the Patentee pretends to be passed by the Letters Patents And if it were in the Case of a Common person nothing should pass As it was adjudged in Sands Case 11 Eliz. And he said That at this time a Parsonage might be disappropriated but that ought to be by a Iudicial Act as by Presentment and not by any private Act of the Proprietor And so he said a Church was disappropriated by the Lord Dyer by a Presentment which of late he made to it CXLVIII Cox's Case Mich. 26 Eliz. In the Kings Bench. IN Debt upon an Obligation against Cox the Case was A Parson made a Lease for years and became bounden to the Lessee to perform the Covenants in the Lease The Defendant pleaded That the Lease is void by the Statute of 14 Eliz. because he was absent from his Benefice above the space of 80 days part of which time encurred depending the Action and before the Pea was pleaded It was the Opinion of the Court That the Plea was good But Exception was taken to the pleading The Defendant saith That the said Church is a Parochial Church cum Cura animarum but doth not say That it was so at the time of the Lease and Obligation made For it may be that at the time of the Lease there was a Vicar and then it was not Cura animarum And afterwards upon that Exception Iudgment was given for the Plaintiff CXLIX Wroth and Capell's Case Pasch 26 Eliz. In the Kings Bench. 4 Len. 197. THe Case was A. was Indicted upon the Statute of 8 H. 6. And Exception was taken to the Indictment because no word of Freehold was in it or to prove that the party grieved had any Freehold whereof
created by this Will but the Feesimple setled in them when they came at their lawful age and had Issue so as the residue of the Devise was void and Iudgment was given accordingly CLXVI Griffith and Agard's Case Mich. 27 Eliz. In the Common Pleas. IN Disceit by Griffith against Agard and his Wife 1 Len. 290. For that a Fine was levied of a Messuage being Ancient Demesne by which it became Frank-Fee and the Fine was levied in the life of A. Griffith Grandfather of the Plaintiff Exception was taken to the Writ because it is brought by the Plaintiff as Cosen and Heir of A. G. his Grandfather And in the beginning of the Writ the words are Si Henricus Griffith fecerit te securum without saying Cousen and heir of A. G. fecerit te securum But the Exception was not allowed For afterwards in the Writ these words are Cujus haeres ipse est See the Register 238. that it is sufficient if there be in the body of the Writ these words Cujus haeres ipse est Another Exception was taken to the Declaration in that it is alledged that the Lands were De antiquo Dominico Dominae Reginae Angliae wereas it ought to have been De antiquo Dominico Dominae Coronae suae c. The Opinion of the Court was That it was good both ways See Book Entries 100. antiquo Dominco Coronae 58. de antiquo Dominico Domini Regis CLXVII Bashpool's Case Mich. 27 Eliz. In the Kings Bench. 2 Len. 101. Stiles Rep. 148. THe Case was The Father was seised of Lands in Fee and bound himself in an Obligation and devised his Lands unto his Wife until his Son should come to the age of 21 years the Remainder to his Son in Fee and died and no other Land descended or came to the Son from the Father It was moved by Godfrey That the Heir in this case might elect to waive the Devise and to take the Land by Descent See 9 E. 4. 18. by Needham But it was the Opinion of Gawdy and Shute Iustices That the Son should be adjudged in by Descent and so bounden with the Debt CLXVIII Branthwait's Case Mich. 27 Eliz. In the Kings Bench. DEbt brought by J. D. against Branthwait upon an obligation the Condition of which was That whereas J. F. claimed to have a Lease for years of the Mannor of D. made and granted to him by one W. D. If the said Branthwait keep without damage the Plaintiff from all claim and Interest to be challenged by the said J. F. de tempore in tempus during the years c. and also deliver the said Lease to the Plantiff that then c. The Defendant pleaded That the said J. F. had not any such Lease and that after the making of the said Obligation untill the Action brought the Plaintiff was not damnified ratione dimissionis praedictae Exception was taken to the same because where the words of the Condition are Keep without damage the Plaintiff from all Claim and Interest And he hath pleaded That the Plaintiff was not damnified ratione dimissionis c. But the Exception was disallowed by the Court For if he were not damnified ratione dimissionis then he was not damnified by reason of any Claim or Interest Another Exception was taken Because he could not now say there was no such Lease For it is recited in the Obligation That J. F. claimed to have a Lease and therefore by this recital he is estopped c. And see where a Recital is an Estoppel 8 R. 2. Fitz. 2 Len. 11. tit Estoppel 283. 39 E. 3. 3. Fitz. Estoppel 112. 46 E. 3. 12. It was holden by the Court That it was a good Estoppel And afterwards Iudgment was given for the Plaintiff CLXIX Mich. 27 Eliz. In the Kings Bench. DEbt upon an Obligation The words of the Obligation were I am content to give to W. 10 l. at Michaelmas and 10 l. at our Lady day It was holden by the Court That it was a good Obligation And it did amount to as much as I promise to pay c. It was also holden by the Court That an Action of Covenant lay upon it as well as an Action of Debt at the Election of the Plantiff And it was holden That although the Action is for 40 l. and the Declaration is 20 l. and 20 l. at two several days yet it is good enough and the Declaration is well pursuant to it And afterwards Iudgment was given for the Plaintiff CLXX The Queen and Kettell's Case Trin. 27 Eliz. In the Common Pleas. THe Queen brought a Writ de Valore Maritagii against Kettell and Counted of a Tenure in Chief The Defendant pleaded That pendant the Writ the Queen had granted to one Edmund Kettel Custodiam Maritagium of the said Defendant with whom he had Compounded It was holden by the whole Court to be no Plea for the Letters Patents were void because the Queen was deceived in her Grant for it appeareth by the Count that the Defendant before the Grant of the Queen was of full age And by the Letters Patents the Queen intended that he was within age and by the same granted Custodiam c. CLXXI. Mich. 27 Eliz. In the Common Pleas. A. Seised of Land by his Will Devised 1 Len. 31. That his Executors should sell the Lands and died the Executors levied a Fine thereof to one F. taking Mony for it of F. The Question was If in title made by the Conusee to the said Lands by the Fine It be a good Plea against the same to say Quod partes Finis nihil habuerunt Anderson conceived That it was But by Windham and Periam upon Not guilty the Conusee may help himself by giving in Evidence the special matter in which Case the Conusee shall be adjudged in not by the Fine but by the Devise And Windham said That if A. Devise That his Executors shall sell a Reversion of certain Lands of â—hich he dieth seised and they sell the same without Deed the same is well enough for the Vendee is in by the Devise 1 Iust 113. a. and not by the Conveyance of the Executors Quod vide 17 H. 6. 23. And by Periam The Conusee may help himself in pleading As he who is in by the Feoffment or Grant of Cestuy que use by the Statute of 1 R. 3. CLXXII Lee and Loveday's Case Trin. 27 Eliz. In the Common Pleas. TEnant in tail leased for 60 years and afterwards levied a Fine to Lee and Loveday sur Conusans de Droit come ceo c. and their Heirs in Fee And afterwards the Lord of the Mannor of whom the Land was holden brought a Writ of Disceit and upon that a Scire facias against the Conusees supposing the Land to be Ancient Demesne The Defendants made default by which the Fine was annulled and now the Issue in tail entred upon the Lessee for years and he brought an Ejectione firme
the 18th day Cook The Iudgment for the Queen upon an Information of Intrusion is Quod defendens de Intrusione transgressione Contemptu praedict convincatur c. And afterwards a Commission shall issue forth for to enquire of the Mean profits and there the Defendant may shew this matter in taking of the damages And if the Intrusion be at any time in the Information it is sufficient enough to have Iudgment upon it and in our Case the Continuance is laid 18 May. Egerton Sollicitor The Record warrants the Iudgment given upon it For possession laid in the Queen is sufficient to this Information And here Payn doth not answer the Queens title but traverseth the Intrusion And therefore he being found Intrudor by Verdict Iudgment ought to be given upon it For the Iury have found the Intrusion generally and specially 17 May. And that cannot be assigned for Error for it is part of the Verdict of which Error doth not lie but Attaint For if any Error was it was in the Iury and not in the Court. Which Manwood Concessit Tanfield As to the Case of Continuance of an Intrusion it is clear That every continuance ought to have a beginning for a thing which hath no beginning cannot be continued and here is not any beginning for the beginning which is laid in the Information is pretended to be 17 May and that cannot be causa qua supra Popham If an Information be brought of an Intrusion where in truth there is not any Record to prove it and the Iury find the Intrusion shall you have a Writ of Error upon it And every continuance of Intrusion is an Intrusion This Matter had been good Evidence to the Iury. Sed non habet locum hic c. CXCVI. Sir John Southwell's Case Hill. 28 Eliz. In the Exchequer SIr John Southwel of the County of Lanc. 7 July 2 Len. 132. 