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
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
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
In the Common Pleas. 1 And. 27. THe Case was That the Bishop of Exeter leased certain Lands in the County of Devon for years rendring Rent payable in Exeter aforesaid with Clause of Re-entry and the Bishop of Exeter had a Palace in Exeter aforesaid It was the Opinion of the Iustices in this Case That the Rent ought to be demanded at the said Palace and not elsewhere And if that the Lessee come to the Common Gate of the said Palace and there tender the Rent it is a good tender without more be the Gate shut or open notwithstanding that the Bishop be within the Palace and that neither he nor any of his Servants be at the Gate for to receive it for the Lessee is not tyed to open the Gate of the Palace if it be shut nor to enter into the Palace if it be open X. Mich. 4 and 5 Phil. and Mary In the Common Pleas. COpyhold Land was surrendred to the use of the Wife for life the remainder to the use of the right Heirs of the Husband and Wife The Husband entred in the right of his Wife It was the Opinion of the Iustices in this Case That the remainder was executed for a Moyety presently in the Wife and the Husband of that was seised in the right his Wife and the Wife dying first that her Heir should have it 1 Roll. Lane and Pannel's Case But if the Husband had died first his Heir should have had one Moyety XI Joscelin and Sheltons Case Mich. 4 and 5 Phil. and Mary In the Common Pleas. More Rep. 13. IN an Action upon the Case the Plaintiff declared That the Defendant in Consideration that the Son of the Plaintiff would marry the Daughter of the Defendant assumed and promised to pay to him 400 Marks in 7 years next ensuing by such portions And upon Non Assumpsit pleaded It was found for the Plaintiff It was Obiected in Arrest of Iudgment That one of the said 7 years was not incurred at the time of the Action brought c. and that appeared upon the Declaration so as the Plaintiff had not cause of Action for the whole Mony promised And for that cause the Writ was abated by the Court by award although it was after Verdict See Br. Title Action upon the Case 108. XII 2 and 3 Phil. and Mary In the Common Pleas. IN an Assise against 4. they were at Issue upon Nul Tenant del Franktenement nosme en le brief And it was found by the Assise That two of them were Disseisors and two Tenants And after Verdict and before Iudgment one of those who were found Tenants died And that was moved in Arrest of Iudgment But it was not allowed of by the Court Because the parties had not day in Court to plead it But it was said That after Iudgment given a Writ of Error lieth In the Time of Queen Elizabeth XIII Canons Case 1 Eliz. In the Common Pleas. UPon an Evidence to a Iury in the Common-Pleas 1 Roll. 839. Vpon an Issue there this Deed was given in Evidence viz. Sciant praesentes futuri Quod Ego Richardus Canon filius haeres Richandi Canon Dedi Concessi hac praesenti carta mea Confirmavi Willielmo Compton Militi Omnia Terr Tenementa c. ad usum mei praed Richardi Joannae uxoris meae pro termino vitae absque impetitione Vasti ac etiam rectorum haered mei praefat Richardi assignatorum meorum post decessum mei praefat Richardi Joannae uxoris meae Et si contingat me praefat Richardum obire sine exitu de Corpore meo procreato Tunc Volo quod omnia dict Terr Tenementa remaneant Tho. fratri meo rectis haeredibus de Corpore suo procreatis haeredib assignat eorum And it was the Opinion of the Iustices That a good Estate tail was by that Deed limited to the said Richard in use after the death of his Wife XIV Holt and Ropers Case 2 Eliz. In the Common Pleas. IN a Replevin by Holt against Roper the Case was J. Abbot of W. Leased to T.M. Knight a Close of Land in B. for 44 years Post 242. 243. who thereof possessed was attainted of misprision of Treason and so forfeited to the King who seised the same The Abbot and his Covent surrendred 31 H. 8. the King Leased the same to Roper for 21 years and died King Ed. 6th in the fourth year of his Reign Leased the same to one Philips To have and to hold after the Term to T.M. ended for 21 years Roper surrendred to Queen Mary who Leased the same again to Roper for 30 years In this Case It was adjudged That the Lease made to Phillips was utterly void for that the King was deceived in his Grant For the Lease made to F.M. was long time before determined by extinguishment in the Person of the King who had it by forfeiture upon the Attainder of T.M. and the Statute of 1 E. 6. Cap. 8. shall not help that Lease notwithstanding the Non-recital or Mis-recital of Leases made before For here is not matter of recital but matter of Estate and Interest which is not well limited for the Commencement of it i. the Lease to Phillips For there is not any certainty of the Commencement of it For that Lease cannot begin after the Surrender of Roper for the words of the Limitation of the beginning of it cannot serve to such Construction XV. 2 Eliz. In the Common Pleas. A Term for years is devised to A. The Executors of the Devisor entred into the Land devised to the use of the Devisee It was the Opinion of the Court That the same was a sufficient possession to the Devisee XVI 3 Eliz. In the Common Pleas. TWo Coparceners were of a Reversion the one of them granted his Interest in it by Fine to another It was holden in that Case That the Conusee should have a Quid juris clamat for a Moyety of the said Reversion XVII Mich. 4 Eliz. In the Common Pleas. THe Lessor mortgaged his Reversion in Fee to the Lessee for years and at the day of Mortgage for payment of the Mony he paid the Mony It was holden in this Case That the Lease for years was not revived but utterly extinct XVIII Mich. 4 Eliz. In the Common Pleas. J.N. Cestuy que use in tail 14 H. 8. by Indenture between him on the one part and J.S. of the other part In Consideration of a Marriage between his Son and Heir apparent and Joan Daughter of the said J.S. to be had Covenanted with the said J.S. That neither he nor any of the Feoffees seised to his use have made or hereafter shall make any Estate Release Grant of Rent levy any Fine or do any other Incumbrance whatsoever of any of his Mannors Lands c. But that all the said Mannors c. shall immediately descend or remain to his said Son and the Heirs
the Enfant Hob. Rep. 281. for the Wife had her said Estate to her own use and then her Husband surviving her should have it and that without any admittance for that he is not in of any new Estate but in the Estate of his Wife as Assignee And it was said by them That if a Copyholder be for years and maketh his Executors and dieth that the Executors should have the Term Co. Case of Copyholders and that without any Admittance Weston contrary in that case as to the Executors XXIII Tindall and Cobbs Case 7 Eliz. In the Common Pleas. WAste was brought by Tindall Knight against Jeoffery Cobbe Esquire and the Plaintiff declared of a Demise of the moyety of the Mannor of Wolverton and of the moyety of a Wood called Wolverton-Wood The Defendant pleaded That Robert Winckfield before the Waste supposed was seised of and in tertia parte alterius Medietatis of the said Mannor and of and in tertia parte alterius Medietatis of the aforesaid Wood and held the same insimul pro indiviso with the Plaintiff and that the said Robert Winckfield by his Deed sold to the Defendant omnes omnimodas arbores subboscos suos crescent in praedict tertia parte alterius medietatis praedicti bosci ad libitum ipsius Galfridi succidend and so justified the cutting down of 300 Oaks in which the Waste is assigned with this that he will aver That the aforesaid 300 Oaks were the third part only in numero precio medietatis omnium arbor subboscorum at the said time when the Waste is supposed to be done and demanded Iudgment if Action And divers Exceptions were taken to the Count 1. He sheweth Vaugh. Rep. 175. that the Demise of the moyety of the Mannor was per nomen c. and doth not shew that the demise was by writing and if not then he cannot plead it by a per Nomen 2. The Waste is assigned in digging of Clay in 100 Acres of Lands parcel Medietatis Maner de Wolverton and hath not shewed in what Town the Land is For he hath shewed before the Demise of the moyety of the Mannor of Wolverton in Wolverton 3. He shews the Demise of the moyety of the Mannor of Wolverton and of other Lands and assigns the Waste in cutting down Oaks in quodam bosco vocat Wolverton Wood parcel praemissorum and that cannot be for this Wood cannot be parcel of the Mannor of Wolverton and of the other Lands also And for these Causes the Count by the whole Court was holden to be insufficient XXIV Stamfords Case 7 Eliz. Dyer In the Common Pleas HUgh Stamford seised in Fee had Issue A. his eldest Son and B. his younger Son A. had Issue George and Elizabeth by divers Women Hugh made a Feoffment in Fee to the use of himself for life and afterwards to the use of George in tail and afterwards to the use of A. in tail and afterwards to the use of the right Heirs of Hugh Hugh dieth A. dieth George levieth a Fine to the use of himself in tail the remainder over to B. in Fee and dyeth without Issue It was holden by Bendloes Carell Kelloway both the Bromleys and Kingsmill That Elizabeth is barred by this Fine by the Statute of 4 H. 7. 