Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	bring_v	debt_n	defendant_n	2,294	5	9.7597	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A47714	Reports and cases of law, argued and adjudged in the courts at Westminster, in the times of the late Queen Elizabeth, and King James in four parts / collected by ... William Leonard, Esq. ...; with alphabetical tables of the names of the cases, and of the matter contained in each part ; published by William Hughes ...; Reports and cases of law argued and adjudged in the courts at Westminster Part 1	Leonard, William.; Hughes, William, of Gray's Inn.	1687 (1687)	Wing L1104; ESTC R19612	463,091	356

passeth and doth extend into D. and the residue which is in C. shall remain in me in gross v. 9 E. 4. 17. Catesby And if I be seised of a Manor which doth consist of services and of twenty Free-holders and one hundred Acres of Demesnes and I grant the services of my twenty Free-holders and forty or twenty Acres of the said one hundred Acres a Manor shall pass although it was not granted by the name of a Manor but if I grant the services of three four or five of my Free-holders and forty or twenty of the said one hundred Acres upon such a grant no Manor shall pass Windham Iustice contrary We are not here to speak of the creation of a Manor that is a forraign matter but we are here to consider upon the division and apportionment of a Manor They that have argued in this case at the Bar have stood much upon the words of the Conveyance manerium suum de North-kelsey and that Sir Fr. Askew at the time of that assurance had not any Manor of North-kelsey or in North-kelsey but that is not any reason for if Cestuy que use mean between the Statute of 1 E. 3. 27 H. 8. will make a Feoffment of the Manor which was in use by these words manerium suum the same had been good and yet it is not manerium suum but the Manor of the Feoffees but it may be said suum by receiving of the profits according to the trust and confidence reposed in the Feoffees so in our case in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey it may collaterally be said a Manor there and notwithstanding that tempore concessionis proprie loquendo no Manor was in North-kelsey yet now upon operation of the Law upon this grant a new Manor shall rise for in divers cases where a thing which was not in esse before upon a grant may rise As if I grant unto you out of my Land a Rent de novo And also a thing which was not in esse before may upon a grant take upon it a new nature As if I. seised of a great Wood grant to you Estovers out of it they were not before in me but as Woods and Trees now by this grant they are become Estovers in the Grantee so as they are in the Grantee in another nature than they were in me So in our case although North-kelsey was not a Manor in Sir Fr. Askew yet now upon the grant it is a Manor in Bard 9 E. 4. 17. And as to the matter which hath been objected because a Court cannot now begin the same is not any reason for the Court Baron is incident to the Manor and also to every part of the Manor and transitory through the whole Manor and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord where the Court Baron for the said Manor had always been held and not else-where yet such a Court might be holden in any part of the Demeans in any other of the said Towns The Lord Anderson to the same purpose It hath been argued of the other side that the Manor doth not pass because the grant is in these words manerium de North-kelsey in North-kelsey I conceive that these words de North-kelsey are void as matter of surplusage and the grant shall be construed as if the words had been manerium suum in North-kelsey And a Manor is such a thing as may be determined divided and suspended As if the Lord of a Manor leaseth for years all the Demeans of the Manor the Manor is suspended during the term for years as lately it hath been adjudged And a warranty may be divided as if a Feoffment in Fee be made to two with warranty and the one of them releaseth the warranty vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case c. and afterwards it is a Parish-Church now it is become presentable an Advowson appendant as the soil upon the which the Church is built is parcel of the Manor See 32 H. 6. 9. One Manor may be parcel of another Manor as A. holdeth of B. twenty acres of Land as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass Post 32. And I do not know any difference between the Case of Parceners and the Case of Ioynt-tenants for now they are both equally compellable to make partition And he cited the Case of one Estopp lately adjudged viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York and the Queen granted her Rectory of D. in Lincoln these are several grants and now upon the matter they are become several Rectories And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor and that such a Court cannot now at this day be erected and therfore here cannot be a Manor here needs not the erection of any new Court but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor therefore every part of the Demeans of the Manor is capable of a Court to be holden there As where one is seised of a Manor to which an Advowson is appendant now is the Advowson appendant not only to the said Manor but to every part of it for if he alien an acre parcel of the Manor with the Advowson the Advowson is now appendant to the said acre See 43 E. 3. 26. So in the Case at Bar because this liberty and franchise of a Manor is throughout the whole Manor and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey and of his Manor in North-kelsey a Manor passeth which Windham also granted and agreed unto Note at this time there were but three Iudges in this Court And afterwards Iudgment was given for the Defendant XXXIV Alington and Bales Case Pasch 27 Eliz. In the Kings Bench Rot. 584. 1 Cro. 660. 661. ALington and others Executors of Sir W. Cordel late Master of the Ross brought an Action Debt against Bales The Case was this One Bream being seised of certain Lands by Indenture bargained and sold the same to one Platt by these words give grant bargain sell and by

the Land was entailed by the second Fine But that Exception was disallowed by the whole Court and a difference put by Anderson Where a man pleads the grant of an Advowson in gross by Tenant in tail in such case the life of the Tenant in tail ought to be averred for by his death the grant ceaseth But where a man pleads the Lease of Tenant in tail of a Manor with an Advowson appendant in such case such averment is not necessary So accordingly Smith Stapletons Case 15 Eliz. 431. And here it was moved if in as much as by the first Fine an estate for life was rendred to the Wife and by the second Fine in which she did not joyn an estate tail was limited unto her and now when the Husband dieth if he shall be remitted to her estate for life Co. 1 Inst 357. 2 Cro. 489. which Windham granted for that was her lawful estate and the second estate tortious But by Rhodes Periam and Anderson the Wife is at liberty to make her election which of the two estates she will have And as to the Writ to the Bishop for the Queen the Court was clear of opinion that it ought not to be granted upon this matter But all the question was if Regina inconsulta the Court would or ought to proceed And it was holden clearly by the whole Court that the tenure alledged modo forma could not be a tenure in chief for it is said that the Land was holden of the King as of the Castle of Dover in Capite LXXXVI Mich. 29 30 Eliz. In Communi Banco Intr. Pasc 28 Eliz. Rot. 602. Wast ● Cro. 40. 4● WAst was brought by F. and his Wife agaist Pepy and counted 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 unto the use of himself and his Heirs in Fee c. without that that it was to the uses in the Count Vpon which they were at issue And it was found by verdict that the said Feoffment was unto the uses contained in the Count But the Iury further found that the estate of the Defendant by the limitation of the use was priviledged with the impunity for Wast that is to say without impeachment of Wast And it was moved if upon this verdict the Plaintiff shall have Iudgment And Anderson and Rhodes Iustices he shall for the matter in issue is found for the Plaintiff and that is the Feoffment to the uses contained in the Count and this impunity of Wast is a forrein matter not within the charge of the Iury and therefore the traverse of it but matter of surplusage As if I plead the Feoffment of I. 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 ever be had of such a liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unques seisi que Dower the Tenant pleaded that before the coverture of the Demandant one A. was seised of the Lands of which Dower is demanded in tail who made a Feoffment to a stranger and took the Demandant to Wife and took back an estate in Fee and died seised having issue inheritable Now although upon the truth of the matter she is not dowable de jure yet when the parties are at issue upon a point certain Hob. 53. Owen 91. no foreign or strange matter not in question betwixt the parties shall be respected in the point of the Iudgment But if the Defendant had pleaded it in bar he might have foreclosed the Demandant of her Dower Vide 38 H. 6. 27. 47 E. 3. 19. In a Praecipe quod reddat in the default of the Tenant one cause and shewed how 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 did counter-plead the receit saying the Defendant had fee upon which issue was joyned And it was found that neither the tenant nor he which prayed to be received had any thing in the Land 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 that is whether the Tenant was seised in Fee for it was confessed of both sides that he had an estate for life and with that matter the Iury was not charged and they are not to enquire of it and so it was found against the Demandant for which cause the Receit was granted 7 H 6. 20. The parties were at issue upon a dying seised which is found by verdict but the Iury further find that the other party made continual claim this continual claim shall not be regarded in the point of Iudgment because it was pleaded in avoidance of the descent Windh Iustice contrary Forasmuch as it appeareth unto us upon the verdict that the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue No advantage of impunity for Wast shall be taken where the same is not pleaded though found by verdict Judgment Hob. 53. Owen 91. The Plaintiff counteth of a bailment by his own hand the Defendant pleadeth that he doth not detain c. the Iury find the Detinue but upon a bailment by another hand In this case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Rhodes Periam and Anderson in the principal case were of opinion Iudgment should be given for the Plaintiff for in no case the party shall have advantage of such a Liberty of impunity of Wast if he do not plead it And the Iurors are not to meddle with any matter which is not in issue And if it be but matter of surplusage it is to no purpose And afterwards Iudgment was given for the Plaintiff LXXXVII Bracebridge and Baskerviles Case Mich. 29 30 Eliz. In Communi Banco AN Action of Debt is brought against three Executors Debt against Executors one of them pleads in Bar a Recovery against himself in the Kings Bench The other two plead plene administr Against the first plea the Plaintiff did aver covin and upon the second plea they are at issue The first issue is found for the Plaintiff and as to the other plea it was found that the Defendants have in their hands thirty pounds of the goods of their Testator not administred Note the debt in demand was one hundred pounds upon which the Plaintiff had Iudgment to recover the goods of the Testator and thereupon had execution Now the Plaintiff brought a Scire facias against the said Executors supposing that many other goods of the Testator have come unto their

hands after the Iudgment and prayed execution thereof upon which the Defendant did demur in Law. Vide 2● H. 6. 40. 41. In debt against Executors of forty marks the Defendant pleaded that he had fully administred and it was sound that the Defendant at the day of the Writ brought had of the goods of the dead twenty marks and no more and gave damges five marks There the Plaintiff had Iudgment for the twenty marks of the goods of the dead and the five marks of their own goods And as to the other twenty marks that the Plaintiff should be amerced 33 H. 6. 24. Where Executors plead that they have nothing in their hands which is found accordingly Afterwards goods of the Testator came to the hands of the Executors Now the Plaintiff upon a surmise shall have out of the same Record a Scire facias to have execution of the said goods Scire facias to have Execution of Assets come to Executors hands after ●iens enter maynes pleaded But see 4 H. 6. 4. contrary for there it is said that upon the matter the original is determined and so no Record upon which a Scire facias can be grounded And see Fitzh abridging the Case Scire facias 25. by the verdict and the Iudgment the Original is abated Vide 7 E. 4. 9. by Moile according to 33 H. 6. and so 46 E. 3. 9. by Belknap And the Lord Anderson demanded of the Prothonotaries the manner of the entry of the Iudgments given in such Cases who said that their Entry is in this manner i. e. Quod querens recuperet that which is expresly found by the verdict but nothing of the residue for of that no mention is made at all And the Court seemed to be of opinion that where upon nothing remaining in their hands pleaded It is found that some part of the sum in demand is in the hands of the Executors there the Plaintiff upon a surmise of goods come to the hands of the Executors shall have a Scire facias 3 Cro. 272. Hob 199. 1 Cro. 318. 319 592. 8 Co. 134. contrary where upon such issue it is found fully for the Defendants that they have nothing in their hands LXXXVIII Fordleys Case Mich. 29 30 Eliz. In Communi Banco Tender pleaded 9 Co. 79. Dy. 25. a. 1 Inst 207. Post 69. 70. a. FOrdley brought debt upon an Obligation the Condition was that if the Defendant viz. the Obligor deliver unto the Plaintiff the Obligee at a such a day and place twenty pounds or ten Kine at the then choice of the Obligee c. that then c. The Court was clear of opinion that the Defendant in pleading the performance thereof ought to tender to the Plaintiff as well the twenty pounds as the ten Kine and for default thereof Iudgment was given against the Defendant See the Number Roll T. 29 Eliz. 1. part 324. vide 14 E. 4 4. b. LXXXIX Barker and Pigots Case Mich. 29 30 Eliz. In Communi Banco EDward Barker brought Debt against Rich. Pigot Executor of the Will of E. Executrix of the Will of R. The Defendant pleaded that he had fully administred the goods of his Testator E. upon which they were at issue Debt which was found for the Plaintiff And it was moved in arrest of Iudgment that here is not any issue joyned which answers to the Action for the Action is brought against the Defendant in the quality of the Executor of an Executor and the verdict extends to the Defendant but is Executor of the said E. for it is found by it that the Defendant hath fully administred the goods of his Testatrix without any enquiry of the Administration of the goods of the first Testator R. in which capacity the Defendant is charged So as here the Writ charges the Defendant in the quality of an Executor of an Executor and in respect of the first Testator and the issue and verdict doth concern the last Testator Execution must follow the nature of the Action And the whole Court was clear of opinion that although that now after verdict Fee-tail be saved and no Iudgment shall be given upon it yet here the Court shall give Iudgment as upon a Nihil dicit in which case the Execution of the Iudgment shall not fall upon the goods of the last Testator according to the verdict but shall follow the nature of the Action which was brought against the Defendant as Executor of an Executor XC Thacker and Elmers Case Mich. 29 30 Eliz. In Communi Banco THacker recovered in an Assize of Novel disseisin against Elmer certain Lands in Hackney and had execution Re-disseisin and the Judgment in it 1 Cro. 323. Elmer entred upon Thacker and ousted him and Redisseised him Thacker re-entred and afterwards brought a Redisseisin And it was moved whether Thacker against his Entry might have a Redisseisin And the opinion of the whole Court was that he might well maintain the Writ for he is not thereby to recover any Land but the Defendant of that Redisseisin being convicted shall be fined and imprisoned and render double damages Vide Book of Entries 502. the Iudgment in a Redisseisin is Quod recuperet seisinam suam of the Land. XCI Blaunchflower and Fryes Case Mich. 29 30 Eliz. In Communi Banco BLaunchflower brought debt upon a Bond against Elinor Frye as Executrix of one Andrew Frye her late Husband who pleaded Debt that this Writ was brought 9 July 27 Eliz. whereof she had notice the first of October after within which time one Lawrence had brought an Original Writ against the said Elinor as Administratrix of the said Andrew And after the bringing of the Writ the Bishop of Bath and Wels committed Administration of the goods of the said Andrew to the said Elinor which Elinor confessed the Action upon which Iudgment was given for the said Lawrence beyond which she had not goods upon which the now Plaintiff did demur in Law. And by Anderson the Recovery pleaded in bar shall not bind the Plaintiff because it appeareth unpon the plea of the Defendant that the Administration was committed after the Writ purchased which matter if the Defendant had pleaded Administration granted pendant the Writ Lawrence could not have had Iudgment to recover As where there are three Executors and debt is brought against two of them if they do not plead that matter in abatment of the Writ but plead c. or confess the Action so that the Plaintiff hath Iudgment to Recover that Recovery shall not bind a stranger who hath cause of Action against them but that he may well falsify it and yet it was said that in such Case the Defendant by the obtaining of the Letters of Administration had made the Writ good against her vid. 13 H. 4. Fitz. Executors 118. Administration committed before the Writ purchased shall abate the Writ brought against the Defendant as Executor but such Administration obtained

fide non pro usura and that Issue was tryed in the County of Stafford and was found for the Plaintiff And it was moved in arrest of Iudgment that that Issue ought to be tryed in London where the contract was made Gawdy conceived that the tryal is well As 8 E. 3. 8. In debt upon an Obligation in London the Defendant pleaded that the Obligation was made by duresse at York the same Issue shall be tryed at York At another day the case was put more certain scil that the contract was made at W. in Stafford-shire by which it was agreed that for a Horse and two Tun of Iron the Plaintiff should have for them and the forbearing of the mony for such a small time fifty pounds whereas in truth they were but of the value of forty pounds Tryal and that the said Bond was made for the payment of the said fifty pounds Cook The Issue is well tryed for the ground of the matter is the usurious contract and those of Stafford-shire may better know it than they of London And according to this Tryal it hath been before adjudged H. 28. Eliz. rot 209. Betwixt Sybthorpe and Turner And P. 31. Eliz. rot 303. betwixt Payne and Wilkenson where the Issue was absque hoc that it was a corrupt agreement but the pleading was ut supra And afterwards Iudgment was given for the Plaintiff CCVII. The Queen and Buckberds Case Trin. 36 Eliz. In the Kings Bench. THe Queen recovered against Buckberd in a Quare Impedit Quare Impedit 1 Cro. 162. and thereupon a Writ of Error was brought and it was assigned for Error that the Queen post tempus semestre had Iudgment to recover damages for the value of the Church for half a year Cook The same is no Error as it was adjudged 7 Eliz. 236. See also 34 H. 6. 51. And these damages are not as damages but as a penalty inflicted upon the disturbance See Book of Entries 483. The King in a Quare Impedit counted to his damage of forty pounds and 484. 1000 li. and although tempus semestre transierit yet the King shall recover damages but the value of the Church for half a year for the King at all times may present in his own right for nullum tempus occurrit Regi Damages in a Quare Impedit where by King e contra At another day it was moved by Fenner Serjeant and he conceived that here the Queen is not to recover damages for she doth not present in her own right for the Incumbent had two Benefices without Qualifications therefore the first was void and the Lapse encurred and therefore the Queen did present in the right of the Crown and so is not verus Patronus 14 E. 3. Quare Impedit 54. The King shall not recover damages although he count of damages 3 H. 6. Damages 17. And as to the case of 7 Eliz. it doth not appear there that the King did present by reason of his Prerogative he shewed divers Presidents that the King shall not recover damages in such case P. 7. H. 5. rot 402. 2 H. 6. rot 316. For the Statute was intended to give damages to the very Patron and not otherwise Cook Where the King presents by Lapse he is verus Patronus hac vice as Grantee of the next Avoidance Vide T.E. 1. Quare Impedit 181. The King recovered damages in the case of a Prior. Godfrey said he had searched the Roll of 7 Eliz. and there is more reported in the Book than is in the Roll for Iudgment is given for the Presentee but as for the damages the Court would advise of it Gawdy It is clear that the Queen shall not recover double damages Where only single damages for she cannot lose her presentment quia nullum tempus occurrit and because eo quod tempus semestre transierit but she shall have single damages for they are given for the wrong and disturbance and not for the presentment and therefore the damages are well awarded Wray If the King be not within one part of the Statute as it is agreed as to the double damages it is hard that he be within the other branch Popham Attorney general The Queen ought to recover damages but only single damages but not double damages and the words of the Statute are general therefore the Queen shall have the benefit of it and of all Statutes made for the benefit of the Subjects the King shall take advantage The Statute of Gloucester gives damages in a Writ of Cosinage Ai● and Besail and the King brings an Action upon the seisin of his Ancestors he shall recover damages and in construction of Statutes the opinions of them which were next to the making of them is to be much respected Vide 19 E. 2. Rot. 90 19 E. 1. Rot. 255 231 136. And always the King counts to his damage c. and that should be in vain if he should not recover damages And as to the Presidents shewed to the contrary that was the default of those Clerks which the King had presented and when in a Quare Impedit the King had prevailed they contented themselves with the Incumbency without regard of the damages But if damages be not to be given yet the Iudgment to recover the presentment is not erronious And the Iudgment only as to the giving of damages shall be reversed and the Defendant in the Quare Impedit here shall not assign the same for Error because no damages are given 5 Co. 58. for it is for his advantage And always where it is found for the Queen in a Quare Impedit they enquire of the value of the Church A man shall not assign for error that which is for his advantage which should be a trivolous thing if the Queen should not recover damages Gawdy Of things transitorie the Queen may be disturbed and if she be wherefore shall she not recover damages but the doubt is if the intent of the Statute be if the party shall have single damages in any case And here in this case the Iudgment is one and entire and if it be reversed in part it shall be reversed in the whole as in Dower the Tenant pleads that he is always ready c. the Demandant shall have Iudgment to recover her Dower and a Writ shall issue forth to enquire of the damages And see also 17 E. 3. In an Assize of Darrein presentment the Plaintiff had Iudgment to have a Writ to the Bishop And the Assize was taken after for the damages And in the mean time the Defendant brought a Writ of Error and it was holden maintainable for they are several Iudgments but it is not so here for the Entry is Quod querens habeat bre Episcopo quia nescitur quae damna c. for it is one Iudgment Wray It is but one Statute and therefore it shall be construed with one construction and it should

case And at another day it was objected That the Deed could not be acknowledged without a Letter of Attorney being a Corporation which consisted upon divers persons as Prioress and Covent and they are alwaies to be intended to be in their Chapter-house and cannot come into Court to acknowledge a Deed To which it was answered by Cook That this acknowledgment being generally pleaded it shall be intended that it was done by a Lawful means and there is no doubt but that such a Corporation may levy a Fine and make a Letter of Attorney to acknowledge it and see 2 Ma. Fulmerstones case 105. It was further objcted 2 Inst 674. That this Deed was enrolled the same day that it beareth date for the pleading is per factum suum gerens Datum 2 Novemb. 29 Hen. 8. et iisdem die anno irrotulat And by the Statute such a Deed ought to be enrolled within six Months next after the date so as the day of the date is excluded and so it is not enrolled within six Months As to that it was answered by Cook That the time of computation doth begin presently after the delivery of the Deed as in the common Cases of Leases If a man makes a Lease for years to begin from the day of the date the same is exclusive but if it be To have and to hold from the date of the Deed it shall begin presently And an Ejectment supposed the same day is good and then here this Enrolment is within the six Months Dyer 220. b. 1 Cro. 717. and yet see 5 Eliz. 128. Dyer Pophams case It was also objected That it is alledged in the conusans That the Manor was sold to the Lord Audley and that the Deed of Bargain and Sale was acknowledged and enrolled in the Chancery the said Lord being then Lord Chancelor and he cannot take an acknowledgment of a Deed or enrolment of it to himself for he is the Sole Iudge in the said Court so as the Deed is acknowledged before himself and enrolled before himself and that is good enough for here we are not upon the common Law but upon the Statute and here the words of the Statute are performed And the enrolment of the Deed is not the substance of the Deed but the Deed it self Also the acknowledgment of the Deed after it is enrolled is not material for he is estopped to say that it is not acknowledged And as to the matter it self a man shall not have averment against the purport of a Record but against the operation of a Record as not put in view not comprised partes ad finem nihil haberunt c. And against Letters Pattens of the King Non concessit is a good plea which see 18 Eliz. for by such plea it is agreed that it is a Record but that nihil operatur CCLVIII. Osborn and Kirtons Case Hill. 31 Eliz. In the Kings Bench. Rot. 258. IN Debt upon an Obligation The Defendant cast a Protection Debt upon which the Plaintiff did demur Tanfield The Protection is not good for the Defendant is let to Bail and so is intended always in prison for so the Record makes mention and then the Protection quia moratur in portubus Zeland is against the Record Protection and the Court ought to give credit to Records especially Secondly The words of the Protection are That Kirton is imployed in Obsequio nostro which is no cause of protection for the usual form and so is the Law that such a person be imployed in negotio Regni for the defence of England c. For if the King will give aid unto another Princes Subjects employed in such service he shall not have Protection And afterwards variance was objected betwixt the Bill and Declaration and the Protection for the Bill is against John Kirton of A. Gentleman the Protection is John Kirton only But the same was holden no such variance being only in the Addition for before the Statute 1 H 5. additions were not necessary in any actions CCLIX Boyton and Andrews Case Mich. 30 Eliz. Rot. 156. In the Kings Bench. IN Debt upon an Obligation the Condition was Debt 1 Cro. 135. to make sufficient assurance of certain Lands to the Obligee before the tenth day of March 17 Eliz. And if it fortune the said Obligee be unwilling to receive or mislike such assurance but shall make Request to have one hundred pounds for satisfaction thereof Then if upon such Request the Obligor pay one hundred pounds within five months That then the Obligation shall be void And at the day the Obligee doth refuse the assurance and afterwards 27 Eliz. request is made to have the hundred pounds It was the clear opinion of the whole Court That the said Request was well enough for the time and he might make it at any time during his life he is not restrained to make it before the day in which the Assurance is to be made and afterwards judgment was given for the Plaintiff CCLX Knight and Savages Case Mich. 29 30 Eliz. Rot. 546. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned Error Error 2 Cro. 206. 2 Cro. 109. 654. Sty 91. Yel 164. 165. Post 302. because in that Suit there was not any plaint and in all inferior Courts the plaint is as the original at the common Law and without that no process can issue forth And here upon the Record nothing is entred but that the Defendant summonitus fuit c. and therefore the first entry ought to be A. B. queritur adversus C c. Clench A Plaint ought to be entred before process issueth the summons which is entred here is not any plaint and for that cause the Iudgment was reversed It was said That after the Defendant appeared a Plaint was entred but it was said by the Court That that shall not mend the matter for there ought to be a plaint out of which the process shall issue as in the Courts above out of the original Writs CCLXI Kirby and Eccles Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 137. IN an Action upon the Case the Plaintiff declared Quod cum quaedam communicatio fuisset betwixt the Plaintiff and one Cowper That Cowper should mast certain Hogs for the Plaintiff the Defendant did promise That in consideration that the Plaintiff promised give unto the Defendant three shillings and four pence for the fatting of every Hog That the said Hogs should be redelivered to him well fatted to which promise and warranty the Plaintiff giving faith delivered to the said Cowper one hundred and fifty Hogs to be masted and that one hundred of them were delivered back but the residue were not It was moved That here is not any consideration for which the Defendant should be charged with any promise but it was argued on the other side That the Promise was the cause

out of the pardon shall be intended and construed the bare Act of Conversion but the whole offence i. the continuance and practise of it is understood As if by general pardon all intrusions are excepted now by that the instant Act of Intrusion i. the bare Entry is not only excepted but also the continuance of the Intrusion and the perception of the profits And note The words of the Statute are conversion permitted and Conversion continued is Conversion permitted And the said Statute doth not punish the Conversion but also the continuance of the Conversion for the penalty is appointed for each year in which the Conversion continues And Egerton Solicitor put this Case 11 H. 8. It was enacted by 3 H. 7. cap. 11. That upon Recovery in Debt if the Defendant in delay of Execution sues a Writ of Error and the Iudgment be affirmed he shall pay damages now the case was That one in Execution brought such a Writ of Error and the first Iudgment is affirmed he shall pay damages and yet here is not any delay of the Execution for the Defendant was in Execution before but here is an Interruption of the Execution and the Statute did intend the Execution it self i. the continuance in Execution ibidem moraturus quousque It was said on the other side That the conversion and continuance thereof are two several things each by it self and so the conversion only being excepted in the pardon the continuance thereof remains in the grace of the pardon And it appeareth by the Statute of 2 and 3. Ph. Ma. That conversion and continuance are not the same but alia atque diversa and distinct things in the consideration of the Law for there it is enacted That if any person shall have any Lands to be holden in Tillage according to the said Statute but converted to Pasture by any other person the Commissioners c. have authority by the said Statute to enjoyn such persons to convert such Lands to Tillage again c. And in all cases in the Law there is a great difference betwixt the beginning of a wrong and the continuance of it As if the Father levyeth a Nusance in his own Lands to the offence of another and dyeth an Assize of Nusance doth not lye against the Heir for the continuance of that wrong but a Quod permittat See F.N.B. 124. It was adjorned CCCLXX Powley and Siers Case Mich. 26 Eliz. In the Kings Bench. POwley brought Debt against Sier Executor of the Will of A Debt The Defendant demanded Iudgment of the Writ for he said That one B. was Executor of the said A. and that the said B. did constitute the Defendant his Executor so the Writ ought to be brought against the Defendant as Executor of the Executor and not as immediate Executor to the said A. The Plaintiff by Reply said That the said B. before any probate of the Will or any Administration dyed and so maintained his Writ Wray Iustice was against the Writ for although here be not any probate of the Will of A. or any other Administration yet when B. made his Will and the Defendant his Executor the same is a good acceptance in Law of the Administration and Execution of the first Will for the Defendant might have an Action of Debt due to the first Testator Gawdy and Ayliff Iustices The Writ is good See Dyer 1 Cro. 211. 212. 23 Eliz. 372. against Wray CCCLXXI Pasch 26 Eliz. In the Kings Bench. THe Case was A seised of certain Lands Bargain and sale of Trees bargained and sold by Indenture all the Trees there growing Habendum succidendum exportandum within twenty years after the date of the said Indenture the twenty years expire The Bargainee cuts down the Trees A. brought an Action of Trespass for cutting down the Trees And by Wray Iustice The meer property of the Trees vests in the Bargainee Post 288. and the Limitation of time which cometh after is not to any purpose but to hasten the cutting of the Trees within a certain time within which if the Vendee doth not cut them he should be punished as a Trespassor as to the Land but not as to the Trees Gawdy contrary And that upon this Contract a conditional property vests in the Vendee which ought to be pursued according to the direction of the condition and because the condition is broken the property of the Trees is vested in A. CCCLXXII Curriton and Gadbarys Case Pasch 26 Eliz. In the Kings Bench. IN in Action upon the Case the Plaintiff declared Leases That the Defendant in consideration that the Plaintiff should make a lease for life to the Defendant of certain Lands Habendum after the death of A. before the tenth of August next following promised to pay the Plaintiff ten pounds the first day of May next after the promise which was before the tenth of August And the truth was That the said ten pounds was not paid at the day ut supra nor the said Lease made And now both sides being in default the Plaintiff brought an Action It was said by Wray Iustice If the Plaintiff had made the Lease according to the consideration and in performance thereof the action would have lyen but now his own default had barred him of the Action But for another cause the Declaration was holden insufficient for here is not any Consideration for the promise is in consideration that the Plaintiff shall lease to the Defendant for life Habendum after the death of A. which cannot be good by way of lease but ought to enure by way of grant of the Reversion so as here is no lease therefore no consideration and notwithstanding that if a Lease be made for life Habendum after the death of A. the Habendum is void and the Lease shall be in possession according to the Premises yet the Law will not give such construction to the words of a Promise Contract or Assumpsit but all the words ought to be wholly respected according to the Letter so as because that no Lease can be made according to the words of the Consideration no supply thereof shall be by any favorable construction And so it was adjudged But before the same imperfection was espied Iudgment was entred and therefore the Court awarded that there should be a cesset executio entred upon the Roll for it is hard as it was said by Wray to drive the party to a Writ of Error in Parliament because Parliaments are not now so frequently holden as they have used to be holden and the Execution was staid accordingly CCCLXXIII Willis and Crosbys Case Pasch 26 Eliz. In the Kings Bench. Error IN a Writ of Error It was assigned for Error That whereas in the first Action the parties were at issue and upon the Venire facias one G●●gory Tompson was returned But upon the Habeas Corpora George T●●●●son was returned and the Iury was taken and found for the

good as a new devise in Reversion upon the precedent Condition and not as a Remainder quod Windham concessit but Periam was very strong of opinion That it is a Limitation Two Ioyntenants of a Term A. and B. A. grants his part to B. nothing passeth by it for as a Grant it cannot be good Owen 102. 1 Cro. 314. 1 Inst 186. for as one Ioyntenant cannot enfeost his Companion no more can he vest any thing in him by grant for he cannot grant to him a thing which he hath before for Ioyntenants are seised and possessed of the whole all which was granted per Curiam and Anderson said That if Lands be granted to A. and B. and the Heirs of A. B. cannot surrender to A. for a Surrender is as it were a grant And as a Release it cannot enure for a Release of a Right in Chattels cannot be without a Deed. CCCLXXXIV Hollingshed and Kings Case Hill. 29 Eliz. In the Common Pleas. Debt HOllingshed brought Debt against King and declared That King was bounden to him in a Recognizance of two hundred pounds before the Mayor and Aldermen of London in interiori Camera de Guildhall London upon which Recognizance the said Hollingshed heretofore brought a Scire facias before the said Mayor c. in exteriori Camera and there had Iudgment to recover upon which Recovery he hath brought this Action and upon this Declaration the Defendant did demur in Law because that in setting forth of the Recognizance he hath not alledged That the Mayor of London hath Authority by Prescription or Grant to take Recognizances and if he hath not then is the Recognizance taken Coram non Judice and so void And as to the Statute of West 2. cap. 45. It cannot be taken to extend to Recognizances taken in London which see by the words De his quae recordat sunt coram Cancellario Domini Regis ejus Justiciariis qui Recordum habent in Rotulis eorum Irrotulatur c. And also at the time of the making of that Statute 1 Cro. 186 187. London had not any Sheriffs but Bayliffs and the said Statute ordains that Process shall go to Sheriffs c. But the whole Court was clear of a contrary opinion for they said We will know that those of London have a Court of Record and every Court of Record hath an Authority incident to it to take Recognizances for all things which concern the Iurisdiction of the said Court and which arise by reason of matters there depending Another matter was objected for that the Recognizance was taken in interiori Camera but the Court was holden in exteriori Camera and therefore not pursuant But as to that it was said by the Lord Anderson That admit that the Recognizance was not well taken yet because that in the Scire facias upon it the Defendant did not take advantage then thereof he shall be bounden by his said admittance of it as if one sue forth a Scire facias as upon a Recognizance whereas in truth there is not any Recognizance and the party pleads admitting such Record and thereupon Iudgment is given against him it is nor void but voidable Fleetwood Recorder of London alledged many Cases to prove that the Courts of the King are bounden to take notice Priviledges of London That they of London have a Court of Record for if a Quo warranto issueth to Iustices in Eyre it behoves not them of London to claim their Liberties for all Courts of the King are to take notice of them And at last after many motions the opinion of the Court was for the Plaintiff And it was said by Anderson and in manner agreed by the whole Court That if depending this Demurrer here the Iudgment in London upon the Scire facias be reversed yet the Court here must proceed and not take notice of the said Reversal CCCLXXXV Bedingfeild and Bedingfeilds Case Hill. 29 Eliz. In the Common Pleas. Dower DOwer was brought by Anne Bedingfeild against Thomas Bedingfeild The Tenant out of the Chancery purchased a Writ De circumspecte agatis setting forth this matter That it was found by Office in the County of Norfolk that the Husband o● the Demandant was seised of the Manor of N. in the said County and held the same of the Queen by Knights Service in chief and thereof dyed seised the Tenant being his Son and Heir of full age by reason whereof the Queen seised as well the said Manor as other Manors and because the Queen was to restore the Tenements tam integre Primer seisin c. as they came to her hands it was commanded the Iudges to surcease Domina regina inconsulta It was resolved per Curiam That although the Queen be entituled to have Primer seisin of all the Lands whereof the Husband of the Demandant dyed seised yet this Writ did not extend unto any Manors not found in the Office for by the Law the Queen cannot seise more Lands than those which are contained in the Office And therefore as to the Land not found by the Office the Court gave day to the Tenant to plead in chief And it was argued by Serjeant Gawdy for the Tenant That the Demandant ought to sue in the Chancery because that the Queen is entituled to have her Primer Seisin and cited the case of 11 R. 2. and 11 H. 4. 193. And after many motions It was clearly agreed by the Court That the Tenant ought to answer over for the Statute De Bigamis Cap. 3. provides that in such case The Iustices shall proceed notwithstanding such seisin of the King and where the King grants the custody of the Tenant himself 1 H. 7. 18 19. 4 H. 7. 1. A Multo fortiori against the Heir himself where he is of full age notwithstanding the possession of the King for his Primer seisin By the Statute of Bigamis after the Heir was of full age the Wife could not be endowed in the Chancery But now by the Prerogative of the King such wives may be endowed there Si viduae illae voluerint and after many motions The Court awarded That the Tenant should plead in chief at his peril for the Demandant might sue at the common Law if she pleased CCCLXXXVI Hill. 28 Eliz. In the Common Pleas. THe Case was Exchange The Husband was seised of Lands in the right of his Wif the Husband and his Wife both joyned in exchange of the Lands with a stranger for other Lands which exchange was executed the Husband and the Wife seised of the Lands taken in exchange aliened the same by Fine It was holden by Rhodes and Windham Iustices That the Wife after the death of her Husband might enter into her own Lands notwithstanding that Fine And Rhodes resembled it to the case reported by my Lord Dyer 19 Eliz. 358. The Husband after marriage assured to his Wife a Ioynture they both levy a Fine 1 Inst 36.