19 Eliz. made a Conveyance of all his Land to divers Feoffees and their Heirs upon Condition That they should find him and his Wife and so many persons in his House c. prefer his Daughters in Marriage pay his Debts c. And if there fell out at the years end upon Accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and Profits of his said Lands with Clause of Revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants Vpon which Statute the said Southwel was now Indicted And afterwards a Commission issued out of the Exchequer to the Sheriff of Lancast to enquire of the Lands of the saith Southwel And although against the said Conveyance it was given in Evidence That after that Conveyance the said Sir John Southwel had granted Trees out of the said Lands and had taken Fines and Incomes for Leases c. Yet the Iurors charged to enquire would not find That the said Sir John had any Lands c. And by special Commandment of the Queen it was referred out of the Exchequer to all the Iustices of England If the Lands of the said Sir John Southwel contained ut supra were subject to the said Statute and the penalties thereof And upon great deliberation had It was by them all Resolved and Agreed That notwithstanding that Conveyance the said Lands were lyable to the said Statute And as to the Iurors which against their Evidence given unto them for the Qeeen gav their Verdict ut supra process was awarded against them out of the said Court for to appear before the Lord Treasurer and the Barons of the Exchequer And for their said Contempt they were committed to the Fleet and each of them fined 20 l. CXCVII Hill. 28 Eliz. In the Common Pleas. IN a Writ of Entry Sur Disseisin The Tenant said That the House in demand is within the City of London and that the said City is antiqua Civitas And that King Hen. 3. Concessit civibus Civitatis praedict quod non implacitentur de Terris Tenementis suis c. extra muros Civitatis praedict And further said That he himself is Civis London c. and demanded Iudgment of the Writ Note in the pleading before the Tenant said illis rectum teneatur intra Civitatem praedictam secundum Consuetudinem Civitatis praedict And to this Plea Exception was taken because that the Tenant doth not shew before whom by their Custom they ought to be impleaded It was the Opinion of the whole Court That the Tenant ought to have shewed That the Citizens for their Lands ought to be impleaded in the Hustings c. And the general words in the plea scil Sed illis rectum teneatur intra Civitatem praedictam secundum Consuetudinem Civitatis praedict did not supply the defect aforesaid After It was awarded by the Court That the Tenant answer further c. CXCVIII. The Lord Anderson's Case Mich. 29 Eliz. In the Common Pleas. THe Lord Anderson Chief Iustice of the Common Pleas 1 Roll. 189. brought an Action of Trespass by Bill for breaking of his House in the City of Wor. against one A. Citizen of the said City Now came the Mayor and Communalty of the said City and shewed their Charter granted to them by King E. 6. and demanded Conusans of Pleas. And by the Award of the whole Court the Conusans shall not be granted because that the Priviledge of this Court whereof the Plaintiff is a principal Member is more antient than the Patent upon which the Conusans is demanded For the Iustices Clarks and Attornies of this Court ought to be here attending to do their Offices and Services as belongs unto them and shall not be impleaded or compelled to implead others elsewhere than in this Court. And this Priviledge was given to this Court upon the Original Erection of it And such was the Opinion of the whole Court. And as for the Conusans it was denyed CXCIX Cocket and Robston's Case Mich. 29 Eliz. In the Common Pleas. ARthur Cocket Thomas Andrews and A. his Wife 2 Len. 118. Post 192. 230. 1 Len. 219. 1 Len. 302. brought an Action of Accompt against Robston and Declared That one Mountford by the hands of Jo. Wase had delivered 100l to the Defendant pro relevamine of the said Arthur and Anne The Defendant pleaded Ne unque Receiver pur accompt render Vpon which they were at Issue And Iudgment was given That the Defendant should accompt Who before Auditors assigned alledged That he had expended the said 100l in the Education of the said Arthur and Anne by the space of 8 years after the delivery of the said 100l Vpon which they were at Issue And upon Evidence it was shewed on the Plaintiffs part That heretofore the said Arthur brought a Writ of Accompt against the said Robston as Guardian in Socage for the Land of the said Arthur discended And upon the
and his diet for himself his servants and horses Vpon which the Debt in demand grew but the said Young was not at any price in certain with the Defendant nor was there ever any agreement made betwixt them for the same It was said by Anderson Chief Iustice That upon that matter an Action of Debt did not lie And therefore afterwards the Iury gave a Verdict for the Defendant CCXI. Heidon and Ibgrave's Case Hill. 29 Eliz. In the Common Pleas. 1 And. 148. A Writ of Right was brought by Heidon against Ibgrave and he demanded the third part of 40 Acres of Land in the County of Hertford and they were at Issue upon the meer Right Vpon which the Grand Assise appeared And first the 4 Knights were specially sworn to say upon their Oath Whether the Tenant hath better right to hold the Land than the Demandant to demand it And afterwards the rest of the Iurors were sworn generally as in other Actions And there was some doubt made Whether the Demandant or the Tenant should first begin to give Evidence And at the last it was Ruled by the Court That the Tenant should begin because he is in the affirmative And it was said by Periam Iustice That so it was late adjudged in the Case betwixt Noell and Watts And upon the Evidence the Case was That King Hen. the 8th by his Letters Patents gave to the Demandant the Mannor of New-Hall and all the Lands in the Tenure and Occupation of John Whitton before demised to Johnson and in the Parish of Watford And the truth was That the said 40 Acres whereof now the third part was in demand were in the Occupation of the said John Whitton but were never demised to Johnson nor in the Parish of Watford And by the clear Opinion of the Court the said 40 Acres did not pass for the circumstances of the Deed are not true scil the Demise to Johnson and the being in the Parish of Watford but both were false But if the said Land had had an especial name in the Letters Patents then it had been well enough notwithstanding the misprision in the rest And by Anderson If upon the particular it had appeared that the Demandant had paid his Mony for the said 40 Acres peradventure they had passed CCXII. The Dean of Gloucester's Case Hill. 29 Eliz. In the Common Pleas. THe Dean and Chapter of Gloucester brough a Writ of Partition against the Bishop of Gloucester upon the Statute of 32 H. 8. of Partition And it was moved That upon the words of the Statute that the Action did not lie in this Case for the Statute doth not extend but to Estates in Ioynt-Tenancy or in Common of Lands whereof such Ioynt-Tenants or Tenants in Common are seised in their own right And also it is further said That every such Ioynt-Tenant or Tenant in Common and their Heirs shall have Aid to deraign the warranty without speaking of the word Successors And by Periam and Windham Iustices The Writ doth not lie But Anderson seemed to be of a contrary Opinion CCXIII. Hare and Meller's Case Hill. 29 Eliz. In the Common Pleas. HUgh Hare of the Inner-Temple brought an Action upon the Case against Philip Meller and declared Ante 138. That the said Defendant had exhibited to the Queen a scandalous Bill against the Plaintiff charging the said Hugh to have recovered against the said Defendant 400 l. by Forgery Perjury and Forswearing and Cosenage And also that he had published the matter of the said Bill at Westm c. It was said by the Court That the exhibiting of the Bill to the Queen is not in it self any cause of Action for the Queen is the Head and Fountain of Iustice and therefore it is lawful for all her Subjects to resort to her to make their complaints But if a Subject after the Bill once exhibited will divulge the matter comprised in it to the disgrace and discredit of the person intended the same is a good cause of Action And so was the Case of Sir John Conway who upon such matter did recover And as to the words themselves It seemeth to the Court That they are not Actionable For it is not expresly shewed That the Plaintiff had used Perjury Forgery c. And it may be that the Attorny or Sollicitor in the Cause hath used such indirect means the Plaintiff not knowing it and in such case the Plaintiff hath recovered by Forgery c. and yet without reproach And by perjury he could not recover for he could not be sworn in his own Cause And Stanhops Case was remembred by the Court which was That Edward Stanhop of Grays-Inn brought an Action upon the Case against