32 H. 8. XXV 7 Eliz. In the Common Pleas. THe Case was this Grandfather Father and Son Lands are given to the Grandfather for life the remainder to the Son in tail The Grandfather and Father joyn in a Feoffment with warranty The Feoffee makes a Lease for years and afterwards conveys the Land to the Grandfather for life the remainder to the Father in Fee The Grandfather and Father die The Son entreth and puts out the Lessee Weston was of Opinion That the Entry of the Son was lawful for it was the Feoffment of the Grandfather and the Confirmation of the Father and the Warranty of the Grandfather collateral to the Father and his Estate but when the Land is re-assured as above is said and afterwards the Son entreth after the death of the Grandfather and Father now he is remitted and the warranty gone by taking back the Estate and the Son is now seised of as high an Estate as his Ancestor was at the time that he departed with the Land by which the warranty is determined Dyer contrary Here had not been any discontinuance if the warranty had not been for the Father was never seised by force of the entail And I conceive that against a warranty collateral one cannot be remitted for it binds the Right as a Fine with Proclamation after the Statute of 4 H. 7. And I conceive that during the possession of the Grandfather the Warranty is but suspended and not determined and although that by the death of the Grandfather it be determined yet having respect to the Lessee it is in being for his Estate is derived out of the Estate which was warranted and which descends with the Warranty Bendloes One cannot make Title by a Collateral Warranty only c. XXVI Simonds Case 8 Eliz. In the Common Pleas. IN a Formedom the Tenant vouched Rose Simonds as Daughter and Heir of Henry Simonds Clerk and because she was within age he prayed that the Parol might demur Bendloes recited the Case to be this A Fine was levied of the Lands to Henry Simonds upon Condition c. who rendred back the Land to the Conusor by the same Fine and that the said Henry Simonds never had any possession or seisin but that which he had mean between the Conusans and the Rendee of which possession the Wife should not be endowed And therefore it is a good Counter-plea to say That the said Rose nor any of her Ancestors c. for that was not such a Seisin upon which Warranty might rise and so if a Feoffment in Fee had been made to the said Henry Simonds to the use of another And of that Opinion was Dyer Iustice for Henry Simonds had not any possession by force of which he might be vouched Welsh contrary For the Fine imports in it self that he hath a Fee and that he hath granted and rendred the same Fee and this Fine amounts to a Feoffment Dyer said to Bendloes The best way for you is to plead the Counter-plea generally and if he estop you by the Fine to demur upon it Afterwards Bendloes moved another matter viz. Henry Simonds was a Priest and therefore Rose is a Bastard and if so then she cannot be vouched as Heir But I would not trust the Bishop to Certifie the Bastardy if I should plead it generally and therefore I will plead the special matter and so it shall be tryed by the Country Dyer and Welsh So you may do if you please and yet if you plead general Bastardy it shall be tryed by the Country for Rose is not a party to the Writ and in such case Bastardy shall be tryed by the Country XXVII Mich. 8
of Bargain and Sale and he hath not election to take the Land by way of Livery But when all is in one Deed and takes effect equally together in such case the Grantee hath Election but here in this Case the Bargain and Sale the Deed being Inrolled doth prevent the Livery and taketh his full effect before And by Wray and Catline If he in the Reversion upon a Lease for years grants his Reversion to his Lessee for years by words of Dedi Concessi Feoffavi and a Letter of Attorny is made to make Livery and Seisin the Donee cannot take by the Livery for that the Lessee hath the Reversion presently XL. Mich. 14 Eliz. IN an Ejectione Firmae the Case upon Evidence appeared to be thus The Bishop of Rochester Anno 4 E. 6. Leased to B. for years rendring Rent and afterwards granted the Reversion to C. for 99 years rendring the ancient Rent To have from the day of the Lease without impeachment of Waste which Grant was confirmed by the Dean and Chapter But B. did not Attorn And for default of Attornment It was holden by the whole Court That the Lease was void for it is made by way of grant of a Reversion and to pass as a Reversion But by Catline If the Bishop had granted the Reversion and also demised the Land for 99 years it should pass as a Lease to begin first after the former Lease determined And as to the Attornment it was given in Evidence That B. after the notice of the Grant to C. spake with C. to have a new Lease from him because he had in his Farm but 8 years to come but they could not agree upon the price And the Iustices were of Opinion That that was an Attornment because he had admitted the said C. to have power to make a new Lease unto him Also the said B. being in Company with one R. seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromley Sollicitor That is no Attornment being spoken to a stranger Barham contrary because he was present And it was held by the whole Court to be a good Attornment But it was holden That if the Attornment was not before that the Bishop was translated to Winchester That the Lease should be void and although that the Confirmation of the Dean and Chapter was before the Attornment so as no Estate had vested in C. yet it is good enough for the assent of the Dean and Chapter is sufficient whether it be before or after by Catline Southcote and Whiddon Wray contrary XLI Mich. 14 Eliz. THe King seised of a Mannor to which an Advowson is appendant a Stranger presents and his Clerk is in by 6 months The King grants the Mannor with all Advowsons appendant to it to B. The Incumbent dieth The Grantee may present For the Advowson was always appendant and the Inheritance thereof passeth to the Grantee and is not made disappendant by the usurpation as in the case of a common person for the King cannot be put out of possession But the Patentee shall not have a Quare Imped of the first disturbance for that presentment doth not pass to him being a thing in Action without mention of it in his Grant. And if the Patentee bringeth a Quare Impedit of the second Avoydance he shall make his Title by the presentment of the King not making mention of the usurpation yet if the Bishop presenteth for Lapse in the case of a common person he ought to make mention of it for that is his Title to the Presentment c. XLII Humfrey and Humfrey's Case Mich. 14 Eliz. In the Common Pleas. BEtween Humfrey and Humfrey the Case was That the Defendant in Debt after Iudgment aliened his Land and the Plaintiff sued forth Execution upon the new Statute And the Court of the Request awarded him to the Fleet because that he sued forth Execution Whereupon the Iustices of the Common Pleas awarded a Habeas Corpus and discharged the Plaintiff It was said by Bendloes Serjeant That the Chancery after Iudgment could not enjoyn the party that he shall not sue forth Execution for if they do the party shall have his remedy as above XLIII Mich. 14 Eliz. In the Kings Bench. A Man seised of Copyhold Lands Deviseth a certain parcel of them to his Wife for life the remainder to his Brother and his Heirs And afterwards in the presence of 3 persons of the Court said to them I have made my Will and I have appointed all things in my Will as I will have it And afterwards