word Children a good name of purchase But the whole Court was against that conceit for these words in the case At the Assignment of Friendship are not void but shew what person should take if the intent of the party should take effect i. he who the Father by Assignment should enable for no Child shall take but he who the Father shall assign that is part of the contract and although by such Assignment no title accrues to the Child assigned yet without Assignment no Child is capable for by the Lease the Father hath such Liberty that he may assign what Child he will And by Wray If the words of the Lease had been at the assignment of the Father within one month and the Father surcease his month Antea 275. the Interest should not vest in any of the Children And by Ayliff Iustice If the words of the Lease had been to the Husband and wife and their Son John where his name is William nothing should vest And peradventure in this case at the Bar if the Father had assigned his Son then born and had assigned him before or at the time of the Lease i. the delivery of the Lease it had been well enough Note that this Action was brought by Cole Lessee of the Son of the Husband and VVife born at the time of the Lease made And afterwards Wray with the assent of all the rest of the Iustices gave Iudgment that the Plaintiff Nihil capiat per Billam CCCXCII Pasch 26 Eliz. In the Kings Bench. Execution where joynt where several NOte It was agreed by the whole Court and affirmed by the Clerks That if Debt be brought upon an Obligation against two upon a joynt Praecipe and the Plaintiff hath judgment to recover that a joynt Execution ought to be sued against them both But if the suit were by one Original and several Praecipes execution might be sued against any of them CCCXCIII Trin. 26 Eliz. In the Kings Bench. Replevin IN a Replevin The Defendant doth avow for Damage Feasant and shewed that the Lady Jermingham was seised of such a Mannor whereof c. and leased the same to the Defendant for years c. The Plaintiff said That long befor King H. 8. was seised of the said Manor and that the place where is parcel of the said Manor demised and demisable by copy c. and the said King by his Steward demised and granted the said parcel to the Ancestor of the Plaintiff whose Heir he is by copy in fee c. upon which it was demurred because by this Bar to the Avowry the Lease set forth in the Avowry is not answered for the Plaintiff in the Bar to the Avowry ought to have concluded and so was seised by the custom until the Avowant praetextu of the said Term for years entred And so it was adjudged CCCXCIV The Lord Dacres Case Trin. 26. Eliz. In the Kings Bench. Ante 227. Stewardship of a Manor Office of Trust Grants per Copy Deputy Steward IN Ejectione firmae the case was That the Lord Dacres was seised of the Manor of Eversham and that I.S. held the place where of the said Manor by copy for term of his life and the said Lord granted the Stewardship of the said Manor to the now Marquess of Winchester who appointed one Chedle to be his Deputy to keep a court ad traden dum the said Lands I.S. being now dead to one Wilkins by copy for life afterwards the said Chedle commanded one Hardy his Servant to keep the said court and grant the said Land by copy ut supra which was done accordingly the copy was entred and the Lord Dacres subsigned it confirmed it It was further found That Hardy had many times kept the said court both before and after and that the custom of the Manor was that the Steward of the said Manor for the time being or his Deputy might take Surrenders 1 Co. 48. 49. and grant estates by copy And if this estate so granted by Hardy were good or not was the question because by the Servant of the Deputy whereas the custom found did not extend further than the Deputy It was argued that the estate granted ut supra was void for a Deputy cannot transfer his authority over for it is an office of trust See 39 H. 6. 33 34. 14 E. 4. 1. and 6 Eliz. it was adjudged That the Duke of Somerset had divers Stewards of his Lands and they in the name of the said Duke made diverse Leases of the Lands of the said Duke rendring Rent and the Duke afterwards assented to the said Leases and received the Rents reserved upon them and yet after the death of the said Duke the Earl of Hertford his Son and Heir avoided them So here the assent and the subsignment of the copy by the Lord Dacres doth not give any strength to the copy which was void at the beginning against which it was said That to take a Surrender and to grant an Estate by copy is not any judicial Act but meerly an Act of service and no matter of trust is transferred to Hardy for trust is reposed in him who may deceive which can't be in our Case for here is an express commandment which if Hardy transgress it is absolute void for nothing is left to his discretion And the admitting of a Copy-holder is not any judicial Act for there need not be any of the Suitors there who are the Iudges And such a Court may be holden out of the Precinct of the Manor for no Pleas are holden which was concessum per totam Curiam And by Ayliff Iustice If the Lord of such a Manor makes a Feoffment of a parcel of his Manor which is holden by copy for life and afterwards the Copy-holder dyeth although now the Lord hath not any Court yet the Feoffee may grant over the Land by copy again And the whole Court was clear of opinion That the grant for the manner of it was good especially because the Lord Dacres agreed to it And Iudgment was given accordingly CCCXCV Burgesse and Fosters Case Trin. 26. Eliz. In the Kings Bench. IN Ejectione firmae the case was 1 Cro. 48 49. That the Dean and Chapter of Ely were seised of the Manor of Sutton whereof the place where c. is parcel demised and demisable by copy according to the custom and by their Deed granted the Stewardship of the said Manor to one Adams to execute the said office per se vel legitimum suum Deputatum eis acceptabilem Surrenders Afterwards Adams made a Letter of Deputation to one Mariot ad capiendum unum sursum redditionem of one I. W. and I. his Wife and to examine the said I. aforesaid ea intentione that the said I.W. and A. might take back an estate for their lives the Remainder over to one John Buck in Fee Note the Surrender ought be de duobus Messuagiis Mariot took two several

Southcotes case Southcotes case So a Title of Cessavit in the Feoffees shall be executed by the Statute So if the King grants to the Feoffees in use a Fair Market or Warren these things shall be executed by the Statute Clerentius case as it was holden in the Case of Clarentius As to the Condition they conceived That it is broken for where the Devisor had allowed to the Devisee to discontinue for life to make a Ioynture to his Wife now he hath exceeded his allowance for he might have made a Ioynture to his wife indefeisable by Fine upon a Grant upon a Render for life c. But this Fine with the Proclamations is a Bar to the former entail which was created by the Devise and hath created a new entail and the former tail was barred by the Fine against the intent of the Devisor Also by this Fine he hath created a new Remainder so as his Issue inheritable to his new entail might alien and be unpunished which was against the meaning of the Devisor And as to the Lease for lives to the Defendants the same is not any breach of the Condition for that is warranted by the Statute of 32 H. 8. which enables Tenant in tail to make such a Lease so as it cannot be said Discontinuance which Anderson and Periam granted But the Fine levied after is a breach of the Condition and then the Re-entry upon the Lessees who have their estates under the Condition is lawful As where the wife of the Feoffee upon Condition is endowed and afterwards the Condition is broken now by the Re-entry of the Feoffor the Dower is defeated And Shutleworth put this case A Feoffment is made upon Condition that the Feoffee shall lease the Lands to A. for life and afterwards grant the Reversion to B. in Fee the Feoffor may re-enter for by this Conveyance he in the Reversion is immediate Tenant to the Lord where by the intended assurance the particular Tenant ought to be Puckering Fenner and Walmesley contrary And by Walmesley By this devise the use only passeth and not the Land it self for the Statute of 1 R. 3. extends only to Acts executed in the life of Cestuy que use and not to devises which are not executed till after the death of the Devisor which see 4 Ma. Dyer 143. Trivilians case See also 6 E. 6. Dyer 74. The Lord Bourchiers case but 10 H. 7. Cestuy que use deviseth That his Executors shall sell the Land now by the sale of the Land in possession for the same is in a manner an Act in his life for the Vendee is in by Cestuy que use and here is a Condition and not a Limitation for the nature of a Condition is to draw back the estate to the Feoffor Donor or Lessor but a Limitation carrieth the estate further And he conceived That the Condition is not broken by this Act for the intent of the Devisor is pursued for his meaning was That the wife should have a Ioynture indefeisable against the issue in tail and that the inheritance should be preserved that both should be observed And he said that this Fine being levied by him in the Reversion upon an estate for life is not any discontinuance but yet shall bar the estate Tail. And the Iustices were clear of opinion that the Condition is broken and also that the intent of the Condition is broken for it might be that Charles had issue by a former wife which by this Fine should be disinherited and a new Entail set on foot against the meaning of the Devisor c. and afterwards Iudgment was given for the Plaintiff CCCCX Simmes and Wescots Case Hill. 31 Eliz. Rot. 355. In the Kings Bench. IN an Action upon the Case the Plaintiff declared 1 Cro. 147. That in consideration that he would marry the Defendants Daughter the Defendant promised to give him 20 l. and also to procure him all the Corn growing upon such Lands and to provide necessaries for the wedding dinner the Defendant did confess the communication betwixt them and that he promised to give the Plaintiff 20 l. so as he would procure a Lease of certain Lands to his Daughter for her life absque hoc that he promised modo forma The Iury found the promise of the 20 l. but not any other thing it was moved in arrest of Iudgment that the Assumpsit whereof the Plaintiff hath declared although it consist of divers things yet it is entire and if the whole is not found nothing is found and the Case of 21 E. 4. 22. was cited touching variance of Contract as where an Action of Debt is brought upon a Contract of a Horse and the Iury found a Contract for two Horses the Plaintiff shall never have Iudgment On the other side it was said That the Plaintiff shall recouer damages for the whole that is found i. for the 20 l. See 32 H. 8. Br. Issue 90. In an Action upon the Case the Plaintiff declared that the Defendant did promise to deliver four Woollen-cloaths the Defendant pleaded That he did promise to deliver four Linnen-cloaths absque hoc that he promised c. the Iury found That the Defendant did promise to deliver two Woollen-cloaths and the Plaintiff did recover damages for the two So in Wast the Wast is assigned in succidendo 20 Oaks upon which they are at Issue the Iury find but ten Oaks the Plaintiff shall have Iudgment for so much and shall be amerced for the residue Gawdy Iustice Here are several Assumpstis in Law as Br. 5. Ma. Action sur le Case 108. a man in consideration of a Marriage assumes to pay 20 l. per Annum for four years two years incur the party brings an Action upon the Case for the arrearages of the two years Wray In an Action upon the Case the Plaintiff ought not to vary from his Case as if a promise be grounded upon two considerations Ragula and in an action upon it the Plaintiff declares upon one only he shall never have Iudgment and here the Iury have not found the same promise Clench If promise be made to deliver a Horse and a Cow and the Horse is delivered but not the Cow the party shall have an Action for the Cow but he shall declare upon the whole matter and afterwards Iudgment was given quod querens nihil capiat per billam CCCCXI Stile and Millers Case Trin. 31 Eliz. In the Kings Bench. Tithes 1 Cro. 161 578. 11 Co 13. A Parson Leased all his Glebe Lands for years with all the profits and commodities rendring 13 s. 4 d. pro omnibus exaction ibus demandis and afterwards libelled in the Spiritual Court against his Lessees for the Tithes thereof the Lessee obtained a Prohibition See 32 H. 8. Br. Dis 17. 8 E. 2. Avowry 212. Wray Tithes are not things issuing out of Lands nor any secular duty but spiritual and if the Parson doth release to

his Parishioner all demands in his Lands his Tithes thereby are not extinct and afterwards a Consultation was granted CCCCXII Lee and Curetons Case Trin. 31 Eliz. Rot. 902. In the Kings Bench. Debt 1 Cro. 153. IN Debt upon an Obligation the Defendant pleaded Non est factum and it was found for the Plaintiff and Iudgment given and afterwards the Defendant brought Error and assigned for Error that the Declaration was per scriptum suum obligat Error without saying hic in Guria prolat to which it was answered by Coke that the same was but matter of form for which a Iudgment ought not to be reversed for that the Clark ought to put in without instruction of the party and so it was holden in a case betwixt Barras and King 1 Cro. 768. 778. 3 Cro. 22. M. 29 30 Eliz. Another Error was assigned because the Iudgment is entred de fine nihil quia perdonat where it should be quod capiatur although the Plea were pleaded after the General pardon and for that cause the Iudgment was reversed for if the pardon be not specially pleaded the Court cannot take notice of it as it was holden in Serjeant Harris Case CCCCXIII Lacy and Fishers Case Trin. 31 Eliz. In the Kings Bench. IN a Replevin the taking is supposed in S. which Land is holden of the Manor of Esthall the Defendant made Conusans as Bailiff of the Lord of the Manor aforesaid and issue was taken upon the Tenure Trial. and it was tryed by a Iury out of the Visne of Esthall only Tanfield The trial is good for the issue ought not to have been tried by both Visnes S. and Esthall for two things are in issue If it be holden or not 2. If it be holden of the Manor of Esthall for which cause the Visne ought to be from both places and the opinion of the Court was That for the manner of it it was not good as if an issue be joyned upon common for cause of vicinage it shall be tried by both Towns See 39 H. 6. 31. by Littleton and Danby and the case in 21 E. 3. 12. was cited in a per quae servitia the Mannor was in one county and the Lands holden in another county the Tenant pleaded that he did not hold of the Conusor and that he was tried by a Iury of the County where the Land was See 2 H. 4. Gawdy denied the Book cited of 21 E. 3. to be Law and the reason wherefore the Visne shall come from both places is because it is most likely that both the Visnes may better know the truth of the matter than the one only Another Exception was taken Exposition of Stat. 21. H. 8. cap. 19. because the Conusans as it seems is made according to the Statute of 21 H. 8. 19. and yet the party doth not pursue the said Statute through the whole Conusans for by the Statute in Avowry or Conusans the party needs not to name any person certain to be Tenant to the Land c. nor to make Avowty or Conusans upon any person certain and now in this Conusans he hath not made Conusance upon any person certain but yet he hath named a person certain to be Tenant c. and in as much as this Conusans is not made either according to the Common-Law or according to the Statute it cannot be good But that Exception was dissallowed by the Court for if the Statute remedieth two things it remedieth one and the Conusance made in form as above was well enough by the opinion of the whole Court. CCCCXIV Diersly and Nevels Case Trin. 31 Eliz. In the Kings Bench. IN an Action of Trespass the Defendant pleaded Not-guilty 2 Roll. 682. and if he might give in evidence That at the time of the Trespass the Freehold was to such an one and he as his servant and by his Commandment entred was the question and it was said by Coke That the same might so be well enough and so it was adjudged in Trivilians Case for if he by whose commandment he entreth hath Right at the same instant that the Defendant entreth the Right is in the other by reason whereof he is not guilty as to the Defendant and Iudgment was given accordingly CCCCXV. Savage and Knights Case Mich. 29 and 30 Eliz. Rot. 546. In the Kings Bench. Error Ante 185. 1 Cro. 106. 2 Cro. 109. 654. Sty 91. Yelv. 164. Sty 115. A Writ of Error was brought upon a Iudgment given in Leicester in Debt Tanfield assigned for Error because in that suit there was not any Plaint for in all inferior Courts the Plaint is as the Original at the Common Law and without that no Process can issue and here upon this Record nothing is entred but only that the Defendant summonitus fuit c. and the first Entrie ought to be A. B. queritur versus C c. Clench Iustice a Plaint ought to be entred before Process issueth forth and this Summons which is entred here is not any Plaint and for that Cause the Iudgment was reversed CCCCXVI Rawlins Case Trin. 31. Eliz. In the Kings Bench. IN Trespass for breaking his Close by Rawlins with a continuando It was moved by Coke that the Plaintiff needed not to shew a Regress to have Damages for the continuance of the first Entry scil for the mean profits and that appears by common experience at this day Gawdy Iustice whatsoever the experience be I well know that our books are contrary and that without an Entry he shall not have damages for the continuance if not in case where the Term or estate of the Plaintiff in the Land be determined and to such opinion of Gawdy the whole Court did incline but they did not resolve the point because a Regress was proved See 20 H. 6. 15. 38 H. 6. 27. CCCCXVII Harris and Bakers Case Trin. 31. Eliz. In the Kings Bench. Accompt Damages 3 Len. 192. Collet and Andrews Case 2 Len. 118. 3 Len 149. IN an accompt damages were given by the Iury and it was moved that damages ought not to have been given by way of damages but the damages of the Plaintiff shall be considered by way of Arrearages but see the Case H. 29 Eliz. in the Common Pleas betwixt Collet and Andrews and see 10 H. 6 18. In Accompt the Plaintiff shall count to his damage but shall not recover damages vide 2. H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall ad● quoddam incromentum to the Arrearages Coke It hath been adjudged that the Plaintiff shall recover damages ratione implicationis non Retentionis CCCCXVIII Mich. 26. Eliz. In the Kings Bench. THe words of the Statute 32 H. 8. cap. 37. of Rents are that the Executor of a Grantee of a Rent-charge may distrain for the arrearages of the said Rent incurred in the life of the Testator so long as the Land charged doth continue in

Action against the Executor of I.D. And it was agreed by the Court that if a man makes his Debtor and a stranger his Executors and the Debtor dieth the surviving Executor may have an Action of debt against the Executor of the Debtor and so it was adjudged in the principal case CCCCXLIX Wollman and Fies Case Mich. 31 32 Eliz. In the Kings Bench. Assumpsit 1 Cro. 179. IN an Action upon the Case upon Assumpsit that the Plaintiff should enjoy such Lands for so many years The Defendant pleaded the Statute of 13 14 Eliz. because the Land is the Glebe Land of such a Parsonage and in truth the Defendant did mis-recite the Statute For the Statute is No Lease after the fifteenth day of May And the pleading is hereafter to be made Secondly the Statute is of any Benefice with cure the pleading is of any Benefice Thirdly The Statute is without absence above eighty and the pleading is without absence by the space of eighty days And for these Causes the Plaintiff had Iudgment CCCCL Frond and Batts Case Trin. 31 Eliz. In the Kings Bench. Debt Payment to the wife not good IN debt upon a Bond upon condition to stand to the Award of I.S. The Defendant pleaded That the said I.S. had Arbitrated that the Defendant should pay to the Plaintiff ten pounds and he said he had paid it to the Plaintiffs wife who received it upon which the Plaintiff did demur And Iudgment was given for the Plaintiff CCCCLI Trin. 31 Eliz. In the Kings Bench. Grants of the King of the Office of Marshal of the Kings Bench. THe Queen granted to George Earl of Shrewsbury An. 15. of her reign the Office of Earl Marshal of England and now came the said Earl and prayed that I. S. one of his Servants to whom he had granted the Office of Marshal of the Kings Bench might be to it because the same is an Office incident to his Office and in his power to grant and that Knowles to whom the Queen had granted the said Office of Marshal of the Kings Bench by the Attainder of North. be removed And a President was shewed 14 15 Eliz. Betwixt Gawdy and Verney where it was agreed That the said office was a several office from the said great office and not incident to it And as to the Case of 39 H. 6. 33 34. the truth is the said office of Marshal of the Kings Bench was granted expresly by the Duke by express words and so he had it not as incident to his office of Marshal of England On the other side there were three Presidents shewed first in the time of E. 2. That the office of the Marshal of the Kings Bench was appendant to the said office of Marshal of England Secondly 8 R. 2. When the said great office was in the King he granted the said office of Marshal of the Kings Bench But 20 R. 2. both offices were rejoyned as they were before in ancient time and there were also shewed Latters Patents of 4 E. 4. and 19 H. 8. by which it appeared That the said inferiour office had time out of mind been part of the great office And it was moved That when the said great office is in the Kings hands and the King grants the said under office if now this office be not severed from the great office for ever Wray It is no severance for the chief office is an office of Dignity which may remain in the King but this under office is an office of necessity and the King himself cannot execute it by which of necessity he ought to grant it Another matter was moved If the Grant of the King unto the Earl of Shrewsbury were good because in it the Grant to Verney of the said under office is not recited according to the Statute of 6 H. 8. 9. As 26 E. 3. 60. The King seised of the Honor of Pickring to which a Forrest was appendant the Bayliwick of which Forrest he granted in fee rendring rent and afterwards he granted the Honor with Appurtenances and afterwards the Bailiff committed a Forfeiture and that was found in Eyre the Grantee of the Honor shall seise it yet the King shall have the Rent And here the Earl of Shrewsbury shall have this office in his power to grant And so much the rather because it was granted but for life CCCCLII Michill and Hores Case Trin. 31 Eliz. In the Kings Bench. MIchil did affirm a Plaint in the Court of the City of Exeter against Hore for twenty pounds and upon Nihil returned Attachment of goods by custom of Exeter it was surmised That Trosse had certain monies in his hands due to Hore and according to the custom of Exeter the said monies were attached in the hands of Trosse who appeared upon the Attachment and pleaded That he owed nothing to Hore upon which there was a Demurrer Error and Iudgment given against Trosse because that Trosse ought to have pleaded not only that he owed him nothing but further that he had not any goods of Hores in his hands And thereupon Trosse brought a Writ of Error and assigned the Error in the principal matter upon which it was demurred and Iudgment given against the Plaintiff because that the Plea of Trosse that he owed him nothing is good enough for if there be not a Debt it is not attachable upon such Attachment And it is a good Plea to a common intent and altogether in use in London were such custom is Another Error was assingned for that Michill had recovered Costs against Trosse where it ought not to be And also Iudgment is not given that Trosse should be discharged against Hore And afterwards the Iudgment given in Exeter was reversed CCCCLIII Dennis and Saint Johns Case Mich. 30 31 Eliz. In the Common Pleas. Debt 1 Cro. 494. IN Debt upon an Obligation against Oliver Saint John and Alice his wife as heir of her Father The Defendants pleaded Non est factum of the Father And it was found by special Verdict That the Obligation was made by the Father of the Wife to the Plaintiff and another whereas in truth The Plaintiff hath declared upon an Obligation made to himself only without speaking of any other joynt Obligee Non est factum and that the Plaintiff as Survivor hath brought the Action and if upon the matter it shall be said the Deed of the Defendant in manner as the Plaintiff hath declared the Iury refer unto the Court And the case 14 E. 4. 1. b. If three enfeoff me and I plead That two did enfeoff me and the same be traversed it shall be found against me for the Feoffment is a joynt act by them all But if a man enfeoffeth me and two others and they dye so as I have all by Survivor in pleading I may shew the Feoffment was made to me alone So 46 E. 3. 17. a. Three Joynt-tenants in Fee make a

Iustice It was a great offence in the Plaintiff but the same ought to be punished according to Law but the Constable cannot imprison a Subject at his pleasure but according to Law i. to stay him and bring him before a Iustice of the Peace to be there examined Wray If the Defendant had pleaded that he stayed the Plaintiff upon that matter to have brought him before a Iustice of Peace it had been a good Plea. Fennor The justification had been good if the Defendant had pleaded that the Plaintiff refused to carry away the Child so all the Iustices were of opinion against the Plea but they would not give Iudgment by reason of the ill Example but they left the parties to compound the matter CCCCLXIII Cole and Walles Case Pasch 33 Eliz. In the Kings Bench. Ejectione Custodiae lieth not upon a Copy-hold Estate 1 Cro. 224. IN an Ejectione Custodiae the Plaintiff declared that A. was seised of the Manor of D. within which Manor are diverse Copyholds of Inheritance and that the Custom of the Manor is that if any Copy-holder of Inheritance of the said Manor dieth his heir within the age of 14 years that then the Lord of the Manor might grant the custody of his Body and Lands to whom he pleased and shewed that one Clevertie a Copyholder of Inheritance of the said Manor died his son and heir within the age of 14 years Hob. 215. Dyer 302 303. upon which the Lord of the Manor committed the custody of his Body and Lands to the Plaintiff and the Defendant did eject him and upon Not guilty it was found for the Plaintiff It was moved in arrest of Iudgment That this Action would not lye upon a Copyhold estate Quod tota Curia concessit and yet it was said that an Ejectione firmae lieth upon a demise of Copy-hold Land by Lease of a Copyholder himself but not upon a demise by the Lord of the Copyhold Quod fuit concessum and afterwards the Case was moved on the Plaintiffs side and it was said That this was but an Action upon the Case in the nature of an Ejectione firmae and this interest is not granted by Copy but entred only into the Court Roll so it is not an interest by Copy but by the Common Law for the words are Quod Dominus commisit custodiam c. and doth not say in Curia and afterwards Iudgment was given for the Plaintiff CCCCLXIV Bond and Bailes Case Trin. 33 Eliz. In the Kings Bench. Judgment upon a Bond where satisfied before a Statute ● Len. 37● Roll. 926. BOnd brought a Scire facias against Bailes Administrator of one T. B. upon a Recovery had against the Intestate in Action of Debt The Defendant pleaded That before the said Iudgment given the Testator did acknowledge a Statute Staple to one C. and that the Son was not paid in the life of the Testator nor after and that they have not in their hands any goods of the Intestate beyond what will satisfie the said Statute upon which there was a demurrer in Law. And Coke argued That the Bar is not good for here is not pleaded any Execution upon the Statute and then the Iudgment the Statute being of things of as high nature that of which Execution is sued shall be first served and if this Action had been brought upon a Bond the Plea had not been good for although that Brian saith 21 E. 4. That Recognizances shall be paid by Executors before Bonds yet that it is to be intended when a Scire facias is to be sued upon it otherwise not And 4 H. 6. 8. in a Scire facias upon a Iudgment fully administred at the day of the Writ brought is a good Plea by which it appeareth That if the Executors had paid the Debt upon the Obligation before the Writ brought it had been good See 12 E. 3. Executors 73. in a Scire facias upon a Iudgment in Debt given against the Testator Enquiry shall be what goods the Executors had the day of the Scire facias and he said it was moved by Anderson 20 Eliz. in this Court. In Debt upon a Bond against Executors the Defendant pleaded that the Testator was indebted by Iudgment to A. and that they had not more than to satisfie the same and it was holden no plea if not that he pleaded further that a Scire facias was sued upon it Wray said The same is not Law and there is a difference when the Iudgment is given against the Testator himself and where against the Executors for where Iudgments are given against Executors the Iudgment which was given before shall be first executed but if two Iudgments be given against the Testator he who first sues Execution against the Executors shall be first satisfied because they are things of equal nature and before Suit it is in the election of the Executor which of them he will pay See 9 E. 4. 12. As if two men have Tallies out of the Exchequer he which first offers his Tally to the Officer shall be first paid but before that it is in the choice of the Officer which of them shall be first satisfied and therefore 19 H. 6. If the Lease enrolled be lost the Enrolment is not of any effect and Pasch 20 Eliz. our very case was moved in the Common Pleas in a Scire facias upon a Iudgment given against the Testator the Executor pleaded That the Testator had acknowledged a Statute before not satisfied Ultra quae c. and it was holden no Plea for a Statute is but a private and pocket Record as they called it and 32 Eliz. betwixt Conny and Barham the same Plea was pleaded and holden no Plea. Also if this Plea should be allowed Conny and Barhams Case great mischiefs would follow for then no Debts should be satisfied by the Executors for it might be that the Statute was made for performance of Covenants which Covenants perhaps shall never be broken and afterwards Iudgment was given for the Plaintiff CCCCLXV Crew and Bails Case Trin. 32 Eliz. In the Kings Bench. A Writ of Error was brought upon a Iudgment given in the Common Pleas Error 1 Cro. 216. in a Bill of priviledge brought by an Attorney of the said Court upon an Obligation and upon the said Iudgment issued forth process of Execution upon which the Defendant was Outlawed and the Error was assigned in this That upon that Iudgment process of Outlawry doth not lie for Capias is not in the original Action Priviledge and so was the opinion of the whole Court being upon a Bill of priviledge and the Outlawry was reversed and the Error was assigned in the first Iudgment because there were not fifteen days betwixt the Teste of the Venire facias and the return of it but that was not allowed for it is helped by the Statute of 18 Eliz. cap. 14. CCCCLXVI Wade and Presthalls Case Trin. 30 Eliz. In the Kings