one who had Reported That the said Edward Stanhop had gained his Living by swearing and forswearing And by the Opinion of the Court The Action did not lie for those words do not set forth any actual forswearing in the person of the Plaintiff but it might be in an Action depending between the Plaintiff and a stranger that another stranger produced as a Witness had made a false Oath without any procurement or practice of the Plaintiff in which Case it might be that the Plaintiff had gained by such swearing CCXIV. Cheverton's Case Hill. 29 Eliz. In the Common Pleas. HEnry Cheverton brought a Quare Impedit and Counted That he was seised of the moyety of the Church of D. that is to say To present qualibet prima vice and that J.S. is seised of the other moyety that is to say To present qualibet secunda vice c. And Exception was taken to the Count Because it was not shewed how the special Interest did begin scil by Prescription Composition or otherwise for it is clearly against common Right and therefore that ought to be shewed See Dyer 13 Eliz. 229. CCXV Edmond's Case Mich. 29 Eliz. In the Common Pleas. IN an Action upon the Case against Edmonds the Case was That the Defendant being within age requested the Plaintiff to be bounden for him to another for the payment of 30 l. which he was to borrow for his own use to which the Plaintiff agreed and was bounden ut supra Afterwards the Plaintiff was sued for the said Debt and paid it And afterwards when the Defendant came of full age the Plaintiff put him in mind of the matter aforesaid and prayed him that he might not be damnified so to pay 30 l. it being the Defendant's Debt Whereupon the Defendant promised to pay the Debt again to the Plaintiff Vpon which promise the Action was brought And it was holden by the Court That although here was no present consideration upon which the Assumpsit could arise yet the Court was clear That upon the whole matter the Action did lie and Iudgment was given for the Plaintiff CCXVI Farrington and Fleetwood.'s Case Mich. 29 Eliz. In the Exchequer BEtween Farrington and Fleetwood the Case was upon the Stat. of 31 H. 8. of Monasteries 2
hic in Curia prolat is but form And afterwards the Iudgment was reversed for default of the said matter Magno sigillo Angliae sigillat And by Anderson Iustice Patents are good without Inrollment and that was adjudged in Hungate's Case CCXLI. Mich. 29 Eliz. In the Exchequer Chamber DEbt brought upon an Obligation Post 266. The Defendant pleaded payment apud Lockington in the Parish of Killmerston And the Venire facias was awarded de Lockington And that was assigned for Error in the Exchequer Chamber upon a Iudgment given in the Kings Bench That the Venire ought to be de Killmerston See 6 H. 7. 3. 11 H. 7. 23 24. 9 E. 4. 3. Trespass for Entry in the Mannor of D. in S. the Visne shall come de Vicineto de S. and not from the Mannor Contrary if it be for the entry into the Mannor of D. only for there it shall be de Vicineto Manerii Cook said There was a Case very late adjudged in the Kings Bench A Lease was pleaded to be made at Ramridge End in Luton and that he himself was of Opinion That the Venire ought to have been of Ramridge End and not of Luton But the Court Over-Ruled the same against him It was said in the principal Case That Lockington shall be intended a Town as this Case is For a Parish may contain many Towns. And afterwards the Iudgment was affirmed CCXLII. Mich. 29 Eliz. In the Common Pleas. IN Trespass for breaking his Close The Defendant pleaded That heretofore he himself brought an Ejectione Firmae against the now Plaintiff of the same Land in which the Trespass is supposed to be done and had Iudgment to recover c. and demanded Iudgment if against c. It was moved That the Bar was not good 1 Len. 313. because that the Defendant had not averred his title And the Recovery in one Action of Trespass is no Bar in another c. Quod Curia concessit But as to the matter the Court was clear That the Bar was good And by Periam Who ever pleaded it it was well pleaded For as by Recovery in an Assise the Freehold is bound so by Recovery in an Ejectione firmae the possession is bound And by Anderson A Recovery in one Ejectione Firmae is a Bar in another Especially as Periam said if the party relyeth upon the Estoppel And afterwards Iudgment was given That the Plaintiff should be barred CCXLIII Peter's Case Mich. 29 Eliz. In the Common Pleas. WIlliam Peters being Plaintiff in an Action of Debt in the Common Pleas came to London this Term to prosecute his Action And afterwards he was committed to the Marshalsey by the Lord Hunsdon Chamberlain of the Queens houshold and one of her Privy Council And now an Habeas Corpus issued out to the Keeper of the Marshalsey to have the body of the said Peters in Court And at the day the Keeper retorned the said Writ That the said Peters was committed to the said Prison by the said Lord and shewed the Warrant for it there to remain and to Answer before the Lords of her Majesties Council to such matters c. Causa vero detentionis mihi omnino incognita est The Court examined the said Peters upon his Oath If he came to London to prosecute his said Cause Who answered That he did And the Court also examined the said Keeper If he had acquainted the said Lord with the said Writ Who said That he had so done but he shewed him not any Cause Wherefore by the Award of the Court Peters was discharged of his Imprisonment CCXLIV Hill. 29 Eliz. In the Common Pleass SErjeant Fenner demanded the Opinion of the Court in this Case A. Devised Lands to his Wife for life 1 Co. 155. and afterwards to B. his Son and his Heirs when he should come to the age of 24 years and if his Wife died before his said Son should attain his said age of 24 years that then J.S. should have the said Land until the said age of the said Son A. died J.S. died the Wife died the Son being within the age of 24 years If the Executors of J.S. should have the Land after the death of J.S. until the said age of the Son was the Question Anderson and Periam conceived That he should not For this Interest limited to J.S. by the Will was but a possibility which was never vested in him and therefore could not by any means come to his Executor Rhodes and Windham doubted of it Fenner put the Case in 12 E. 2. Fitz. Condition 9. Where Land is mortgaged to J.S. upon payment of Mony to J.S. such a day or his Heirs and before the said day J.S. by his Will deviseth That if the Mortgagor pay the Mony that then A. B. should have them That this Devise of this possibility is good Quod omnes Justiciarii negaverunt And Windham put the Case between Weldon and Elkington Plow Com. 20 Eliz. 519. Where Lessee for years devised his Term to his Wife for so many years of the said Term as she should live And if she died within the Term that then his Son Francis should have the Residue of the Term not encurred Francis died Intestate the Wife died within the Term The Administrator of Francis had the residue of the Term and yet nothing was in Francis the Intestate but a Possibility A Lease was made to one Hayward his Wife and one of his Children Habendum to Hayward for 99 years if he should so long live and if he die within the said Term that then his said Wife should have the said Term for so many years which should be to come at the time of the death of her Husband And if she died also before the said Term That then the Child party to the Devise should have it for so many years of the said Term as should not be expired at the time of the death of the Wife And the Case of Cicill was vouched 8 Eliz. Dyer 253. A Lease was made to William Cicill pro termino 41 annorum si tam diu vixerit Et si obierit infra praedictum terminum extunc Uxor praedicti William Cicill habebit tenebit omnia singula praemissa pro residuo termini praed incompleto si tam diu vixerit Et si the said Eliz. obierit infra praedict terminum tunc William Cicill filius c. And it was holden by Catlyn and Dyer That these remainders were void For the Term is determinable upon the death of William Cicill the Father and the Residue of the said Term cannot remain And by Anderson The remainders of the Term limited ut supra are void For every remainder ought to be certain but here is no certainty for it may be that the first possessor of the Term may live longer or die sooner so as he in the remainder doth not know what thing he shall have And so also conceived Rhodes Iustice And he put the Case between