he said And here I surrender all my Copyhold Lands into your hands accordingly And it was moved If all his Copyhold Lands should be to his Wife or by those which were specified in the Will. And the Opinion of the whole Court was That the Surrender is restrained by the Will so as no more passeth to the Wife upon the whole matter but that which is mentioned in the Will and the general words shall not enlarge the matter XLIV Hill. 14 Eliz. In the Common Pleas. LAnds were devised to the Mayor Chamberlain and Governors of the Hospital of St. Bartholomew in London whereas in truth they are Incorporated by another name yet the Devise is good by Weston and Dyer which Manwood also granted because it shall be taken according to the intent of the Devisor And it was said by Weston If Lands be devised to A. eldest Son of B. although that his name be W. yet the Devise to him is good because there is sufficient certainty c. XLV Pasch 14 Eliz. In the Common Pleas. THe Case was A. seised of Lands deviseth the same to his Wife for life the remainder to his three younger Sons and to the Heirs of their bodies begotten equally to be divided amongst them by even portions and if one of them die then the other two which survive shall be next Heirs The Devisor dieth One of the Sons dieth and by Dyer and Weston Iustices The 3 Brothers were Tenants in Common in remainder But contrary it is where such a Devise is made between them To be divided by my Executors c. there they are Ioynt-Tenants until the division is made but here although the words are Equally to be divided the same is not intended of a Division in fact and possession but of the Interest and Title For if a Man bringeth a Praecipe quod reddat de una parte Manerii de D. in 7 parts to be divided it is not intended divided in Possession but divided in Interest and Title And it was said by the said Iustices That although one of the Brothers dieth the two surviving Brothers have his part by purchase and not by descent and they are Ioynt-Tenants of it And this was the Case of one Webster and Katherine his Wife the late Wife of John Bradbury XLVI Pasch 14 Eliz. In the Common Pleas. THe Case was Lessee for years of the
Customs stand with Reason And so in 5 H. 7. Where a Man prescribes That for the Pasture which the Beasts of the Tenant have taken in his Lands in the day-time that he have the Foldage of them upon his said Lands in the Night to manure his Lands is a good prescription because the party hath for it Quid pro Quo. And so where a Man prescribes to have a Farthing of every one who passeth over his Land the same is called Toll traverse and is good And so in 7 H. 4. Where a Man prescribes in Common by reason of Vicinage it is good for though it cannot be of Common Right yet because each hath Quid pro Quo it is good And so is the Custom for Fishermen to dry their Nets upon the Banks of the Lands of other Men lying upon the Sea Coasts because it is for the Common wealth and every Man hath an advantage by it but if a Man should prescribe to Fowle there upon the Lands of another that were not good Meade contrary That case is as it hath been put and divers Cases of the Common Law Custom and Statute Laws have been shewed And by common Intendment it is intended that need doth require the making of the By-Law for otherwise they would not have made it and there needs not any averment that there was need of it for that shall be taken by intendment As 19 E. 4. A Man counts of the Grant of the next Avoydance and the Count is good without shewing that that was the next Avoydance but yet it would have been better if it had been expressed And 21 H. 7. In Trespass the first day of May the Defendant pleads the Licence of the Plaintiff without shewing that it was for the same Trespass and yet it shall be intended when he pleads a Licence for the same day that it was for the same Trespass And as to the Case put upon the Statute of 1 R. 3. it hath been ruled otherwise for it shall be shewed on the other side that he was within age as it appeareth by 10 13 H. 7. Also he said that the Court here shall intend that there was a necessity sufficient without expressing of it and if there was not then it ought to be alledged on the other side As 15 H. 7. An Annuity is granted until he was advanced to a Benefice the Plaintiff shall not need to shew it but that shall come on the Defendants part And the Statute which is That no Cattel of the Plough shall be distrained where the party hath other Cattel of which a Distress may be taken there the party needs not to alledge that he had other Cattel or other Goods And as to that which hath been said That it was the better Order that needs not for the Defendant himself was one of the makers of the Order and when By-Laws are made they shall not extend but to the Tenants within the Mannor where they are made and to such only as have Lands there and not to the Lands of others which are out of the Mannor and the Defendant in this case shall not be received to say but that this is a good Custom and Order because he is a party to it and was the maker of it and that there was then a necessity for the making of it for the better ordering of the Lands and that especially when as the Defendant himself was a party to it And as to that which is said That Seisin is alledged in the Lord Cromwell in 6 E. 6. and it is not alledged that the Seisin did continue in him until 13th of this Queen It shall be intended that he continued seised until the contrary be shewed As in 11 H. 7. A Man prescribed to have Common by reason of the House c. The Avowant doth not say that he was seised of the House at the time c. of the disseisin of the Common because he once alledged Seisin of the House and that Seisin shall be intended to continue unto the time of the disseisin And so 10 H. 7. A Prior Domus Ecclesiae de C. brought Waste and supposed that it was to the disenheresin of the House and did not say praedict Domus and yet it was good and shall be referred to the said Priory And so here when he saith that he was Lord and that the By-Law was made as before and a penalty imposed and a Distress taken by the Bailiff of the Lord Cromwell for not observing the By-Law and payment of the sum assessed all being put together makes a sufficient certainty and that the Lord Cromwell continued his Seisin of the Mannor and Land And as to that which hath been said That the By-Law made and the Custom alledged to distrain in the Lands of any Man for the Offence of another is not reasonable and against the Law To that he said That the Tenants here had authority to make By-Laws and by their consents have bounden themselves to the observing and performance of them and therefore shall not now be received to say That the By-Law made by themselves was against the Law. And he said That the Customs in some places are Where there are Waste Lands that they may make By-Laws That if any Tenant or person dig Turfs in the same Waste that the Lord may distrain for such offence within any place of the Mannor and the Cattel of any person Quaere of it The Principal Case was Adjourned LXIV Mountford and Catesbys Case Mich. 15 Eliz. In the Common Pleas. AN Action upon the Case was brought by Mountford against Catesby Dyer 328. Vaugh. Rep. 120. And the Plaintiff declared That the Defendant covenanted assumed and promised in Consideration of a certain sum of Mony to him paid and in Consideration of the payment of a Rent of certain Lands demised to the Lessee That he should peaceably and quietly enjoy the same without Interruption of any person and he was ousted by a stranger And the matter aforesaid was found by special Verdict And it was argued by Lovelace Serjeant and he prayed Iudgment for the Plaintiff And he said That there is a difference when it is said that a Man shall hold and enjoy peaceably and quietly As in Case where one warrants Land there if he be ousted by a stranger who hath not any Title to the Land he shall have an Action of Trespass against him But a Man by word or Covenant may bind himself to that which he is not bound to do by the Law. As if the Covenant and Promise be That he shall leave the Houses in as good plight as he found them there although the Law doth not bind the party to re-edifie the Houses in case they be overthrown by tempest of Wind or that they be destroyed by Enemies yet by his special Covenant he shall be bound to re-edifie them Meade contrary And that this promise shall not be taken strictly against the Lessor Hob. Rep.