Bench. WIlliam Wade brought an Action of Debt against Presthall the Defendant pleaded That he was attainted of Treason Debt Ante 326. not restored nor pardoned and demanded Iudgment if he should be put to answer upon which the Plaintiff did demur It was argued for the Plaintiff that the Plea is not good for the Defendant shall not take benefit of his own wrong A person attainted gives his goods Plea in disability of himself not a●lo●ed he shall not avoid it A Woman takes a Husband thereby she hath abated her own Writ It is true That a person attainted is a dead man it is so as to himself but not as to others 33 H. 6. a person attainted is murdered his Wife shall have an Appeal so as to all respects he is not dead and although as yet the Plaintiff cannot have any Execution against the Defendant yet here is a possibility to have Execution if the Defendant get his pardon As a man shall have Warrantia Chartae although he be not impleaded and yet cannot have Execution but there is a possibility to have Execution 22 E. 3. 19. A Rent granted to one in Fee upon condition that if the Grantee die his heir within age that the Rent shall cease during the nonage the Grantee dieth his heir within age his Wife brought Dower presently and recovered and yet she cannot have Execution but yet there is a possibility to have Execution viz. upon the full age of the heir Coke contr By his Attainder he hath lost his Goods Lands Life Degree for he is now become Terrae filius and he cannot draw blood from his Father nor afford blood to his Son or his posterity so as he hath neither Ancestor nor Heir and as to the possibility the same is very remote for the Law doth not intend that he shall be pardoned and see 6 H. 4 64. A man committed a Felony and afterwards committed another Felony and after is attainted of one of them he shall not be put to answer to the other but if he obtain his Charter of pardon he shall answer to the other See also 10 H. 4. 227. tit Coronae Popham Attorney General The Defendant ought to answer for none shall have advantage of his own wrong The Plaintiff is made a Knight pendant the Writ it shall abate because his own Act but here Treasons are so heinous that none shall have ease benefit or discharge thereby And if the Defendant shall not be put to answer until he hath his pardon then the Action is now suspended and an Action personal once suspended is gone for ever and he cited 29 E. 3. 61. in the Book of Assizes where it is said by Sharp Execution upon a Statute may be sued against a man attainted and he said Execution against a person Attainted That if the Enemy of the King comes into England and becomes bounden to a Subject in twenty pounds he shall be put to answer notwithstanding that interest that the King hath in him Harris Serjeant to the same intent he conceived by 33 H. 6. 1. That Traitors are to answer for if Traitors break the Goal the Goaler shall answer for their escape for the Goaler hath remedy against them contrary of the Kings Enemies Burchets Case and he cited the case of one Burchet who being attainted of Treason struck another in the Tower for which notwithstanding his Attainder he was put to answer Egerton Solicitor General And he said That the Action is not suspended but in as much as every Action is used to recover a thing detained or to satisfie a wrong if it can appear that the party cannot be satisfied according to his case he shall not proceed And in this case the Plaintiff if he should obtain Iudgment could not have Execution by the Common Law Ante 213. for he hath no Goods nor by the Statute of Westm 2. by Elegit for he hath no Lands nor by the Statute of 25 E. 3. by his body for it is at the Kings pleasure and then to what purpose shall the Plaintiff sue and it is a general Rule Regula That in all Actions where the thing demanded cannot be had or the person against whom the thing is demanded cannot yield the thing that the Writ shall abate As in a Writ of Annuity by Grantee of an Annuity for years the term expireth the Writ shall abate Abatement of Writ Tenant in special tail brings Wast and pendant the Writ his issue dieth the Writ shall abate c. 2 E. 4. 1. A man Outlawed of Felony pleaded in dis-affirmance of the Outlawry and yet he was not put to answer until he had his pardon and then he shall answer And as to the Case of 33 H. 6. 1. It doth not appear that the Traitors were attainted and then there is good remedy enough And Burchets Case cannot be resembled to our Case for although that by the Attainder the body of the party might be at the Kings pleasure yet his body may be punished for another offence for the example of others And as to Tressels Case who in such case was put to answer I grant it for he concluded Iudgment if Action and so admitted him a person able to answer and then it could not be a good plea in Bar. And in Ognels Case the Retorn of the Sheriff shall bind them for upon Process against a person attainted they returned Cepi where they ought to have returned the special matter without a Cepi but now this general Return shall bind them and by that he shall be concluded to say that the party was not in Execution And this Plea is not any disabling of the Defendant but he informs the Iudges that he is not a person able to answer to the Plaintiff As in a Praecipe quod reddat the party pleads Non-tenure the same is no disabling of his person but a shewing to the Court that he cannot yield to the party his demand A man shall not take advantage of his own wrong i. in the same thing in which the wrong is supposed or against him against whom the wrong is supposed to be done but in other Cases he shall take advantage of his own wrong as Littleton If a Lease for life be made the Remainder over in Fee and he in the Remainder entreth upon Tenant for life and disseiseth him the same is a good Seisin Cases where a man shall take advantage of his own wrong Marbery and Worrals Case upon which he may have a Writ of Right Littleton 112. 35 E. 3. Droit 30. And yet this Seisin was by wrong And there was a Case betwixt Marbery and Worral in the Exchequer The Lessor entred upon his Lessee for life made a Feoffment in Fee with clause of Re-entry the Lessee re-entred the Lessor at the day came upon the Land and demanded the Rent which was not paid it was holden the same is a good demand of the Rent and yet

reported by Coke in the Case of the Marquess of Winchester XXVIII Dayrel and Thinns Case Trin. 26 Eliz. In the Kings Bench. Error EDward Dayrel brought a Writ of Error against Sir John Thinn upon a Iudgment had by the Defendant against the Plaintiffs Father of the Manor of Mexden And Error was assigned for want of warrant of Attorney And the Plaintiff prayed one Certiorare to the chief Iustice of the Common Pleas and another Certiorare to the Custos Brevium both which returned non inveni aliquod warr and now Sir John Thinn being dead the Plaintiff brought another Writ of Error by Journeys accounts against John Thinn Son and Heir of the said Sir John Thinn 3 Cro. 91. 2 Cro. 13. 597. 396. 5 Co. Pag. 36. b. 446. who appeared and alledged Diminution in hoc that the Warrant of Attorney is not certified and prayed another Certiorare unto the chief Iustice of the Bench and another to the Custos Brevium and it was argued by Clark that in this Case Certiorare ought not to be granted for a Certificate is in the nature of a tryal which shall not be crossed in the same Action but the parties to the Action and their Heirs shall be bound by it especially when the matter is certified by one who is Iudge of the Record and that Certiorare sued at the prayer of the Plaintiff shall be as peremptory as if it had been sued at the prayer of the Defendant for the Plaintiff may alledge Diminution as well as the Defendant 7 E 4. 25. by Yelverton And a man cannot have Certiorare of a thing which is contrary to the Record which is certified 11 E 4. 10 by Laicon So Diminution cannot be alledged in this Warrant of Attorney because it hath been certified here that no Warrant of Attorney is to be found c. 9 E 4. 32. by Billing Egerton Sollicitor contrary For the Certiorare obtained at the sute of the Plaintiff shall not prevent the Defendant And the course of proceeding in a Writ of Error when Error is assigned out of the Record and not of a thing within the Record is such After Error assigned before that a Sci. fac issueth against the Defendant ad audiendum errores the Plaintiff may pray a Certiorare to the Custos Brevium in whose hands such collateral thing remain for the Plea Roll doth remain in the custody of the chief Iustice but the Original Writs Essoins and Warrants of Attorney remain in the hands of the Custos Brevium and such a Certiorare the Court may grant to the Plaintiff without making the Defendant privy to it And notwithstanding that the Defendant hath pleaded in nullo est erratum and so hath affirmed the Record to be such as is certified yet the Court ex Officio shall award a Certiorare to ascertain themselves if there be any such Warrant of Attorney or not which see 9 E 4. Certiorare 32. by Billing and therefore the Certiorare being awarded ex Officio shall not prejudice the Defendant and to this purpose he cited the Case betwixt the Lord Norris and Braybrook in a Writ of Error where the Lord Norris being Plaintiff prayed a Certiorare to the Custos Brevium to certifie an Original Writ upon which a common Recovery was had and had it and the Custos Brevium certified that there was no Original and afterwards the Defendant prayed another Certiorare and had it and so in our Case here especially because the Defendant was not party to the Record nor hath day in Court at the time that the said Certiorare was granted for the Defendant is not party before the Sci. facias ad audiendum errore● be issued forth against him and therefore he comes timely enough to pray a Certiorare See 28 H. 6. 10. and 11. And I grant that the Certificate upon a Certiorare which was awarded after a Sci. fac ad audiendum errores is peremptory and final but contrary where it is granted before the awarding of such Scire facias See Book of Entries 271. The Plaintiff assigneth Error in the Original Writ petit br Domini Regis Custodibus Brevium c. ad breve illud origin certificand and upon the return of the Certiorare the Plaintiff prayed a Scire facias ad audiendum errores And see there 293. where it appeareth fol. 272. that Certiorare issued at the suit of the Defendant in Error after he had alledged Diminution and that is after Scire facias ad audiendum errores returned and see Certiorare before Sci. facias awarded 271 c. and this Certiorare is only ex officio and awarded only to enform the Court And in respect of the Certiorare the chief Iustice of the common Pleas to whom the Certiorare is directed is but a Minister and not a Iudge And as to the Case of 9 E 4. 32. before cited he could not have a Certiorare Diminution for he could not alledge Diminution because he had pleaded in Nullo est erratum by which Plea he had confessed the Record which is certified to be a full and perfect Record and fully certified and against that matter he shall not alledge Diminution And in our Case there is not any such contrariety as hath been objected for the return of the Certiorare is Non inveni aliquod warrant not precisely quod non habetur aliquod warrantum And therefore if the Court now at the prayer of the Defendant grant another Certiorare upon which is a Retorn quod habetur warr Attornat the same is not contrary to the return of the first Certificate but they may both stand together for upon further search such Warrant of Attorney may be found so upon the matter the Court shall not be enveigled by any such contrariety for non inveni aliquod warrant returned upon the first Certiorare and inveni quoddam warr upon the second Certiorare are not meer contrary And it seemed to Wray chief Iustice that it would be hard to grant a new Certiorare in this Case but if any variance could be alledged it should be otherwise as it was adjudged in the Case of one Lassell who certified no Warrant of Attorney and afterwards it was moved for another Certiorare as it is here and because the Original was inter Johannem Lassels ar executor Testi c. where he was not named Executor in the first Certiorare upon that matter a new Certiorare was granted XXIX Withy and Saunders Case Trin. 26 Eliz. In the Kings Bench. WIthy libelled against Saunders in the Spiritual Court Tithes will not pass by grant without deed and now came Saunders and surmised that Withy had libelled against him for Tithe-grass and shewed that all the claim that Withy had to the said Tithes was by a grant without deed and by the Law such things would not pass without deed And also that the Spiritual Court would not allow of this Plea and therefore prayed a

gave Iudgment for the Plaintiff for it is in his election to demand his debt in which of those Coyns he pleased either in the proper Coyn of the Contract or of Sterling scil in currant mony And afterwards the said Iudgment was affirmed LIII Henly and Broads Case Mich. 28 29 Eliz. In the Exchequer HEnly brought Trespass against Broad in the Kings Bench 3 Len. 77 Trespass and declared that the said Defendant simul cum quodam I. S. clausum suum fregit c. The Defendant pleaded to Issue and it was found for the Plaintiff and it was objected in stay of Iudgment that the count was not good for it appeareth therein upon the shewing of the Plaintiff himself that the Action ought to be brought against another also not named in the Writ Counts and because the same appears of the Plaintiffs own shewing the Declaration was not good and notwithstanding that said Exception Iudgment was given for the Plaintiff Vpon which Broad brought a Writ of Error and assigned the same matter for Error And there the Case of 2 H. 7. 16. 17. was cited Error where a difference is taken where the Plaintiff declares that the Defendant with one B. did the Trespass him naming in certain and where the Declaration is that the Defendant cum quibusdam alijs ignotis c. See 8. H. 5. 5. And at length all the Iustices of the common Pleas and Barons of the Exchequer were clear of opinion that by the common Law the Declaration was not good for the reason and upon the difference aforesaid but if in Trespass against one who pleads that the Trespass was done by himself and one B. to whom the Plaintiff hath released and the Plaintiff traverse the Release in that case for as much as the matter doth not appear upon the Plaintiffs own shewing but comes in on the part of the Defendant and not denied by him the Declaration is good enough And it was further agreed by them all that now this defect after Verdict is helped by the Statute of 18 Eliz. for it doth not concern substance but only form And afterwards the first Iudgment was affirmed LIV. Wood and Fosters Case Mich. 28 29 Eliz. In the Common Pleas. Replevin Owen Rep. 139. Godbolt 113. WOod brought a Replevin against Humfrey Foster and others and made his plaint of the taking of one thousand Cattle Foster pleaded Non cepit and the others that the property was in another upon which matters they were at issue And as unto the first issue the Case upon the Evidence was that the late Lord Windsore was possessed of certain Sheep and by his Will devised them unto Eliz. his Daughter for her advancement in marriage and of his Will made his Wife his Executrix and died his Wife took to her Husband one Puttenham who being thus possessed leased the said Sheep with a Farm for eleven years by Indenture upon which it was agreed between the said parties that the Lessee should keep so much of the Rent reserved upon the said Lease to buy therewith so many Cattle over so as the whole stock of the said Sheep upon the said Farm should amount to the number of one thousand Cattle and the Lessee also covenanted to yeild and render to the said Puttenham at the end of the said Term one thousand Sheep between two years shorne and four years shorne Afterwards Puttenham by his deed gave unto one A. who had married the said Eliz. the said one thousand Cattle to have them after the said Term the Term expired Puttenham sold and granted them unto Wood who brought them away with him And the said A. pretending that the said Sheep passed to him by the said grant of Puttenham during the said Term seised them and the same was noctanter as they were driven in the high-way unde magna contentio orta suit between the said parties the one charging the other with felony whereupon the Constable of the Town where c. supposing the said matter would grow to an Outrage seised the said Cattle as felons goods and afterwards went to the house of the said Foster which was near unto the high-way and asked his advise upon the matter but he would not meddle therewith Afterwards one Perkins who had bought the said Cattle of the said A. came to Foster and shewed to him that the high-ways there were not sufficient for pasturage of the said Cattle until the said controversy be determined and prayed that the Cattle be delivered to him the said Perkins to keep in the mean time to whom Foster answered that if the said Perkins would find sufficient sureties to deliver back the Cattle to him who had right that he would be content the said Perkins should take them whereupon the said Perkins was bound to Foster to that purpose and took away with him the said Cattle And it was also given in Evidence that the servants of the said Foster had seised the Cattle for the use of their Master And by the clear opinion of the Court upon the whole matter shewed Foster non cepit and according to such direction of the Court the Iury found that Foster non cepit and as to the matter of property the Court was clear of opinion that the grant made by Puttenham of the said Cattle during the Term was utterly void for Puttenham during the same Term had not in the said Cattle either a general or a special property nor also after the Term but if after the Term expired the Lessee will not according to his covenant deliver to Puttenham one thousand Sheep then Puttenham is put to his Action of covenant for here the Lessee was bound to deliver to Puttenham at the end of the Term not the same Cattle which were leased but such a number of Sheep and the same ought to be between two years shorne and four years shorne which could not be the Sheep demised for they did exceed such degree before the end of the said term then the grant of Puttenham during the Term is meerly void And then when after the Term the Lessee according to the covenant delivered to Wood one thousand Sheep he might well sell them to the Plaintiff And such was the opinion of the whole Court and it was said by Iustice Windham that if I let certain Sheep to one for two years Property now upon that Lease somewhat remains in me but that cannot be properly said a Property but rather the possibility of a Property which cannot be granted over See 11 H. 4. 177. 178. 22 E. 4. 10. 11. In the same plea it was also holden that in a Replevin where the plaint is of one thousand Beasts and the Defendant justifies by reason of property upon which the parties are at issue Now upon the Evidence the Defendant may surmise a lesser number of Beasts and drive the Plaintiff to prove a greater number than that which the Defendant hath confessed

in the seisin of the Queen that now is the Church voided by which it belonged to the Queen to present The Defendant did confess the seisin of the Lord Say and the whole matter contained in the Count until the Attainder and pleaded further that after the said Attainder Queen Mary leased the said Manor with the advowson to Rochester and Walgrave for forty years if the said Marquess should so long live who were possessed accordingly and in their possession the Church became void to which Avoidance one Twiniko did present the Defendant who upon his presentment was instituted and inducted Vpon which Plea the Queens Serjeant did demur in Law. It was argued by Serjeant Shuttleworth for the Queen That the counter-pleading of the title of the Queen by the Incumbent without shewing title in his own Patron could not be good nothwithstanding the Statute of 25 E. 3. Cap. 7. before which Statute the Incumbent could not plead any matter which went to the right of the Patronage but only in discharge or excuse of the disturbance and therefore we ought to observe the words of the said Statute sc the possessor shall be received to counter-plead the Kings title and to have his Answer and to defend his Right upon the matter although he claim nothing in the Patronage upon all which words taken together it appeareth that the Incumbent ought not only to counter-plead the title of the King but also to shew and defend his own right and that hath not the Defendant done here For Twiniko of whose presentment he is in the Church doth not claim under the lease made by Queen Mary to Rochester and Walgrave but during their said Lease and their possession of it by usurpation presented the Defendant 46 E. 3. 13. by Finchden The King brought a Scire fac upon a Recovery in a Quare Impedit the Defendant being Incumbent pleaded that after the said Iudgment the King had presented to the said Church I.S. his Clerk who was admitted accordingly and exception was taken because the Defendant did not shew a title in himself to maintain his possession but it was not allowed for a difference is taken betwixt a Plea in a Quare Impedit and a Plea in a Scire facias Where in pleading the party must make title to himself for in a Scire facias it is sufficient to extort the Plaintiff of execution without any title contrary in a Quare impedit And it is a general Rule that in all Cases where an Office is to be traversed none shall be received to traverse the title of the King without making a title to himself which see 38 E. 3. 18. So in the Case of the Lady Wingfield 3 H. 7. 14. and Stamford 63 64. And it is true in Actions real it is sufficient to traverse the title of the Demandant without making title to the Tenant himself As in a Formedon Ne dona pas But in Actions personal it is otherwise as 2 H. 4 14. In Ravishment of Ward it is not sufficient to traverse the title of the Plaintiff but the Defendant ought also to make title to himself Fenner Serjeant contrary who took exception to the Writ 2 Len. 5● because it is brought against the Incumbent only without naming the Patron or Ordinary For here the Defendant hath pleaded that he is Parson impersonee of the Church aforesaid of the presentment of the said Twiniko and that he is admitted instituted and inducted and hath continued in his Church so many days and years in which Case the Writ ought to have been brought as well against the Patron and Ordinary as against him the Incumbent But in some Cases it is sufficient against the Incumbent only as upon a Collation by Lapse 9 H. 6. 32. by Babbington So where the Defendant is disturber without any presentment 7 H. 4. 93. so where the Defendant was deprived and kept himself in 4 E. 4. 18. So where the Pope makes Provision 11 H. 4. Quare Impedit 120. So a Scire facias upon a Recovery in a Quare Imped shall be brought against the Incumbent only 1 H. 5. 8. for by the Iudgment in the Quare impedit the right of the Patronage is bound and the Scire facias is only for the possession which concerns the Defendant only and no other And to prove that by the Common Law a Quare Impedit lay not but upon such special matter against the Incumbent alone it is clear upon the said Statute of 25 E. 3. For before the said Statute the Incumbent could not plead any matter which did trench to the right of the Patronage and therefore we ought not to presume that the common Law was so unreasonable to give an Action against a singular person who could not by the Law shew and defend his own right nor traverse the right of the other party And as to the plea here he conceived that the same plea which the Patron might have now after the Statute of 25 E. 3. the Incumbent shall have but he who is only a disturber not in by presentment c. he shall not plead any matter but in discharge or excuse of the disturbance 47 E. 3. 8. The King in a Quare Impedit counted That King H. was seised and presented one A. King H. died and the Advowson descended to King E. 3. A. died the now King presented B. and now B. is dead so it belongs to the King to present that the Defendant being Incumbent traversed the institution and induction of B. without making title to himself So 44 E. 3. 19. in a Quare Impedit the King declared that he himself was seised and presented one B. who at his presentment was received c. B. died by which it belonged to the King to present to which the Defendant being Incumbent pleaded that the said B. is yet alive and that plea was allowed without other title made to himself Note that at the first Argument of this case that the Court was of opinion against the Defendant because he had not in his plea any interest in the Advowson and by Periam the Patron himself could not have had such plea if he had been party to the Writ therefore not the Incumbent and it is no good pleading in any Action to discover in pleading any wrong as force disseisin usurpation But at length Mutata opinione all the Iustices were agreed that Iudgment should be given against the Queen And the Lord Anderson shewed openly the reason of their Iudgment for here is not bare usurpation pleaded against the Queen but also an estate scil a Lease for years in the said Advowson derived from Queen Mary and that the Avoidance upon which the Action is brought falleth within the said Term so as the Queen who is Plaintiff is encountred with the Lease of her Ancestor against which she cannot make title to present without special matter wherefore Iudgment was given against the Queen LIX Kynters Case Mich. 28 29.

Eliz. In the Common Pleas. Debt KYnter brought debt upon an Obligation the condition was that whereas the Plaintiff had bought of the Defendant a Ship if then the Defendant shall enjoy the said Ship with all the furniture belonging to the same without being disturbed for the said Ship or any furniture appertaining to it that then c. and the Case was that after the sale of the said Ship a stranger sued the Plaintiff for certain monies due for certain Ballast bought by the Defendant for the same Ship and put into the said Ship before the sale of it and in the said suit the Plaintiff obtained a Iudgment and Execution and thereupon the said Ship was seised and all the matter was if Ballast be furniture of a Ship or not And it was moved by Serjeant Gawdy that it was for Ballast is as necessary to a Ship as a Sail but the Court was against him for somtimes a Ship may sail without Ballast for it may be laden with such Merchandizes which are convenient Ballast in themselves as Coals Wheat c. Periam at the first doubted of it and by him if I be bound upon condition ut supra I am bound to deliver the Guns being in it at the time of the sale but yet he conceived that the Plaintiff should be barred because he had not specially shewed that at the time of the sale the Ballast was in the Ship. LX. Pendleton and Gunstons Case Mich. 28 29 Eliz. In the Common Pleas. PEndleton informed against Gunston upon the Statute of 13 Eliz. Cap. 5. for that where the said Pendleton had before brought a plaint of Debt against I.S. in the Guild-Hall of Norwich upon which issued out of the said Court an Attachment against the said I.S. by which the Sheriff of Norw being ready by virtue of the said process to attach the said I. S. by his goods there the now Defendant in disturbance of the said process and the execution of it did publish and shew to the Sheriff a conveyance by which he claimed the said goods as conveyed to him by the said I. S c. and averred the fraud c. and it was moved by Serjeant Snagg that the matter of which the Defendant is charged is not within the said Statute because the avowing of the said conveyance doth not go in delay of the execution for no Iudgment is given but only in delay of process but the Court was clear of opinion to the contrary and that by reason of the Statute and the words of it scil delay hinder or defraud Creditors of their just and lawful Actions sutes c. for here is a delay for want of serving the said Attachment the Appearance of I.S. to the sute of the Plaintiff is delayed which mischief is within the remedy of the said Statute And Periam and Rhodes Iustices conceived that such avowing of such conveyance where no sute is depending is within the said Statute which Anderson doubted See the pleading of this Case reported in the second Book of Entries 207 208. 30 Eliz. per quod secta impedita fult c. LXI Mich. 28 29 Eliz. In the Common Pleas. FEnner Serjeant moved this Case 4 Len. Alien Purchasor An Alien purchaseth Lands in Fee The Queen confirms it to the Alien Office is found if the confirmation shall bind the Queen and it seemed to some that it should for by the Lord Anderson Confirmation when an Alien is enfeoffed he receiveth by the Livery the Fee-simple of which he shall be seised until Office be found and a Praecipe quod reddat lyeth against him And by Fenner an Alien and Denizen Ioynt-tenants are disseised they both shall joyn in Assize vide 11 H. 4. 26. and by him the Kings Nief being an Inheritrix takes a Husband and hath issue Office is found the Husband shall be Tenant by the Curtesy which see 33 E. 3. Traverse 36. It was argued of the other side that the estate of the Alien is so feeble that a confirmation cannot enure upon it for an Alien cannot take but to the use of the King and cannot be enfeoffed to another use and if he be such use is void for there is not a sufficient seisin in the Alien to carry an use And it hath been adjudged in the Case of one Forcet that where an Alien and the said Forcet were Ioynt-purchasors and the Alien died Forcer had not the whole by the Survivor but that upon an Office found the Queen should have the moyety See Dyer 11 Eliz. 283. LXII Sir Roger Lewknor and Fords Case Mich. 28 29 Eliz. In the Common Pleas. 1 Cro. 17. Co. 5. Rep. 12. b. SIr Roger Lewknor seised of the Manor of Wallingford leased the same to A. for years and died after which it was Enacted by Parliament That the said Manor should from henceforth be deemed and reputed in the Heirs of the body of the said Sir Roger begotten upon Eliz. his Wife the said Sir Roger having three Daughters only without any other issue The Daughters married Husbands and had issue A. assigned his enterest in the said Manor to B. C. and D. and also to one Shelley B.C. and D. assigned their interest to one Sponer one of the Defendants and Shelly assigned his fourth part to Ford another of the Defendants excepting the Woods and Vnderwoods Wast is committed one of the Daughters having issue dieth living her Husband the two surviving Sisters and their Husbands the Term being expired brought a Writ of Wast leaving out the Husband of the third Sister who was Tenant by the Curtesy against Shelley and Sponer who Tenuerunt Shuttleworth Serjeant took Exception to the Writ scil praedictus Rogerus cujus haeredes ipsae funt which shall be intended Heirs general and by the Declaration it appeareth that the Daughters have to them by Act of Parliament an especial inheritance as Heirs in special tail and that by a special conveyance and therefore the Plaintiffs ought to have brought a special Writ according to their Case as where Cestuy que use maketh a lease for years by the Statute of 1 R. 3. and the Lessee committeth Wast now the Feoffees ought to have a special Writ of Wast according to their Case 26 H. 8. 6. but that exception was disallowed and the case cited out of 6 H. 8. is upon another reason for in such case the estate of the Lessee for years is created by the said Statute Another Exception was taken to the Writ for the Writ is tenuerunt which shall be intended prima facie conjunctim tenuerunt and in the Declaration it appeareth that one of the Defendants is assignee of three parts of the Lands demised and the other Defendant of the fourth part and so separatim tenuerunt but that Exception was also disallowed because originally it was one and intirely demised interest and estate and so it remaineth as to the Plaintiffs although it be devised by the Lessee himself

of the said Manor of Hockley seased the same to Edmund Terrel for years exceptis Reservat grossis arboribus super praemissis crescentibus existentibus Proviso Conditions that if the said Lessee his Executors or Assigns shall do any voluntary Wast in any of the Premisses before demised that then the said demise shall be void and accounted none in Law the said King and Queen after that lease grant the Reversion to the Lord Rich and his Heirs the Lessee cuts down certain great Trees which at the time of the demise were not great but little Trees but after tractu temporis became great and at the time of the cutting down were great upon whom the Lady Rich Wife and Widow of the said Lord Rich being Tenant in Dower the said Manor inter alia being assigned to her in Dower did enter for the condition broken It was moved If the exception did extend to the trees which at the time of the demise were but little trees but afterwards at the time of their cutting down were become great for if the exception do extend to such Trees then upon the matter they were not demised and if so then wast cannot be assigned in the cutting down of them and then by the cutting of them the condition is not broken But if the exception shall be construed to extend to such Trees only which were great Tempore dimissionis then those Trees in which c are demised and by the cutting down of them the condition is broken And the Lord Anderson was of opinion that the exception did extend to Trees which at any time dimissionis praedict became great Where the Tenant in Dower shall take advantage of a condition although at the time of the demise they were but little so as upon the matter such Trees were never demised and so the condition doth not extend to them otherwise it should be if the words had been modo crescentibus existentibus Another matter was moved because if the Lady Rich being Tenant in Dower and so in by the Law not by the party and so not privy nor as Assignee could enter for the condition broken And the Court was clear of opinion that because that the words of the condition are Quando dimissio praedict erit vacua c. and no clause of reentry is reserved so that privity is not requisite the Lady Rich shall take advantage of the condition 11 H. 17. Where the words of a Lease are that upon the not going to Rome that the Lease shall cease it was holden that the Grantee of the Reversion by the common Law should take advantage of such a condition contrary where the condition is conceived in words of re-entry 21 H. 7. 12. It was moved further that here is not any voluntary wast in the Lessee as to the condition Dyer 281. Owen 93. because done by a stranger and not by the Lessee himself and for that the condition is not broken only the Lessee is subject unto an Action of Wast otherwise if the Lessee had expresly commanded the Vendee to cut them down or had given to him express authority The sale was All his Woods growing c. LXXX Gill and Harewoods Case Pasch 29 Eliz. In the Common Pleas. GIll brought an Action upon the Case against Harewood and declared Assumpsit that where the Defendant was endebted to the Plaintiff in such a ●um and shewed how the Defendant in consideration that the Plaintiff per parvum tempus deferret diem solutionis c. did promise to pay And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved in arrest of Iudgment that here is not any consideration for no time is limited for the forbearance but generally parvum tempus which cannot be any commodity to the Defendant for the same may be but punctum temporis c. But the exception was not allowed for the Debt in it self is a sufficient consideration LXXXI Pasch 29 Eliz. In the Common Pleas. 2 Co. 74. 5 Co. 38. 8 Co. 155. FEnner Serjeant would have drawn a Fine which was by Dedimus Potestatem and the Fine was to two and their heirs but the Court would not receive such Fine for the incertainty of the Inheritance which always in case of Fine ought to be reposed in a person certain and not left to uncertainty of the Survivor and the said Serjeant prayed presently that the said Fine be received at the peril of the Conusees but the same was denied him by the whole Court. LXXXII Mascals Case Mich. 29 30 Eliz. In Communi Banco Covenant 2 Cro. 644. MAscal leased a House to A. for years by Indenture by which A. covenanted with Mascal to repair the House Leased and that it should be lawful for Mascal his Heirs and Assigns to enter into the House to see in what plight for matter of Reparation the said House stood and if upon any such view any default should be found in the not repairing of it and thereof warning be given to A. his Executors c. Then within four months after such warning such default should be amended the House in the default of the Lessee became ruinous Mascal granted the Reversion over in Fee to one Carre who upon view of the House gave warning to A. of the default c. which is not repayred upon which Carre as Assignee of Mascal brought an Action of Covenant against A. It was moved by Fenner Serjeant that the Action did not lye because the House became ruinous before his interest in the Reversion But the opinion of the whole Court was against him for that the Action is not conceived upon the ruinous estate of the House or for the committing of Waste but for the not repayring of it within the time appointed by the Covenant after the warning so as it is not material within what time the House became ruinous but within what time the warning was given and the default of the Reparation did happen LXXXIII Mich. 29 30 Eliz. In Communi Banco Dower IN a Writ of Dower brought by a Woman of the third part of certain Lands c. The Tenant pleaded That the Lands of which Dower is demanded are of the nature of Gavel-kind and that the custom of such Land is that Dower ought to be demanded of the moity of it and not of the third part upon which the Demandant did demur And the opinion of Windham and Anderson Iustices was That such a Woman of such Land might at her pleasure demand her Dower either according to the Custom 1 Cro. 825. Poph. 133. or according to the common Law for by Anderson the common Law was before the Custom quod quaere And by Windham if the Demandant here recover her Dower according to the common Law yet if she taketh another Husband she shall lose her Dower as if she had been endowed according to the Custom Coke an Apprentice