Gravenor and Parker 3 4 Mar. Dyer 150. A Lease was made to A. for life by Indenture and by the said Indenture a Proviso was That if the Lessee died within the Term of 60 years then next ensuing that then his Executors should have it in right of the Lessee for so many of the years as should amount to the number of 60 years to be accounted from the date of the Indenture And it was holden That the secondary Interest to the Executor was void And that the words concerning the same went only in Covenant CCXLV The Lord Compton's Case Trin. 29 Eliz. In the Common Pleas. 2 Len. 211. Kellow 41. 4 Inst 85. NOte It was holden by the Lord Anderson Chief Iustice in this Case That if Cestuy que Use after the Statute of 1 R. 2. Leaseth for years and afterwards the Feoffees Release to the Lessee and his Heirs having notice of the Vse that that Release is to the first Vse But where the Feoffees are disseised and they Release to the Disseisor although that they have notice of the use yet the same is to the use of the Disseisor And no Subpoena lieth against the Disseisor See 11 E. 4. 8. CCXLVI Sir Thomas Gorge and Dalton's Case Trin. 29 Eliz. In the Common Pleas. SIr Thomas Gorge and the Lady Helene his Wife brought a Quare Impedit against Francis Dalton Who pleaded That the Queen was seised of the Mannor of D. to which the Advowson c. was appendant and so seised the Church became void And that afterwards the Queen granted the said Mannor with the Advowson to J.S. who presented the Defendant It was the clear Opinion of the Court That by that Grant of the Queen the Advowson did not pass although that the King by his Prerogative may grant a thing in Action Quod vide Dyer 13 Eliz. 300. against F.N.B. 33 16 H 7. CCXLVII. Hill. 29 Eliz. In the Common Pleas. A Copyholder with the leave of the Lord Leased for years 1 Len. 297. Hob. Rep. 177. and afterwards surrendred the Reversion with the Rent to the use of a stranger who was admitted accordingly It was moved If in this case there needed any Attornment either to settle the Reversion or to create a privity It was holden in this Case by Rhodes and Periam Iustices That the surrender and admittance ut supra are in the nature of an Inrollment and so amount to an Attornment or at the least do supply the want of it CCXLVIII Carter and Marten's Case Mich. 29 Eliz. In the Kings Bench. TWo Men made an Obligation joyntly for Debt The principal in the Obligation made him who was surety only for him in the said Obligation for payment of the Mony his Executor who payed the Mony generally And whether it shall be said that he paid it as Executor or as an Obligor was a Quaere not resolved by the Court. CCXLIX Mich. 29 Eliz. In the Exchequer A. Was endebted to B. who was endebted to the Queen B. assigned his Debt unto the Queen By all the Barons Process shall be awarded out of the Exchequer to enquire what Goods A. had at the time of the Assignment and not what he had tempore Scripti praedict facti c. CCL Hill. 30 Eliz. In the Exchequer A. Was accomptable to J.S. and afterwards J.S. was Out-lawed in an Action personal A. died The Queen by her Letters Patents granted unto B. omnia bona catalla exitus proficua forisfactur advantagia quaecunque which came to her or accrued by reason of the Outlawry of the said J.S. And now B. brought an Action of Accompt against the Executors of the said A. as Executors of their own wrong The Defendants pleaded That they had Letters of Administration committed to them by the Ordinary and demanded Iudgment of the Writ The Plaintiff in maintenance of his Writ Replyed That the Defendants did Administer of their own wrong before that Administration was granted unto them Vpon which the Defendants did demur in Law. It was the Opinion of some of the Iustices That the wrong is urged by taking of Letters of Administration and now they are to be charged as Administrators only and not otherwise See 50 E. 3. 9. 20 H. 6. 1. And see the Case of the Cardinal of Canterbury 9 E. 4. 33. If one Administreth of his own wrong and afterwards takes Letters of Administration he shall be sued not as Executor but as Administrator See 21 H. 6. 8. But Gawdy Iustice conceived That the Defendants might be charged as Executors As to the Grant of the Queen of this Action of Accompt See Br. Pat. 98. 32 H. 8. that the King may grant a thing in action which is personal as debt and damages or the like Or a thing mixt as the Wardship of the body but not a thing real as an Action concerning Lands Rights Entries But it was agreed on all sides That if this Action had been granted specially it had been clearly good And it was Observed That in the principal Case the Accomptant was dead before the Grant so that his Executors were chargeable to the Queen to render an Accompt and the Queen was entituled to it It hath been Objected That this Action of Accompt came to the King by reason of his Prerogative Royal and in vertue thereof the Executors are accomptable to her and therefore the Queen cannot grant the same over to a Subject Certainly the same is not an Incident inseparable from the Crown nor a Flower of the Crown as the King cannot grant over to a Subject power to pardon Felons for that is proper and peculiar to the person of the King nor that a Subject may have a Court of Chancery And although this matter of Accompt is at the first i. e. at the time of the Grant uncertain yet by matter ex post facto it may be reduced to certainty i.e. by the Accompt and although the Accompt be not expresly named in the Letters Patents yet the words of the Grant ut supra do amount to as much And Gawdy Iustice conceived That this Accompt ought to be brought in the name of the Queen And all the Iustices were of Opinion That if the said A. had been living at the time of the said Grant of the Queen the Grant had not been good for then the Action against the Executors which is the matter of Prerogative had not been vested in the Queen CCLI Specot's Case Mich. 30 Eliz. In the Common Pleas. 5 Co. 57. HUmphry Specot and Elizabeth his Wife brought a Quare Impedit against the Bishop of Exceter c. of the Church of Tedcole in the County of Devon The Bishop pleaded That the Plaintiffs presented to him one John Holmes quem super Examinationem invenit Scismaticum inveterat ' and so non habilem to be instituted vel ad acceptandum aliquod Beneficium cum Cura Animarum for which he refused him and of such Refusal gave notice to
them Another Exception was Because it is not shewed What is their due Fee And that was conceived to be a good cause of Exception And if no Fee be due the same ought to appear in the Indictment And afterwards the Opinion of the Court was That they should be discharged CCCLXII Doughty and Prideaux's Case Hill. 33 Eliz. In the Common Pleas. Action upon the Case by Doughty against Prideaux 4 Len. 101 for these words Thou art a Wicked and perjured Fellow and art forsworn in the Court of Star-Chamber as appeareth by an Exemplification here under the Seal of this Court. The Defendant justified because of a Bill exhibited in the same Court by one Brooks against the now Plaintiff for conspiring with another to endict the said Brooks of certain Felonies And the Defendant now Plaintiff in his Answer to the said Bill denyed upon Oath the said Conspiracy And sentence was given in the said Court against the now Plaintiff ubi revera such a Conspiracy was The Plaintiff Replicando said That the said Brooks was Arraigned and Convicted upon the said Indictment and prayed his Clergy Whereupon it appeared because the said Brooks was not Legitimo modo acquietatus that the same could not be any Conspiracy in the now Plaintiff to procure the said Brooks to be Indicted Walmesley and Periam Iustices This Replication is not good For it may be that Brooks was acquitted and yet the Plaintiff did Conspire upon which a Writ of Conspiracy perhaps would not lie but an Action upon the Case without doubt For the Replication doth not prove That the Plaintiff did not Conspire but that the Plaintiff was not punishable for such Conspiracy c. CCCLXIII Pasch 33 Eliz. In the Common Pleas. THe Case was An Abbot leased Lands to three Men for 80 years and in the end of the said Lease was a Clause That if they died within the said Term that then the Lessor might enter The possessions of the Abby came unto the King who granted the Reversion to J.S. who made a new Lease thereof to J.D. for 21 years to begin after the expiration determination or surrender of the said former Lease The 3 Lessees died within the Term If J.D. might now enter before J.S. hath entred was the Question And it was the Opinion of all the Iustices That he could not For it is in the Election of J.S. if he will take advantage of the Condition and defeat the Lease but that ought to be by Entry and none can make such Entry but the Lessor himself or by his express direction c. CCCLXIV Bond and Bayle's Case Pasch 33 Eliz. In the Kings Bench. 1 Len. 328. 1 Roll. 926. BOnd brought a Scire facias against Bayle's Administrator of one T.B. upon a Recovery against the Intestate in an Action of Debt The Defendant pleaded before the said Iudgment given The Testator acknowledged a Statute-Staple to one B. and that the same was not paid in the life-time of the Intestate nor ever after and that they had not Goods of the Intestate in their hands above to pay the said Statute Vpon which it was Demurred in Law. Crook argued That the Bar was not good for here no execution upon the Statute is pleaded and then the Iudgment and the Statute being things of as high nature that of which Execution is first sued shall be first satisfied And if this Action had been brought upon the Obligation the Plea had not been good For although that Brian saith 21 E. 4. That Recognizances shall be paid by Executors before Obligations yet that is to be intended when a Scire facias is to be sued upon it otherwise not See 12 E. 3. Fitz. tit Execution 73. In a Scire facias upon a Iudgment in Debt given against the Testator Enquiry was What Goods the Executors had at the day of the Garnishment And he said It was moved 20 Eliz. by Anderson in this Court In Debt upon an Obligation against an Executor The Defendants pleaded That the Testator was endebted to one A. and that they had not more than to satisfie the same And it was holden no plea unless they had pleaded further That a Scire facias was sued forth upon the same But Wray said That was not Law And there is a difference when the Iudgment is given against the Testator himself and where against the Executors For where Iudgment is given against the Executors the Iudgment which was first given shall be first executed But if two Iudgments be given against the Testator he who first sueth Execution against the Executors shall he first satisfied because they are things of an equal nature and before suit it is in the Election of the Executor to pay which of them he pleaseth See 9 E. 4. 