former Lease determined And as to the Attornment it was given in Evidence That B. after the notice of the Grant to C. had speech with C. to have a new Lease from him because he had in his Term but 8 years to come but they could not agree upon the price And it was the Opinion of the Iustices That the same was an Attornment because he had admitted the said C. to have power to make to him a new Lease Also the said B. being in Company with one R. and seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromley Sollicitor The same is no Attornment being spoken to a Stranger Barham contrary Because that C. was present And it was holden to be a good Attornment But if that Attornment was not before that the Bishop was translated to Winchester the Lease should be void And although the Confirmation of the Dean and Chapter was before the Attornment so as no Estate was vested in C. yet it was good enough For an assent of the Dean and Chapter is sufficient be it before or after as it was holden by Catline Southcote and Whiddon But Wray contrary XCI Norwich and Norwich's Case Trin. 18 Eliz. In the Kings Bench. HEnry Norwich was bound by Obligation to Symon Norwich upon Condition To stand to the Award of J.S. who awarded That the said Henry should pay to Symon 150 l. at such a day And that the said Henry should find 3 Sureties to be bounden with him to the said Symon for the payment of another sum of Mony to the said Symon In Debt upon this Obligation Henry pleaded As to the 150 l. payment and as to the other point That he was always ready to become bounden c. And as to the finding of Sureties he demanded Iudgment for that as to that the Arbitrament is void See 22 H. 6. 45. 17 E. 4. 5. 21 E. 4. 75. It was holden That in such a case of such Award to find Sureties the Defendant is not to find Sureties but is only to tender his Obligation And of that Opinion was the whole Court Because it was an Act to be done by a stranger to the Award But if the Award had been of an Act to be done to a stranger by him who was party to the Award then the Award had been good But if the stranger will not accept of the Monies awarded his Obligation is saved So if the Award be That one of the parties to the Award shall discontinue a Suit which he hath against another If the Court where the Action is depending will not suffer the discontinuance of it the Award is performed And in the principal Case It was ruled accordingly Note The same day another Case was in the same Court Between Dudley and Mallery The Condition was to perform an Award c. The Defendant pleaded performance of the Award The Plaintiff assigned the breach of the Award in this because the Award was That the Servant of Mallery should pay to the Servant of Dudley 5 l. which the Defendant had not paid It was the Opinion of the Court That the Bond was not forfeited for the Servants utriusque are strangers to the Submission But if the Award had been That Mallery should pay to the Servant of Dudley 5 l. it had been good for that Mallery is a party to the Submission c. XCII Rivers and Pudsey's Case Hill. 19 Eliz. In the Kings Bench. JOhn Rivers Alderman of London brought a Writ of Accompt against Pudsey who said That at the time c. and now he is the Plaintiffs Apprentice and demanded Iudgment c. And it was holden by Wray Iustice That it is no Plea for although an Apprentice cannot be charged by this Action for ordinary Receipts upon his Masters Trade yet upon collateral Receipts which do not concern the ordinary Trade of his Master he shall be charged as well as another See 8 E. 3. tit Acc. 94. And F.N.B. 119. XCIII Potkins Case Hill. 19 Eliz. In the Kings Bench. IN Debt upon an Obligation by Potkin The Defendant pleaded That he himself borrowed of one Watson a certain sum of Mony paying for the forbearance thereof excessive Vsury And that the Plaintiff was bound with the said Defendant to the said Watson for the payment thereof and that he himself by this Obligation upon which the Action is brought was bound to the said Plaintiff to save him harmless against the said Watson c. And because that this Bond was a Counter-Bond for the payment of Excessive Vsury c. And it was holden by Manwood That the same was a good Bar for here the Plaintiff when he was impleaded upon the principal Bond might have discharged himself upon this matter and therefore his Lachess shall turn to his prejudice and therefore the Issue was joyned upon the excessive Vsury XCIV Abrahall and Nurse's Case Hill. 19 Eliz. In the Common Pleas. JOhn Abrahall brought a Writ of Right-Close against John Nurse in the Court of George Earl of Shrewsbury and made protestation to prosecute that Writ in the form and nature of the Writ of the Lady the Queen of Assise of Novel disseisin at the Common-Law and made his Plaint accordingly And afterwards the Assise was taken who spake for the Plaintiff Whereupon Abrahall had Iudgment to recover After which Nurse brought a Writ of False Judgment and assigned Error in this That whereas the said Writ of Right-Close was directed to the Bailiffs of George Earl of Shrewsbury of his Mannor c. that the said Bailiffs should do full Right c. that it appeareth by the Record that the Plea was holden before the Suitors and not before the Bailiffs of George Earl of Shrewsbury For all the Precepts in the Plea aforesaid are Quod sint hic ad proximam Curiam coram Sectatoribus tenend An other Error was in this and false Iudgment was given therein because that the Roll is Praeceptum est Ministro Curiae praedict that he cause to come 12 Free and lawful Men c. videre illud tenementum c. nomina eorum imbreviare c. and the Minister of the Court retorned 12 Recognitors of the Assise aforesaid whereas by the Law of the Land 24 Recognitors in a Plea of Land ought to be retorned But notwithstanding that these Exceptions were taken Yet upon due consideration of the Court notwithstanding these Exceptions the Iudgment was affirmed See the Record Mich. 17 18 Eliz. Rot. 1301. XCV The Master and Scholars of Linckfords Case Hill. 15 Eliz. In the Common Pleas. IN an Ejectione firmae the Case was That the Master and Scholars of Linckford were seised of the Mannor of Haldesley in the Town of Laberhurst which Town extended into the County of Sussex and also in the County of Kent and they made a Lease to one Clifford of all their Lands in the Town of Laberhurst except the Mannor of Haldesley whereas in truth
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
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
John the Father in three parts to be divided And afterwards the Father by his Will devised the Lands holden in Socage unto his said Wife for life with divers Remainders over It was the Opinion of the Court in this Case that the Devise was utterly void by the Statute CLV Brett and Peagrims Case Pasch 26 Eliz. IN an Action upon the Case the Plaintiff declared that whereas he himself and the Defendant submitted themselves to the Award of A.B. and C.D. and whereas the said Arbitrators upon the hearing of the Causes between them did intend and were resolved amongst other matters of their Award to award that two Obligations by which the Plaintiff was severally bounden to the Defendant for the payment of certain sums of Mony to the Defendant should be delivered by the Defendant to the Plaintiff to be cancelled The Defendant promised in Consideration that that Article of the delivery of the said two Obligations should be left out of the Award that he himself would gratis deliver them to the Plaintiff without any Coertion or direction of the Award and further declared that the said Article ad specialem instantiam ipsius Querentis was left out by the said Arbitrators out of their Award and notwithstanding that that the Defendant had not redelivered ut supra c. but had put the same in suit against the Plaintiff In this Case upon the matter ut supra c. it was adjudged for the Plaintiff CLVI Nich. Lee's Case Pasch 26. Eliz. In the Kings Bench. 1 Cro. 26. 1 Len. 285. 1 Inst 113. Dyer 177. 