the Obligation which was made for the further assurance of the duty And here the Defendant ought to have pleaded the tender and see 14. E. 4. 4. A. is bound unto B. that where he hath granted to the said B. a Rent-charge out of such Land now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant that then c. there he needs not to plead any tender for the Rent is not payable in other manner than it was before contrary if the Condition had been for the payment of the Annuity And of that opinion was the whole Court that he ought to have pleaded a tender Another matter of the Award was that the said Audar should yield up surrender relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plaintiff As to that the Defendant pleaded that he had yielded up c. All such Houses c. generally without shewing which in certain And for that cause the Court was clear of opinion that the Plea was not good which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands Tenements which were to I.S. in pleading the performance of that Condition I ought to shew what Lands and Tenements in certain for they pass out of me by the Feoffment See also 12 H. 8. 7. 13 H. 8. Non damnificatus generally where no Plea. 19. Another point of the Award was That the said Audar should acquit and discharge and save harmless the Plaintiff of such an Obligation to which the Defendant pleaded that Querens non fuit damnificatus and that Plea was holden insufficient for he ought to have shewed how he had discharged him and it is not sufficient to answer only to the damnification as if I be bounden to convey unto you the Manor of B. in pleading the performance of the condition it is not sufficient to shew that I have conveyed the said Manor but to shew by what manner of conveyance viz. by Fine or Feoffment c. 22 E. 4. 43. If the condition be to discharge the Plaintiff c. then the manner of the discharge ought to be shewed but if it be to save harmless only then non damnificatus generally is good enough 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was that the Obligor should keep without damage the Obligee of such a sum of mony against B. to whom he was bounden for the payment of it and the said Obligor pleaded that at such a day c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance without that that the Plaintiff was damnified by the said Obligation before the delivery of it and it was holden by the Court that if the Defendant had pleaded that he had kept the Plaintiff without damage and had not shewed how that the Plea had not been good See 22 E. 4. 40. The Lord Lisles Case And afterwards Iudgment was given for the Plaintiff XCVI Heydons Case Mich. 29 30 Eliz. RAlph Heydon pretending title to certain Land entred into it and made a Lease of it to try the title Vpon which his Lessee brought an Ejectione firmae in which the parties were at Issue And now at the day of the Enquest the Iurors were called and but five of them appeared whereupon the Defendant came and shewed to the Court that the said Heydon by his Friends and Servants had laboured the Iury not to appear and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title that the said Heydon to procure the Iury not to appear had surmised to them that he and the Defendant were in course of an agreement whereas in truth no such communication of agreement had any time passed betwixt them And all this was openly deposed in Court as well upon the oath of the Defendant himself as upon the oath of one of the Iurors upon which the Court awarded an Attachment against the said Heydon to answer the contempt And also granted to the Defendant that he might sue a Decem tales with proviso for his own expedition XCVII Smith and Kirfoots Case Mich. 29 30 Eliz. In Communi Banco Debt upon Arbitrament SMith brought Debt upon an Arbitrament against Kirfoot and declared that the Defendant and he imposuerunt se in arbitrium ordinationem judicium Johannis Popham ar arbitratoris indifferenter electi de jure titulo inturesse in quibusdam Messuagijs c. Who taking upon him the burthen of the Arbitration ordinavit that the said Defendant should pay unto the Plaintiff ten pounds in plenam satisfactionem c. and thereupon he brought his Action It was moved by Walmesley Serjeant that the Declaration is not sufficient for it appeareth that the Arbitrament set forth in the Declaration is utterly void because whereas ten pounds is awarded to the Plaintiff nothing is awarded to the Defendant and so the Award unequal and so void But the Court was clear of opinion that notwithstanding that such an Arbitrament be void in Law yet it may be for any thing that appeareth that the award is good enough 1 Cro. 904. ● Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award but such part only of it which doth entitle him to the thing c. and if the Defendant will impeach the Award for any thing that is to come in on his part vide ac Book of Entries 152. 123. vide For the Arbitrament 39 H. 6. 12. by Moile 7 H. 6. 41. XCVIII Arundel against Morris Mich. 29 30 Eliz. In Communi Banco RIchard Arundel sued an Audita Querela against Morris and it was comprehended in the Writ That Morris had recovered against him a certain Debt and that he was taken by a Capias ad satisfaciendum Audita Querela at the suit of the said Morris by Hickford Sheriff of the County of Gloucester who let him go at large c. And they were at issue upon the voluntary escape it was found for the Plaintiff It was objected in arrest of Iudgment that the Writ of Audita Querela is not good for the words are that the Plaintiff captus fuit virtute brevis nostri judicialis whereas this word judicialis is not in the Register but only brevis nostri de capiendo But by the whole Court the Writ is good for the word judicialis is but a word of surplusage and shall not make void the Writ And afterwards Iudgment was given for the Plaintiff XCIX Brook against King. Mich. 29 30. Eliz. IN Debt upon an Obligation by Brook against King the Defendant pleaded that the Bond was endorced with such condition viz. Debt That it the said Defendant King shall procure one I.S. to make reasonable recompence to the

and damages and in an Action upon the Case brought upon that promise the Plaintiff was barred for here is not any consideration for they bailed the Servant of their own head without the request of the Master and the matter which is alledgged for consideration is executed before the Assumpsit and the promise was not before the enlargment and the said bailment was not at the instance Claytons Rep. 45. 1 Cro. 756. or request of the Master And the Case of one Hudson was cited adjudged in the Kings Bench The Defendant in consideration that he was Administrator and natural Son of the Intestate and that the goods of his Father have come to his hands promiseth to pay the debt to the Plaintiff And in an Action upon the Case upon that promise the Defendant pleaded he made no such promise and it was found that no goods came to the hands of the Defendant And it was holden that the consideration that he was Administrator and Son to the Testator was not of any force to maintain the Action and afterwards in the principal Case the Iudgment was affirmed And it was moved by Coke that Iudgment should not be given against the Executor of his own goods if he had not goods of the Testator for the charge doth not extend beyond the consideration i. e. That the goods of the Testator came to the hands of the Defendant But Wray Iustice was of opinion that Iudgment shall be of his proper goods as in Case of confession Kemp Secondary if the Action be brought upon Assumpsit of the Testator Iudgment shall be of the goods of the Testator but of the promise of the Executor of his own goods but the Original Iudgment which is now affirmed was general CXXII Savel and Woods Case Hill. 30 Eliz. In the Kings Bench. 1 Cro. 71. 3 Len. 203. 265. Post 128. THe Case was That a Parson did Libel in the spiritual Court against a Parishoner for Tythes of such Lands within his Parish the Defendant came into the Kings Bench and surmised and that he and all those whose estate he hath in the Lands out of which the Tythes are demanded have used to pay every year five shillings to the Parish Clark of the same Parish for all the Tythes out of the same place And it was argued by Coke that that could not be for a Parish Clark is not a person corporate nor hath succession But if he had prescribed that they had used to pay it to the Parish Clark to the use of the Parson it had been good Also he ought to shew that the Parson ought of right to find the Parish Clark c. And he cited the Case of Bushie the Parson of Pancras who libelled in the Spiritual Court for Tithes The Defendant to have a prohibition did prescribe that he and all those c. had time out of mind c. used to pay to the Vicar c. and at last a Consultation was awarded because it was triable in the Ecclesiastical Court for both parties as well Vicar as Parson are spiritual persons and the modus decimandi is not in question but cui solvend And at another day it was agreed by the Iustices that of common right the Parson is not tied to find the Parish Clark for then he should be said the Parsons Clark and not the Parish Clark But if the Parson be tied to find such a Clark Challenge and such a sum hath been used to be paid to the Parish Clark in discharge of the Person the same had been a good prescription and so by way of composition and by Clench Tythes are to be paid to spiritual Persons but a Parish-Clark is a Lay-person And afterwards the Court granted a Consultation CXXIII Higham and Reynolds Case Hill. 30 Eliz. In the Kings Bench. IN an Action of Trespass the Plaintiff declared that the Defendant 1 Maii 28 Eliz. cut down six posts of the house of the Plaintiff at D. The Defendant doth justifie because that the Free-hold of the house 10 Aprilis 27 Eliz. was to I. S. and that he by his commandment the same day and year did the Trespass c. upon which the Plaintiff did demur in Law because the Defendant did not traverse without that that he was guilty before or after And the opinion of Wray was that the traverse taken was well enough because the Free-hold shall be intended to continue c. Vide 7. H. 7. 3. But all the other three Iustices were of a contrary opinion to Wray But they all agreed that where the Defendant doth justifie by reason of his Free-hold at the day supposed in the Declaration there the traverse before is good enough And afterwards Iudgment was given against the Defendant CXXIV Knight and Footmans Case Hill. 30 Eliz. In the Kings Bench. IN Trespass by Knight against Footman the Case upon the pleading was that one Margaret had issue two Sons Richard and Thomas Surrender of Copy-hold Land. and surrendred to the use of Richard for life and afterwards to the use of Thomas in Fee they both Thomas being within age surrender to the use of one Robert ●ap John in Fee who is admitted Richard dieth Co 1 Inst 248. Thomas dieth having issue A. who is also admitted and enters into the Land and if his entry be lawful or that he be put to his plaint in the nature of a Dum fuit infra aetatem was the Question And Wray was clear of opinion that it was And if a man seised of Copy-hold Land in the right of his Wife or Tenant in tail of a Copy-hold doth surrender to the use of another in Fee the same doth not make any discontinuance but that the issue in tail and the Wife may respectively enter 1 Cro. 372. 380. 391. 483. 717. More 596. and so was it holden in the Serjeants Case when Audley who afterwards was made Chancellor of England was made Serjeant and afterwards it was adjudged that the entry of the Enfant was lawful CXXV Sir Wollaston Dixies Case Mich. 29 Eliz. In the Exchequer AN Information was in the Exchequer against Sir Wollaston Dixie upon the Statute of Vsury upon not guilty pleaded Information upon the Statute of 13. Eliz of Usury The Informe● gave in evidence an usurious Contract upon a bargain of Wares The opinion of the Court was that the Information being exhibited for the loan of money that the Evidence was not pursuing nor leading to the Issue And yet the Iury against the opinion of the Court upon that evidence found the Defendant guilty And it was moved in arrest of Iudgment that the Evidence did not maintain the Information nor prove the Issue ex parte Querentis and it was said there are three things within the Statute i. three words i. bargain loan and cheivizance and these three are several things and therefore if the Information be conceived upon loan and the Informer giveth in Evidence a corrupt

Executor of an Administrator 1 Cro. 121. Yel 20. 9 Co. 87. Administratrix of Joan Webb and declared of a Contract without specialty The Defendant pleaded That she had fully administred and it was found against her And now it was moved for the Defendant That upon the matter an action of Debt doth not lye against the Executor or Administratrix which was granted by the Court. But the doubt was If now forasmuch as the Defendant by pleading the plea above hath admitted the action she shall now take advantage of the Law in that point For the reason why this action doth not lye against an Executor or Administrator is because the Testator himself might have waged his Law if he had been impleaded upon it and by intendment of Law the Executor or Administrator cannot have notice of such a Debt or of the discharge of it But now by answering to the Declaration as above the Defendant hath taken notice of the Debt and in manner confessed it And by Rhodes and Anderson Iudgment shall be given against the the Plaintiff because it is apparent to the Court that the action doth not lye And by Anderson If Iudgment be entred against the Administratrix in such an action upon Nihil dicit the Court ex officio shall give judgment against the Plaintiff Periam and Windham doubted at the first that the Defendant by her plea had admitted the whole matter upon the specially administred pleaded and had taken notice of the Debt 41 E. 3. 13. 46 E. 3. 10 11. 13 E. 4. 25. 13 H. 8. Fitz. Execut. 21. And afterwards Anderson ex assensu of the other Iudges caused to be entred Querens capiat nihil per breve CCXXX Hambleden and Hambledens Case Mich. 30 31 Eliz. In the Common Pleas. Intrat Mich. 29. 30 Eliz Devises 1 Cro. 163. 1 And. 381. THe case was William Hambleden the Father of the Plaintiff and the. Defendant was seised of the Lands c. And by his Will devised to his Eldest Son Black Acre to his second Son White Acre and to his third Green Acre in tail And by his said Will further willed That in Case any of my said Sons do dye without issue that then the Survivor be each others heir The Eldest son dieth without issue c It was moved by Gawdy Serjeant That the second Son shall have Black Acre in tail and he cited the Case 30 E. 3. 28. propinquioribus haeredibus de sanguine puerorum for the construction of such devises Walmesley argued That both the surviving Brothers should have the said Black Acre for the words of the devise are quilibet supervivens which amounts to uterque and the Court was in great doubt of this point And they conceived That the estate limited in Remainder to the Survivor c. is a fee-simple by reason of the words Each others heir And also they conceived That both the Survivors should not have the Land for the same is contrary to the express words of the devise The Survivor shall be each others heir in the singular number see 7 E. 6. Br. Devise 38. A man seised of Land hath issue three Sons and deviseth part of his Lands to his second Son in tail Heb. 75. and the residue to his third son in tail and willeth That none of them shall sell the Land but that each shall be heir to the other The second son dieth without issue the same Land shall not revert to the eldest Son but shall remain to the third son 1 Len. 261. notwithstanding the words each shall be heir to the other CCXXXI Slywright and Pages Case Mich. 30 31 Eliz. In the Common Pleas. Maintenance More 266. 1 And. 201. Golds 101 102. AN Information was in the Common Pleas by John Slywright against Page upon the Statute of 32 H. 8. of Maintenance and declared that the Defendant took a Lease of one Joan Wade of certain Lands whereas the said Joan was not seised nor possessed thereof according to the Statute and upon Not guilty the Iury found this special matter That Edmund Wade was seised and made a Feoffment in fee thereof unto the use of himself and of the said Joan who he then intended to marry and the heirs of the said Edmund The marriage took effect Edmund enfeoffed a Stranger who entred Edmund died Joan not having had possession of the said Land after the death of Ed. her husband nor bing now in possession by Indenture demised the said Land to the Defendant for years without any Entry or delivery of the Indenture upon the Land The said Defendant knowing the said Joan never had been in possession of the said Land and also the Defendant being Brother of the half blood to the said Joan. The first Question was If the Lease being made by one out of possession and not sealed or delivered upon the Land and so not good in Law as to pass any interest be within the Statute aforesaid And the whole Court was clear of opinion that it was for by colour of this pretended Lease such might be undertaken advanced to the trouble disquiet of the possession for amongst the vulgar people it is a Lease it is a Lease by Reputation Another matter was moved because that the entry of the wife is now made lawful by 32 H. 8. and then she might well dispose of the Land. But as to that It was said by the whole Court That the meaning of the Statute was to repress the practises of many That when they thought they had title or right unto any Land they for the furtherance of their pretended Right conveyed their interest in some part thereof to great persons and with their countenance did oppress the possessors And although here the Lease was made by the said Joan to her Brother of the half blood yet by the clear opinion of the Court the Lease is within the danger of the Statute and yet in some Case the Son may maintain his Father the Kinsman his Kinsman And note in this case it was holden by the Iustices That of necessity it ought to be found by verdict That the Defendant knowing that the Lessor never had been in possession And Iudgment was given for the Plaintiff CCXXXII Brokesby against Wickham and the Bishop of Lincoln Mich. 30 31 Eliz. In the Common Pleas. IN a Quare Impedit the Plaintiff counted Quare Impedit 3 Len. 256. 1 Cro. 173. Owen 85 86. Popham 189. That Robert Brokesby was seise of the Advowson and granted the next Avoidance to the Plaintiff and Humphrey Brokesby and that afterwards the Church became void and after during the avoidance Humphrey released to the Plaintiff and so it belongs to him to present And upon this count the Defendant did demar in Law. For it appeareth upon the Plaintiffs own shewing that Humphrey ought to have joined with the Plaintiff in the action for the Release being made after the Church became void

their no cause of Action CCXXXVI Salway and Lusons Case Mich. 30 31 Eliz. In the Common Pleas. MAtthew Salway brought a Writ of Right against Luson Writ of Right 2 Len. 36. and the Writ was Messuag 200. acr jampnor bruerae And exception was taken to the Writ because jampnor bruerae are counted together where they ought to be distinguished severally As so many acr jampnor and so many acr bruer although it were objected on the part of the demandant in the maintenance of the Writ that in the Register the Writ of Right is reditu unius librae of Cloves and Mace together Abatement of a Writ without distinction or severance And it was said that in a Writ of Right we ought to follow the Register and therefore a Writ of Right was abated because this word Pomarium was put in the Writ for in the Register there is no such Writ because the word Gardinum comprehends it But in other Writs as Writs of Entry c. it is otherwise See the Case of the Lord Zouch 11 Eliz. 353 In a Writ of Entre sur disseisin mille acr jampnor bruer But this exception was not allowed for it may be that jampnor bruer are so promiscuous that they cannot be distinguished Vide 16 H. 7. 8. 9. The respect the Iustices had to the Register was such as they changed their opinions and conformed the same to the Register Another exception was taken to the Writ because thereby the Demandant doth demand Duas partes Custodiae del Hay in the Forrest of C. And the Court was of opinion that the Writ ought to be Officium Custodiae duarum partium de Hay c. and not Duas partes Custodiae As Advocationem duarum partium Ecclesiae And not Duas partes Ecclesiae Another Exception because the Writ was duas partes c. in tribus dividend where it should be Divis for Dividend is not in any Writ but only in a Writ of Partition And by Windham the parts of this Office are divided in Right which the Court granted Another Exception was taken because that in the Writ it is not set down in what Town the Forrest of C. is so as the Court doth not know from whence the Visne should come For no Venire shall be de vicineto Forestae as de vicineto Hundredi 1 Cro. 200. Manerii And the same was holden to be a material Exception Another Exception was taken Visne because a Writ of Right doth not lye of an Office for at the Common Law an Assise did not lye of it but now it doth by the Statute of West 2. Cap. 25. for it was not Liberum ten but the party grieved was put to his Quod permittat And of this opinion was the whole Court. CCXXXVII Smith and Lanes Case Mich. 30 31 Eliz. In the Common Pleas. THe Queen was seised of a Manor whereof Bl. acr was holden by Copy in Fee the Queen leased Bl. acr to B. for one and twenty years who assigned the same to the Copyholder who accepted of it The Queen granted Bl. acr to C. in Fee Copyholder determined by acceptance of a Lease 2 Co. 16 17. the term expired C. entred and his entry was holden to be congeable for by acceptance of the sam Term the Customary Estate was determined as if the Copy-holder had accepted it immediatly from the Queen It was also holden by the Court that a Lease for years under the Seal of the Exchequer may be pleaded and that without making mention of the Commission by which the Court of Exchequer is authorized to make such Leases And so are all the Presidents as well in this Court as in the Court of Exchequer And whereas the Court was upon the point of giving their Iudgment It was objected by Shuttleworth Serjeant That here is pleaded a Bargain and Sale of Land without saying pro quadam pecuniae summa And he stood much upon the Exception and the Court also doubted of it and demanded of the Prothonotaries what is their form of pleading Bargain and Sale and consideration of it And by Nelson cheif Prothonotary these words Pro quadam pecuniae summa ought to be in the pleading Scot Prothonotary contrary Anderson conceived it was either way good but Pro quadam pecuniae summa is the best And so Leonard Custos Brevium conceived And the opinion of the Iustices was that a Bargain and Sale for dives Causes and Considerations is not good without a sum of money 1 Co. Mildmays Case And by Windham Bargain and Sale Pro quadam pecuniae summa although no money be paid is good enough for the payment or not payment is not traversable And by Periam If Pro quadam pecuniae summa be not in the Indenture of Bargain and Sale yet the payment thereof is averrable And for this Exception the Iudgment was stayed CCXXXVIII Bedel and Moores Case Mich. 30 31 Eliz. In the Exchequer Chamber Action upon the Case for not performing an Award BEdel brought an Action upon the Case against Moore in the Kings-Bench and declared That the Defendant did assume to perform the Award of J.S. and assumed also that he would not sue Execution upon a Iudgment which he had obtained against the Plaintiff in an Action of Account c. And shewed further that the Award was made c. which Award in Law was utterly void and that the Defendant had not performed the said Award and also that he had sued Execution against the Plaintiff 10 Co. 131. 5 Co. 108. The Defendant pleaded Non-assumpsit and it was found for the Plaintiff and Iudgment given accordingly Vpon which Moore brought a Writ of Error in the Exchequer-chamber upon the Statute of 27 Eliz. And assigned Error Error because the Plaintiff had declared upon two Breaches whereas for one of them there was not any cause of Action for the Award is void in Law then no breach could be assigned in that and then when the Iury hath assessed Damages intirement for both breaches whereas for one there was not any cause of Action by the Law the Verdict was void then the Iudgment given upon it reversable for it is not reason that the Plaintiff have Damages for such matter for which the Law doth not give an Action And if the Iury had assessed damages severally viz. For the not performance of the Award so much Damages and for the suing forth Execution so much then the Iudgment had been good and the damages assessed for the not performance c. void Manwood Chief Baron The verdict is well enough for here the whole Assumpsit is put in issue and there is but one issue upon the whole Assumpsit but if several issues had been joined upon these several points of the Assumpsit and both had been found for the Plaintiff and damages assessed entirely for both breaches then was the Iudgment reversable for being several

as a Will but as an Executory Devise Wray It is not a conditional Estate in Fee but an Estate tail Coke They who would prove the Custom to entail Copyhold Land within a Manor it is not sufficient to shew Copies of Grants to persons and the Heirs of their bodies Copyhold Estate but they ought to shew that surrenders made by such persons have been enjoyed by reason of such matter VVray That is not so for Customary Lands may be granted in tail and yet no surrenders have been made within time of memory CCXLV Matthew and Hassals Case Mich. 31 Eliz. In the Kings Bench. IN an Ejectione firmae betwixt Matthew and Hassal the Plaintiff had Iudgment to recover and the Defendant brought a Writ of Error Error 1 Cro. 144. and assigned Error in this that the Iudgment was entred Quod querens recuperet possessionem c. where it should be Terminum vent in ten praedict See 9 Eliz. Dyer 258. Coke contrary That the Iudgment is good enough for the Writ of Execution upon it is Habere facias possessionem and in a real Action the Writ is Quod perens recuperet sesinam and not terram And afterwards Iudgment was affirmed CCXLVI Tempest and Mallets Case Hill. 31 Eliz. In the Kings Bench. IN an Action of Trespass by Tempest against Mallet Iudgment was given and Eror brought and assigned for Error 1 Cro. 153 145. that whereas the Action was brought against four one of them died Mesne betwixt the Award of the Nisi prius and the Inquest taken And it was said on the part of the Defendant in the Writ of Error which was entred upon the Record that the Plaintiff shewed unto the Court the death of one of the Defendants and prayed Iudgment against the others See 4 H. 7. 2 Eliz. 175. And there is a difference where in an Action of Trespass there is but one Defendant and where many Another Error was assigned the Defendant Obtulit se per Higgins Attornat suum without shewing his Christian Name as John or VVilliam for Higgins only without the Christian Name is not any Name for it is but an addition to shew which John or VVilliam Coke The same is helped by the Statute of 32 H. 8. cap. 30. Where it is enacted that after Verdict Iudgment shall be given notwithstanding the lack of Warrant of Attorney of the party against whom the Issue shall be tried or any default or negligence of any the parties their Counsellors or Attorneys and of necessity this default here in the Christian Name ought to be the fault of one of them See also 18 Eliz. Cap. 14. for want of any Warrant of Attorney c. Glanvil The Statute provides for default of Warrant of Attorney c. Then Coke To what end was the Statute of 18 Eliz. made for the Statute of 32 H. 8. provides for defects of Warrants of Attorney Glanvil The first Statutes for Warrants of Attorneys of such persons against whom the Issue was tryed but the later Stat. is general Another Error was assigned Quod defendens Capiatur where the Offence so the Fine is pardoned by Parliament and therefore the entry of the Iudgment ought to be Et de fine nihil quia perdonatur Coke The Iudgment is well enough for in every general Pardon some persons are excepted it doth not appear if the Defendant here were one of them and then the Fine is not pardoned 1 Cro. 768. 778. 3 Cro. 22. for the Court cannot take notice of that as it was holden in Serjeant Harris Case but if the Defendant be charged with the Fine then he ought to plead the pardon and to shew that he was not any of the persons excepted And afterwards at another day the Defendant did alledge that there was a Warrant of Attorney in the Common Pleas. And also it appeareth upon Record that the Defendant did appear upon the Supersedeas by Attorney who had his full Name and therefore prayed a Certiorari de novo to certifie the same matter vide 9 E. 4. 32. VVray A Case here greatly debated betwixt the Lord Norris and Braybrook In nullo est erratum and upon Advice such a Writ of Certiorari was granted after the Plaintiff had pleaded In nullo est erratum for this Plea in nullo est erratum goes but to that which is contained within the body of the Record and not unto collateral matter scil Warrant of Attorneys And afterwards the Writ of Error was allowed and upon the day of return thereof it appeared upon the Record of Supersedeas that the Defendant did appear by such a one his Attorney But it was said by the Court that there ought to be two appearances the one upon the Supersedeas and the other when the Plaintiff declares See as to the name of the Attorney Tirrells Case 1 Mar. Dyer 93. CCXLVII. Palmer and Knowllis Case Hill. 31. Eliz. In the Kings Bench. 1 Cro. 160. PAlmer recovered Debt against Knowllis and sued Execution by Elegit upon which the Sheriff returned that he had made Execution of the lands of the Defendant by the Oath of twelve men but he could not deliver it to the party Execution for it is extended to another upon a Statute upon which the Plaintiff sued a Capias ad satisfaciendum And now came the Defendant by his Counsel and moved that after Elegit returned the Plaintiff could not resort to the Execution by Capias and therefore prayed a Supersedeas Caplas after Elegit because the Capias erronice emanavit But the whole Court was clear to the contrary for upon Nihil returned upon Elegit the Plaintiff shall have a Capias 17 E. 4. 5. See 21 H. 7. 19. A man shall have a Capias after a Fieri facias or Elegit 34 H. 6. 20. and here the special return doth amount to as much as if the Sheriff had returned Nihil Also the Statute of West 2. which giveth the Elegit is not in the Negative and therefore it shall not take away the Execution which was at the Common Law. And here is no Execution returned for after the former extent ended he ought to have a new Elegit which Wray granted And afterwards the said Knowllis was taken by force of the Capias ad satisfaciend and came into Court in the Custody of the Sheriff and the Case was opened and in the whole appeared to be worthy of favour but by the Law he could not be helped and although he instantly prayed a Supersedeas yet the same was denied unto him CCXLVIII The Church-wardens of Fetherstones Case Hill. 31 Eliz. In the Common Pleas. AN Action of Trespass was brought by the Church-wardens of Fetherstone in the County of Norfolk and declared Church-wardens 1 Cro. 145. 179. That the Defendant took out of the said Church a Bell and declared that the Trespass was done 20 Eliz. And it was found for the Plaintiffs And now it was moved by

upon a Deed. Hutt 102. Dy. 91. 2 Co. 61. 1 Ma. Dyer 91. and also the wife by her disagreement to it and the occupation of the Land after the death of her Husband hath made it the Lease of the Husband only CCLXXV Rockwood and Rockwoods Case Mich. 31 32 Eliz. In the Common Pleas. Assumpsit 1 Cro. 163. IN an Action upon the case the case was this The Father of the Plaintiff and Defendant being sick and in danger of death and incending to make his Will In the presence of both his Sons the Plaintiff and Defendant declared his meaning to be To devise to the Plaintiff his younger Son a Rent of 4 l. per annum for the term of his life out of his Lands and the Defendant being the eldest Son the intention of his Father being to charge the Land with the said Rent offered to his Father and Brother That if the Father would forbear to charge the Land with the said Rent he promised he would pay the 4 l. yearly to his Brother during the life of his Brother according to the intention of his said Father Whereupon the Father asked the Plaintiff if he would accept of the offer and promised of his Brother who answered he would whereupon the Father relying upon the promise of his said eldest Son forbore to devise the said Rent c. so as the Land descended to the Eldest Son discharged of the Rent and the opinion of the whole Court in this case was clear that upon the whole matter the action did well lye CCLXXVI Petty and Trivilians Case Mich. 31 32 Eliz. In the Common Pleas. Livery of seisin HUmphrey Petty brought Second Deliverance against William Trivilian and upon especial verdict the case was That A. was seised of certain Land and Leased the same for years and afterwards made a Deed of Feoffment unto B. and a Letter of Attorney to the Lessee C. and D. conjunctim vel divisim in omnia singula terras et Tenementa intrate et seisinam inde c. secundum formam Chartae c. Lessee for years by himself makes Livery and seisin in one part of the Land and C. in another part and D. by himself in another part It was first agreed by the Iustices that by that Livery by Lessee for years his Interest and Term is not determined for whatsoever he doth he doth it as an Officer or Servant to the Lessor Secondly It was agreed That these several Liveries were good and warranted by the Letter of Attorney especially by reason of these words In omnia singula c. So as all of them and every of them might enter and make Livery in any and every part And so it was adjudged CCLXXVII Rigden and Palmers Case Mich. 31 32 Eliz. In the Common Pleas. RIgden brought a Replevin against Palmer who avowed for damage feasant in his Freehold The Plaintiff said Replevin That long time before that Palmer had any thing he himself was seised until by A. B. and C disseissed against whom he brought an Assise and recovered Avowry and the estate of the Plaintiff was mean between the Assise and the recovery in it The Defendant said That long time before the Plaintiff had any thing One Griffith was seised and did enfeoff him absque hoc that the said A. B. and C. vel eorum aliquis aliquid habuere in the Lands at the time of the Recovery Walmsley Iustice was of opinion That the Bar unto the Avowry was not good for that the Plaintiff hath not alledged That A.B. and C. Ter-Tenants tempore recuperationis and that ought to be shewed in every recovery where it is pleaded And then when the Defendant traverseth that which is not alledged it is not good Windham contrary For the Assise might be brought against others as well as the Tenants as against disseisors But other real actions ought to be brought against the Ter-Tenants only and therefore it needs not to shew that they were Ter-Tenants at the time of the Recovery and also the traverse here is well enough Another Exception was taken because the Avowry is That the place in which conteineth an 100 Acres of Land The Plaintiff in bar of the Avowry saith that the place in which c. conteins 35 Acres c. but that Exception was not allowed for it is but matter of form is helped by the Statute of 27 Eliz. Another Exception was taken as to the hundred of Cattel and doth not shew in certain if they were Ewes Sty 71. 264. or Lambs or how many of each which also was dissallowed for the Sheriff upon Returno habendo may enquire what cattel they were in certain and so by such means the Avowry shall be reduced to certainty CCLXXVIII RUssell and Prats Case Mich. 31 32 Eliz. In the Exchequer Chamber RUsell brought an action upon the case against Prat and declared That certain goods of the Testator casually came to the Defendants hands and upon matter in Law Iudgment was given for the Plaintiff sed quia nescitur quae damna Error c. Ideo a writ of Enquiry of Damages issued and now Prat brought a Writ of Error in the Exchequer Chamber upon the Statute of 27 Eliz. cap. 8. But note That the Iudgment was given before the said Statute but the Writ of Enquiry of Damages was retorned after the said Statute Writ of Enquiry of Damages the said Statute doth not extend but to Iudgments given after the making of it And it was moved That the said Iudgment is not to be examined here but by the clear opinion of Anderson Manwood Windham Walmesley Gent and Clark Iustices of the Common Pleas and Barons of the Exchequer the Writ of Error lyeth here by the Statute 1 Cro. 235. for in an action of Trespass as this case is full judgment is not given until the Writ of damages be retorned And if before the Retorn of it any of the parties dieth the Writ shall abate and the first Iudg●ent which is given before Award of the Writ is not properly a Iudgment but rather a Rule and order and so in a Writ of accompt where Iudgment is given that the Defendant computet cum querente he shall not have Error upon that matter for it is not a full Iudgment See 21 E. 3. 9. So as to the Iudgment in a Writ of Trespass scil That no Writ of Error lyeth before the second Iudgment after the Return of the Writ of Enquiry of Damages are given And also it was holden by all the said Iustices and Barons That an Executor shall have an action upon the case de bonis testatoris casually come to the hands and possession of another Action de bonis Testatoris and by him converted to his own use in the life of the Testator and that by the Equity of the Statute of 4 E. 3. 7. de bonis asportatis in vita Testatoris