12. As if two Men have Tallies out of the Exchequer he who first offers his to the Officer shall be first satisfied for before that it is in the Election of the Officer which of them he will pay And a Iudgment is a higher Record than a Statute for the Statute is not a Record but Debitum recordatum recognitum And therefore 19 H. 6. If the Release enrolled be lost the Enrollment of it is not of any effect And Pasch 20 Eliz. Our very case was moved in the Court of Common Pleas In a Sire facias upon a Iudgment given against the Testator the Executor pleaded That the Testator had acknowledged a Statute before not satisfied ultra which c. And it was holden no Plea For a Statute is but a private and poquet-Record as they then called it And 32 Eliz. Between Coney and Barkham the same Plea was pleaded and holden to be no plea. Also if this Plea should be allowed great Mischief would follow for then no Debts should be satisfied by Executors For it might be that the Statute was made for performance of Covenants which Covenants peradventure shall never be broken And afterwards Iudgment was given for the Plaintiff CCCLXV Butler and Baker's Case Mich. 33 34 Eliz. In the Kings Bench. SEe the principal Case Reported in Cook 3 Part 25. Poph. 87. 1 And. 348. 3 Co. 25. The Argument of Egerton Solicitor General in the said Case under his own hand was as followeth viz. The disagreement by the Wife in pais is good by the Common Law. An Agreement may be by word Ergo a Disagreement If Husband and Wife Lease for years rendring Rent the Husband dieth the Wife accepteth of the Rent that Acceptance shall bind her 15 E. 4. 17. 3 H. 6. 48. 48 E. 3. 13. 16 E. 4. 8. 11 H. 7. 13. 9 H. 6. 44. 10 H. 6. 24. Tenant in tail makes a Lease for years not warranted by the Statute rendring Rent and dieth and afterwards the Issue accepteth the Rent the same shall bind him 21 H. 7. 38. 21 H. 6. 25. 14 H. 6. 26. 19 H. 6. 43. An Enfant Leaseth for years rendring Rent and at his full age accepts the
141. Upon a Statute Merchant for that it had but one half of the Seal good A. 228 229. Lies to discharge the Land if the Conusor taken by Capias be let at large by the Conusee his consent A. 230 231. B. 96. To avoid Execution upon a Recognizance for that the Debt is attached in London A. 297. Upon a voluntary Escape by the Sheriff it lies B. 119. By one Bail to be relieved for that the other Bail was taken by a Capias and discharged by the then Plaintiff C. 260. For one in Execution at the Suit of an Administrator durante minori aetate for that the Infant is come to Age C. 278. Averment A Demurrer need not to be averred A. 24. Inducement to an Action need not to be precisely averred A. 123 124. A consideration to make a Bargain and Sale may be averred though not mentioned in the Deed A. 170. Where against a Record return of a Sheriff Deed enrolled A. 183 184. None against a Bishops Certificate A. 205 206. Where necessary to aver the continuance of the particular Estate A. 139 255 66 281. B. 50 94 95. Where want of such Averment is aided by Intendment A. 281. C. 42 43. Devise to A. may be averred to be any one of that Name B. 35. Where he who pleads must aver all things to make good his Plea or the other party must shew it C. 40 to 43. Ancient Demesne For what Goods only they are priviledged from Toll A. 232. B. 191. Fine levied thereof avoidable by a Writ of Deceit A. 290. Pleading thereof A. 333. B. 190 191. Authority Shall be strictly pursued if not coupled with an Interest A. 74 285 286 288 289 bis Where Authority is reserved by Statute or Deed to make Leases If Leases in Reversion may be made C. 134. B. Bailiff SHeriffs Bailiffs shall not be prejudiced by the mis-return or not return of the Sheriff A. 144. What power a Bailiff of a Mannor hath B. 46. Bail. Discharged upon the Principal his Offer to render himself A. 58. No Scire facias lies against them until a perfect Judgment be against the Principal B. 1 2. Cannot be charged by any Custom without a Scire facias B. 29 30 87. If to a Scire facias against them they may plead Error in Fact in the first Judgment B. 101. A Lord shall find Bail ad solvendum debitum upon an Action removed out of London B. 173 174. Bail upon a Writ of Error is not to render the Body being then in Execution but to pay the Debt C. 113. Baron and Feme To what intent the Husband is the Femes Assignee A. 3. Where they shall joyn in Trespass A. 105. The Wife served with a Sub-poena the charges to be given to her Stat. 5 Eliz. cap. 9. A. 122 123. They are at Exigent no Supersedeas shall be received for the Baron without the Feme A. 138 139. The Baron cannot recover things in Action due to the Wife but must first take Administration A. 216. Leases made by the Baron of the Femes Land the Lease is void after their deaths A. 247. What Conveyance of the Wife of Lands given by the Baron is within the intent of the Statute 11 H. 7. A. 261 262. C. 78. They being Tenants in Tail joyntly the Baron suffers a Recovery this binds not the moiety of the Feme A. 270. If an Exchange by them of the Wives Land bind the Feme A. 285. Trover by the Feme and Conversion by the Baron and Feme Action must be against them both A. 312. Payment to the Feme is no good Bar A. 320. What act of the Baron is a breach of the Condition annexed to the Femes Estates B. 35 48. What value the Parapharnalia of a Viscounts Wife in Jewels is B. 166. Devise that she shall take the profits until the Son come of Age her second Husband surviving her shall not take the profits B. 221. C. 78. cont If an Interest be devised C. 9. Lands given to the use of the Wife for life remainder to the Heirs of Baron and Feme the Remainder is executed for a moiety C. 4. The Feme cannot give Licence to one to do a Trespass in the Husbands Land C. 267. By Agreement of the Baron to a Desseisin to the use of Baron and Feme the Free-hold vests in them both but the Feme is no Disseisor C. 272. Bargain and Sale. By Parol of Houses good and the manner thereof A. 18. There must be a Consideration for the doing thereof but it is not traversable A. 170. Of Trees Habend Succidend infra 20 annos If the Bargaince may cut them after 20 years A. 275. This Conveyance works by the Statute of Uses B. 122. C. 16. Of Trees during life of the Lessor the Lessee must cut all at one time in one Close and cannot leave off and begin again C. 7. Give grant agree confirm covenant all work by Bargain and Sale and by the Statute of Uses as well as the words Bargain and Sale C. 16. Bar. Where non damnificatus is a good Bar e contra A. 71 72. Must be good to a common intent and must be confest avoided or traversed or conclude the Defendant by Estoppel A. 77. By an Obligation in Bar of Assumpsit how to be pleaded A. 154. Non Dimisit and what advantage may be taken thereupon A. 192 206 207. To an Action brought by a Sheriff against a Prisoner for escaping Bar that since the escape the Plaintiff had acknowledged satisfaction A. 237. Non Concessit per liâ—eras paten A. 183. Plene Administr before notice where good A. 312. Ejectione Firme a good Bar in Trespass against the same party A. 313. C. 194. Judgment in Trespass a good Bar in Appeal A. 319. Good to common Intent A. 321. What is a good Bar for a time though it destroy not the Action for ever A. 331. Where Non concessit or that riens passa per le fait must be pleaded B. 13. If in Slander for calling one Forsworn it be a good Bar to say the Plaintiff did not depose B. 98. No good Bar to a Contract that a Stranger became bound for the Mony B. 110. To an Action quod Waren fregit no Bar to say it is the Defendants Free-hold for it may be so and that the Plaintiff hath Warren there too B. 202. If a good Bar in Assumpsit that the Plaintiff discharged the Defendant B. 203 204 214. The like in Covenant C. 69. A Stranger is bound that Lessee for years shall pay his Rent for his Farm It is a good Bar that the Lessor entred C. 159. Bastardy The manner of pleading and taking Issue therein A. 335. By pleading of the Bastardy specially how Bastard it shall be tryed per Pais C. 11. Or if the Bastard be not party to the Writ C. 11. Bishop Where he shall be tryed per Pares A. 5. What Lease shall bind the Successor A. 234 235. Is no Clerk