219. a. 2 Len. 220. NIch. Lee by his Will devised his Land to W. his second Son And if he do depart this World not having Issue then I Will my Sons-in-Law shall sell my Land. The Devisor at the time of the Devise having six Sons-in-Law died W. had Issue John and died John died without Issue one of the Sons-in-Law of the Devisor died the five surviving Sons-in-Law sold the Land. 1. It was clearly agreed by the whole Court that although the words of the Will be ut supra If W. my Son depart this World not having Issue c. And that W. hath Issue which dieth without Issue there although it cannot be said Literally that William did depart this World not having Issue yet the intent of the Devisor is not to be restrained to the Letter but Construction shall be made that whensoever W. dieth in Law upon the matter without Issue the same Land shall be subject to sale according to the Authority committed by the Devisor to his Sons-in-Law And now upon the matter W. is dead without Issue As in a Formedon in the Reverter or Remainder although the Donee in tail hath Issue yet if afterwards the Estate tail be spent the Writ shall suppose that the Donee died without Issue a fortiori in the case of a Devise such Construction shall be made As to the other point concerning the sale of the Land Wray demanded if the Sons-in-Law were named in the Will The Clerks answered they were not See 30 H. 8. Br. Devise 31 and 39 Ass 17. Fitz. title Executors 117. Such a sale is good in case of Executors See also 23 Eliz. Dyer 371. And see 4 and 5 Mar. Dyer Land devised in tail and if the Devisee shall die without Issue that then the Land shall be sold pro optimo valore by his Executors una cum assensu of A. if A. dieth before sale the power of the Executors is determined And afterwards it was clearly resolved by the whole Court that the sale by the manner aforesaid was good and Iudgment given accordingly CLVII Rag and Bowley's Case Trin. 26 Eliz. In the Kings Bench. ERror was brought upon a Fine and the Error was assigned in the Proclamations Whereupon issued a Certiorari to the Custos Brevium who certified the Proclamations by which Certificate it appeared that two of the said Proclamations were made in one day upon which the Defendant prayed another Scire facias to the Chirographer in whose Office it appeared that all the Proclamations were well and duly made It was the Opinion of Wray Chief Iustice in this Case that the Defendant ought to have his preyer for the Chirographer maketh the Proclamations and he is the principal Officer as to them And the Custos Brevium hath but the abstract of the Proclamations and we may in discretion amend them upon the matter appearing But the other Iustices seemed to be of a contrary Opinion for that the Proclamations being once certified by the Custos Brevium who is the principal Officer we ought not afterwards to resort to the Chirographer who is the inferior Officer And afterwards the Clerks of the Common Pleas were examined of the matter aforesaid by the Iustices of the Kings Bench and they answered according to that which was said by Wray Chief Iustice Wherefore it was awarded by the Court that a new Certiorari be directed to the Chirographer who Certified the Proclamations to be well and duly made And thereupon the Court awarded that the Proclamations in the Office of the Custos Brevium should be amended according to the Proclamations in the Custody and the Office of the Chirographer Note In the same Case before the Writ brought a stranger had brought a Writ of Error against the same Defendant upon the same Fine upon which the transcript of the Fine and Proclamations are removed in Banco and after the Plaintiff is Non-suit Now another who hath Cause may have a Writ of Error quod coram vobis residet CLVIII Taverner and Cromwell's Case Trin. 26 Eliz. In the Kings Bench. UPon an Evidence unto a Iury 3 Cro. 353. containing difficulty and matter in Law it was found viz. that the Bishop of Norwich 10 H. 8. was seised of the Mannor of Northelman in the right of his Bishoprick and at his Court holden within the same Mannor granted parcel of the Demesnes of the said Mannor to one Taverner and his Heirs where of the said Land in truth there was not any Demise by Copy before And so the said Land continued in Copy until 23 H. 8. at which time Taverner committed a forfeiture which being presented the Bishop seised the Land as forfeited and granted the same again by Copy to Taverner in Fee And so from thence it continued in Copy until 8 Eliz. which Interval between 23 H. 8. and 8 Eliz. amounted to 47 years It was the Opinion of the whole Court in this Case that the Continuance for 50 years is requisite to fasten a Customary Condition upon the Land against the Lord. It was also agreed by the Court that although the Original Commencement and that Customary Interest did commence 10 H. 8. ut supra from which time unto 8 Eliz. 60 years passed yet the seisure for a forfeiture which happened 23 H. 8. interrupted utterly the Continuance from the time which might by the Law have perfected the Customary Interest So
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
such a County the same is not good Causa qua supra The Issue here is Non potuit fodere in praedicta Minera de Greenbourn by the space of 7 years and a half From whence shall the Visne come for the tryal of this Not from Durham where the Lease was made for there is no nearness between the place where the Lease was made and this Issue But if the Issue had been That the Lessor had not any thing in the Mines tempore dimissionis it might have been tryed where the Lease was made Another Exception was taken because the Plea is Quod non potuit fodere in 3 4 5 6 7 8. dimidio 10 11. and that appears to be 7 years and a half And the Iury find Quod non potuit fodere per spatium 7 annorum tantum without speaking of the half year and so they have not given a full Verdict As to the first Exception It was said by Cook If a thing be alledged in pleading which is Issuable and there is not laid down any place of it although that no Issue be joyned upon it yet because he hath prevented the other of his Plea to it Iudgment given in such case shall be reversed And so it was Ruled between Matthew and Stransham So upon the Statute of Usury the Informer charged the Defendant For that by way of corrupt bargain he had received so much and did not shew the place although that no Issue was joyned upon it but they were at Issue upon another point yet if Iudgment in such case be given it shall be reversed And in all Actions upon the Case where request is necessary and the Plaintiff ought to alledge it the place of the Request ought to be shewed And he said That this Issue ought to be tryed where the Mines demised are and here no place is alledged where the Mines are but only in Com. Dunelmens and yet a Visne of the City of Durham hath tryed this Issue which ought not to be but the Visne should come de Corpore Comitatus Clark Baron If Issue be joyned upon taking of the profits it shall be tryed where the Land is but non Debet or Detinet where the Lease was made so Ne lessa pas By Cook The Issue is Non potuit fodere and that is local therefore it shall be tryed where the Mines are Manwood Non potuit fodere non potuit gaudere are not local but non fodit non gavisus fuit is local and shall be tryed where the Mines are And here it is not shewed how he was hindered to dig c. and the Issue is de potentia non de actu Tanfield As to that which Cook hath said That the Visne in this Case shall come de Corpore Comitatus It is not so for such Visne never shall be but where the Issue is No such Town Hamlet or place known Tanfield In another Case the Tryal shall be de Corpore Comitatus As in False Imprisonment The Defendant justifies That the common voice and fame was c. there the Visne shall be de Corpore Comitatus 11 E. 4. 4 5. And see also 21 Eliz. the Case of Constantine and Gynne which see now Reported by the Lord Cook in Dowdell's Case Cook 6. Part 48. And as to the defect of the Verdict upon the half year the Record is not so for the Record is Dimidio anni decimi undecimi and so two half-years make one whole year and so but 7 years in which the disturbance is supposed to be done And see as to the Visne de Corpore Comitatus 22 E. 4. 