covenanteth and granteth to the others eorum utrique to make assurance and there it was holden that the word uterque doth amount to quilibet Wray Admit it shall be so taken in a Bond yet it shall not be so taken in an Indictment As if a man make a Lease for years rendring Rent payable at the day of St. Martin although there be two days of St. Martin in the year yet the reservation is good and the Rent shall be taken payable at the most usual day of St. Martin there in the Country But in an Indictment if an offence he laid to be done on St. Martins day without shewing which in certain it is not good Fenner The word uterque is matter of surplusage and therefore shall not hurt the Indictment CCCXXVII Blunt and Whiteacres Case Mich. 32 33 Eliz. In the Kings Bench. Error A Writ of Error was brought upon a Iudgment given in the Common Pleas in a Replevin where the Defendant did avow as Fermor of the Manor of F. in the County of Berks to St. Johns Colledge in Oxford and laid a Prescription there in him and his Fermors to distrain for all Amercements in the Court of the said Manor Amercement and shewed that the Plaintiff in the Replevin was presented by the Homage for not repairing of a House being a customary Tenant of the said Manor according to a pain imposed upon him at a former Court for which he was amerced by the Steward to ten shillings and was also presented for not ringing of his Swine for which he was amerced three shillings four pence and for these Amercements he distrained And upon Nihil dicit Iudgment was given for the Avowant to have return upon which a Writ of Error was brought And Error assigned in that there is not any Prescription laid in the Avowry for the Lord to amerce the Tenants and of common Right he cannot do it See 48 E. 3. And such Amercement is Extortion for the Lord cannot be his own Iudge and therefore he ought to enable himself to distrain by Prescription Another Error because the Fine is laid to be assessed by the Steward 1 Cro. 748. 886. whereas by the Law it ought to be by the Suitors for they are Iudges and not the Steward Another because that in the Avowry it is set down quod praesentatum fuit that he had not repaired a certain House but he doth not say in facto categorice c. that he had not repaired for that is matter traversable 4. Here is no offence for a Copy-holder is not bound to repair by the Common Law if it be not by Prescription for he cannot have House-boot upon the Land as a Termor may if it be not alledged a custom Fenner The Steward may assess Fines for a contempt but not Amercements if not by Prescription Gawdy The Lord of a Mannor cannot assess Amercements for a Trespass done to himself upon his own Lands but otherwise it is of a common Trespass or a Trespass done in the Land of another but for the Distress he ought to prescribe and the Iudgment was reversed CCCXXVIII Page and Fawcets Case Pasch 29 Eliz. Rot. 121. In the Kings Bench. Error 3 Cro. 227. ERror was brought upon a Iudgment given in Lyn where by the Record it appeareth that they prescribe to hold Plea every Wednesday and it appeared upon the said Record that the Court was holden 16 Feb. 26 Eliz. which was dies Dominicus and that was not assigned for Error in the Record but after in Nullo est erratum pleaded it was assigned at the Bar And Almanacks were shewed to the Court in proof of it and it was holden clearly to be Error but the doubt was if it should be tried by Iury or by the Almanacks and it was said that the Iustices might judicially take notice of Almanacks and be informed by them and that was the Case of one Robert in the time of the Lord Catline and by Coke so was the Case betwixt Galery and Bunbury and afterwards the Iudgment was reversed CCCXXIX Geofries and Coites Case Trin. 33 Eliz. In the Kings Bench. IT was found by special Verdict 1 Cro. 25● that one Avice Trivilian was Tenant for life the Remainder to her Son in tail the Remainder over Tenant for life and he in the Remainder in tail make a Lease for life the Remainder for life rendring Rent Tenant for life dieth he in the Remainder dieth and his Son accepteth of the Rent of the Tenant for life in possession who dieth The Issue in tail entreth he in the Remainder for life entreth c. And it was conceived that this acceptance of the Rent of the Lessee for life doth affirm also the Remainder See Litt. Sect. 521. and such was the opinion of Gawdy and Fenner Iustices CCCXXX The Lord Mordant and Vaux Case Pasch 33 Eliz. In the Kings Bench. THe Lord Mordant brought an Action of Trespass against George Vaux and declared of a Trespass done in quodam loco 1 Inst 225. 1 Cro. 269. called N. parcel of the Manor of Hawarden The Case was William Lord Vaux was seised thereof and thereof levied a Fine to the use of the Lord Vaux which now is for life and after his decease to the use of Ann and Muriel Daughters of the Lord Vaux and their Assigns until Ambrose Vaux should return from the parts beyond the Seas and should come to the Age of 21 years or dye if they should so long live And after the return of Ambrose from beyond the Seas and the age of 21 years or death whichsoever of the said days or times should first happen to the use of the said Ambrose and the Heirs of his body begotten with divers Remainders over Ambrose returned Plow Com. 376. 2. Ante 18. 76. and 31 Eliz. before he came of full age for it is not pleaded that he was of full age levied a Fine to the use of George Vaux the Defendant in tail with divers Remainders over Afterwards the Lord Vaux being Tenant for life enfeoffed the Lord Mordant in Fee upon whom the said George Vaux entred for a forfeiture upon which Entry the Lord Mordant brought the Action Buck argued for the Plaintiff Amb. Vaux had nothing in the Lands in question until his return from beyond the Seas and his full age and the estate doth not begin until both be past and he said that no use did arise to Ambrose until the time incurred for the time of the beginning is uncertain and upon a Contingent as 13 Eliz. Dyer 301. A. makes a Feoffment in fee to the use of himself for life and after to the use of B. who he intendeth to marry until the Issue which he shall beget on her shall be of the age of 21 years and after the Issue shall come of such age then unto the use of the said B. during her Widowhood the Husband dieth without Issue the Wife entreth and her

magnitudine sufficienti essendi maremium and that the place where they growed was neither Orchard nor Garden It was said by the Court That by the Custom the Copyholder could not cut down such Trees but the Lord might and that the cutting down of such Trees which were not Wast the Copy-holder might justifie without punishment but because by the Verdict it did not appear that the Trees for which the Action was brought were Timber in facto but only de magnitudine effendi maremium the Plaintiff had Iudgment CCCLXVI The Lord Staffords Case Mich. 25 26. Eliz. In the Common Pleas. Extent UPon Recovery in debt against the Lord Stafford certain Lands of the Lord were extended by Elegit The Queen because the Lord Stafford was endebted unto her by Prerogative ousted the Tenant by Elegit Fleetwood Serjeant moved the Court in the behalf of him who recovered and surmised to the Court that the Queen was satisfied and therefore prayed a Re-extent but the Court would not grant it because they were not certain of the matter but advised the party to sue a Scire facia against the said Lord Stafford to know and shew cause why a Re-extent should not issue forth the Queen being satisfied c. CCCLXVII Gibbs and Rowlies Case Mich. 25 26. Eliz. In the Kings Bench. Tithes SYmon Gibbs Parson of Beddington Libelled in the Spiritual Court against Rowlie for Tithe Milk Rowlie upon surmise of a Prescription de modo Decimandi obtained a Prohibition which was against Symon Gibbs Rectorem Ecclesiae parochial de Nether Beddington and the parties were at Issue upon the Prescription Prohibition and it was found for Rowlie Egerton Solicitor moved against the Prohibition because the Libel is against Gibbs Rectorem Ecclesiae paroch de Beddington and the Prohibition was de Nether Beddington and it was not averred that Beddington in the Libel and Nether Beddington is unum idem non diversa It was said by the Court That upon the matter there is not any Prohibition against Rectorem Ecclesiae de Beddington only and therefore said to the Plaintiffs Counsel let the Parson proceed in the Spiritual Court at his peril CCCLXVIII Russell and Handfords Case Mich. 25 26. Eliz. In the Kings Bench. RUssell brought an Action upon the Case against Handford and declared Quod cum quoddam molendinum ab entiquo fuit erectum upon such a River Nusance de quo one Thomas Russell whose Heir the Plaintiff is was seised in his Demesn as of Fee and dyed thereof seised after whose death the same descended to the Plaintiff by force of which the Plaintiff was seised in his Demesn as of Fee and so seised The Defendant upon the same River had levyed a new Mill per quod cursus aquae praedict coarctatus est and upon Not guilty It was found for the Plaintiff It was moved in Arrest of Iudgment That it is not layed in the Declaration that his Mill had been a Mill time out of mind c. And then if it be not an ancient Mill time out of mind Words of Prescription c. it was lawful for the Defendant to erect a new Mill And it was said That these words ab antiquo are not fit or significant words to set forth a Prescription but the words A tempore cujus contrarii memoria hominum non existit are the usual words for such a purpose See the Book of Entries 10 11. See 11 H. 4. 200. If I have a Mill and another levies another Mill there and the Miller hinders the Water to run to my Mill or doth any such Nusance Roll. 140. an Action lyeth without any Prescription as it seems by the Book in 22 H. 6. 14. The Plaintiff declared That he was Lord of such a Town and that he and all his Predecessors Priors of N. Lords of the same Town have had within the same Town four Mills time out of mind c. And that no other person had any Mill in the said Town but the Plaintiff and his Predecessors the said four Mills and that all the Tenants of the Plaintiff within the same Town and all other Resiants there c. ought and time out of mind c. had used to grind at the said Mills of the Plaintiff and that the Defendant one of the Tenants of the Plaintiff had erected and set up a Horse Mill within the said Town and there the Resiants grinded c. And it was holden That peradventure upon such matter an Action lyeth because the Defendant being one of the Tenants of the Plaintiff is bound by the Custom and Prescription so as he hath offended against the privity of the Custom and Prescription And as to the Case in question It was the opinion of all the Iustices Hob. 189. Ante 168. 1 Cro. 415. That if the Mill whereof the Plaintiff hath declared be not an ancient Mill that this Action doth not lye upon the matter eo quod cursus aquae coarctatur But yet at last it was holden by the Court to be good enough notwithstanding the Exception Another Exception was taken to the Declaration because that here is set forth the seisin of the Father of the Plaintiff and the Descent to the Plaintiff by force of which he was seised in his Demesn c. without shewing that after the death of the Father that he entred into the said Mill Seisin in fact and in Law. c. so as no seisin in fact is alleadged but only a seisin in Law and if the Plaintiff was not seised in fact he cannot punish this personal wrong but the Exception was disallowed for such a seisin in Law is sufficient for the maintenance of this Action And afterwards the Plaintiff had Iudgment to recover his Damages See for the Action it self contained in the Declaration 8 Eliz. Dyer 248. CCCLXIX Cleypools Case Mich. 26. Eliz. In the Exchequer Informations upon the Statute of 5 Eliz. of Tillage INformation in the Exchequer against Cleypool upon the Statute of Tillage 5 Eliz. setting forth That the Defendant hath converted three hundred Acres of arable Lands of Tillage to pasture and the same conversion hath continued from 15 Eliz. unto the two and twentieth of Eliz The Defendant as to the Conversion pleaded Not guilty and as to the Continuance the general Pardon by Parliament 23 Eliz. upon which the Attorney general did demur in Law. It was argued That that pardon did not extend to the continuance of the said Conversion And first the Barons were clear of opinion That if A. be seised of Arable Lands and converts the same to pasture and so converted leaseth it to B. who continues it in pasture as he found it he shall be charged by that Statute And it is not any good Construction where the Exception in the pardon is excepting the converting of any Land from Tillage to Pasture made done committed or permitted that the Conversion excepted

Williams and Powell for that the said Williams had before brought a Quare Impedit against the said Blower and the Bishop Dyer 353. b. 354. and had recovered against them by default whereupon Williams had a Writ to the Metropolitan to admit his Clerk and in the Writ of Disceit Iudgment was given for the Plaintiffs For it was found That the Summons was the Friday to appear the Tuesday after and so an insufficient Summons and in that Writ of Disceit the Defendants Williams and Powell pleaded That Blower the Incumbent was deprived of his Benefice in the Court of Audience which sentence was affirmed upon Appeal before the Delegates and notwithstanding that Plea Iudgment was given against Williams and Powell Defendants in the said Writ of Disceit And upon that Iudgment this Writ of Error is brought Beaumont assigned four Errors First 1 Cro. 65. because the Bishop and Blower joyned in the Writ of Disceit for their Rights are several 12 E. 4. 6. Two cannot joyn in an Action of Trespass upon a Battery done at one time to them So if one distrain at one and the same time the several Goods of divers persons they according to their several properties shall have several Replevins 12 H. 7. 7. By Wood. So if Lands be given to two and to the Heirs of one and they lose by default in a Praecipe brought against them they shall have several Writs the one Quod ei deforceat Joynder in Action the other a Writ of Right 46 E. 3. 21. A Fine levied to one for life the Remainder to two Husbands and their Wives in tail they have Issue and die Tenant for life dieth the Issues of the Husbands and Wives shall have several Scire facias's to execute the Fine by reason of their several Rights Lands in ancient Demesn holden severally of several Lords are conveyed by Fine the Lords cannot joyn in a Writ of Disceit but they ought to have several Writs so here the Plaintiffs in this Writ of Disceit and the Bishop claims nothing but as ordinary and he loseth nothing in the Quare Impedit and therefore by the Writ of Disceit he shall be restored to nothing The second Error was Because the Bar of the Defendants in the Writ of Disceit was good i. the deprivation c. and the Court adjudged it not good for the Clerk being deprived he could not enjoy the Benefice if the Iudgment in the Qu. Impedit had been reversed Regul● Post 330. and where a man cannot have the effect of his suit it is in vain to bring any Action Lessee for the life of another loseth by erronious Iudgment Cestuy que use dieth his Writ of Error is gone for if the Iudgment be reversed he cannot be restored to the Land for the estate is determined 31 E. 3. Incumbent 6. The King brought a Quare Impedit against the Incumbent and the Bishop the Bishop claimed nothing but as Ordinary The Incumbent traversed the title of the King against which it was replyed for the King That the Incumbent had resigned pendant the Writ so as now he could not plead any thing against the title of the King for he had not possession and so could not counterplead the possession of the King. And here in our Case by this deprivation the Incumbent is disabled to maintain this Action of Disceit 15 Ass 8. If the Guardian of a Chappel be impleaded in a Praecipe for the Lands of his Chappel and pendant the Writ he resign the Successor shall have a Writ of Error and not he who resigns for he is not to be restored to the Lands having resigned his Chappel So in our Case A deprivation is as strong as a Resignation The third Error because in the Writ of Disceit it is not set forth that Blower was Incumbent for the Writ of Disceit ought to contain all the special matter of the Case as an Action upon the Case 4 E. 3. Disceit 45. The fourth Error That upon suggestion made after Verdict that Blower was Incumbent and in of the presentment of the Lord Stafford Deprivation and that he was removed and Griffin in by the Recovery in the Quare Impedit by default a Writ to the Bishop was awarded without any Scire facias against Griffin for he is possessor and so the Statute of 25 E. 3. calls him and gives him authority to plead against the King 6 Co. 52. and every Release or Confirmation made to him is good 18 E. 3. Confirmation made by the King after Recovery against the Incumbent is good And 9 H. 7. If a Recovery be had in a Contra formam collationis the possessor shall not be ousted without a Scire facias so in Audita Querela upon a Statute Staple Scire facias Scire facias shall go against the Assignee of the Conusee 15 E. 3. Respon 1. See also 16 E. 3. Disceit 35. 21 Ass 13. A Fine levied of Lands in Ancient Demesn shall not be reversed without a Scire facias against the Ter-tenant Walmesley contrary The case at the Bar differs from the case put of the other side for they are cases put upon original Writs but our case is upon a judicial Writ and here nothing is demanded but the Defendant is only to answer to the disceit and falshood And in this Case the Issue is contained in the Writ which is not in any original Writ and the Iudges shall examine the issue without any plea or appearance of the Tenant and here the Defendant is not to plead any thing to excuse himself of the wrong And here the Iudgment is not to recover any thing in demand but only to restore the party to his former estate and possession and if he hath nothing he shall be restored to nothing And he put many cases where persons who have several Rights may joyn in one Action as a Recovery in an Assize against several Tenants they may joyn in one Writ of Error 18 Ass Recovery in Assize against Disseisor and Tenant they shall both joyn in Error why not also in Disceit 19 E. 3. Recovery against two Coparceners the Survivor and the heir of the other shall joyn in Error As to the second Error Williams and the Sheriff ought not to joyn in the Plea and also the Plea it self is not good for the Writ of Disceit is That Williams answer to the Disceit and the Sheriff shall certifie the proceedings and therefore he shall not plead and also the Plea it self is not good for although the interest of the Incumbent be determined in the Church yet his Action is not gone as if in a Praecipe quod reddat the Tenant alieneth pendant the Writ and afterwards the Demandant recovereth yet the Tenant although his Interest be gone by the Feoffment yet he shall have a Writ of Error and so here and as to the Scire facias there needs none here against the new Incumbent for he comes in pendant the Writ

the other side there the Descent is traversable and not the dying seised and that was the Case betwixt Vernon and Gray Vernon and Grays Case In an Avowry Vernon conveyed the Lands from the Lord Powes to him as next Heir to him because the Lord Powes died seised in his Demesn as of Fee without issue and the Plaintiff conveyed from the said Lord Powes by Devise and traversed the Descent to the Avowant for the dying seised was confessed and avoided by the Devise 22 Eliz. Dyer 366. See 21 H. 7. 31. In Trespass the Defendant saith That T. was seised and died seised and that the Lands descended to him as Son and Heir and that he entred the Plaintiff said That T. was seised and took to wife K. and they had issue the Plaintiff and died seised and the Land descended to him and teaversed the descent to the Defendant and see Sir William Merings Case 14 H. 8. 22 23. But if the parties do not claim by one and the same person or the dying seised be not confessed and avoided there the dying seised shall be traversed and not the descent Glanvil Serjeant Be the Bar insufficient or not if the Declaration be not sufficient the Plaintiff shall not have Iudgment and here is not any breach of Covenant viz. that the Plaintiff shall enjoy it without any lawful impediment of the Defendant his Heirs or Assigns or any claiming by Marland and then if the Heir of Marland cannot make any lawful claim then there is not any breach of Covenant assigned and he said because it is not shewed that the Land is not holden in Socage the Devise is not good for it may be that the Land is holden in Capite but admit the Devise good that when Andrews bargains and sells unto Marland and the Tenant never attorns then nothing passeth and then the Heir of Marland cannot make any lawful claim or lawful impediment Periam Iustice Here Marland was assignee of Andrews and if he or his heirs make claim although that the assignment be not sufficient in Law yet because he hath colour by this assignment his claim is lawful and so there is a breach of the Covenant and although it is not alledged that the Land devised is holden in Socage yet the Devise is good for two parts of the Land. Anderson Iustice If it be good but for two parts then is the Reversion apportioned and the Rent destroyed and so Marland hath not any Rent by his purchase of the Reversion and so he can't lawfully disturb the Plaintiff The Law doth create his apportionment which grows by the Devise and therefore the Rent shall not be destroyed but if it had been done by the Act of the party it had been otherwise and I would willingly hear if the Heir of Marland be assignee of Andrews for otherwise he is not within the words of the Covenant for Marland hath an estate to him and his heirs for the life of another Now after the death of Marland his heir is a special occupant and vide H. 26 Eliz. Rot. 560. in the Common Pleas such an Heir shall not have his age CCCCXXX Oglethorpe and Hides Case Pasch 33 liz In the Common Pleas. IN Debt upon a Bond for the performance of Covenants Debt it was holden by the whole Court That if the Defendant pleaded generally the performance of the Covenants and the Plaintiff doth demur generally upon it without shewing cause of Demurrer Iudgment shall be given according to the truth of the cause for that default in pleading is but matter of form and is aided by the Statute of 27 Eliz. But if any of the Covenants be in the disjunctive so as it is in the Election of the Covenantor to do the one or the other then it ought to be specially pleaded and the performance of it for otherwise the Court cannot know what part hath been performed CCCCXXXI Tracy and Ivies Case Mich. 32 Eliz. In the Common Pleas. IN Dower by Margaret Tracy against Ivie the Case was Dower That John Finch was seised and enfeoffed Shipton and others of two parts of the Lands to the use of himself and the Defendant his then wife and their heirs for ever with Condition That if his said wife did survive him Co. 4. Vernons Case she should pay such sums of mony not exceeding two hundred pounds to such persons which the Feoffor by his last Will should appoint and afterwards he declared his Will and thereby appointed certain sums of mony to be paid to divers persons amounting in the whole to the sum of one hundred and fifty one pounds and by his said Will devised the residue of his Lands to divers of his Kindred having no issue and died The wife married Tracy and they brought Dower against the Devisees who pleaded the Feoffment aforesaid and averred the same was made for the Ioynture of the Demandant And because that no other matter or circumstance was proved to verifie the Averment the Court incited the Iury to find for the Demandant which they did accordingly CCCCXXXII Bond and Richardsons Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Bond Debt 1 Cro. 142. the Condition was to pay a lesser sum such a day and at such a place the Defendant pleaded payment according to the Condition upon which they were at issue And it was found by Verdict That the lesser sum was paid such a day before the day contained in the Condition of the Bond and then received and upon this Verdict Iudgment was given for the Plaintiff for the day is not material nor the place but the payment is the substance CCCCXXXIII Marshes Case Trin. 32 Eliz. In the Common Pleas. Trover had Conversion GOods came to a Feme covert by Trover and she and her Husband did convert them to their own use It was holden per Curiam That the Action upon the Case shall be brought against the Husband and Wife and not against the Husband only for the Action doth sound in Trespass and it is not like unto Detinue for upon a Detainer by the Wife the Action lieth against the Husband only CCCCXXXIV Corbets Case Trin. 32 Eliz. In the Common Pleas. Debt 2 Len. 60. AN Action of Debt was brought by Original Writ against an Administrator in another County than where the Administrator was commorant and before notice of the Suit he paid divers Debts of the Intestate due by specialty and so he had not Assets to pay the Debt in demand having Assets at the day of the Teste of the Original And now Plainment Administred 1 Cro. 793. the Defendant appearing pleaded this special matter and concluded so he had nothing remaining in his hands And it was holden per Curiam to be a good Plea. See 2 H. 4. 21 22. CCCCXXXV Gillam and Lovelaces Case Mich. 32 Eliz. In the Common Pleas. Administration KAtharine Gillam Administratrix of John Gillam brought Ejectione

firmae against Leonard Lovelace and upon not guilty pleaded it was found for the Plaintiff It was moved for the Defendant in arrest of Iudgment That the Declaration was not good because the granting of Letters of Administration is set forth in this manner viz. Administratio commissa fuit Querenti per Willielmum Lewen Vicarium generalem in spiritualibus Epi. Roff. without averring that at the time of the granting of the Letters of Administration the Bishop was in remotis agendis for a Bishop present in England cannot have Vicarium But as to that it was said by the whole Court That the Vicar general in Spiritualibus amounts to a Chancellor for in truth the Chancellor is Vicar general to the Bishop Another Exception was because the Declaration is not Epi. Roff. loci illius Ordinarii but that was not allowed for all the presidents and course of the Court is That by way of Declaration such allegation needs not but by way of Bar it is necessary Another Exception was taken because the Plaintiff hath declared of an Ejectment and also quod bona catalla ibidem invent cepit c. And here in the Verdict the damages as well for the Ejectment as for the Goods and Chattels are entirely taxed It was adjorned CCCCXXXVI Greeves Case Mich. 32 Eliz. In the Common Pleas. IN a Replevin Replevin the Defendant made Conusans as Bayliff to one Greeves and Rockwood c. and said That A. was seised of the Lands and 6 Eliz. enfeoffed certain persons in fee to the use of his last Will by which he willed that his Feoffees should stand seised of the said Lands Devises Poph. 188. until the said Greeves had levied of the profits of the said Lands the sum of one hundred pounds It was objected against this Conusans that here is no devise for A. at the time of the devise had not any Feoffees but the Exception was disallowed by the Court And they cited the case of 15 Eliz. Dyer 323. Lingens case A. made a Feoffment in fee to his use and afterwards devised that his Feoffees should be seised to the use of his Daughter that the same was a good devise of the Land. See 29 H. 8. Br. Devises 48. CCCCXXXVII Kempton and Coopers Case Mich. 31 32 Eliz. In the Common Pleas. IN Trespass for breaking of his Close the Defendant pleaded Bar. 3 Len. 194. that before this he had brought an Ejectione firmae against the now Plaintiff and recovered and had Execution c. Iudgment if Action c. And by Periam Windham and Anderson Iustices the same is a good Bar and the conclusion of the Plea is also good Iudgment if Action without relying upon the Estoppel CCCCXXXVIII Leigh and Okeley and Christmass Case Mich. 32 Eliz. In the Kings Bench. OLiphe Leigh Fermor of the Queen of a Wood called Meerherst Wood in Warplesden in the County of Surrey brought an Action of Trespass against Henry Okeley and Robert Christmass for breaking of the said Wood and therein entring and cutting down of two hundred loads of Wood and carrying away the same c. The Defendants pleaded That before the time in which the Trespass was supposed c. That King H. 8. was seised of the Manor of Warplesden Custom whereof the said Wood was parcel of which Manor a Close called Withybod containing eleven Acres eidem bosco adjacent was parcel and that the said Wood is and time out of mind c. was closed and separated with Hedges and Ditches from the said eleven Acres which said Hedges and Ditches per totum tempus praedict fuerunt adhuc sunt praedict bosco spectant pertinent And that the said eleven Acres are and time out of mind we●● customary Lands parcel of the Manor aforesaid and demised and demisable in Fee-simple And that the said King H. 8. at a Court holden 38 H. 8. by his Steward demised the said eleven Acres by copy to John Goring and his Heirs and that within the said Manor there is this Custom That every Copyholder Tenant of the said eleven Acres c. hath used and accustomed per se vel servientes suos per eorum praecept succidere capere asportare subboscum in praedict bosco in quo c. pro reparatione praedictarum sepium defensionum inter praedict boscum in quo c. and the said eleven Acres c. quandocunque eaedem sepes defensiones in decasu extiterint and shewed further That at the time of the Trespass c. the said Hedges and Fences were in decay and so justified Vpon which the Plaintiff did demur in Law. It was argued by Godfrey That the Prescription is not good for it appeareth that this customary Land is contigue adjacens to the said Wood i. where the Trespass was done And of common Right the making of the Hedge doth appertain to the Owner of the Wood And the Prescription is no more but to take Wood in the Lands of another adjoyning to my Land to make the Hedges of the same Land in which the Wood groweth which cannot be a good Prescription for it sounds in charge and not to the profit of him who Prescribes Which see 22 E. 3. Prescription 40. Trespass against an Abbot because where the Plaintiff was Farmor of the King of his Hundred of D. and by reason thereof he might make Attachment and distrain for the Debts of the King within the said Hundred and where for a certain debt of the King he distrained the Beasts of one A. and the Abbot made Rescous to which the Abbot said That he was Lord of the Manor of D. within which Manor there was this custom c. That if any Distress be taken within the said Manor that the same should be put into the Pound of the said Abbot of the same Manor and not driven out of the Manor and there ought the Distress to remain three days so that if the party would agree within the three days that then he should have his Beasts and he said That the Plaintiff would have driven the said Beasts out of the said Manor and that he would not suffer him upon which there was a demurrer because it is not any profit to the Abbot but a charge to keep the Beasts of another Also he said That the King shall not be bound by such a custom as another person shall whereupon Iudgment was given for the Plaintiff So here in the principal case There shall be no damage to the Defendant if the Wood be not fenced for if his Cattel escape into the Wood he may justifie it because it is in default of the Plaintiffs inclosure And if the Beasts of the Plaintiff escape into the Lands of the Defendant he may take them Damage Feasant for the cause aforesaid 21 H. 7. 20. A Custom is pleaded That if any Tenants of the Manor shall take the Cattel of any one Damage Feasant and shall therefore distrain them that

Serjeant this case hath been adjudged 16 Eliz. A Lease to three Habendum to the use of the first for life and after to the use of the second for life and after to the use of the third for life the same is good Clench Iustice this proviso follows the Habendum and is a sentence to explain the sentence Wray Shute it is another sentence although it immediately follows the Habendum Clench if the words had been provided that although it be limited ut supra in the Habendum scil the first named shall have the Lands to himself for life c. it had been good by way of Remainder Wray Our case at Bar is not that any person shall take the Remainder but that any of them shall not take the profits during the life of the other Tanfield took exception to the verdict because the life of Pain is not found in the verdict Coke this is a verdict and no pleading and the opinion of the Court was that the verdict was good notwithstanding the said Exception and afterwards Iudgment was given for the Plaintiff CCCCXLVII Hudson and Leighs Case Mich. 30 31. Eliz. In the Kings Bench. Appeal of Maheim 4 Co. 43. RObert Hudson brought an appeal of Mayhem against Robert Leigh for maiming his right hand and for cutting of his veins and sinews which by that means are become dry so as thereby he hath lost the use of his fingers To which the Defendant pleaded that heretofore the Plaintiff had brought against him an Action of Assault and Battery and wounding and therein had Iudgment to recover and Execution was sued forth by Scire facias and satisfaction acknowledged upon Record Damages of 200 Marks assisted by the Iury for the damages and 11 l. 10 s. de incremento by the Court with averment of all identities Cooper Serjeant the same is a good Bar and although that an Appeal and an Action of Trespass are diverse Actions in nature and in many circumstances yet as to the recovery of Damages the one shall bind the other See 38 E. 3. 17. a good case In Trespass for breaking of his Close and Battery the Defendant pleaded that before that the Plaintiff by Bill in the Marshalsey hath recovered his Damages for the same Trespass c. and vouched the Record and the Record was sent the which was varying from the Record pleaded for the Record vouched was only of Battery without any thing of breaking of the Close and also the Battery is taxed at another day c. and with averment yet as to the Battery it was holden good enough with averment and as to the breaking of the Close the Plaintiff had Iudgment See 41 E. 3. brev 548. 12 R. 2. Coronae 110. and the Case betwixt Rider Plaintiff and Cobham Defendant Pasch 19 Eliz. Rot. 74. it was clearly holden and adjudged that after a Recovery in Trespass an Appeal of Maheim doth not lie and the Book which deceives the Plaintiff is 22 E. 3. 82. where it is said by Thorp That notwithstanding Recovery in Appeal of Maheim yet he may after recover in Trespass but Non dicite contra Popham contrary the Plea in Bar is not good for the Averment is that the stroke and the wounding supposed in the Writ of Trespass and in his Appeal of Maheim are all one but it is not averred that any damages were given for the Maheim or that the Maheim was given in Evidence for it might be that there was not any Maheim when the Trespass was brought but that after by the drying of the wound it became a Maheim and then the Action did rise as if a man upon a Contract promiseth to pay me 10 l. at Michaelmas and other 10 l. at Christmas if he doth not pay the 10 l. at Michaelmas I may have an Action upon the promise for the not payment of that 10 l. and afterwards I may have another Action and recover damages for the not payment of the 10 l. at Christmas but if I do not begin any Action before Christmas I cannot recover damages but once for the whole promise and damages shall be given in Evidence and if I be disseised I may recover damages for the first Entry and notwithstanding that I shall have an Assise and if I do reenter I shall have Trespass and recover damages for the mean profits Ante 302. and the damages recovered for the first Entry shall be recouped and the Book cited before Fitz. Coronae 110 doth not make for the Defendant but rather for the Plaintiff for there it is averred that the Maheim was given in Evidence in the Action of Trespass which it is not in our Case Egerton Solicitor we have shewed That succisio venarum in this appeal specified is eadem succisio vulneratio mentioned in the Trespass Coke Although the identity of the wounding and cutting of the veins are averred yet it is not averred that the damages recovered in the Trespass were given for this Maheim Wray chief Iustice The Iurors are to take consideration of the wound in an action of Trespass and to give damages according to the hurt and we ought to think that they have done accordingly and if they have not so done the party may pray that the Court by inspection would adjudge upon it and so increase the damages But now when the Iury hath given great damages scil 200 Marks with which the party hath been contented it should be hard to give the Plaintiff another Action and if there be any such special matter that it was not become a Maheim at the time of the Action of Trespass brought but it is become a Maheim of later time by drying the Plaintiff ought to have shewed the same to the Court and so have helped himself for otherwise it shall not be so intended but that the averment made by the Defendant is good enough to oust the Plaintiff of this Action and the Iudgment cited 19 Eliz. before was given by me after I was constituted chief Iustice and this Bar as I conceive was drawn out of the pleading in 19 Eliz. and afterwards Iudgment was given against the Plaintiff CCCCXLVIII Crosman and Reads Case Mich. 30 31 Eliz. In the Kings Bench. Intermarriage 1 Cro. 114. THe Case was that I.S. made his wife his Excutrix and dyed I. D. being then endebted to the Testator in sixty pounds upon a simple Contract the Wife Executrix took to Husband the said I.D. I.D. made his Executor and dyed a Creditor of I.S. brought an Action of Debt against the Wife Executrix of I.S. and upon the pleading the matter in question was Debt by Executors If by the entermarriage of the wife with the Debtor of the Testator the same was a Devastavit or not And if the said Debt of sixty pounds due by I.D. should be Assets in her hands And per Curiam It is no Devastavit nor Assets as is supposed For the woman may have an