ad satisfaciend against him in his hands yet escape lies not A. 263. If it lies where the party was charged in Execution while he was Prisoner for Felony A. 276. It lieth not for escape of a Bail if no Scire facias issued against him B. 29 30. Was first given by equity of the Stat. W. 2. cap. 11. B. 9. No Costs upon non-suit in this Action B. 9. If the old Sheriff keep any Prisoner after he is discharg'd of his Office it is an Escape B. 54. If one escape upon an illegal Writ the Court will aid the Sheriff though he cannot deny to execute the Process B. 86. The Sheriff cannot seise the party who escapes by his consent B. 119. Escheat If a Remainder depending upon an Estate for life Escheat the Seigniory is extinct A. 255. Essoine In an Ejectione Firme adjorned A. 134. The Term in the eye of the Law begins the day of Essoines cont as to lay gents A. 210 211. In Quare Impedit B. 4 185. The office and force of an Essoine B. 4. If the Defendant appear and be essoined no Amerciament ought to be against him B. 185. An unnecessary and feigned delay C. 51. per Dyer Estoppel Count of a demise generally Defendant pleads nihil habuit in Tenementis the Plaintiff may estop the Defendant by pleading the Deed A. 156 204 206. Who shall take advantage of an Estoppel A. 157 158. The Jury ought to find it though the party hath not pleaded it A. 204 206. If Deed enrolled be an Estoppel to the party to plead Non est factum A. 184. Where the Court will take notice thereof if not pleaded A. 184. What Deeds made void by Statute are good by Estoppel against the party who made them A. 308 309. By matter of Record B. 3. Where one shall be estopped by a recital in a Bond Indenture c. where not B. 11. C. 118. What Estoppel made by the Ancestor shall bind the Heir B. 57 58. A Verdict for the Plaintiff upon a plene administravit estops the Sheriff of that County where the Tryal was to retorn nulla bona B. 67. By Deed indented B. 73. One seised in Fee takes a Lease of the Herbage of his own Land he is not estopped to claim Fee B. 159. No Estoppel by a Record if the Judgment be reversed C. 52. Jurors are not estopped by an Estoppel implied unless pleaded in the Record C. 209 210. Estovers Prescription for them within a Forrest A. 2. To a Messuage new built upon an old Foundation B. 44. What Estovers Lessee for years may take of common right C. 16. If Lessor grant Fire-boot Lessee may take Trees if there be no Under-wood C. 16. Evidence What Evidence may be given upon a Not Guilty in Trespass A. 301. C. 83. What upon a Nil debet in Debt for Rent B. 10. He who is in the affirmative must give Evidence first C. 162. Exception Count of a Demise of Demesne Lands and Evidence that the Demise was with an Exception yet good Evidence A. 139 140. Where in a Writ there must be a Forsprize B. 162. What may be excepted out of a Lease for years A. 49. De grossis arboribus crescen ' A. 61 116 117 246. Where a Praecipe shall demand a House with or without an Exception for part A. 252. Exchange By Baron and Feme who levy a Fine of the Land taken in Exchange the Feme may enter into her own Lands A. 285. Execution Where the Defendant taken by a Cap. pro fine shall be in Execution for the Plaintiff A. 51 276. The Defendant rendring himself shall not be in Execution unless the Plaintiff pay it A. 58. Execution shall be of the Goods which the Defendant had at the time of the Execution awarded A. 144 145. By Fieri facias good after the Defendants death A. 144. By Writ of Possession the Sheriff must turn all persons out of Doors A. 145. By Capias ad satisfaciend after Elegit retorned that the Lands were first delivered to others by Extent A. 176. The Sheriff upon a retorn Habendo may enquire the kinds of the Cattle if the Count or Avowry be incertain A. 193. One in Prison by Utlary against whom the Sheriff hath a Capias ad satisfaciend Escape lies not though the Sheriff do not charge him with the Capias ad satisfaciend ' A. 263. Stayed by Rule of Court after Judgment A. 276. Where the Defendant taken and in Prison for Felony is chargeable in Execution A. 276 277. B. 85 86 87. What are well executed not being retorned and what not A. 280. B. 49 50. But one Execution upon a joynt Praecipe in debt Secus upon a several Praecipe A. 288. After Execution sued the Defendant cannot sell his Goods bona fide A. 304. One attaint of Felony and also charged with Executions shall not be discharged of the Executions contra of Actions A. 326 327. B. 84 to 89. If the Execution be continued no Scire facias is necessary B. 77 78 87. In what Cases a Capias in Execution lay at Common Law and in what now per Statute B. 86 87. Capias lies against the Bail in B. R. and C. B. in a common Action and upon Audita Querela B. 88. If the Body of a Lord be liable to Execution B. 173 174. Executors Scire facias Executoribus c. without their names is good A. 17. How Judgment shall be against them where part only is found in Assets A. 67 68. Where Assets is found for part and after Goods come to the Executors hands how the Plaintiff must sue forth Execution scil by Scire facias A. 67 68. No plea against an Executor that the Executor was cited to appear to prove the Will and made default and that adm was com to the Defendant A. 90 91. Where Judgment shall be de bonis propriis where de bonis testatoris A. 94. The Executor gives his Bond for Mony a good Administration C. 111 112. Debtor makes the Creditor his Executor A. 112. What is a good refusal of Executors to prove the Will A. 135. Devise that Executors shall sell a Reversion sale by Parol is good and the Vendee is in by the Will A. 148. Debt by single Contract lies not against them though they do not demur but plead A. 165. Action by them de bonis asport in vita testatoris and the form thereof A. 193 194 205. One made Executor if he shall permit J. S. to hold a Term for three years when his power begins A. 229. By grant of Bona Catalla Goods of the Testators pass A. 263. Executor of Executor how to be named A. 275. In what case they shall recover Arrears of Rent in Fee by the Statute 32 H 8. 37. A. 302 303. Plene administravit before notice of the Suit the original being in a forein County A. 312 69. B. 60. The Executrix of the Debtee marries the Debtor she may have an Action for the
Middlesex may inquire by inquest of Office of the Customs in London C. 127. Inrollments If a Lease enrolled be lost the Jur. is not of any effect A. 329. Where a Deed may operate both by the Statute of Inrollment and of Uses C. 16. What is a good Plea against a Deed enrolled A. 183 184 B. 121. How the time is accompted for the six Months A. 183 184. If it be enrolled non refert if it were acknowledged C. 84. How a Corporation must acknowledge a Deed C. 84. Intendment Where two several quantities of Acres shall not be intended all one A. 44. Where the intent of a Man is traversable ib. 50. Where issuable B. 215. Where and how the Law construes the Intent of one who enters in Land A. 127. Where mentioning a Rent of 8 l. and after saying 8 l. Rent is intended the same Rent without the word praedict ' A. 173. How far the Law takes matters by Intendment in Wills Deeds c. A. 204 210 211. St. Martins and St. Michaels day what Feasts by Intendment A. 241. Where want of an Averment is aided by Intendment A. 281. C. 42 43. Where Baron and Feme are vouched it is intended to be in right of the Feme A. 291. If a Service be reserved according to the value of the Land it is intended the then present value B. 117. C. 114. Seisin in Fee is intended to continue until the contrary appear C. 42 43 96. Intrusion Bar therein by Grant of the King A. 9. Into the Rectory and receiving the Tithes A. 48. Disceit is no Bar therein for nullum tempus occurrit Regi B. 31 32. The Information is prout patet per recorda If the Defendant plead a Title If he need to traverse nul tiel record B. 30 31. If every continuance is a new Intrusion where the first Entry was lawful B. 206 207. Joynt-Tenants and Tenants in Common One Joynt-Tenant of the next avoidance to a Church Ecclesia vacante releases to his Companion nihil operatur A. 167. Cannot sue one the other in Trespass for their Lands A. 174. C. 228 229. Where two shall be Joynt-Tenants or Tenants in Common of an Estate tail A. 213 214. Two Joynt-Tenants are disleised by two to one of whom one Joynt-Tenant releaseth the other enters he is Tenant in Common to the Relessee A. 264. One Joynt-Tenant cannot grant to or enfeoff his Companion A. 283. If a Joynt-Tenant and a Tenant in Common may joyn in debt for Rent and make a general Count where one is to have a greater share B. 112. Devise to two to be equally divided if it be an Estate in Common or a Joynt B. 129. C. 9. If one Joynt-Tenant accept a Lease of the Land from his Companion he is estopt to claim by Survivor B. 159. Pleading of Joynt-Tenancy in abatement by Fine or Deed Stat. 34 E. 1. 8. B. 161 162. Joynder en Action Action Plea. Three Tenants in a Praecipe cannot vouch severally A. 116. Two Defendants justifie severally and the Plaintiff says joyntly de injuriis suis propr ' c. and good A. 124. Tenant for life and he in remainder in tail joyn in prescription A. 177. Where two Joynt-Tenants or Tenants in Common shall joyn in one Formedon A. 213 214. In what real Actions who shall joyn or sever A. 293 294 317. In a Writ of Error the like A. 293 294. Who shall joyn in a Writ of Error or in Conspiracy or Attaint A. 317. Three joyn in Action upon the Statute of Hue-and-Cry and adjudged good Quod est mirum A. 12. Covenant to two quolibet eorum both must joyn B. 47. C. 161. If one is obliged to account to three he may do it to any one B. 75 76. Debt upon a Judgment against three cannot be brought against one only B. 220. Two Infants Joynt-Tenants cannot joyn in a Dum fuit infra aetatem C. 255. Ioynture What alienation of a Feme of her Joynture is within the Statute 11 H. 7. 