4. Fitz. Visne 27. Another Exception was taken because the Declaration is That the Lease was made at Durham in Comitatu Dunelm and doth not say also in Setberg for such is the name of the County Palatine But as to that it was said Every Writ of Execution which goes into the County Palatine is directed Episcopo Dunelmens Cancellario suo Quod det in mandatis Vicecom suo c. And Durham was called Setberg in Ancient time and the name of the County Palatine there is commonly called Dunelm Setberg and their Pleas there are entred Placita coram Justiciariis Dunelm Setberg but the same is amongst themselves only and all directions from hence to them are Episcopo Dunelm without any mention of Setberg and a President was shewed to the Court to such effect Manwood Levied by Distress and so nothing arrear shall be tryed where the Lease is made Clark That is true For by the So the Plea before is waived And see 8 H. 5. 10. Where an Issue is to be tryed in Lincoln c. or such a Town which is a Franchise The Venire facias shall be of Lincoln and not de Vicineto Lincoln for then the Iury should be as well of the County adjoyning as of Lincoln it self which the Visne of Lincoln cannot do But Venire facias de Suburbiis of Bristow was awarded good And if in the Case at Bar the Defendant had pleaded That the Plaintiff had entred into part of the Mines and so suspended his Rent upon which they are at Issue the some by Manwood shall be tryed by a Iury de Corpore Comitatus The Issue here is If the Defendant might enjoy these Mines secundum veram intentionem dimissionis praedict and that is referred to the Demise which was made at Durham and therefore this Issue may be well tryed there And afterwards at another day It was holden That all the Issues are Jeofails But as to the want of the place the same was holden a material Exception See the Case of Mines Plow Com. 337. Exception was taken to the Information because it was not laid down there in what Town or Hamlet Newlands lay And it was holden The same had been a material Exception if the Defendant had not demurred upon the Information in which case no Tryal by Iury is to be c. And he said Misnosmer shall be tryed where the Writ is brought c. so never administred as Executors c. Manwood Here the Lease is laid to be made at Durham in a place certain If then there be not any other local thing laid which may draw the Tryal elsewhere it shall be tryed at Durham where the Lease is made An Enfant makes a Lease for years rendring Rent and afterwards re-enters and avoids his Lease by reason of his Nonage and title is found against him by that Lease upon which he pleads Nonage it shall be tryed where the Lease is made c. And afterwards Iudgment was given for the Plaintiff CCXXIV. Blunt and Ward 's Case Mich. 29 Eliz. In the Exchequer WHere an Order was made That such a one should have the mean profits and issues of such Lands It was holden The same is not to be intended That the party shall have the Crop which grows upon the Land by the manurance of another but the value of 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
bring a new Writ But Gawdy said That the Writ brought was good enough CCCXVII Pike and Hassen's Case Mich. 31 Eliz. In the Kings Bench. AN Action upon the Statute of 32 H. 8. touching buying of Titles And the Bargain was laid in Norfolk but the Land c. was in Suffolk And the Issue was tryed in Norfolk and the value of the Land also And as to the 5 Acres they found the Defendant guilty and found also the value of them And for the Residue a Special Verdict was given and for the 5 Acres the Plaintiff had Iudgment presently And by the special Verdict it was found That the Defendant had occupied the Residue of the Land for two years before c. as Tenant at sufferance and afterwards sold the Inheritance Wray Chief Iustice Tenant at sufferance is in truth a Tort feasor by which his taking of the profits is not such as is intended by the Statute But yet he afterwards looking into the words of the Verdict which were That the Defendant tenuit the Lands for two years ex permissione of another thereupon it ought to be intended That he was Tenant at will. CCCXVIII Sparry and Warfield's Case Mich. 31 Eliz. In the Kings Bench. IN False Imprisonment against the Defendant and others they pleaded The Charter of Bridewell and that the Plaintiff was mali nominis famae and that certain Goods were stollen from J.S. and upon search the Plaintiff was found suspitiously c. And that thereupon they put him into Bridewell It was the Opinion of the Iustices That the Plea was not good CCCXIX. Bragg's Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass by Strait against Bragg Quare Clausum fregit containing one Acre in C. in the County of H. and for the taking of a Horse The Defendant pleaded That long time before the Trespass The Dean and Chapter of Pauls were seised of the Mannor of C. in the said County in Fee in the right of their Church whereof the place where is parcel c. And so seised King E. 4th by his Letters Patents dated Anno 1 of his Reign granted to them all the Fines pro Licentia Concordandi of all their Homagers and Tenants resiants or not resiants within their Fee And shewed That for all that time they have used to have such Fines of their Tenants And shewed further That 29 Eliz. A Fine was levied in the Common Pleas between the Plaintiff and one A. of 11 Acres of Land whereof the place where the Trespass was done was parcel and the Post-Fine assessed to 15 s. And afterwards Scambler the forreign Opposer allowed to them the said 15 s. because the said Land was within their Fee and afterwards in the behalf of the said Dean and Chapter he demanded of the Plaintiff the said 15 s. who refused to pay it for which he by the Commandment and in the right of the Dean and Chapter entred and took the said Horse in the name of a Distress as Bailiff to the said Dean and Chapter for the said 15 s. and afterwards sold it c. upon which the Plaintiff did demur in Law And it was moved That here it is not averred That the Land whereof the Fine was levied was within their Fee but they say That Scambler allowed it because it was within their Fee. And that is not a sufficient averment quod curia concessit And also the opinion of the Court was Ante 56. 2 Len. 179. That the Dean and Chapter cannot distrain for this matter but they ought to sue for the same in the Exchequer as it appeareth 9 H. 6. 27. in the Duchess of Summersets Case Gawdy Iustice The Grant doth not extend to the Post-Fine for the Fine pro licentia Concordandi is the Kings Silver and not the Post-Fine Wray Iustice All passeth by it for it is about one and the same matter And they in Opinion to have given Iudgment for the Plaintiff Quaere of it CCCXX South and Marsh's Case Mich. 32 Eliz. In the Exchequer NOte It was holden by the Court That where Marsh was endebted unto South without any Obligation for it but only by a Note in writing signed with the Hand of Marsh scil By me W. Marsh but not sealed that such a debt might be assigned to the Queen although that before the Assignment against a Creditor he might have waged his Law for in as much as by these Notes and Bills the certainty of the debt appeareth and being true debts they may well be assigned See 21 H. 7. 