shall not supply the defect of the words in the grant V. Gilbert and Sir George Harts Case Mich. 25 and 26 Eliz. in the Kings Bench. GIlbert brought Debt upon Escape against Sir George Hart Sheriff of Kent and declared Escape 1. Cro. 188. 271. That he recovered a certain debt against A. who was taken in Execution c. And the Case was That the said A. was taken in Execution in the time of the old Sheriff and escaped also then and afterwards the Defendant being Sheriff the Plaintiff again sued a Scire facias against the said A. upon the Iudgment aforesaid upon which Execution was awarded by default and thereupon issued a Capias ad satisfaciendum by which A. was taken and escaped And by the opinion of all the Iustices the Defendant in this Case shall be charged for notwithstanding that A. was once in Execution which was determined by escape in the time of the old Sheriff yet when Execution was now awarded against him upon his default in the Scire facias the same shall bind the Sheriff out of whose custody he escaped VI. Moor and Farrands Case Mich. 25 and 26 Eliz. in the Common Pleas. MOore leased Lands to Farrand upon condition that he 1. Cro. 26. Condition where shall not bind Administrators 1. Anders 123. Dy. 6. 1 Cro. 26. 757 3. Len. 67. his Executors or Assigns should not alien without the leave of the lessor Farrand died intestate his Wife took Letters of Administration and aliened without leave and by Periam Iustice she is not within the penalty of the Condition for the Administrator is not meerly in by the party but by the Ordinary And by Meade and Periam If a Lease for years upon such a Condition be extended upon a Recognisance the same is not an alienation against the Condition But if feme lessee for years upon such Condition taketh a Husband and dieth the Husband is within the danger of the Condition for he is Assignee If the King grant to a Subject bona catalla felonum and the lessor for years upon such a Condition be out-lawed upon which the Patentee enters Now by Periam the Patentee is not bound by the Condition Meade contrary for the Condition shall go with the Land. VII Maynyes Case Mich. 25 and 26 Eliz. in the Exechequer MAyney seised of Lands in Fee took a Wife Co. 1. Inst 41. ● made a Feoffment to a stranger committeth Treason and thereof is attainted and hath a Charter of Pardon and dieth It was moved by Plowden in the Exchequer if the Wife of Mayney shall have Dower against the Feoffee Dower Manwood Chief Baron by reason of this Attainder Dower cannot accrue to the Wife for her title begins by the Enter-marriage and ought to continue and be consummated by the death of the Husband which cannot be in this Case for the Attainder of the Husband hath interrupted it as in the Case of Elopement Attainder where an Estoppel And this Attainder is an universal Estoppel and doth not run in privity only betwixt the Wife and him to whom the Escheat belongs but every stranger may bar her of her Dower by reason thereof for by the Attainder of her Husband the Wife is disabled to demand Dower as well as to demand his Inheritance and he cited the Resolution of all the Iustices of England in the Case of the Lady Gates 4. Ma. Dyer 140. and the Pardon doth not help the matter for the same extends but to the life of the Offender but doth not take away the Attainder by which she is barred to demand Dower during the said Attainder in force See the Statute of 5. E 6. cap. 11. Vid. Fitz. Dower 82. 13. E 3. 8 E 3. Dower 106 Fitz. Utlag 49. 8 Mich. 25 and 26 Eliz. in the Exchequer 4. Len. 117. Leases for three lives of Copy-hold estate are not within Stat. 41. Eliz. IN the Exchequer it was found by special verdict That the Guardians and Chanons Regular of Otlery were seised of the Mannor of O c. and that 22 H 7. at a Court holden there granted the Lands in question to W. and W. his Son for their lives by Copy according to the Custom of the said Mannor and that afterwards 30 H 8. They leased the Lands by Indenture to H. rendering the ancient and accustomed Rent and afterward surrendred their Colledge c. and afterward W. and W. dyed And if that Lease so made during the customary estate for life notwithstanding the Statute of 31 H 8. be good or not was the Question being within a year before the surrender c. It was argued by Egerton Sollicitor that the said Lease is void by the Statute the words of which are whereof or in the which any estate or interest for term of life year or years at the time of the making of any such Lease had his being or continuance and was not then determined finished or expired and therefore we are to see if that right or possession which W. had at the time of the making of the Lease were an interest or an estate for life And as to this word estate it is nothing else than measure of time for an estate in Fee-simple is as much as to say an interest in the Lands for ever and the like of other estates and therefore here W. and W. had at the time of the making of this Lease an estate for life in the thing demised And although such customary Tenants are termed in Law Tenants at will yet they are not simply so nor meerly Tenants at will but only Tenants at will secundum Consuetudinem Manerii Copy-holde●● Interest which Custom warrants his possession here for his life and therefore it is a more certain estate than an estate at will for the Copyholder may justifie against his Lord so cannot a Tenant at will whose estate is determined at the will and pleasure of his Lessor And although this estate is but by Custom and by no Conveyance the estate is raised it is as material so as it be an estate and this estate being supported by Custom is known in Law an estate and so accounted in Law and the Law hath notably distinguished Copy-hold Tenancies by Custom and Tenancies at will by the Common Law for a Copy-holder shall do Fealty shall have aid of his Lord in an Action of Trespass shall have and maintain an Action of Trespass against his Lord his Wife shall be indowed the Husband shall be Tenant by the Curtesie without new admittance and it was adjudged in the Common Pleas 8. Eliz. That if a Copy-holder surrender to the use of another for years the Lessee dieth his Executors shall have the residue of the Term without any admittance M 14. and 15. Eliz. a Copy-holder made a Lease for years by Indenture warranted by the Custom it was adjudged that the Lessees should maintain Ejectione firm although it was objected that if it were so then if

licence by recovery c. N. Vaux the surviving Feoffee died having issue W. Lord Vaux the purchasor died seised his Son and Heir 14 Eliz. levied a Fine Sur Conusans de droit c. and that Fine was levied to the use of the Conusee c. and that without licence The Lord Vaux within five years after the Fine levied entred for the condition broken and now issued forth a Scire facias against the Conusee for that alienation without licence who made default whereupon issued process to seize the Lands whereupon came Sir Tho. Tresham Fine for Alienation without Licence and shewed the whole matter aforesaid and prayed to be discharged It was said that this Prerogative to have a Fine for alienation without licence had lately beginning upon the original creation of Seignories so as this prerogative is as it were paramount the Seignory and shall go paramount the Condition as well as the Condition is paramount the Alienation but if the disseisor of the Tenant of the King maketh a Feoffment in Fee now upon the entry of the disseisee the person of the Feoffee shall be charged with a Fine but the Land by the re-entry of the disseisee is discharged and such is the opinion of the Lord Frowick in his Reading upon the Statute of Prerogativa Regis and the reason is because the disseisor is not Tenant to the King and so when he aliens it cannot be said an Alienation by the Kings Tenant See 45 E. 3. 6. If the Tenant of the King in chief seaseth for life with licence and afterwards grants the Reversion over without licence Entry for Condition what acts it shall defeat the Tenant for life is not bound to atturn in a Quid juris clamat wherfore it seems that if such Tenant doth attorn the King shall seize presently This Entry for the Condition broken is not to have so violent a retrospect to the first livery to which the Condition was annexed that it shall defeat all things mean between the Creation and the breach of the Condition but it shall defeat all mean things which rise upon the act of the party as Rent Dower c. But charges which accrue by reason of Tenure do remain notwithstanding the Entry for the Condition broken As if such a Tenant of the King maketh a Feoffment in Fee upon condition which is broken the Feoffee dieth seised his Heir of full age the Feoffor re-entereth this re-entry by force of the condition broken hath not so avoided the descent but the King shall have Relief upon the said descent for the Relief is paramount the Livery and the condition So if a Feoffee upon condition disclaim in Avowry Condition shall not avoid an Interest vested by which the Lord brings a Writ of Right Sur Disclaimer and hath Iudgment the Feoffee entreth for the condition broken the said re-entry shall not avoid the interest of the Lord by the Iudgment on the Writ of Disclaimer but he may enter at his pleasure and it was moved by Plowden who argued for Tresham that if the Tenant of the King being Non Compos mentis makes a Feoffment in Fee and dieth his Heir entring upon the Feoffee shall not pay a Fine for the Alienation of his Father but the person of the Father shall be charged with it And at the end of this Term after many Arguments and Motions Iudgment was given for the Queen that she should seize the Land and hold the same for the Fine and that she should not be driven to sue the person of the Feoffee or Conusee And by Manwood chief Baron at the Commom Law in many Manors Tenant in soccage upon every alienation shall pay a Fine nomine relevii a fortiori in the Kings case and therefore he was of opinion That this Prerogative to have a Fine for alienation without licence is by the common Law and not by any Statute XII Caters Case Mich. 25 and 26 Eliz. in the Exchequer Chamber A Bill of Intrusion was in the Exchequer against Cater Intrusion 7 Co. 12. 1 Anders 95. who pleaded the Grant of the Queen the Plaintiff replicando said that before the Queen had any thing c. Sir Francis Englefield was seised of the Manor of which c. and he being beyond the Seas the Queen sent her Letters under the Privy Seal Quod ipse in fide legeantiâ quâ dictae Reginae tenebatur indirecte rediret in Angliam praedict tamen Franciscus spretis mandatis dict Reginae venire recusavit for which a Certificate was by the said Queen into the Chancery Quod dictus Franciscus in portibus transmarinis sine licentia dict Reginae remansit And thereupon a Commission was awarded to seize the Lands of the said Sir Francis which was entred in the Replication in haec verba reciting also the Queens Privy Seal and that the said Sir Francis did stay there spretis mandatis c. for which the Queen seised and granted to the Plaintiff And afterwards the Statutes of 13 and 14. Eliz. were made after which the said grant was made to the Defendant upon which matter there was a Demurrer and Iudgment given for the Plaintiff Error And now Cater brought a Writ of Error in the Exchequer Chamber and it was first assigned for Error because that the Record is entred Inter Johannem Cater present hic in Curia by I.S. Attornatum suum and that cannot be for it is oppositum in objecto that one can be present in Court and also by Attorney simul semel for the Attorney is to supply the default of the personal presence To which it was said by Wray Anderson and Periam that the matter assigned was no Error for there are many Presidents in the Exchequer of such Entries which were openly shewed in Court. 48 E 3. 10. R 2. 20 H 7. 20 H 8. And by Manwood chief Baron it is not so absurd an Entry as it hath been objected for if one hath an Attorney of Record in the Kings Bench and he himself is in the Marshalsey there is an Action against him he is present as Prisoner and also by Attorney and by them notwithstanding that here appeareth a contrariety for such Entry properly is presentem hic in Curia in propriâ persona sua yet because many proceedings are according it is the more safe course to follow them for if this Iudgment be reversed for this cause many Records should be also reversed which should be very perillous An other Error was assigned because it is not alledged in the Replication of what date the Privy Seal was nor that any notice of the said Privy Seal was given to Sir Francis to which it was said that the Privy Seal need not any date especially in this case for the matters which are under the Privy Seal are not issuable See 2 Eliz. Dyer 177. Privy Seal nor any traverse can be taken to it and this Privy Seal is not

one L. Rearsbie Father of the Plaintiff and of the Avowants and Jane his Wife and to the Heirs of Lyonel who by his Will devised unto A. Rearsbie a Rent of four pounds out of the said Manor with clause of distress for his childs part to be yearly paid Lyonel the Father died 3 Eliz. and afterwards 22 Eliz. Jane died and for the arrearages of the said Rent encurred mean between the death of Loynel and Jane his Wife c. upon which Avowry the Plaintiff did demurr in Law for the Rent doth not begin in effect but after the death of the Wife of the Devisor Construction of Devise for such construction ought be made of the Devise as not to charge the Inheritance with the whole arrearages c. and it was argued to the contrary that the Defendant might well avow the distress for these arrearages for if he in the Reversion upon a Lease for life grant a Rent charge after the death of the Grantor the Grantee shall distrein for all the arrearages encurred after the grant etiam during the life of the Grantor Distress quod Curia concessit and it was said by the Council of the Avowant that the Case at Bar is a stronger Case for this Rent as it appeareth by the words of the Devise was devised to the Avowant for his livelihood and for his childs part which words imply a present advancement and these words yearly to be paid are strong pregnant to that intent It was adjourned XVII Hill. 25 Eliz. in the Kings Bench. THe Earl of Northumberland brought debt upon arrearages of Accompt the Defendant shewed that before the Accompt Account the Plaintiff of his own wrong did imprison the Defendant and assigned Auditors to him being in prison and so the Accompt was made by duress of imprisonment And the same was holden a good Plea by all the Iustices of both the Benches And Iudgment was given accordingly XVIII Pasch 26 Eliz. in the Kings Bench. Pasch 26. Eliz. Forman and Bohans Case REplevin by Forman against Bohan Replevin the Defendant avowed for a Rent charge and shewed that one Wingfield was seised of the Manor of Wesham whereof the place where was parcel And 33 H 6. made a Feoffment in Fee of the place where c. to one Orlow rendring Rent and Sute at the Court of the said Manor and that the said Wingfield was seised of the said Rent and Sute accordingly and died thereof seised and that the same descended to Anthony Wingfield as Son and Heir 1 Cro. 39. c. who was seised of the said Rent as parcel of the said Manor and that the said Anthony so seised of the said Manor and Rent bargained and sold the said Manor and Rent 26 H 8. to Nicholas Bohan Father of the Avowant by these words Manerium de Wesham omnes omnimodos redditus reputed deemed or adjudged part or parcel of the said Manor who entred and died seised and the same descended to the now Avowant as Son and Heir c. and averred that the said Rent at the time of the bargain and sale aforesaid diu ante was reputed parcel of the Manor aforesaid Vpon which Avowry the Plaintiff did demur in Law and it was argued by Gawdy Serjeant for the Plaintiff and he took an Exception to the Avowry because the Avowant sheweth that Anthony Wingfield 26. H 8. bargained and sold the said Manor to Bohan Virtute Quar. bargaine venditionis vigor cujusdam Actus Parliamenti 27 H 8. de usibus c. the said Bohan was seised c. where he ought to have said by force of which bargain and sale the said Anthony Wingfield was seised of the said Manor aforesaid to the use of the said Bohan and that afterwards by reason of the said Statute of 27 H 8. the said Anthony then seised to the use aforesaid the said Bohan was seised in his Demesne as of Fee For it might be for any thing appearing in the Avowry that before the said Statute of 27 H 8. Anthony Wingfield had made a conveyance upon consideration to him who had not notice of the use so as the use being suspended when the Statute came it could not be executed for there was not any seisin to the use and to that purpose he cited the Case of 7 H 7. 3. where a gift of Trees by Cestuy que use is pleaded without alledging that the Feoffors were seised to the use of the Donor at the time of the gift To that Exception it was answered by Popham Attorney General Averment That there is a difference betwixt the Case at Bar and the Case of 7 H 7. for where a man entitles himself by Cestuy que use he ought to maintain such title by every necessary Circumstance which the Law without expressing will not intend but where a man alledgeth a matter which is but a conveyance there needs no especial recital as if a man will pretend the grant of a Reversion and that the lessee for years did attorn he needs not to shew that at the time of the Attornment the Grantor was seised 1 Cro. 746. ●4● c. and he cited the Case of 10 E. 4. 18. In Trespass the Plaintiff by way of Replication made to him a title that A. was seised and leased to him at Will by force of which the Plaintiff was possessed until the Defendant did the Trespass and Exception was taken to it that the Plaintiff in his Replication had not averred that A. was alive at the time of Trespass and it was not allowed for the subsequent words by force of which the Plaintiff was possessed until the Defendant did the Trespass do amount unto so much for the Plaintiff could not be possessed by force of the said Lease at Will if A. were not alive So here Bohan could not be here seised by force of the said Statute if the seisin of the use which was raised by the bargain and sale had not continued until the coming of the said Statute As to the matter in Law Gawdy conceived that the averment in the perclose of the Avowry is contrary to the matter of the Avowry for the creation of the Rent set forth in the Avowry proves that the Rent is not parcel of the Manor but a Rent in gross and then the general averment that the Rent is parcel of the Manor without shewing how against the special matter of the Avowry is not receivable Reputation And also nothing can be by reputation parcel of a Manor which in rei veritate cannot be parcel of a Mannor but a Rent charge cannot be in rei veritate parcel of a Manor ergo nor by reputation Popham contrary That the averment is not contrary to the matter of the Avowry for the matter disclosed in the Avowry proves that it is not rei veriate parcel of the Manor but it doth not exclude Reputation and the Averment doth not

extend ad veritatem facti which is set forth in the Avowry but only to reputation and so both stand together well enough Rent charge parcel of a Manno● And that a Rent charge may be parcel of a Manor see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case where it is ruled that title made to a Rent charge as parcel of a Manor is a good title and the Assize awarded upon it and in our Case the Reputation is enforced by the sute at the Court which was also reserved upon the said Feoffment together with the said Rent so as the intent of the parties to the Feoffment was that this Rent so reserved and accompanyed with the said sute shall be esteemed a Rent service and so parcel of the Manor and as to the continuance of Reputation it sufficeth if at the time of the bargain and sale aforesaid which was 26 H 8. it was by many reputed parcel of the Manor and he cited the Case of the Marquess of Winchester The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor and in a Bill of Intrusion against the said Marquess he pleaded the grant with averment that the Land then antea reputed parcel Manerii praedict And because he did not shew certainly at what time the Land was reputed parcel of the Manor Iudgment was given for the Queen for it might be for any thing in his Plea that the said Land was reputed parcel of the said Manor before time of memory which Reputation would not serve but such Reputation ought to be within time of memory and understanding He cited also the Case of the Earl of Leicester King Edward the sixth seised of the Manor of Clibery of which a Wood was parcel granted the said Wood in Fee which afterwards escheated to the King for Treason Queen Mary granted the said Wood to another in Fee who granted it to the now Queen who granted the said Manor omnes boscos modo vel ante hac cognit vel reputat ut pars membr vel parcel Maner praedict to the Earl of Leicester and it was resolved in the Exchequer that by that grant the said Wood did pass to the Earl and Iudgment was given against the Queen Dy. 362 ● for it was part of the Manor in the time of E 6. at which time an t ' hac without the word unquam shall be extended ad quoddamcunque tempus praeteritum And Reputation needs not so ancient a Pedigree for to establish it for general acceptance will produce reputation As the house of the Lord Treasurer now called Tibould was of late a private Manor but now hath a new name by which it is known and that within these twenty years which is not so long a time as we have alleged for our Reputation and would pass in a conveyance by such name so None-such But as to Reputation I conceive that Reputation is not what this or what that man thinketh Reputation quid but that which many men have said or thought who have more reason to know it quaenam est inter illos reputatio There was a Case ruled in the Exchequer 13 Eliz. in a Bill of intrusion the Case was that King Hen. 6. was seised of a Manor to which a Neif was regardant who purchased Lands which the King seised and let by Copy as parcel of the said Manor and so continued until the time of E 6. who granted the same to Allice Hardwick and all Lands Tenements reputed parcel of the said Manor And it was adjudged that the said Land so purchased by the said Neif and demised by Copy did pass by the said grant to Hardwick And afterwards the same Term the Iustices without any solemn Argument shewed their opinions in the principal Case viz. That this Rent did not pass by the bargain and sale made as above by Anthony Wingfield to Bohan father of the Avowant for here in the premisses of the Avowry is not any matter set forth importing Reputation or by which it may appear that the Rent in question was ever reputed parcel of the said Manor but rather to the contrary and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Reputation upon the matter of the Avowry as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor and as Bayliffs of the said Manor had accounted for it as parcel of the Manor and that the Lessees of the said Manor had enjoyed the said Rent as parcel of the said Manor the same had been good matter to induce a Reputation to have incorporated the said Rent with the said Manor and so judgment was given against the Avowant and of such opinion as was affirmed by Wray was Anderson chief Iustice of the Common Pleas and Manwood chief Baron of the Exchequer XIX Cham and Dovers Case Pasch 26 Eliz. in the Kings Bench. Ejectione firmae IN an Ejectione firmae the Case was that one Michel was seised of the Manor of D. within which diverse parcels of Land part of the said Manor where customary Tenements demised and demisable by copy c. according to the Custom of the said Manor for one two or three lives within which Manor there was a Custom scil that the Lord of the Manor for the time being might grant Copy-hold estates for life in Reversion The Lord granted such Lands for life by copy in possession took a wife and granted the same Copy-hold to a stranger in Reversion for life and died the Copy-holder in possession died the Land demised by copy is inter alia assigned to the Wife for her Dower who had Iudgment to recover in a Writ of Dower who entred and made a Lease thereof to the Defendant who entred against whom the Lessee of the Copy-holder brought Ejectione firmae Custom ad pasturandum non ad colendum and all this matter was found by Verdict and further found that every Copy-holder of the said Manor might Lease his Copy-hold for a year ad pasturandum sed non ad colendum and that the Lease made to the Plaintiff was for a year ad pasturandum 1. Cro. 469. Wells versus Partridge Post 100. Popham Attorny General of Council with the Defendant took exception to the Declaration because the Plaintiff had declared a Lease at the common Law and the Iury have found a Lease by the custom which cannot stand together And such a Verdict doth not maintain the Declaration as if the Plaintiff had declared upon a Lease for years of Lands and the Iury found a devise for years c. but the exception was disallowed by the Court. As to the matter in Law he argued that the Tenant in Dower should

at last after many motions it was resolved by all the Iustices Averment ●here super●luous that the Averment aforesaid was superfluous ex abundanti for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment de non appunctuando and if the house in the not repairing of which the breach of Covenant is assigned was appointed to be pulled down the same shall come in on the defendants part to whose advantage it trencheth for such appointment doth discharge the Covenant as to that In the same plea it was moved in stay of Iudgment that one Sharp Solicitor of the said Sir John in the said suit had given eight shillings to the Iurors mean betwixt the Charge and their Verdict and that matter was testified by the oaths of two men upon which the Court examined the said Sharp who upon his oath denied the matter and also the Foreman of the Iury to whom the mony was supposed to be given who upon his oath denied the same And it was moved if receipt of mony by any of the Iurors should make the Verdict void and by Wray it shall not for it is but a Misdemeanor which is punishable on the person of him who takes the mony But Gawdy and Ayliff Iustices the Verdict is void See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed XXII Cordall and Gibbons Case Pasch 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench. IN an Ejectione firmae upon not guilty pleaded the Iury found the special matter viz. that one Hierom Heydon was seised of two Messuages whereof the Action is brought and came to Cordall the Plaintiff and prayed him to send him ten pounds Cordall asked him what assureance he would give him for the re-payment of it he answered that he would mortgage to him the said two Messuages whereupon Cordall lent him the mony and afterwards they both went to the said two Houses and being before the doors of them Heydon called Tenants at will of the Houses and said to them Sirs I have borrowed of this Cordall ten pounds upon these Houses and if I pay this mony at Michaelmas next I must have my Houses again and if not then I bargain and sell these Houses to Cordall and my Will is that you become his Tenants after which Heydon put the said Cordall into the Houses and seeing him in the Houses he put in the Keys of the said Cordall by the Windows c. And it was adjudged by the whole Court that this conveyance by word of mouth was good enough to pass the estate ut supra and the words of bargain and sale in this Case are as strong as of gift and grant See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11. XXIII Richards and Bartlets Case Pasch 26 Eliz. Intr. Mich. 25 26 Eliz. Rot. 72. In the Kings Bench. DOrothy Richards Executrix of A. her former Husband Assumpsit brought an Action upon the Case upon a promise against Humfrey Bartlet and declared that in consideration of two weighs of Corn delivered by the Testator to the Defendant he did promise to pay to the Plaintiff ten pounds to which the Defendant said that after the Assumpsit the Plaintiff in consideration that the said two weighs were drowned by Tempest and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shillings four pence scil in toto thirty three shillings four pence did discharge the said Defendant of the said promise and averred further that he hath been always ready to pay the said sum newly agreed upon which there was a demurrer And the opinion of the whole Court was clearly with the Plaintiff first because that here his not any consideration set forth in the Bar by reason whereof the Plaintiff should discharge the defendant of this matter for no profit but damage comes to the Plaintiff by this new agreement and the Defendant is not put to any labour or charge by it therefore here is not any agreement to bind the Plaintiff See 19 H. 6. Accord 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case 19 Eliz. Dyer then admitting that the agreement had been sufficient yet because it is not executed it is not any Bar And afterwards Iudgment was given for the Plaintiff XXIV Lendall and Pinfolds Case Pasch 26 Eliz. In the Kings Bench. IN Trespass for breaking of his Close by Lendal against Pinfold Trespass the Case was that two brake the Close and entred and did the Trespass the Owner of the land brought an Action of Trespass against one of them and had Iudgment and execution accordingly and afterwards brought Trespass against the other Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared upon the same Trespass And by Ayliff Iustice it is a good Bar and he likened it to the case of one Cobham who brought an Action of Trespass of Assault and Battery and recovered and had execution and afterwards brought an Appeal of Mayhem against the same person upon the same matter the said Recovery and execution is a good Bar c. so here as to the breaking of the close but not as to the Entry But by Wray it is a good Bar for the whole and he likened it to the case of Littleton Pl. 376. A Release to one of the Trespassers shall discharge both Gawdy agreed in opinion with Ayliff XXV Kempe and Hollingbrooks Case Pasch 26 Eliz. In the Exchequer IN an Ejectione firmae for Tythes the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted that no Masters Tithea and Fellows of any Colledge in Cambridge or Oxford shall make any Lease for life or years of any Farm or of any their Lands Tenements or other Hereditaments to the which any Tythes arable Land Meadow or Pasture doth or shall appertain unless the third part at least of the accient Rent be reserved and payed in Corn for the said Colledges c. otherwise every Lease without such Reservation shall be void c. If now the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind It was argued that the said Statute is to be intended of Tithes in kind and also of such things to be demised which render Corn Hay c. But the Tithes in London which is the thing demised in our case doth not render any such thing Tithes in London but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And although the words of the Statute be other Hereditaments to the which any Tithes c. Yet the said Statute doth extend to Tithes in gross but they ought to be

prohibition And the Court upon the first Motion conceived a prohibition should pass for if the grant be without deed nothing passed and then hath not Withy cause to claim these Tithes against the said Saunders And notwithstanding that Tithes are quodam modo spiritual things and so demandable in a Court of that nature yet now in divers respects they are become a Lay-fee and lay-things for a Writ of Assise of Mortdauncester and an Assise of novel disseisin lyes of them and a Fine may be levyed of them But it hath been doubted whether Tithes be devisable by Will But at another day the matter was moved and the Court was clear of opinion that a Consultation should be awarded for whether Withy hath right or not right to these Tithes Saunders of common right ought to pay his Tithes and he ought to sever them from the nine parts and whosoever takes them whether he hath right to them or no right Saunders is discharged But Saunders may prescribe in modo decimandi without making mention of any severance and may surmise that the Tithes do belong to I. S. with whom he hath compounded to pay such a sum for all Tithes and afterwards a Consultation was awarded XXX Stacy and Carters Case Trin. 26 Eliz. in the Kings Bench. STacy brought an Action of Trespass for breaking his Close against Walter Carter And declared of a Trespass in Somers-Land in Tunbridge The Defendant pleaded that heretofore he himself brought an Assise of Novel disseisin against the now Plaintiff and supposed himself to be disseised of his Free-hold in Lee juxta Tunbridge and the Land where the Trespass supposed to be done was put in view to the Recognitors of the said Assise and further averred that the Land where c. and the Land then put in view is one and the same c. upon which there was a Demurrer Exception was taken to the form of the Demurrer because in the perclose and conclusion of the Demurrer these words are omitted Averment Et hoc paratus est verificare But as to that it was said by the Court that the Demurrer was well enough with or without such Averment in the conclusion of it which see oftentimes in the Commentaries c. and in the Book of Entries 146. the greater part of the Demurrers have not any such conclusion Another Exception was taken to the bar because the Defendant pleads that heretofore Walter Carter had brought an Assise against the now Plaintiff c. and that the Land put in view to the Recognitors of the Assise per praefatum Warrhamum Carter c. and the Land where c. is all one c. here is Warrhamum for Walterum and notwithstanding that it was after demurrer and not after verdict it was adjudged amendable and as to the matter of the bar it was said by the Defendants Council that recovery of Lands in one Town by Praecipe quod reddat is not a bar for Lands in another Town but where the recovery is by Assise it is otherwise for there the Plaint is general De lib. ten̄to and the Plaintiff shall recover per visum Juratorum and the view is the warrant of the Iudgment and Execution And therefore if a recovery in an Assise be pleaded in bar Not comprised is not any Plea against it as in the Case of recoveries upon a Praecipe quod reddat but not put in view and so not comprised c. which proves that the Record doth not guid the recovery but the view of the Iurors See 26 E 3. 2. Assise brought of Lands in D. the Tenant saith that he holdeth the said Lands put in view joyntly with A. not named in the Writ c. and sheweth the deed of Ioynt-tenancy which speaks of Tenements in B. and the plea holdeth good because he alledgeth the Ioynt-tenancy and the Lands put in view See 24 E 3. It was said on the Plaintiffs side that recovery in Lee juxta Tunbridge could not extend to Lands in Tunbridge no more than a recovery of Lands in one County can extend to Lands in another County See 23 E 3. 16. Assise of Novel disseisin brought of Lands in N. the Defendant pleads recovery in Assise c. brought before by him against the now Plaintiff of Lands in H. and the same Lands put then and now in view and adjudged no bar See also 16 E 3. 16. in an Assise of Tenements in W. the Tenant pleads a Recovery of the same Lands agaist one A. by Assise brought of Tenements in C. which was found by the Assise and that C. is a Hamlet of W. and the Plaintiff notwithstanding that recovery so pleaded had Iudgment for a recovery of Lands in one Town shall not be a bar in an Assise of Lands in another Town See Br. Tit. Iudgment 66. 10 E 3. And the whole Court was clear of opinion that the plea in bar was not good for in the Assise which is pleaded in bar in the principal Case the Tenant there who is now Plaintiff in this Action of Trespass pleaded Nul tort nul disseisin which is no plea as to the Free-hold in Lee juxta Tunbridge and therefore it cannot be like to the Case which hath been put of 26 E 3. for there the Tenant pleaded that he held the said Lands put in view joyntly for there he agreeth with the Plaintiff in the Lands demanded the which Lands are put in view but if in the Case at bar the Defendant being Plaintiff in the Assise the now Plaintiff being then Tenant had pleaded to the Land put in view in bar and the Plaintiff in the Assise had recovered now in this Action of Trespass the Plantiff in the Assise being Defendant in the Action of Trespass might well plead this Recovery in bar for by his plea in the Assise he hath tyed himself to the view and to the Land put in view but it is not so in the Case at Bar where the Tenant in the Assise pleads nul tort nul disseisin for there he doth not plead expresly to the Land put in view but to the supposal of the Plaintiff sc de libero tenemento in Lee juxta Tunbridge afterwards Wray with the assent of the other Iustices awarded that the Plaintiff should recover his damages See by Wray 44 E 3. 45. in Assise of Tenements in B. the Plaintiff pleads that he himself brought an Assise of the same Tenements and his plaint was of Tenements in E. and the same Tenements put in view and recovered and holden a good Plea because the Tenant hath said that the same Tenements were put in view and that took by Assise upon which the Plaintiff said not put in view and so not comprised XXXI Benicombe and Parkers Case Trin. 26. Eliz. In the Kings Bench. IN an Action of Trespass the Iury found this special matter that the Grandfather of the Plaintiff was seised and made a Feoffment to the use of himself for life