20. A. 261 262. Iourneys Accompts If Error lies for the Heir upon death of his Ancestor by Journeys Accounts Quaere A. 22. Issues joyn One joynt replication de injuriis suis propriis to two justifications adjudged good A. 124. Is called in the Civil Law Lis contestata A. 278. If an Advowson be appendant or in gross A. 323. How it shall be joyned upon pleading Ancient Demesne A. 333. Upon special Bastardy A. 335. Issue in an Inferior Court triable out of their Jurisdiction not triable in the Courts at Westm B. 37. Mis-joyn for that the Plaintiff in Covenant altered a word from the Covenant B. 116. In Replevin upon absque hoc that he took them as Bailiff B. 215. Iudgment Upon the Defendant rendring himself in discharge of his Bail A. 58. The Defendant pleads a frivolous Plea which is found for the Plaintiff Judgment shall be entred as by Nihil dicit Nullo habito respectu c. A. 68. In a Sur cui in vita for part of the Messuage demanded A. 152. In Ejectment Quod quer recuperet possessionem is as good as Termin A. 175. Quod Capiatur well enough although pardoned by Act of Oblivion A. 167 300. Shall not be for the Plaintiff if by the Record it appears the Plaintiff hath no cause of Action or that the Action is brought before the Debt due A. 186 187. B. 99 100. C. 86 87. Entred as of a day past where the Defendant dies while after Verdict the Court takes time to consult of the Law A. 187. In what cases the Judges may give Judgment by sight of an Almanack A. 242. Judgment for the Plaintiff in Trespass although the Defendant died before the Writ of Inquiry returned A. 236. In Forcible Entry for treble Costs and Damages A. 282. Nihil de fine qui a pardonatur not good because the Defendant does not plead the Pardon A. 300 301. In Trespass or Case may be arrested after the first Judgment A. 309. Arrest of Judgment shewed in writing in the Exchequer B. 40. Judgment final upon a Verdict in a Counter-plea in Aid B. 52. Where it shall be reversed in part or in all B. 177 178. Against the Heir where his Plea is found against him is general against all Lands C. 3. Iurisdiction The Spiritual Court hath Jurisdiction where right of Tithes comes in question between two Parsons A. 59. In what Cases the Spiritual Court may have Jurisdiction for Slanders B. 53. If the Court hath not Jurisdiction of the Action all is void but other faults make the proceedings only voidable B. 89. One cannot plead to the Jurisdiction of the Court after Imparlance C. 214 215. Iour in Court dies Iuridicus What things may be done upon day extrajudicial B. 206 207. Iustices and Iudges Whether Justice of Peace in a Vill may be by Prescription A. 106. In what Inferior Courts who are Judges A. 217 228 242 316. B. 34. If a Judge may take
lies immediately upon a Recognizance in Chancery B. 84 to 89 220. If Debt lies upon it before or after Judgment upon the Scire facias B. 84 to 88 220. Debt brought upon a Recognizance but non constat where it was acknowledged C. 58. Record Of an Assise brought into the Common Bench by Error how to be remanded to the Judges of Assise for Error lies not in C. B. A. 55. Pleading of a Record in the same Court A. 63 65. Where and for whom Averment lieth against a Record A. 183 184. Removed by a vicious Writ of Error or before Judgment given the Record is still in the first Court B. 1 2. A Recordatur made per Car. of a Record mistaken B. 120. Recovery The form thereof where the Vouchee comes in by Attorny A. 86. Against an Infant per Gardianum A. 211. A Recovery by one Joynt-Tenant binds only his own moiety A. 270. The execution thereof necessary in some cases B. 48. By Estoppel B. 57. Recoveror is seised to the use of him who suffers it until other Uses are limited B. 63 64 66. See Stat. 21 H. 8. who may falsify a Recovery For what reasons Recoveries do dock remainders after an Estate tall B. 66. Recovery to the intent that the Recoverors shall make Estates if such Estates be not made in convenient time in whom the Freehold is B. 216 217 218. What issue is bound thereby per Stat. 32 H. 8. B. 224. Recouper If the Lessor covenant to repair the House and do not Lessee may do it and recouper out of his Rent A. 237. Recusant If Copyhold Lands were liable to seisure for Recusancy before the Stat. 35 Eliz. 2. A. 98 99. Within what time Action upon the Stat. 23 El. 1. must be brought A. 239. The Indictment needs not name the offender of a Parish but a Vill B. 167. Redisseisin Whether the Plaintiff may have it after Entry the Judgment therein A. 69. Relation Of a Participle of the present Tense without the word adtunc A. 61 172. Of an Attornment A. 265 266. B. 222. Of words in an Indictment B. 5. Of a Deed enrolled to vest Lands in the King B. 206 207. Of agreement to a Disseisin Feoffment c. B. 223. Release Where a Covenant in the same Deed shall release other part of the same Deed A. 117. C. 113. Of a chose en action nihil operatur A. 167. C. 256. If an Heir release to the Disseisor and after his Ancestor dies it does not bind the Heir B. 47 56 57. A promise may be released by Parol B. 76. See where a release to a Stranger may discharge a Bond C. 45. Release of Covenants before any broken discharges the Bond for performance C. 69. To what Tenant in possession it is available C. 152 153. One Grantee of a prochein avoidance cannot release to his Companion A. 167. C. 256. Relief The Heir of one Coparcener shall pay none because it is an intire thing C. 13. Remainder and Reversion In Fee after a Lease for life where not discontinued by a Fine levied by Tenant for life A. 40. Cannot vest in the right Heirs of one in the Feoffors life unless it begin first in the Feoffor A. 101 102. Where an Estate shall vest as a remainder where as a reversion A. 182. B. 33 34. A Reversion after an Estate for life passeth by Devise of all Lands and Tenements A. 180 181. When a Remainder limited upon an Estate which is void as a Gift to a Monk for life remainder over shall take effect A. 195 196 197. Lease for nine years determinable upon death of the Lessee and if he die within the Term the remainder of the Term to his Wife a void remainder A. 218. The difference between a remainder limited upon a contingency which may never happen and one that must and will happen A. 244. B. 82 83. Devise to J.S. haered to Uses in tail after the Estate tail spent The Devisor shall have the fee A. 254. If one of two Disseisees release to one of two Disseisors and the Tenant who released not do enter the Reversion is revested pro toto A. 264. If a remainder may be limited upon a Condition A. 283. Feoffment to J.S. primogenito filio suo If the Son be born after the Feoffment he shall take by remainder B 15. If the remainder of a Term for years be good B. 69. C. 110 111 197 199. Remainder executed by moieties upon a Gift to a Feme for life remainder to their Heirs C. 4. Grantee of a Reversion shall recover Damages only for breach of Covenant made since the Grant C. 51. What acts as Extents Grants c. do take a Reversion forth of him that had it C. 156. Remitter Where it shall be A. 6 7 37. C. 93 94. Tenant in tail creates a new intail upon condition which his issue breaks yet he is remitted after his Fathers death A. 91. Land given to Husband and Wife in tail before Marriage and the Baron aliens and takes back an Estate to him and his Wife for life both are remitted A. 115. C. 93 94. The Father enfeoffs the Heir who never agrees and dies the Heir is remitted B. 73. Father enfeoffs his younger Son who dies his Wife priviment enseint of a Son the elder Son enters he is remitted Quaere C. 2. If one may be remitted against a Warranty C. 10. Waived by the Wife who was Tenant in tail with her Husband her payment of Rent which was reserved upon a Devise C. 272. Rent What is a Rent what a sum in gross A. 137 138 269 333 334. C. 103. Rent reserved by a Lease for years becomes seck if it be granted over A. 315. Divers ways of suspending Rents and how they are revived 334. To what remainder or reversion it shall be incident B. 33 34. If a Rent may be divided to equal a devise of Soccage and Capite Lands B. 42 43. Shall follow the Reversion although reserved to Executors B. 214. Contrary to a sum reserved to Executors upon a Mortgage of Land C. 103. Rent payable at two Feasts is to be paid by equal portions C. 235. By destroying a Reversion a Rent which followed it is extinguished C. 261. Repleader None after Demurrer A. 79. After an unapt issue A. 90. Replevin and Avowry Avowry for Rent reserved upon a Feoffment in fee and for sult of Court A. 13. Bar by non Cepit and what is good evidence therein A. 42. By property in a Stranger Ibid. Where the Plaintiff or Avowant may vary from the number of the Cattle A. 43. Plaintiff cannot discontinue without leave of the Court A. 105. Avowry for Damage Feasant in Customary Lands leased to the Avowant A. 288. Avowry by the Stat. 21 H. 8. cap. 19. A. 301. Avowry for a Leet Fee B. 74. Bar to an Avowry made by a Bailiff that he took the Cattle de injuria c. and traverse that he took them as Baily B. 215.