9. An Obligation may be assigned to the Queel without Deed enrolled and where the Obligee is not endebted to the Queen But it cannot be assigned to a subject Noy 52. if not for a debt due by the Assignor to the Assignee for otherwise it is Maintenance And in this Case it was holden That where the King sues for a debt assigned to him the Obligor cannot plead Nihil debet for now by the Assignment it is become matter of Record CCCXXI. Trapp's Case Mich. 32 Eliz. In the Kings Bench. RObert Trapps 1 Eliz. seised of 15 Messuages in Clarkenwell in the Occupation of 15 several persons viz. A.B.C. c. and named them certain demised them to one Cox And afterwards conveyed the Inheritance of them to one Brian Trapps in Fee who afterwards demised to J.S. all those 15 Messuages in Clarken-well which Robert Trapps did demise inter alia to Cox by Indenture dated 1 Eliz. now in the Occupation of A.B.C. c. And one of the Occupiers names was left out in the recital And it was holden by the whole Court That notwithstanding the said Omission the said Messuage did pass for there was sufficient certainty before and the falsity came after the verity CCCXXII Brewin and Mansfield's Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That A. was endebted to him in 10 l. and made the Defendant his Executor and died And that the Defendant in Consideration that the Plaintiff would forbear the Defendant for a certain time promised to pay it at two several days and shewed which in certain And it was found for the Plaintiff It was moved in Arrest of Iudgment That it is not set down in the Declaration by what portions the 10 l. shall be paid Clench Iustice conceived That the Defendant had liberty to pay it in what portions he pleased Gawdy He ought to pay it by equal portions as a Rent reserved payable at two Feasts without saying by what portions it shall be paid And he said That if the plea for the cause aforesaid had been defective yet now after Verdict all is helped for it is but form And afterwards the Opinion of the whole Court was That the matter shewed was not good to stay Iudgment Wherefore the Plaintiff had Iudgment to recover CCCXXIII Mich. 32 Eliz. In the Common Pleas. THe Case was The Plaintiff in a
thereupon But then the Question was If the Tenants should be put to plead the same in discharge or that the same should be discharged without pleading because it appeareth upon Record That he who aliened was but Tenant in tail in Remainder For there was an Office found of that which was pleaded by another in another Cause The Opinion of the Court was Where such matter appeareth of Record as by Office Livery c. there the party needs not to plead such matter in discharge for the pleading of it is to no other purpose but to satisfie the Court by the Record that the matter is so as the party hath alledged and therefore the Barons gave Order That the Process against the Tenants of the Lord Dacres should be stayed CCCXXXVI George Ap-Rice's Case Trin. 32 Eliz. In the Exchequer IN the Case of one George Ap-Rice The matter was Ante 121. That Tenant in tail after possibility of issue extinct assigned over his Estate unto A. against whom he in the Reversion brought a Quid juris clamat and Iudgment was given that he should attorn and upon his refusal he was committed to Prison and divers Fines set upon him and estreated in the Exchequer It was moved That these Fines were imposed upon the party against Law. And the Opinion of the Court was That when Iudgment is given in a Quid juris clamat for the Plaintiff Distresse infinite shall be against the Defendant to bring him in to attorn and when he comes in if he refuse he shall be imprisoned until he attorn It was also holden by the Court That the Fines were not lawfully assessed and imposed upon him And it was said That it had been adjudged in a Court of Wales That the Assignee of Tenant in tail after possibility of issue should attorn upon which Iudgment a Writ of Error was brought in the Kings Bench and there upon good advise the said Iudgment was affirmed For although it be true That Tenant in tail after possibility shall not be compelled to attorn yet that is a priviledge which is annexed to his person and not to the Estate and by the assignment of the Estate the priviledge is destroyed CCCXXXVII Harris and Wing's Case Mich. 32 Eliz. In the Kings Bench. More Rep. 4. 5. IN the Case between Harris and Wing The first point was That the Lease made by Queen Mary was void 1. Because a former Lease of Record was not recited in the Letters Patents of it The reason wherefore such recital ought to be is not as hath been alledged by Cook Quia circa solium Regis subsistunt justitia veritas and then when there is a former Lease in Esse the King makes a Lease in possession the same cannot stand together so as there is not Justitia Veritas but the very reason thereof is so high that he cannot take c. but by matter of Record and if that he mistaken it makes all void and therefore In Petitions of Right Ante 5 6. and Monstrans de Droit If the King be not enformed of all the Titles all is void And therefore in the Case between Sir Moyle Finch and Throgmorton which now depends in the Exchequer which was this The Queen made a Lease for years rendring Rent with a Proviso That if the Rent be behind That the Estate shall cease the Rent is behind the King granted the same over to Sir Tho. H. It was first moved If the same Lease should cease without Office. And it was holden by Popham and many other grave and learned Men upon a Conference That the said Lease should cease without Office for the Contract which is upon Record is determined and ceased by which the Estate which was created by the said Contract shall also cease without Office. But yet the Lessee continued in possession notwithstanding that and took the Profits but thereof after office found he rendred recompence to the Queen And it was holden there upon the said Conference That the Queen in her Grant to Sir T.H. of the said Estate which was now ceased ought to recite that Lease For the Tenant is in possession and could not be punished for his occupation before Office. So in the Case of the Vicarage of Yatton 17 Eliz. Dyer 339. The presentment being devolved to the Queen by Lapse the Ordinary collated A. and afterwards the Queen presented B. who brought a Quare impedit depending which A. proved another Presentment of the Queen without mention or recital of the first Presentment and the same was holden void For in that the first Presentment is not recited nor the pleasure of the Queen to revoke it and therefore it was in disceit of the Queen So the Case 18 Eliz. Dyer 352. An Abbot leased for 60 years the Lessee made a Lease for 80 years the Reversion came to the King the 60 years expired the second Lesse surrendred to the King ea intentione that the King would re-grant the same to him for 20 years remaining The King reciting the Indenture and Surrender ex certa scientia granted for 20 years It was holden by the Court That the Grant was void because the King was misenformed c. It hath been Objected That here needs no recital for that the Lease to be recited is ended eo instante that the new Lease beginneth Sed distinguenda sunt tempora aliud est facere aliud perficere the first Lease is ended when the new is perfected and the Great Seal put to it The second reason wherefore the Lease shall be void is because otherwise the Grant of the Queen shall enure to two Intents 1. To make a Lease 2. To accept a Surrender and how can the Queen accept a Surrender of an Estate of which she hath not notice for She is not enformed of it by any Record without which She cannot take notice of any thing See 7 E. 4. 30 31. Baggotts Assise The King granted an Office to an Alien the same shall not enure to make him a Denizen for then it shall enure to two intents c. The words of the Grant of Queen Mary are Omnia tenementa nostra and If by that a Reversion shall pass was the Question Certainly In verbis ambiguis Intentio sumenda est Then here in our Case by this Patent is other Land which should pass and the Reversion is nostra but in property not possession Wherefore here Nostra shall be restrained to that which is in possession Where there are general words in Grant of the King they ought to be served but if they can be served they shall be taken in a common and general sense but the words shall not be stretched But if they cannot be served then they shall not be void but the King shall be rather prejudiced and always the Grant of the King either may be served or taken to a common intent 2 H. 3. 4. Quaelibet Concessio Domini Regis capi debet stricte contra Dominum