Language may easily be learned in a short time by converse with Welsh-men And the Statute of 1 Eliz. which establisheth the Book of Common Prayer ordaineth that the said Book of Common Prayer shall be put in use in all the Parish Churches of Eng. and Wa. without any provision there for the translation of the said Book into the Welsh Language But afterwards by a private Act it was done by which it is enacted That the Bishop of Wales should procure the Epistles and Gospels to be translated and read in the Welsh Language which matter our Presentee might do by a Curate well enough And he conceived that by divers Statutes Aliens by the Common Law were capable of Benefices See the Statute of 7 H 2. Cap. 12. 1 H 5 Cap. 7. 14 H 6. Cap. 6. and before the said last Statute Irish-men were capable of Benefices Gawdy Serjeant contrary and he confessed that at the Common Law the defects aforesaid were not any causes of refusal but now by reason of a private Act made 5 Eliz. Entituled An Act made for the translating of the Bible and of the Divine Service into the Welsh tongue the same defect is become a good cause of refusal in which Act the mischief is recited viz. That the Inhabitants of Wales did not understand the Language of England therefore it was Enacted That the Bishops of Wales should procure so many of the Bibles and Books of Common Prayer to be imprinted in the Welsh Language as there are Parishes and Cathedral Churches in Wales and so upon this Statute this imperfection is become a good cause of refusal And he likened it to the Case of Coparceners and Ioynt-tenants Ante 28. who now because that by the Statute of 32 H 8. Ioynt-tenants are equally capable to make partition as Coparceners were by the Common Law Now Partition betwixt Ioynt-tenants within age is as strong as betwixt Parceners within age But as to that point it was said by the Lord Anderson that it is very true that upon the said Statute the want of the Welsh Language in the Presentee is now become a good cause of refusal but because the said Act being a private Act hath not been pleaded by the Defendant we ought not to give our Iudgment according to that Act but according to the Common Law. Another matter was moved because here appeareth no sufficient notice given to the Patron after the said Refusal for the Plaintiff did present the thirtenth of August the Church voyding the fourteenth of March before the nine and twentieth of August the six months expired the fourth of September the Defendant gave notice to the Patron of the refusal and the fourteenth of September was the Collation and it was said by the Lord Anderson that it appeareth here that there are two and twenty days between the Presentment and the Notice which is too large a delay And the Defendant hath not shewed in his Plea any cause for the justifying or excuse of it and therefore upon his own shewing we adjudge him to be a disturber See 14 H. 7. 22. 15 H. 7. 6. and note by Periam it was adjudged in the Case of Mollineux if the Patron present and the Ordinary doth refuse he ought to give notice to the person of the Patron thereof if he be resident within the County and if not at the Church it self which is void XL. Mich. 27 28 Eliz. At Serjeants Inn. THis Case was referred by the Lords of Council to the Iustices for their opinions I.S. by Indenture between the Queen of the one part and himself of the other part reciting that where he is indebted to the Queen in eight hundred pounds to be paid in form following twenty pounds at every Feast of St. Michael until the whole sum aforesaid be paid covenanted and granted with the said Queen to convey unto the Lord Treasurer and Barons of the Exchequer and to their Heirs certain Lands to the uses following viz. to the use of the said I.S. and his Heirs until such time as the said I. S. his Heirs Executors or Administrators shall make default in payment of any of the said sums and after such default to the use of the said Queen her Heirs and Successors until her Heirs and Successors shall have received of the issues and profits thereof such sums of money parcel of the said debt as shall be then behind and upaid and after the said debt so paid and received then to the use of the said I.S. and his Heirs for ever I.S. levyeth a Fine of the said Land to the said Lord Treasurer and the Barons to the uses aforesaid and afterwards being seised accordingly by deed indented and enrolled bargains and sels the said Land to a stranger default of payment is made the Queen seizeth and granteth it over to one and his Heirs quousque the money be paid and after the money is paid And upon conference of the Iudges amongst themselves at Serjeants Inn they were of opinion that now I.S. against his Indenture of bargain and sale should have his Lands again for at the time of the bargain and sale he had an estate in Fee determinable upon a default of payment ut supra Post 93. 3 Len. 43. Owen Rep. 6. 1 Inst 49. 2 which accrued to him by the first Indenture and the Fine which estate only passed by the said Indenture of bargain and sale and not the new estate which is accrued to him by the latter limitation after the debt paid for that was not in esse at the time of the bargain and sale but if the conveyance by bargain and sale had been by Feoffment or Fine then it had been otherwise for by such conveyance all uses and possibilities had been carried by reason of the forcible operation of it XLI Taylor and Moores Case Hill. 28 Eliz. In the Kings Bench. TAylor brought Debt upon an Obligation against Moore Debt Error who pleaded in Bar upon which the Plaintiff did demurre and the Court awarded the Plea in Bar good upon which Iudgment the Plaintiff brought a Writ of Error and assigned Error in this that the Bar upon which he had demurred as insufficient was adjudged good Vpon which now in this Writ of Error the Bar was awarded insufficient and therefore the Iudgment reversed But the Court was in a doubt what Iudgment shall be given in the Case viz. whether the Plaintiff shall recover his debt and damages as if he had recovered in the first Action or that he shall be restored to his Action only c. And Wray cited the Case in 8 E. 4. 8. and the Case of Attaint 18 E. 4. 9. And at last it was awarded that the Plaintiff should recover his debt and damages See to that purpose 33 H 6. 31. H 7. 12 20. 7. Eliz. Dyer 235. XLII Higham and Harewoods Case Hill. 28. Eliz. In the Kings Bench. More Rep. 221. 3 Len. 132. IN an Ejectione firmae the Case was

things 1. Leases the number of the years 21 non ultra 2. antiquus redditus vel eo amplior yet in reason and good understanding we ought to think that the intent of the Act was that the said Manor should now come to the said Lady Frances surcharged with Leases in Reversion or to begin at a day to come for if by this Act the said Earl might make a Lease to begin three months after by the same reason he might make a Lease to begin twenty years after and also to begin after his death It hath been objected that the Lord Treasurer had a Commission to make Leases of the Queens Lands and that by virtue thereof he made Leases in Reversion I know the contrary to that for every such Lease is allowed by a Bill assigned and not by the ordinary Commission aforesaid the words of our Act are Dimissiones facere pro termino 21. annorum that shall be meant to begin presently As if I lease to you my Lands for one and twenty years it shall be intended to begin presently and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops That four years of a former Lease being in being the Bishop leased for one and twenty years the same was a good lease notwithstanding the former lease for the lease began presently betwixt the parties And it hath been adjudged that a lease for years by a Bishop to begin at a day to come is utterly void And he cited the Case of the late Marquess of Northampton who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years and of the said Lands an ancient lease was made before the said Act which was in esse and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease and that lease was allowed to be a good lease warranted by the said Statute because that the first lease which was in esse was not made by force of the said Act but if the said former lease had been made by virtue of the said Statute the second lease had been utterly void XLV Trin. 28 Eliz. In the Kings Bench. Copy-hold Surrender by Attorney not good A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will and thereby devised the Lands to his youngest Son and his Heirs and died the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room and also after admittance to surrender the same to the use of B. and his Heirs to whom he had sold it for the payment of his debts And Wray was of opinion that it was a good surrender by Attorney but Gawdy and Clench contrary 3 Cro. 218. 9 Co. 75. and by Gawdy If he who ought to surrender cannot come in Court to surrender in person the Lord of the Manor may appoint a special Steward to go to the prison and take the surrender c. and by Clench Lessee for years cannot surrender by Attorney but he may make a deed purporting a surrender and a letter of Attorney to another to deliver it XLVI Troublefield and Troublefields Case Trin. 28 Eliz. In the Kings Bench. Dy. 337. b. Co. 1 Inst 15. 2. b. 52. 245. b. 252. 6. Post 51. Entry THe Case was that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life the remainder over to his son in tail and died the Wife entred and died a stranger did intrude upon the Lands and thereof made three several Feoffments to three several persons he in the Remainder entred upon one of the said three Feoffees in the name of all the Lands so devised and made a lease of the whole Land And by Clench and Wray it was a good Entry for the whole and by consequence a good lease of the whole Gawdy contrary Note all the Lands were in one County See 16 Eliz. Dyer 337. 9 H. 7. 25. XLVII Parmort and Griffina's Case Trin. 28 Eliz. In the Kings Bench. IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger the Defendant pleaded Debt that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures and shewed what c. and alledged further that in the said Indenture there is a proviso that if aliqua lis vel controversia oriatur imposterum by reason of any clause article or other agreement in the said Indenture contained that then before any sute thereupon attempted the parties shall choose four indifferent persons for the ending thereof which being done the Indenture and Obligation shall be void And in fact saith that Lis controversia upon which the Action is brought groweth upon the said Indenture upon which there was a demurrer in Law. And because the Defendant hath not shewed specially upon what controversie or strife and upon what article certain The Court was clear of opinion that the Bat was not good And also the Court was of opinion Proviso taken strictly that the said Proviso did not extend to subject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons but only where strife and controversie doth arise upon the construction of any Covenant c. within the said Indenture so as the Defendant ought to have shewed such matter which fell within the Arbitrament by the meaning of the said Indenture and Iudgment was given against the Defendant XLVIII Partridge and Partridges Case Mich. 28 29. Eliz. In the Common Pleas. IN Dower by Partridge against Partridge the Case was Dower that Land was given to the Father for life the reversion to his Son and Heir for life the remainder to the right Heirs of the body of the Father The Father and Son joyn in a Feoffment to the Vncle in Fee scil to the Brother of the Father The Vncle takes a Wife the Father dieth the Son being his Heir in tail the Vncle dieth without issue so as the Land descendeth to the Son as Heir to his Vncle against whom the Wife of the Vncle brought Dower It was moved if the Son being Herein can to his Father and Heir also to his Vncle for the Fee descended be now remitted for then no Dower accrueth to the Wife of the Vncle for the estate of which she demands Dower is gone but if the livery in which the Son joyned with his Father be the livery of the Son Remitt● the same lies in his way in the impediment and preventing of the Remitter so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle Then Dower lyeth for the same

the said Goods to the Defendant at London by force of which he took them at London absque hoc that he took them at Coventry and that traverse not holden good for the Defendant by such a gift might justify the taking of the Goods in any place as well as in the place where the gift was made but if in such case the Defendant had pleaded that the Plaintiff delivered the said goods to him at London to deliver them over to A. by force of which he took them at London and delivered them over accordingly in such Cases the Defendant may well traverse the place supposed by the Declaration for by his Plea he hath confessed an immediate delivery of the said goods to him by the Plaintiff and the delivery and the taking all at one time and at one place and it had not been a good plea for the Defendant to say that the Plaintiff delivered to him the said goods at London by force of which he took them at Coventry for the possession is confessed by the first delivery of the goods at London and the supposal of the Plaintiff of a taking in Coventry and the justification of the Defendant of a taking by reason of a delivery at London cannot stand together But if the Defendant plead that the Plaintiff gave to him the goods in London by force of which he took them there there he may take traverse to the place supposed by the Declaration for by the gift it is lawful to the Defendant to take the goods in any place So see 19 H. 6. 35. In false Imprisonment supposed in the County of W. the Defendant doth justify as Sheriff of the County of B. by force of a Writ to him directed to attach the Plaintiff and so he attached him and imprisoned him at C. in the County of B. there the Defendant traversed the County supposed by the Declaration for otherwise he doth not meet with the Plaintiff and the authority of the Defendant doth not extend to the County supposed by the Declaration See also to the same purpose 22 E. 4. 39. by Hussy where the difference is taken when justification is by reason of a Warrant to take goods in any place whatsoever and where in a place certain as to the traverse of the Foundation absque hoc quod praedict Collegium fundatum fuit per nomen Decani Capituli Ecclesiae colleglatae Sancti Petri de Ethelborough apud Westm he hath here traversed that which was not alledged for the placing of the last words of the traverse scil apud Westminst in the end of the traverse seems by common construction to be intended thereby that there is no such Colledge at Westm and not that the Colledge was not founded at Westm for then the traverse should be absque hoc quod collegium praedictum fundatum fuit at Westminster per nomen c. But the most proper traverse that the Defendant could have taken in this case had been absque hoc quod Decanus Capitulum Ecclesiae collegiat de Ethelborough was seised for the Corporation mentioned in the Bill and that which is mentioned in the Bar are not all one but differ in this manner scil in the Bill the Dean and Chapter c. in the Bar the Dean Cannons and Bretheren and perhaps there are two such Corporations and then both cannot be seised and therefore upon the seisin of one of them the traverse shall be taken And afterward Iudgment was given for the Queen L. The Queen against the Bishop of London and Scot. Mich. 28 29. Eliz. In the Common Pleas. Quare Impedit 3 Len. 175. THe Queen brought a Quare impedit against the Bishop of London and Scot and the Case was that A. seised of an Advowson in gross holden of the Queen in chief aliened the same by Fine without Licence the Church became void the Conusee presented The Queen without office found brought a Quare impedit the question was if the Queen without office found Office trove should present And it was argued by the whole Court that if the Alienation had been by Deed only that there the Queen without office found should not have had the presentment for upon such an Alienation by matter in fact without Licence no Scire facias should issue without office found of the Alienation Scire facias but upon an Alienation without Licence by matter of Record a Scire facias lyeth before office which was granted by the whole Court And in the last case the Queen shall have the mean profits from the time of the Scire facias returned but in the first case from the time of the office found See for that Stamford Prerogative fol. penult 8 E. 4. 4. It was also moved if the Queen intituled to the presentment as above pardoneth to the Conusee all Alienations without Licence and Intrusions if the estate of the Incumbent be thereby confirmed but the Court would not argue that point but it was adjorned until another day LI. Braybrooks Case Mich. 28 29. Eliz. In the Common Pleas. Pines levyed THe Case of one Braybrook was moved which was Land was given to A. for life the Remainder to B. for life the Remainder to the said Braybrook in Fee B. being in possession levyed a Fine to a stranger sur conusans de droit come ceo c. A. dyed if now Braybrook might enter for the forfeiture was the question And it was agreed by the whole Court that by that Fine the Remainder in Fee is not touched or discontinued Co. 1 Inst 251 b. 252. 2 Forfeiture 9 Co. 104. Post 211 212. 1 Cro. 219. 220. but because B. had done as much as in him lay for the disposing of Fee-simple by the Fine and hath taken that upon him the same amounts to a forfeiture And it was also agreed by Anderson and Periam that if Tenant for life in possession leveyeth a Fine c. if the Lessor doth not enter within five years after he shall be bounden Windham contrary for by him it is in the election of the Lessor to re-enter immediatly for the forfeiture or to expect the death of the Lessee LII Willshalge and Davidges Case Mich. 28 29 Eliz. In the Exchequer Chamber WIllshalge brought Error in the Exchequer Chamber En●r upon the Statute of 27 Eliz. Cap. 8. against Davidge upon a Iudgment given in the ●ings Bench Hill. 28. Eliz. and assigned for Error that where Davidge had heretofore brought Debt against the now Plaintiff and declared upon diverse Contracts scil that he had sold to Willshalge such Merchandizes for so many Portugues and such Merchandizes for so many Ducats which in toto amounted to seven hundred pounds Sterling which sum he demanded scil in Sterling many 2 Cro. 88. 3 Cro. 536. Yel 80. 135. 136. and not in Ducats and Portagues according to the Contract And upon the Declaration the said Willshalge had demurred in Law and the Court

of Lond. in Camera Guild-hall Civitatis pr●ed and demanded 1500 pounds upon such Recognizance acknowledged 20 November 20 Eliz. and upon default of the said Hanmen Owen 25. according to the custom of London used in course of Attachment attached six hundred pounds in the hands of one W. Bolton of Grays-Inn in part of satisfaction of the said debt of one thousand five hundred pounds and now within the year came the said Hanmer ad disonerandum debitum praedicti had a precept of Scire facias against the said Thomas Leigh and after pleaded and demanded Dyer of the said Recognizance and had it quod ipse restitutionem of the said 600 pounds in manibus dict W. Bolton attachiat habere debet And upon the whole Record the Case was thus Rowland Leigh Esquire being seised of certain Manors and other Lands in the County of Glocest had issue Eliz. his Daughter and Heir inheritable to the said Lands and by Indent dated 20 Maii 19 Eliz. granted Custodiam regulam gubernationem educationem maritagium dict Eliz. to the said Thomas Leigh after which the said Thomas Leigh by Indenture 14 Martii 29 Eliz. granted and assign●d the said custody Dyer 190 191. rule government education and marriage and all his interest therein and the said Indenture to Sir John Spencer after which the said Sir John Spencer and Thomas Leigh by their Indenture the 26. of August 20 Eliz. granted and assigned to the said John Hanmer the said custody rule government education and marriage o● the said Eliz. and all their interest in the same and all the recited Indenturs by which last recited Indenture 29 August the said John Hanmer covenanted with the said Leigh that Thomas Hanmer Son and Heir apparent of the said John Hanmer maritaret in uxorem duceret dictam Elizabetham ad vel antequam dicta Eliz. dictus Tho. Hanmer perimplerint suas separales aetates 14 annorum si dicta Eliz. ad id condestendere agreare vellet and afterwards before the said Tho. Hanmer and the said Elizabeth suas separales aetates 14 annorum perimplevissent sc 8 die Sept. 20 Eliz. the said Tho. Hanmer took to wife the said Eliz. the said Tho. Hanmer then being aetatis 13 annorum and no more and the said Eliz. then being of the age of nine years and no more and Tho. Hanmer aforesaid over-lived c. And pleaded further that the said Tho. Hanmer after he attained his full age of fourteen years and before any agreement or assent by the said Tho. Hanmer to the marriage aforesaid betwixt the said Tho. Hanmer and the said Eliz. had at or after idem Thomas Hanmer came to his age of fourteen years scil 10 die Sept. Anno 22 Eliz. ad dictum matitagium disagreavit maritagium illud renunciavit and all this matter was pleaded in Bar as performance of the Covenant contained in the Indenture of defeazance made upon the Recognizance whereupon the Action is brought And concluded his plea unde petit judicium si dictus Tho. Leigh actionem suam praed●ct c. Et quod ipse idem Johannes Hanmer restitutionem dict 600 li sc ut praefert a●achiat habere valeat And all the question here was if this marriage had by this manner and afterwards renounced as is aforesaid be such a marriage as is intended in the Covenant so as the said Covenant be satisfied by it And it was argued before the Mayor Recorder and Aldermen of London in their Guild-Hall by Angier of Grays-Inn on the part of Leigh the Plaintiff and he in his Argument did much rely upon the definition of marriage by Justinian in his Institutions Nuptiae maris faeminae conjunctio individua continens viae societatem and the marriage here in question is not according to the said difinition for the persons parties to this contract are not persons able by Law to make such contract because that non attigerunt annos nubiles Ergo nuptiae esse non possunt but only sponsalia a step unto marriage And there is also rendred one reason of the said definition upon the word individua individuam dico quia non nisi morte aut divortio separandum but the marriage now in question might be dissolved without death or divorce as it is in our case by disagreement And see Jurisprudentiae Romanae Lib. 1. Cap. 33. Societas consortium omni vita inter marem faeminam ad concubitum which is societatis hujus consummatio And as every Act doth consist upon three things 1. Inceptio 2. Progressio 3. Continuatio so is it in the Case of marriage but in this case when Thomas Hanmer took the said Eliz. to Wife that is but an inception but the progression and consummation of it is cut off by the disagreement and he much relyed upon the words of the Covenant s● dicta Eliz. ad id condescendere agreare vellet so as there is not any liberty left to the Defendant for the agreement or disagreement of the Son but he ought to agree at the peril of his Father but if Eliz. will not agree then the Defendant is not at any mischief for in such case the Covenant doth not extend to him and also here the Father is bound that his Son a stranger to the Obligation should marry the said Elizabeth which he ought to procure at his peril or otherwise he shall forfeit his Bond. Egerton Solicitor of the Queen argued to the contrary This marriage as much as concerns this Covenant is to be considered according to the reason of the common Law and not according to the rules and grounds of the Canon or Civil Law not as a marriage to right but as a marriage in possession and marriage in possession is sufficient always in personal things and causes especially where the possession of the Wife is in question 2 Roll. 585. but where the possession of the Husband is in question there marriage in right ought to be and where marriage in possession fals in averment there it shall not be tried by the Bishop as in the Case of a marriage of right where never accoupled in loyal matrimony is pleaded but by the Country for in case of Wife in possession never accoupled in matrimony is no Plea Postea 181. 12 Len 170. 171. ●3 Len. 129. but not his Wife which see 12 E. 3. br 481. A. brought an Action of Trespass against B. and C. B. pleaded that C. is Wife of the Plaintiff and demanded Iudgment of the Writ the Plaintiff by Replication said never accoupled in Lawful matrimony but it was not allowed but was driven to say not his Wife for if C. was the Wife of the Plaintiff in possession or by Reputation it is sufficient to abate the Writ see also 49 E. 3. 18. by Belknap the right of the Espousal is always to be tried by the Bishop but the possession of the marriage not as in Assize by A. and

K. his Wife the Tenant demanded Iudgment of the Writ upon special shatter and concluded so is the said K. our Wife and not the Wife of A. So in a Cui invita by B. and C. his Wife the Tenant pleaded never accoupled in loyal matrimony the same is no answer to the Wife for she demanded in her own right and if he who aliened was her Husband in possession the Wife could not have other Action for Assize doth not lie because he was her Husband in fact at the said time in possession And see also 50 E. 3. 20. adjudged according to the opinion of Belknap And see also 39 E. 3. As to the marriage in right as the case in question is for upon such marriage if the Husband be murdred before disagreement the Wife shall have an Appeal of Murder and a Writ of Dower so where Appeal is brought of the Rape of his Wife although she be his Wife but in possession and not in right 11 H. 4. 13. by Hulls 168. and by Littleton if the Wife be of the age but of nine years she shall have Dower which see also 35 H. 6. and yet Dower shall never accrue but in case of marriage in right for there never coupled in marriage is a good Plea See 12 R. 2. Dower 54. In Dower the Tenant pleaded that the Husband at the time of his death was but at the age of 10 years and the Demandant now but 11 years and yet Iudgment was given for the Demandant for by Charleton the same was a marriage in right until disagreement See 22 Eliz. Dyer 369. A woman at full age marrieth a Husband of 12 years who dieth before the age of consent the same is a good marriage and so ought to be certified by the Bishop and 7 H. 6. 11. by Newton a woman married within age of consent may bring an Action as a feme sole and the Writ did abate Stamford Prerogat 27. 19 E. 3. Judgment 123. In a Writ of Ward the Iury found that the Infant was of the age of 10 years and no more but they did not know whether she was married or not but de bene esse if she be married assess damages one hundred pounds and if not five pounds upon which it appeareth that marriage at such an age is such a marriage upon which the Lord shall recover damages See 13 H. 3. gard 148. such marriage in the life of the Ancestor infra annos nubiles if there be no disagreement shall bind the King And after the death of the Ancestor the heir shall remain in custodia Domini Regis usque ad aetatem ut consentiat vel dissentiat 45 E. 3. 16. In a Writ of Ward the Infant was found of the age of 12 years and the Iurors gave damages 300 marks if he were married and 27 H. 6. gard 118. 47 E. 3. Br. Trespass 420. and Fitz. Action upon the Statute 37. Trespass de muliere abducta cum bonis viri where the wife is within the age of consent and if I be bounden unto another in an Obligation upon condition to pay a sum of mony upon the marriage day of I S. now if I S. be married within the age of consent I am bound to pay the mony the same day although afterwards the parties do dissent and the Wife after such marriage shall be received in a Plea real upon the Default of her Husband and the words si dicta Eliz ad id condescendere agreare vellet are to be understood of an agreement at the time of the marriage and here the time is limited for the solemnization of the marriage scil at or before they shall have accomplished their several ages of 21 years makes the matter clear For it is in the election of Hanmer the Father to procure this marriage scil that his Son shall take to Wife the said Elizabeth at which of the two times he will scil at or before c. to the marriage before c. is as effectual in respect of the performance of this condition as if the marriage had been had after and as the case is the condition could not be better performed for if the marriage had been stayed till after 14 years c. although the marriage doth not ensue yet the Obligation had been forfeited and that the marriage be solemnized just at the age of both of 14 years was impossible for Thomas Hanmer was the elder by 2 years than the said Elizabeth and therfore they ought to be married at such time which might stand with the condition and the same is done accordingly And as to that which hath been objected That now by disagreement the marriage is determined we ought to observe that Hanmer was bounden for the performance of the Covenant and that his son and heir apparent maritaret in uxorem duceret dictam Eliz. ud vel ante c. which is executed accordingly and he is not bounden for the continuance of the said marriage but the continuance of the same ought to be left to the law which giveth to the parties liberty to continue the marriage by agreement or to dissolve it by disagreement And therefore if I am bounden to you that I S. who in truth is an Infant shall levy a Fine before such a day which is done accordingly and afterwards the same is reversed by Error yet notwithstanding the condition is performed c. and afterwards Iudgment was given against the Plaintiff LXVIII The Earl of Warwick and the Lord Barkleys Case Pasch 29 Eliz. In the Common Pleas. AMbrose Earl of Warwick and Robert Earl of Leicester brought a Writ of Partition against the Lord Barkley Partition Challenge in which the parties pleaded to issue And now at the day of the Enquest the Defendant did challenge that in the whole Pannel there were but two Hundreders and at the first it was doubted by the Court if upon the Statute of 27 Eliz. cap. 6. by which it is Enacted That no further challenge for the Hundred shall be admitted if two sufficient Hundreders do appear the Enquest shall be taken But at length the whole Court was clear of opinion that the said Statute did extend but to personal Actions but this Action of Partition is a real Action and Summons and severance lieth in it but not process of outlawry and therefore here four Hundreders ought to be returned so in an Action of Wast although it be in the personalty and therefore the Council of the Plaintiffs prayed a Tales LXIX The Archbishop of York and Mortons Case Pasch 29 Eliz. In the Common Pleas. THe Archbishop of York recovered in an Assize of Novel disseisin against one Morton before the Iustices of Assize 3 Len. 159. Error upon recovery in Assize upon which Iudgment Morton brought a Writ of Error before the Iustices of the Common Pleas and after many motions at the bar it was adjudged that a Writ of Error upon the said Iudgment

did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland Error shall be brought in the Kings Bench in England 15 E. 3. Error 72. Fenner who was of Council with the Archbishop demanded of the Court how and in what manner the Record shall be remanded to the Iustices of Assize so as the Archbishop might have execution To which the Court said that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by Mittimus to the Iustices of Assize But Fenner made a difficulty of it to take such course for the remanding of it for doubt they would not allow it to be a Record where it is not a Record for upon the matter the Record is not removed but remains with the Iustices of Assize Then Anderson said Sue Excution out of the said Record but because the Record came before us by Writ of Error it shall be also removed and remanded by Writ and so it was LXX Kempe and Carters Case Pasch 29 Eliz. In the Common Pleas. THomas Kempe brought Trespass Copyhold for breaking of his Close against Carter and upon pleading they were at issue if the Lord of the Manor aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict secundum consuetudinem manerii praedict and it was given in Evidence that within the said Manor were divers customary Lands and that the Lord now of late at his Court of the said Manor granted the Land c. per copiam rotulorum curiae where it was never granted by copy before It was now holden by the whole Court that the Iury are bound to find Dominus non concessit for notwithstanding that de facto Dominus concessit per copiam rotulorum curiae yet non concessit secundum consuetudinem manerii praedict for the said Land was not customary nor was it demisable for the custom had not taken hold of it In the same Case it was also shewed that within the said Manor some customary Lands are demiseable for life only Evidence of customs and some in Fee and it was said by the Lord Anderson that he who will give in Evidence these several customs ought to shew the several limits in which the several customs are severally running as that the Manor extends into two Towns and that the Lands in one of the said Towns are grantable for lives only and the Lands in the other in Fee and he ought not to shew the several customs promiscuè valere through the whole Manor And he remembred a Case of his own experience scil The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold scil Sook-land and Bond-land and by several customs disseverable in several manners As if a man be first admitted to Sook-land and afterwards to Bond-land and dieth seised of both his Heir shall inherit both but if he be first admitted to Bond-land and afterward to Sook-land and of them dieth seised his youngest Son shall inherit and if of both simul semel his eldest Son shall inherit But if he dieth seised of Bond-land only it shall descend to the youngest and if customary Land hath been of ancient time grantable in Fee and now of late time for the space of forty years hath granted the same for life only yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case If customary Land within a Manor hath been grantable in Fee if now the same Escheat to the Lord and he grant the same to another for life the same was holden a good grant and warrantable by the custom and should bind the Lord for the custom which enables him to grant in Fee shall enable him to grant for life and after the death of the Tenant for life the Lord may grant the same again in Fee for the grant for life was not any interruption of the custom c. which was granted by the whole Court. LXXI Walker and Nevils Case Pasch 29. Eliz. In the Common Pleas. Dower WAlker and his Wife brought a Writ of Dower against Jervice Nevil and judgment was given upon Nihil dicit and because the first Husband of the Wife died seised a Writ of Enquiry of Damages was awarded by which it was found that the Land which she ought to have in Dower the third part was of the value of eight pound per annum and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem assident damna to eight pounds and it appeared upon the Record that after Iudgment in the Writ of Dower aforesaid the Demandants had execution upon habere facias seisinam Damages so as it appeareth upon the whole Record put together that damages are assessed for eight years where the Demandants have been seised for part of the said eight years upon which the Tenant brought a Writ of Error and assigned for Error because damages are assessed untill the time of the Inquisition where they ought to be but to to the time of the Iudgment but the Exception was not allowed Another Error was assigned because that where it is found that the Land was of the value of eight pounds per annum they have assessed damages for eight years to eighty pounds beyond the Revenue for according to the rate and value found by verdict it did amount but to sixty four pounds but that Error was not also allowed for it may be that by the long detaining of the Dower the Demandants have sustained more damages than the bare Revenue c. Another Error was assigned because Damages are assessed for the whole eight years after the death of the Husband where it appeareth that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower and upon that matter the writ of Error was allowed LXXII Archpool against the Inhabitants of Everingham Pasch 29 Eliz. In the Common Pleas. IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham the Iury found that the Plaintiff was robbed 2 Januarii post occasum solis sed per lucem diurnam and that after the Robbery committed the Plaintiff went to the Town of Andover and advertised the Baylies of the said Town of the said Robbery and further found that the said Town of Andover is not within the said Hundred of Everingham and that there is another Town nearer to the place where c. the Robbery was done than the said Town of Andover within the said Hundred but the said Town of Andover was the nearest place where c. by the Kings high-way It was moved that upon this matter the Plaintiff should not have judgment