That the Defendant should answer over CXXXVI Hering and Badlock's Case Trin. 26 Eliz. In the Kings Bench. 2 Len. 80. IN a Replevin the Defendant avowed for Damage-feasant and shewed That the Lady Jermingham was seised of such a Mannor whereof the place where c. and leased the same to the Defendant for years The Plaintiff said That long time before King Henry 8th was seised of the said Mannor and that the place where c. is parcel of the said Mannor Demised and Demiseable by Copy c. and that the said King by such a one his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by Copy in Fee c. And upon that there was a Demurrer because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in Bar to the Avowry ought to have concluded and so was he seised by the Custom until the Avowant praetextu of the said Term for years entred c. And so it was adjudged CXXXVII Rosse's Case Mich. 26 Eliz. In the Kings Bench. Ante 83. IN Trespass brought by Rosse for breaking of his Close and beating of his Servant and carrying away of his Goods Vpon Not guilty pleaded the Iury found this special matter scil That Sir Thomas Bromley Chancellor of England was seised of the Land where c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish by whose Commandment the Defendant entred It was moved That that Tenancy in Common betwixt the Plaintiff and him in whose right the Defendant justifies could not be given in Evidence and so it could not be found by Verdict but it ought to have been pleaded at the beginning But the whole Court were clear of another Opinion and that the same might be given in Evidence well enough It was further moved against the Verdict That the same did not extend to all the points in the Declaration but only to the breaking of the Close without enquiry of the battery c. And for that cause it was clearly holden by the Court That the Verdict was void And a Venire facias de novo was awarded CXXXVIII Gurney and Saers Case Trin. 26 Eliz. In the Kings Bench. AN Ejectione firmae was brought by Gurney against Saer who pleaded That Verney was seised and leased the same to Baker for 21 years 8 Eliz. Baker 14 Eliz. assigned his Interest to Rolls who 15 Eliz. leased the same to Topp for 10 years and afterwards Rolls granted the residue of his Term to A. Verney 16 Eliz. leased the same Land to Stephen Gurney for 21 years to begin after the determination surrender or forfeiture of the first Lease rendring Rent with Clause of Re-entry And afterwards Verney granted over the Reversion in Fee to Hampden To which Grant A. and Topp attorned Topp leased to B. at Will A. and Topp surrendred B. held himself in by force of the Tenancy at Will And the said Surrender was made privily and secretly without the notice of the said Stephen Gurney The Rent reserved upon the Lease made to Stephen Gurney is demanded as now begun by the said Surrender Hampden entred as for the Condition broken for the non-payment of the said Rent And the Lease made to the said Stephen Gurney was pleaded Quod praedictus Johannes Verney per Indenturam suam sigillo ipsius Stephani Gurney sigillat demisit c. And that was holden a material Exception For here upon the matter doth not appear any Lease made by Verney For here upon the pleading it appeareth That Verney had accepted a Deed of Gurney purporting a Demise by Verney to Gurney which Gurney had sealed but there did not appear any such Deed sealed by Verney and therefore no Lease ut supra And although a Condition may be pleaded by Indenture sealed with the seal of the other party yet a Conveyance cannot be pleaded by Deed as it is here unless sealed with the seal of the party Agent scil the Feoffor Grantor Lessor And for that cause Iudgment was given for the Plaintiff Another Exception was taken because that after the Grant of the Reversion by Verney to Hampden the surrender of A. and Topp is pleaded whereas A. ought not to surrender for his Estate was not a Reversion for years but a Lease in Reversion and a Lease for years to begin at a day to come which could not be surrendred See 4 H. 7. 10. But if A. had granted his Interest by way of Reversion where Attornment had been as one Releaseth to him the Reversion for years it is good contrary to him who hath a Lease in Reversion But as to that it was said by the Court That this surrender by A. was good enough for in as much as the Interest which A. had at the time of the surrender was in Rolls a Reversion after his Grant to Topp and there it remained and continued in its nature as to that point notwithstanding that by the Grant it passed in another manner than as a Reversion Another Exception was taken because that in the pleading of the Surrender it is not alledged That at the time of the Surrender Hampden was seised of the Reversion 7 E. 3. 3. He who claims by Cestuy que use ought to alledge the Seisin and Continuance of Seisin to the said use at the time of the Feoffment or Grant notwithstanding that Seisin was alledged before And 10 H. 7. 28. Hewbade's Avowry he there pleaded That A. was seised of a Mannor and thereof levied a Fine to B. that C. the Tenant upon whom the Avowry was made attorned c. And Exception taken because it is not shewed in the Avowry That B. the Conusee was seised of the Mannor at the time of the Attornment And it was holden a good Exception On the other side it was said and affirmed by the Court That in all Cases where an Inheritance is once alledged in a Man the Law shall presume the Continuance of it there until the contrary be shewed See 1 Eliz. the Case between Wrotesley and Adams Plow Com. 193. And 15 Eliz. between Smith and Stapleton Plow 431. Which Wray and Gawdy Iustices granted Ayliff Iustice to the contrary Another point was moved If upon this secret Surrender notice ought to have been given to Gurney who had an Interest for years to begin upon the said Surrender For some conceived That Gurney without notice given him of the said Surrender should not be prejudiced by the Condition aforesaid And of that Opinion clearly was Wray Chief Iustice Note In this Case That Saer the Defendant presently after the Iudgment entred cast in a Writ of Error into the Court and assigned an Error in fact scil That Gurney the Plaintiff in the first Action within age appeared by Attorny whereas he ought by Gardein or Prochein Amy. And it was the Opinion of the Iustices upon the first Motion
Debt against the Debtors Executor A. 320. They may have Error of an Utlary in Felony against their Testator A. 325. Good resolutions for their pleading of Statutes Judgments c. A. 328. 329. What Debts must be first paid 328 329. Are liable to account to the King. B. 34. The manner of prosecuting a Devastavit in a forein County against an Executor B. 67. If they plead plene administravit specially by paying Debts upon Bonds they must shew how the Bonds are discharged B. 155. What intermeddling with the deceaseds Estate makes one Executor of his own wrong B. 224. Conditional if he pay all Debts owing to the Testator to the other Executor C. 3. If Executors enter or claim generally it shall be taken to be as Executors and not in any other capacity C. 36. It is said that a promise cannot be good to bind an Executor if he hath not Assets C. 67. Sale of Goods by an Infant Executor is good and binds him C. 143. One Obligor makes the Surety his Executor who pays the Mony generally Quaere C. 197. How he must be sued who being Executor of his own wrong takes Administration C. 197 198. One Executor cannot give the Goods of the Testator to the other for nothing passes by such Gift C. 209. Release of one Executor binds both C. 209. Executor of Executor not chargeable with a Devastavit made by the first Testator C. 241. Exemption A Juror sworn at the Bar notwithstanding he produced his Charter A. 207. Ex gravi querela In London in what case A. 267. Ex parte talis In what case it lieth B. 93. Exposition of Words Dedi Concessi in a Deed A. 29. Where the word Or in a Deed shall be copulative e converso A. 74 244. Of the word eundem in a Grant A. 15. Divisus dividend in an original Writ A. 169. Of Adtunc A. 172. I agree to surrender my Lands spoken by Tenant at will A. 178. Of the word Tenement in Grants A. 188. Of the word Covenant in a Bill of Debt A. 208. Uterque in Indictments A. 241. Quousque A. 244. Suus A. 271. Right A. 271. Factum implies sealing and delivering A. 310. Exponere ad culturam gives no Estate in the Land A. 315. In portum ad portum all one A. 335. Covenant with two quo ibet eorum B 47. In manner aforesaid is a Devise B. 69. By the word Licet may be made a good allegation B. 108. C. 67. A mile is accounted in Law 1000 paces and every pace 5 foot B. 113. Assurance to what Conveyances it doth relâ—te B. 130. Selion of Land is uncertain B. 162. Puer if it relates to both Sexes B. 217 218. Firma C. 12 13. Whether the word Mille may be joyned to a Genitive or Accusative Case C. 94. Tenementum is of an incertain signification C. 102. Of the word until as a Lease until Michaelmas includes the Feast day C. 211 Curtillage quid C. 214. Where a word in the singular number includes the plural C. 262. Immediate C. 273 274. Term of years C. 112. Extent If it be well executed though not retorned A. 280. Executed though not retorned in what case it is a good Execution B. 12 13. Lessee for years may pay the Rent to the Extendor C. 113. Scire facias to remove the Conusee C. 155. If the Conusee can in any case be removed without a Scire facias C. 155 to 158. What kâ—nd of Interest is left in the Conusor during the Extent C. 156 157. If an Extent be avoided by a Prior Statute the puisne Conusee may enter when the other is satisfied C. 239. If a Debt be assigned to the King he shall have all the Conusors Land C. 240. By the Statute of Acton Burnel the Extendors are to take the Lands if they appraise too high and must pay the Debt statim But when that statim means vi C. 274. Extinguishment Of Rent by Entry what act amounts thereto A. 110. Estate for life extinct by a Fee coming to the same person A. 174. A Prescription of non decimand in a spiritual Person is not extinguished by the Lands coming to lay hands A. 248. If a Remainder depending upon an Estate for life escheat the Seigniory is extinct presently A. 255. Where an Action once suspended is extinguished A. 172 320 330 331. Of a Use A. 257 259. A Rent granted in Fee and that it shall be suspended during the nonage of every Heir A. 266. Executor of the Debtee takes to Wife the Debtor how adjudged A. 320. Where personal things once suspended shall be revived B. 84. Lessor mortgages his Reversion to the Lessee in Fee the Term is utterly extinct C. 6. Where a Warrant is suspended and may be revived C. 10 11. A Term for years comes to the Lessor as Executor and he dies the Term is revived C. 210 111. If Unity of possession in the King of Abbey Lands extinguish a Common C. 128. If Devisee of a Term remainder over purchase the Fee the Term is not merged C. 92 93. Condition of re-entry is not suspended by assigning part of the Land for part of the Term C. 221. By destroying a Reversion a Rent depending thereon is extinct C. 261. A Mesnalty extinct by the Lords purchasing the Tenancy C. 261. Extortion Against whom it lies and the several Statutes against it A. 295. C. 268. It must be set sorth in the Judgment whether any Fee or no Fee was due C. 268. F. Faux Imprisonment See Iustification FFaux Imprisonment lies if a Capias be made out of the Courts at Westminster to a County Palatine B. 89. Faux Iudgment Lies upon a Justicies not Error B. 34. Upon a Writ of Right Close prosecuted in nature of an Assise C. 63. Fee-simple Where it may be created without the word B. 27. C. 216. Devise that the elder Son shall take the Profits until the younger come of Age is a Fee conditional in the eldest C. 216. Feoffment Vide Vses Good by the words Bargain and Sell with Livery A. 25. Fine and Amerciament Upon alienation without Licence A. 8. B. 55 56. In what case a Vill shall be amerced for the escape of a Felon A. 107. C. 207. If a Pain upon a Presentment must be afferred A. 203 204 217 242. In what case a Steward may Fine in a Court-Leer A. 217 242. Grantee of Post-Fines if he may distrain for them and sell the distress A. 249 250. The manner of pleading in Trespass where the Defendant-justifies for such Fine A. 249 250. By what words such Fines pass A. 249 250. If a Defendant make several defaults in one Suit he shall be several times amerced B. 4 5. Fine set in a Court for a contempt in not retorning of Cattle in a Replevin B. 174. Debt lies for a Post-Fine by the Kings Grantee B. 179. cont C. 56 234. A Defendant may be several times amerced for several defaults in one Suit B.