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 be received or rejected A. 92. Upon a frivolous Plea and Issue Judgment shall be pro quer nullo habito respectu A. 68. The Verdict is good though the Jurors eat before they be agreed unless at the charge of the party for whom they gave their Verdict A. 132 133. C. 267. May find an Estoppel against the admittance of the parties A. 206. Venire facias de novo for the incertainty of a Verdict A. 210. B. 120. What matters uncertainly pleaded are ascertained by the Verdict and helped A. 236. Void by a Witnesses repeating his evidence out of Court A. 305. Void if it find the Defendant guilty of part and do not acquit him of the residue B. 22. C. 83. Verdict special upon issue upon a Traverse if good C. 48. If the Jury find the Issue for the Plaintiff and finds other matter not put in issue though it destroy the Plaintiffs Title yet he shall have Judgment A. 66 67 68. C. 80 81. Special Verdict which makes an illegal conclusion upon the Premisses is void for that part C. 112. By an Inquest of Office is no Verdict until Ingrossment C. 127. Where the conclusion of a Special Verdict is special all other matters but that are taken pro confesso C. 152 153. Visne See Trial. Upon issue whether there be a Vill called Magna or H. only tried by the Visne of H. magna A. 109. Where de Corpore Com. A. 109. B. 22. Usurious Contract pleaded in a Forein County the issue shall be tried where the Usury is alledged A. 149. Whether it may be of a Forest A. 169. Where it must be of two Vills or of one or more A. 301. B. 22 59. Levy per distr issint rien arrear that issue is triable by the Visne where the Lease was made B. 22. Where it shall be de Lincoln or de Vicineto de Ibid. De Suburbiis is good Ibid. Of what place Misnosmer shall be tried B. 23. Of what place Ne unquis Executor and Non-age shall be tried B. 23. Where it ought to be of a Mannor where of a Vill and the Mannor too B. 59. C. 193. Where it shall be of two Counties B. 102. If the seisin of a Rectory be in issue it is to be tried by a Visne of the Vill C. 161. A matter is alledged to be done at L. in the Parish of S. the Visne of L. only is good C. 193 266. Voucher Three Tenants to a Praecipe cannot vouch severally A. 116. Three Husbands and Wives vouched it is intended to be in right of the Wives A. 291. Trial of a Forein Voucher made in a County Palatine B. 37. Stat. W. 1. c. 39. That none shall vouch out of the Line yet the second Vouchee may so do for the Statute is taken strictly B. 149. Voucher in Formedon Counterpleaded for that the Vouchee had nothing c. C. 11. Vses An Use cannot be raised out of an Use A. 7. 148. The consideration of Mony to be paid is good though never paid A. 25. Raised by a Fine to the King A. 33. Use cannot be raised by a Covenant without a Consideration but may by a Fine A. 138. What is a good Consideration to raise a Use by Covenant what not A. 195 196 197 198. The definition of a Use A. 196. B. 15 16 17. Difference between a Use by Feoffment and by Covenant A. 197. A Use in remainder need not depend upon any other Estate per Gawdy A. 244. One may be Cestuy a que use by a Devise without any Consideration A. 254. Suspended may be devised A. 257 258. If good by Stat. 27 H. 8. for years B. 6. C. 21. Cannot be limited but to one in posse or in esse B. 14. Limited to J. S. and such Wife as he shall after Marry is a good Use B. 15. It may commence upon a Contingency B. 16. Cannot be limited to any but by a good name of purchase B. 18. A Corporation cannot be Feoffees to Uses B. 122. What shall be a sufficient Declaration to raise Use upon a former Feoffment B. 159 160. Feoffment to Use of his first Son before Issue Feoffor and Feoffee enfeoff one in see the Uses are destroyed B. 178. Feoffees before the Statute of 27 H. 8. and those since the difference of their Estates B. 178 179. Cestuy que use leaseth after the Stat. 1 R. 3. The Feoffee releases to the Lessee having notice of the Use the release is to the first Use Cont. of a release by the Feoffee to the Disseisor B. 211. Where notice of the former Use in such cases is material B. 178 211. C. 158 252. Use limited to the Feoffor and such Wife as he should after Marry B. 223. C. 253. Use to the eldest Son in tail remainder to the Heirs of the Feoffor he having then no Issue B. 224. Where a Use may be limited against the Rules of Common Law and yet good C. 21. If a Fine levied by a Stranger to Cestuy que use pur vy give the Conusee the Feesimple C. 37. Where a future Use may be destroyed by Feoffment of the Feoffor and Feoffee C. 252 253. Where Re-entry of the Feoffees may revive a Use suspended by Feoffment C. 252. Vsurious Contract The difference between a usurious Loan and an usurious Agreement A. 96. Divers differences about these Statutes argued but not adjudged A. 96 97. The taking the Mony makes not the offence but the corrupt agreement A. 208 209. Cont. C. 205. If a Stranger may plead in avoidance of a Conveyance for Usury A. 307. It must be alledged how much above the rate was agreed upon B. 39. A Counter-bond to save the Surety harmless if it be void if the first Bond were void B. 166. C. 63 Vtlary What is forfeited to the King by Utlary in personal Actions and when and how he must take benefit thereof A. 63 64. Pleaded in abatement Plaintiff replies Comorance in another Vill adjudged a good Replication A. 87. Lies not but where the Suit is by Writ A. 329. Bars not an Aud. Quer. if brought upon the same Record B. 175 176. Reversed for want of the parties addition in an Indictment B. 200. Good Bar in Trover Debt upon Bond but not upon a simple Contract C. 205. W. Wager of Law. BY Lessee for years made Tenant in a Writ of Dower A. 92. If it lies for an Amerciament in a Court-Leet or a Court Baron A. 203 204. In the discretion of the Court if they will permit the Defendant so to do B. 110. C. 212 258. The Plaintiff cannot be nonsuit if the Defendant wage Law the same Term C. 28. In what cases the Defendant shall be permitted to wage Law B. 110. C 212 258. Waif and Estray The property of the Goods waived remain in the Owner if he freshly pursue and convict the Felons B. 192 193. Waiver de Choses In what Courts the Defendant may waive a special Plea and plead the general Issue B. 32. Where a matter of Inducement material is waived by taking issue upon another matter B. 204 205. Wales The Incumbents there must understand the Welch Tongue A. 31. Ward Who shall be in Ward who not A. 253. B. 148 149 150. C. 25 54 154. If the Infant agree to the Marriage tendred No Valore Maritagii lies though the Gardian die before Marriage C. 52. Warranty Warranty and Assets descend no Plea in Formedon where the Heir claims by Devise A. 112 113. Determines with the Estate to which it is annexed A. 179. B. 57. What Entry and of whom shall destroy a Warranty B. 57 58. C. 10. In what Conveyances and to what Estates to be made C. 16. Wast In le tenuit the Plaintiff shall not recover locum vastatum A. 48. Lies not if the Trees be excepted A. 49. If Disseisor do Wast the Action lies against the Disseisee A. 264. How the View must be made of Wast in a Wood Sparsim A. 267. Against whom it is to be brought A. 291. In cutting 20 Oaks the Plaintiff shall recover if 5 only be proved A. 300. Upon an Estate limited to a Man for life remainder to a Feme for years who inter-marry both Estates are foreited by Wast done B. 7. If it lie where there is a Mean remainder B. 126. C. 60. The altering of a Meadow by Ditches or turning to other purposes if Wast B. 174. If the House be ruinous tempore dimissionis the Lessee may pull down and rebuild B. 189. Where the Writ must be laid of whose Lease the Lessee held where general B. 222. What destruction in a Park fishing c. is Wast B. 222. C. 53. Where plead nul Wast or specially C. 203. Withernam How Cattle taken by Withernam must be used A. 220. May be stayed by bringing the Damage in Court and submitting to a form pro contemptu B. 174. It seemeth that Beasts taken in Withernam may be laboured C. 235 236. Writ Of Privy Seal to summon a Subject Ad redeundum in legiantia c. A. 9. General Writ and Special Count where A. 226 227 231. Writ to the Bishop If a Title be found or confest in the King the Court ex Officio must make a Writ for the King A. 194. FINIS