for that he hath not made his Fresh sute according to the Law for he ought to have begun his Fresh sute within the Hundred where the Robbery was done and it was also objected that the Robbery was done post occasum solis in which Case the Hundreders are not to pursue the Malefactors And Walmsley Serjeant cited a Case out of Bracton Si appellatus se defenderit contra appellantem tota dle usque ad horam in qua Stellae incipiunt apparere recedat quietus de appello and it is not reason to drive the Hundreders to Follow felons at such a time 1 Cro. 270. when for want of light they cannot see them And all the Iustices were clear of opinion that if the Robbery was done in the night time the Inhabitants are not bound to make the pursute And by Rhodes if in a Praecipe quod reddat of Lands the Sheriff summons the Demandant upon the Land in the time of night such a summons is meerly void LXXIII Wiseman and Wisemas Case Pasch 29 Eliz. In the Common Pleas. Intrat Trin 28. Rot. 1458. IN an Action of Debt by Wiseman against Wiseman the Case was Debt 1 And. 160. Owen 140. that one Wiseman was seised of the Lands and by his Will devised 1. I will and bequeath unto my Wife B. acre for the Term of her life the remainder to my Son Thomas in tail Item I will and bequeath unto my Son Thomas Devises all my Lands in D. and also my Lands in S. and also my Lands in V. Also I give and bequeath unto the said Thomas my Son all that m● Island or Land enclosed with water which I purchased of the Earl of Essex To have and to hold all the said last before devised premisses unto the said Thomas my Son and the Heirs of his Body The only matter was If the Habendum shall extend to the Island only in which Case Thomas shall have but for life in the Lands in D. S. and V. or unto the Island and also to the Lands in D. S. and V 2 Roll. 60. Roph. 126. in which Case he shall have Fee-tail in the whole And it was argued by Fenner that the Habendum should extend to the Island only as he said the opinion of the Iustices of this Court was in 4 Eliz. in another Case I devise my Manor to D. my eldest Son and also my Land in S. in tail in that Case the entail limited for the Land in S. shall not extend to the 1 Roll. 844. said Manor and of such opinion was Weston Welsh and Dyer Brown contra that the Son hath tail in both But if the words of the devise had been I devise my Manor of D. and my Lands in S. to my Son in tail here the Son had an estate tail in both So it hath been adjudged that if I devise Lands to A. B. and C. successively as they be named the same is good by way of Remainder Walmesley contrary and he relied much upon this that the words of the Habendum are in the plural number 2 Bulst 180. 181. All the last before devised premisses whereas the thing lately devised by the Will was an Island in the singular number which cannot satisfie the Habendum Extent of an Habendum which is in the plural number and therefore to verifie the plural number in the Habendum the Habendum by fit construction shall extend to all the Lands in D. S. and V. and so upon his motion made at another day it was resolved by all the Iustices that the Habendum should extend to all the said Lands and the Habendum should not streighten the Devise to the Island only LXXIV Fullwood and Fullwoods Case Pasch 29 Eliz. In the Common Pleas. Bail renders himself in Court. IN an Action upon the Case the Defendant put in bail to the Court to answer to the Action and now Iudgment being given against him he came into Court and rendred himself and prayed that in discharge of his sureties that the Court would record the rendring of himself which was granted And the Court demanded of the Plaintiff if he would pray execution for the body against the Defendant who said he would not whereupon the Court awarded that the sureties should be discharged and the Rule was entred that the Defendant offered himself in discharge of his sureties and Attornatus Querentis allocatus per curiam c. dixit se nolle c. Ideo consideratum fuit per curiam quod tam praedict defend quam praedict Manucaptores de recognitione praedict denariis in eadem contentis exonerentur LXXV Pasch 29 Eliz. In the Common Pleas. THe Case was He in the Reversion upon a Lease for years makes a Charter of Feoffment to divers persons to the use of himself for life Feoffments and after to the use of his eldest Son in tail and the words of the Charter were Dedi Concessi Barganizavi Feoffavi and he sealed and delivered the deed but no livery of seisin was made and afterwards he came to his Lessee for years and said to him that he had made a Feoffment and shewed also the uses but did not shew to whom the Feoffment was made to whom the Lessee said you have done very well I am glad of it Attornment And if that were a good Attornment was the Question It was said that that was the Case of one Arden And Gent and Manwood were of opinion that the same was no Attornment because it was not made to the Feoffee scil to the Grantee of the Reversion and so it was ruled in this Case for Attornment ought to be to the Grantee himself and not to Cestuy que use 1 Cro. 251. Tythes and where the spiritual court shall have jurisdiction of them LXXVI The Parson of Facknams Case Pasch 29 Eliz. In the Common Pleas. THe Parson of great Facknam brought an Action of Trespass against the Parson of Hannington and the Case was If the Parson of one Parish claim by prescription a portion of Tythes out of the Parish of another if the Spiritual Court shall have the Iurisdiction for the tryal of it And the opinion of the whole Court was clear that it should because that the matter is betwixt two spiritual persons and concerning the right of Tithes As 35 H. 6. 39. I. Vicar of B. brought Trespass for taking away of forty loads of Beans c. The Defendant pleaded that he is Parson of the said Church of B. and the Plaintiff is Vicar c. and before the Trespass c. the Beans were growing in the same Town and severed from the nine parts and he took them as belonging to his said Church and demanded Iudgment of the Court c. The Plaintiff said that he and all his Predecessors Vicars c. time out of mind c. have used to have the Tithes of such a Close c. belonging to his Vicaridge and

the of Inner Temple being at the Bar when this Case was moved said unto Serjeant Shuttleworth that the Case had been adjudged against the Demandant and Scot Prothonotary did affirm that the Lord Dyer was of opinion that the Woman ought to be endowed according to the Custom and not otherwise And Sayer one of the Clarks of Nelson chief Prothonotary said that it was adjudged accordingly 16. Eliz. and that the Case was betwixt Gelbrand Demandant and Hunt Tenant LXXXIV Beverlie and Cornwals Case Mich. 29 Eliz. In the Common Pleas. BEverlie brought a Quare Impedit against Cornwal Quare Imped 2 Roll. 805. Out-lawry pleaded and had Iudgment to recover upon a Demurrer in Law Which see Mich. 28 29 Eliz. And now the Queen brought a Scire facias upon the matter That the said Beverly after the said Iudgment was out-lawed in an Action of Trespass at the sute of I. S. and upon that a Scire facias issued ad respondendum Quare dicta Domina Regina should not have execution of the Iudgment aforesaid by reason of the Out-lawry aforesaid and declared in all as aforesaid And further that the said Cornwal had resigned Vpon which Beverlie did demur in Law. And this Term it was argued by Puckering Serjeant for the Queen that by that Out-lawry the Interest to present is tranferred to the Queen Which see 5 H. 5. 3. Tenant at will of a Manor to which an Advowson is appendant is out-lawed in an Action of Trespass the Church voided by award of the Court it belongs to the King to present And see 8 R. 2. scil Quare Imped 200 A. seised of an Advowson the Church becomes void A. is Out-lawed in a personal Action the King shall have a Quare Impedit in that Case And as to the Exception taken because the Out-lawry is not sufficiently layed in the Writ but only generally viz. utlagatus in Com. Lincoln ad sectam J.S. in placito transgressionis without shewing the Out-lawry at large There is a difference where an Out-lawry is pleaded by way of ●●r and disability of the person c. and where it is set down in a Writ for a Writ ought shortly and compendiously to comprehend the cause of the Action especially judicial Writs which are not tied to any form certain especially because that the Out-lawry set forth in the Writ is a Record of the same Court For the perclose of the Scire facias is prout per recordum hic in curia plenius apparet And that Record being in the Court the party cannot plead Nul tiel record as if the Record had been in any other Court But he ought to demand Dyer of the Record Which vide 5 H. 7. 24. Walmesley Serjeant contrary By Out-lawry in an Action personal the King cannot seise Land but only take the profits of it 9. H. 6. 20. 21 H. 7. 7. And as our case is nothing doth accrew to the Queen by this Out-lawry for the Queen her self is seised of the Advowson because she usurpando presentavit and her Clerk admitted and although Beverlie hath recovered in a Quare Impedit against the Presentee of the Queen yet because he is not removed by a Writ to the Bishop the Queen continues Patron and nothing remains in Beverlie that may be forfeited But Rhodes and Periam contrary for by Periam if after such Recovery the Incumbent dieth the Patron shall present for by the Iudgment in the Quare Impedit for Beverlie the Patronage is rev●●ted in him without any other execution And by Rhodes If after such Iudgment the Patron dieth his Executors shall have a Writ to the Bishop And by Walmesley the Scire facias doth not lie for the Queen for that Writ always runs in privity of the Record upon which it is grounded to which Record the Queen is a stranger and by Out-lawry in an Action personal no Action real shall escheat and therefore this Scire facias being in the nature of a Quare Impedit upon which it is grounded which is a real Action or at least a mixt shall not be forfeited and also it shall be absurd to grant now a Writ to the Bishop for the Queen whereas Iudgment was given against the Queen as in our case it hath been And in no Case the Iudges shall respect the title of the Queen being a stranger to the Writ But where a title for the Queen doth appear upon the pleading or otherwise within the Record 11 H. 4. 224. by Hankford If a clear title for the King be confessed by the parties upon pleading a Writ to the Bishop shall issue for the King so if such matter appear in Evidence 3 Cro. 427. c. the Land in question is seisable into the Kings hands See 9 H. 7. 9. 16 H. 7. 12. so 21 E. 4. 3. by Choke and F.N.B. 38. e. In a Quare Impedit betwixt two strangers if title doth appear to the Court for the King a Writ to the Bishop shall issue forth for the King but in our Case nothing is within the Record to intitle the Queen but all the matter upon which a Writ to the Bishop is prayed for the Queen is out of the Record and a foreign thing And as to the Out-lawry he conceived it is not sufficiently alledged for he ought to have made mention of the Exigent and of all the proceeding upon it and the Iudgment of the Coroners and for defect of that no title is given to the Queen and of that opinion was the Lord Anderson and that it ought to be set forth in the Writ in what Term the said Beverly was out-lawed and the Number Roll also so that if Beverly had demanded Dyer of the Record the Court might know it And by Nelson chief Prothonotary the Term in which the Out-lawry was ought to be comprised in the Scire facias Vide Book of Entries 485. where in a Quare Impedit for the King upon such a title the King shewed in his Count that A. was seised of such an Advowson and granted the next Avoidance to B. and that afterwards one C. impleaded the said B. in a Writ of Account in such a Court where Nihil was returned upon the summons upon which issued forth a Capias upon which is returned Non est inventus c. upon which an Exigent upon which the Sheriff did return quod ad com tent c. ad v. comitat tunc prox praecedent the said B. exactus fuit non comparuit quia ad nullum eorundem comitat apparuit utlagatus fuit and after the the Church voided and that by reason thereof it did belong to the King to present vide ibid. 196. accordingly And as to the Scire facias all the Iudges agreed that upon the matter the Writ lay well enough And it is good discretion in the Court to grant such a Writ And by Rhodes If two Coparceners of an Advowson make composition to present by turns and afterwards

their amendment makes alteration of the substance of the pleading or of the Verdict as 20 H. 6. 15. In Trespass the Plaintiff declared of a continuando usque diem impetrationis brevis viz. 18. die Martii where the Teste of the Writ was 2 die Januarij the Defendant pleaded to Issue which was found for the Plaintiff and that Misprision of the Teste or date of the Writ could not be amended And no amendment upon this Stat. of 27 Eliz. two things are to be considered First that the Iudges in such amendment medle not with matter nor alter the substance Secondly that they do not amend but according to their judicial knowledge Anderson to the same intent for as it hath been said before the truth of the Case doth not appear unto us according to which we can judge and I conceive that upon any amendment upon this Statute we cannot take out one Roll and put in another and as our case is we cannot amend this defect without taking out the whole Roll and therefore in the Case of Leonard which was late Custos brevium here where in a Replevin he avowed for a Rent-service and upon especial Verdict the Case was that Sir Henry Isley held of the said Leonard by Fealty and the Rent mentioned in the Avowry and was attainted of high Treason and the King seised and granted the Land to the Plaintiff upon whom Leonard avowed for the Rent-service and I and my companions were agreed that the rent notwithstanding the seisure and grant of the King remained distrainable of common right but Leonard could not have return of the Cattel because he had avowed for a Rent-service now it appeareth to us upon the Verdict that he had right to so much rent but not to such a Rent but a Rent-seck distrainable of common right so a Rent in another degree and we also agreed that the Avowry was not amendable for then upon such amendment we ought to take out a whole Roll which was not intended by this Statute And he conceived also that in debt against Executors in the Debet detinet such a Writ shall not be amended by this Statute and he conceived that his exception to the Bar quod ad medietatem 60. Messuag c. parcel medietatis c. is relieved by this Statute for the meaning appeareth And also the exception that it is not expresly shewed that the Fine was engrossed in the same Term in which it was levied And Periam moved another matter Co. 1 Inst 71. b. 72. a. if now the parties demurring in Law as to part of the Land in demand and being at Issue upon the residue if the Court shall adjudge the matter in Law before the Issue be tried or not 32 H. 6. 5 6. In Trespass for taking of his Cattel the Defendant as to parcel pleaded not guilty and as to the remnant pleaded another Plea upon which the parties did demur and there they proceeded to trial before the matter in Law determined and found for the Plaintiff and he had Iudgment thereupon for the damages but the costs were suspended until c. And the Defendant brought his Writ of Error 48 E. 3. 15. In an Action of Wast as to parcel the Defendant pleads no Wast and as to the rest pleaded matter in Law upon which there was a demurer joyned It was holden that the Issue should not be tried until the matter in Law be determined But it was said by Fulthorpe in Trespass if the Defendant to parcel plead the Enquest and to other parcel matter in Law in such case he should proceed to trial presently and damages should be taxed of the whole as well of that upon which there was a demurrer in Law as of that of which the Issue was joyned ad quod non fuit responsum See also 11 H. 4. 228. In Trespass the Defendant pleaded to Issue for part and for the residue did demur in Law Process for the trial issued before the matter in Law determined And Periam conceived that the Court might proceed in such Case the one way or the other As to the matter in Law whether the issue in tail upon this Fine should have the Averment he conceived that he should not have the said Averment for that it should be very perilous to the Inheritances of the subjects And he argued much upon the dignity of Fines out of Bracton and Glanvil whom he called Actores non Authores Legis that Fines at the common Law were of great authority until the Statute of West 2. And afterwards by the Statute of 34 E. 3. of non-claim from whence they became to be of so little value in Law that they were accounted no other than Feoffments upon Record so as thereby no assurance was of Inheritances but a general incertainty until the Statute of 4. H. 7. by which Statute they were restored to their ancient power and virtue After which Statute many shifts were devised to creep out of it So as the Statute of 32 H. 8. was made to take away all questions and ambiguities which were conceived upon the said Statute of 4 H. 7. And therefore we who are Iudges ought to frame our Iudgments for the maintaining of the authority of Fines for so the possessions and inheritances of the Subjects shall be preserved And that is the reason that if a stranger levy a Fine of my Land in my name that I have not any remedy but a Writ of Deceit against him who levyes the Fine so if a Feme-covert levyeth a Fine of her Land as a Feme-sole the same shall bind her after the coverture if the Husband do not enter upon the Conusee during the coverture and interrupt the possession gained by the Fine And 17 E. 3. and our Books are very plentiful to this purpose that the Law doth aerge admit of such allegations against such Fines A Fine was pleaded in Bar of Land in A. B. and C. he against whom it was pleaded was not received to aver against the supposal of the Fine that there was no such Town or Hamlet as A. 46 E. 3. 5. A woman Tenant in tail had Issue a Daughter who was inheritable to the tail the Daughter took a Husband they both living the Mother and during her seisin levied a Fine of the Land entailed to a stranger sur conusans de droit come ceo c. who rendred the Land to the Husband and Wife in specil tail the Husband died having Issue the Wife took another Husband had Issue and died the Husband to entitie himself to the Land as Tenant by the curtesy would in pleading have averred the seisin of the Mother at the time of the Fine levyed and he could not and yet he was a stranger to the Fine but he was privy to the estate and his claim was by her who levyed the Fine 6 E. 3. 46. Fitz. Averment 40. In a Writ of Entry sur dissei sin the Fine of the

because without summons but where summons issueth and the same is entred upon the Roll there may the vouchee at the Return appear in person or by Attorny at his Election And that was the clear opinion of all the Iustices and also of the Prothonotaries CV Keys and Steds Case Mich. 29 30 Eliz. In Communi Banco IN a Formedon by Keys against Sted the Case was the Sted and his Wife were Tenants for life Formodon 2 Len. 9. the Remainder over to a stranger in Fee and the Writ of Formedon brought against Sted only who made default after default whereupon came his Wife and prayed to be received to defend her right which was denied her by the Court for this Recovery doth not bind her and it is to no purpose for her to defend her right in that Action which cannot here be impearched Whereupon he in the Remainder came and prayed to be received and the Court at first doubted of the Receit forasmuch as if the Demandant shall have Iudgment to recover he in the Remainder might falsify the Recovery because his estate upon which he prayeth to be received doth not depend upon the estate impleaded scil a sole estate whereas his Remainder doth depend upon a joynt estate in the Husband and Wife Falsifier of Recovery not named in the Writ But at the last notwithstanding the said Exception the Receit was granted See 40 E. 3. 12. CVI. Liveseys Case Mich. 29 30 Eliz. In Communi Banco Writ of Right IN a Writ of Right against Thomas Livesey of the Mannor of D. de duabus partibus Custodiae Forrestae de C. the Tenant did demand the view and he had it and return was made and now the Writ of Habere facias visum was viewed by the Court and it was Visum Manerii duarum partium Custodiae c. And it was holden by the Court not to be a sufficient view for the Forrest it self ought to be put in view scil the whole Forrest View and not duae partes tantum as where a Rent or Common is demanded the Land out of which the Rent or Common is going ought to be put in view and there a Writ of Habere facias visum de novo issued forth CVII Germys Case Mich. 29 30 Eliz. In Communi Banco GErmy brought Debt upon a Bond against A. as Executor Debt 2 Len. 119. and the Case was That the Testator of A. by his Will did appoint certain Lands and named which should be sold by his Executors and the moneys thereof arising distributed amongst his Daughters when they have accomplished their ages of one and twenty years the Lands are sold if the moneys thereof being in the hands of the Executors until the full age of the Daughters shall be assets to pay the debts of the Testator And by the clear opinion of the whole Court Assets Post 224. the same shall not be assets for that this money is limited to a special use CVIII Mich. 29 30 Eliz. In Communi Banco IN an Action of Debt upon an Obligation the Defendant saith that the Plaintiff shall not be answered for he is out-lawed and shewed the Outlawry in certain by the name of I. S. of D. in the County of c. The Plaintiff shewed that at the time of the sute begun against I.S. upon whom the Out-lawry was pronounced the said I.S. now Plaintiff was dwelling at S. absque hoc that he was dwelling at D. Vide 21 H. 7. 13. And it was holden a good Replication to avoid the Out-lawry without a Writ of Error by Anderson 10 E. 4. 12. For if he were not dwelling at D. then he cannot be intended the same person See 39 H. 6. 1. CIX Mich. 29 30 Eliz. In Communi Banco IT was agreed by the whole Court and affirmed by the Prothonotaries That if in Account the Defendant be adjudged to account and be taken by a Capias ad computandum and set to mainprize pendent the Account before the Auditors and doth not keep his day before them that now a Capias ad computandum de novo shall issue forth against him CX Glosse and Haymans Case Mich. 29 30 Eliz. In the Common Pleas. JOan Glosse brought an Action of Trespass vi armis Trespass vi armis against a Servant for carrying away his Masters goods Owen 52. Mor● 248. against John Hayman who pleaded the general Issue and the Iury found this special matter That the Plaintiff was a Grocer in Ipswich and there held a Shop of Grocery quod illa reposuit fiduciam in the Defendant to sell the Grocery Wares of the Plaintiff in the said Shop And further found that the said Defendant being in the said Shop in form aforesaid cepit asportavit the said Wares and did convert them c. It was moved in Arrest of Iudgment that this Action vi armis upon this matter doth not lie but rather an Action upon the Case But the Court was clear of opinion that the Action doth well lie for when the Defendant was in the Shop aforesaid the Goods and Wares did remain in the custody and possession of the Plaintiff her self And the Defendant hath not any Interest possession or other thing in them and therefore if he entermeddle with them in any other manner than by uttering of them by sale according to the authority to him committed he is a Trespassor for he hath not any authority to carry the Wares out of the Shop not sold but all his authority is within the Shop And Rodes put the Case of Littleton 25. If I deliver my Sheep to another to manure his Land or my Oxen to plow his Land and afterwards he kills them I shall have an Action of Trespass against him And afterwards Iudgment was given for the Plaintiff CXI Martin and Stedds Case Mich. 29 30 Eliz. RIchard Martin Alderman of London brought an Action upon the Case against Stedd and declared That whereas the Queen by her Letters Patents dated the 27. of August anno 24. of her Reign had granted to the Plaintiff the Office of Master of the Mint through all England to exercise the said Office secundum formam quarundam Indent betwixt the said Queen and the said Plaintiff conficiendam and that in January following the said Indenture was made by which it was agreed betwixt the said Queen and the Plaintiff that the money in posterum should be made in such manner c. according to the true Standard and declared that he had duly and lawfully made all the money according to the said Standard Yet the Defendant machinans c. had slanderously spoken and given out speeches in these words Mr. Martin hath not made the money as good and fine as the Standard by an half penny in the ounce and so he hath saved four thousand pounds It was objected against this Declaration by Walmesley Serjeant that here the Plantiff hath declared upon

the Letters Patents and the Office given by the Letters Patents ought to be exercised according to the Indenture c. And here appears upon the Declaration no Indenture for no enrolment of such Indenture is shewed and if it be not enrolled then there cannot be any Indenture betwixt the Queen c. and then the Qeeen cannot have an Action upon it for want of enrolment See 21 H. 7. 21. 1 H. 7. 28. and 31. 5 E. 4. 7. and also if there be not a sufficient Indenture then the Plaintiff is not Master of the Mint and then also there is not any new Indenture And then the Plaintiff ought to make the money according to the the old Standard and then might the Defendant well justifie the words Another Exception was taken because the Plaintiff is not at any damage for the Queen cannot have against him but an Action of Covenant upon the said Indenture because the Defendant hath not made the money accordingly which matter is not actionable no more than if the Farmer of the Queen had brought this Action against one for speaking that he had broken the condition or covenants of his Lease And as unto these words So that the Defendant hath saved four thousand pounds those words are not actionable for it may be he hath saved this four thousand pounds to the Queen and such construction the Iudges ought to make of such ambiguous words in such cases scil in optimam partem It was adjorned CXII Mounson and Wests Case Mich. 29 30 Eliz. In the Common Pleas. Challenge 3 Len. 22● IN an Action of Trespass between Mounson and West the parties were at Issue and now at the Return of the Pannel the Defendant challenged the Array because it was made by Bartholomew Armin who took to Wife the Cosin German of the Plaintiff ex ea had Issue living the mother being dead And upon this challenge the Plaintiff did demur in Law And it seemed to the Lord Anderson that it is not a principal challenge but only to Favour For the matter of the challenge is not consanguinity but only affinity And so it seemed to Periam And Rhodes cited a case adjudged in the Kings Bench. Markham brought an Action upon the Case against Lee who at the Nisi Prius challenged the Array because the Sheriffs wife was sister to the Plaintiffs Wife and that was before the Lord Dyer at Nottingham and that challenge was holden there not to be a principal challenge upon which Error was brought in the Kings Bench And Error assigned in that and for that cause the Iudgment was reversed And by Windham the Writ of Venire facias is quia nulla affinitate c. so as affinity is presumed in Law not indifferent And by Anderson that is to be intended of the Iurors and not of the Sheriff 22 E. 4. 2. The Array was challenged because that the Sheriff c. had married A. Daughter of Eliz. Sister of the Mother of the Plaintiff and that was holden a principal challenge 20 H. 7. 7. 26 E. 3. 21. And afterwards at another Term the Case being moved Anderson Rhodes and Windham were clear of opinion Dy. 37. 191. 319. that it is a principal challenge but Periam haesitavit and put a difference betwixt consanguinity and affinity for affinity is not a principal challenge unless it be averred that the Issue c. is inheritable to the Land. And Anderson put the Case in 14. H. 7. 2. Where one challenged because one of the Iurors had married the Mother of the Defendant it was holden a principal challenge And 15 H. 7. 9. where the challenge was for that the Brother of the Wife of the Defendant had married the Daughter of the Sheriff CXIII Sir Thomas Greshams Case Mich. 29 30 Eliz. In the Exchequer SIr Tho. Gresham being seised of the Manors of Walsingham and Milcham in the County of Norfolk 12 Eliz. Revocation of uses enfeoffed B. and C. to certain uses and that was with clause of Revocation upon the tender of forty shillings and that after such Revocation he might limit new uses and afterwards the year following Sir Tho. Gresham made the like conveyance of his Lands in the County of Suffolk to the said persons to the like uses upon like clause of Revocation upon the tender of forty shillings Sir Thomas tendered to the said Feoffees one sum of forty shillings to revoke the uses raised upon both the Feoffments afterwards raised divers uses of divers of the said Manors holden in Capite Dyer 372. and afterwards Sir Thomas died And afterwards it was resolved by the opinion of the Iustices that by that tender the uses were not revoked but that the Revocation was utterly void for two several sums of forty shillings ought to have been tendered for they were several Indentures and could not be satisfied by one sum After which by a private Act of Parliament 23 Eliz. the said Revocation was enacted and adjudged to be good and sufficient in Law. And now the Lady Gresham was called by process into the Exchequer for a Fine due to the Queen for the said alienation Fine for Alienation because that now the said uses newly raised were good and the said Manor possessed according to the limitation of them for now the Revocation is good because done by the said Statute which recited the whole special matter and that for want of a sufficient Tender the Revocation was void in Law and also reciting the new uses which were declared for the payment of his debts and many honorable Legacies also for the security of those who had purchased underneath the said new uses For remedy whereof it was enacted quod praedict Revocationes bonae sufficientes in lege habeantur reputentur recognoscantur And it was argued by Coke that upon the matter no Fine is due for all those new uses took their essence and effect by that Act of Parliament to which the Queen her self is a party and the principal Agent and therefore against her own Act she shall not claim a Fine c. And also the alienation without licence is a wrong and trespass and an Act of Parliament cannot do wrong and if partition be made betwixt Parceners by Act of Parliament no Fine is due to the Queen which was in ure 23 Eliz. for by Parliament then a Partition was made betwixt the Co-heirs of the Lord Latimer and I do not know that any Fine hath been demanded for it CXIV Bret and Sheppards Case Mich. 29 30 Eliz. In the Common Pleas. Debt BRet brought Debt upon a Bond against Sheppard the Bond was endorced upon condition that where the Defendant was arrested at the sute of one A. if now the Defendant shall appear in the Kings Bench where the process is returnable that then c. And the Defendant said in fact that he had appeared secundum formam effectum conditionis supradict hoc

as in case where the Husband died seised Dy. 370. the which dying seised is not found by the Verdict In which Case it was said by the Court the Demandant might pray Iudgment of the Lands and release damages or the Demandant may aver that the Husband died seised and have a Writ to enquire of the damages quod omnes Pregnotarii concesserunt CXIX Michel and Hydes Case Mich. 29 30 Eliz. In the Common Pleas. Dower DOwer by Michel and his Wife against Lawrence Hyde who appeared upon the grand Cape And it was because that the said Hyde in truth was but Lessee for years of the Land of which c. in which case he might plead non-tenure if now he might wage his Law of non-summons so as the Writ be abated for by the wager of Law he hath taken upon him the Tenancy and affirmed himself to be Tenant 33 H. 6. 2. by Prisoit to which it was said by Rhodes and Windham Iustices that here the Tenant being but Lessee for years is not at any mischief for if Iudgment and Execution be had against him he notwithstanding might afterwards enter upon the Demandant Another matter was moved That where the Writ of Dower was de tertia parte Rectoriae de D. and upon that the grand Cape issued Cape in manum nostram tertiam partem Rectoriae and the Sheriff by colour of this Writ took the Tythes severed from the nine parts and carried them away with him And it was agreed by the said Iustices that the same is not such a seisure as is intended by the said Writ but the Sheriff by virtue of such Writ ought generally to seize but leave them there where he found them And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor CXX Hamington and Ryders Case Mich. 29 30 Eliz. In the Common Pleas. RIchard Haming Executor of Isabel Haming brought Debt upon an Obligation against Ryder Debt Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 And● 162. the Case was that Kidwelly was seised leased for years to John Hamington Husband of Isabel and afterwards John Hamington being so possessed by his will devised that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole and if she died or married that then his Son should have the residue of the said Term not expired John died Isabel entred Devises to whom the said Lawr. coveyed by Feoffment the said Land in Fee and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly exouerated de omnibus prioribus barganijs titulis juribus omnibus alijs oneribus quibuscunque Isabel took to Husband the Son entreth If now the Covenant be broken was the question It seemed to Anderson at the first motion that this possibility which was in the Son at the time of the Feoffment was not any of the things mentioned in the Covenant scil former bargain title right or charge But yet it was conceived by him that the word bargain did extend to it for every Lease for years is a contract and although that the Land at the time of the Feoffment was not charged yet it was not discharged of the former contract And by Windham if I be bounden in a Statute-staple and afterwards I bargain and sell my Lands and covenant ut supra here the Land is not charged but if after the condition contained in the defeazance be broken so as the Conusee extends now the Covenant is broken And by him the word charge doth extend to a possibility and this possibility might be extinct by Livery as all agreed but not translated by grant Ante 33. 3 Len. 43. Covenant or extinguished by release as it was lately adjudged in the Case of one Carter At another day it was argued by Walmesley and he much relied upon the words clearly exonerated utterly discharged or altogether exonerated and without doubt it is a charge which may happen and if it may happen then the Land is not clare exonerated And also former bargains do extend to it and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly and although that at the time of the Feoffment it was but a possibility and no certain interest yet now upon the marriage of Isabel it is become an actual burthen and charge upon the Land and he cited a Case adjudged 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands and covenants that the said Lands are discharged of all charges in that case when the day when the Rent ought to begin is incurred the Covenant is clearly broken for the Lands were not clearly exonerated c. At another day the Case was moved at the Bar. And Anderson openly in Court declared that he and all his companions were agreed that the Land at the time of the Feoffment was not discharged of all former Rights Titles and charges and therefore commanded that Iudgment should be entred for the Plaintiff CXXI Howel and Trivanians Case Hill. 30 Eliz. In the Kings Bench. HOwel brought an Action upon the Case against Trivanian in the Common Pleas and declared Assumpsit that he delivered certain goods to the brother of the Defendant who made the Defendant his Executor and died after which the Plaintiff came to the Defendant and spake with him concerning the said goods upon which communication and speech the Defendant promised the Plaintiff that if the Plaintiff could prove that the said goods were delivered to the Testator 2 Roll. 594. that he would pay the value of them to the Plaintiff And the Declaration was in consideration that the said goods came to the hands of the Testator and also afterwards the goods came to the Defendants hands and upon non Assumpsit pleaded It was found for the Plaintiff and Iudgment given And afterwards Error was brought in the Kings Bench and Error assigned because that the Plaintiff had not averred in his Declaration that he had proved the delivery of the said goods to the said Testator 1 Cro. 105. for the words of the promise are si probare potuisset And also it was assigned for Error that here is not any consideration upon which this promise could receive any strength for the Defendant hath not any profit or advantage thereby scil by the bailment of the said goods to the Brother of the Defendant And also it is a thing before executed and not depending upon the promise nor the promise upon it As the Case reported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in London and two men to whom the Master is well known bail the said Servant and after the Master promiseth to them for their friend-ship to save them harmless from all costs

bargain for cloth as it is in this Case the same doth not maintain the Information So if the Information be granted upon usurious contract by way of mortgage and giveth in Evidence an usurious loan ut supra But if the Information had been conceived generally upon an usurious agreement and giveth in Evidence a loan the same is good enough for every loan is an agreement Manwood There cannot be any loan without bargain nor any forbearing without bargain for he contracts or bargains to do it viz. to lend or forbear Bargain of forbearing is where the first day of payment is not kept and the parties have agreed for a further day for payment c. And it appeareth in this Case that it was a bargain to forbear a sum of mony which should have been paid before And the Information here is upon a bargain by way of loan where was a bargain for forbearing Fuller this word Bargain in the Statute cannot be intended a bargain for wares or such things and so distinct from the other two things c. If in Information upon loan an usurious contract had been given in Evidence that would not maintain the Information And it was moved in this Case if the time of the loan or forbearance of the money shall be accounted according to eight twenty days to every month or by the months in the Kalender viz. January February c. And it seemed to some according to the days as in case of the Statute of 23 Eliz. of Recusants and others conceived contrary in both Cases And Fuller said That in the Case of policy of Assurance made to warrant a Ship one was bound to warrant a Ship for twelve months the truth was she did not perish within the time of the twelve months being accounted according to eight and twenty days but being accounted by the Kalender as January Feb. c. it perished c. and it was said and holden that he had not forfeited his Bond. Gent Baron If I lend one a hundred pounds without any contract for Interest and afterwards at the end of year he gives me twenty pounds for the loan thereof the same is within the Statute for my acceptance makes the offence without any bargain or contract And by Clarke Baron the place where the Defendant accepted excessive Interest ought to be shewed in the Information but not the place where the contract for the loan or forbearance was made for the same is not needful See the Case betwixt Stradling and Morgan Plowd 200. for the setting down of the place in the Declaration where the Extortion was committed The Information here is by way of corrupt bargain and loan The Defendant took at Dertford such a sum where the taking is layed apud Dertford but no place of the corrupt bargain or of the loan And by Gent. If I lend to Beesie for a year and afterwards he takes further forbearance of another year beyond the rate the same is within the Statute but in all Cases the place where the corrupt bargain was made ought to be certainly alledged Manwood Baron the Information is not good for the incertainty of the place where the corrupt bargain was made and although there are many Presidents on the Informes part it is not to purpose for they were admitted without exception and then they passed sub silentio and so of no force There are three things or rather degrees of offences within the Statute In usury within the Statute there ought to be corrupt loan cheivisance or shift 1. corruption 2. he ought to take more than eight pound for one hundred pounds 3. it ought to be for lending or forbearing There was a Case in this Court in the time of this Queen that the Defendant had taken more than ten pounds in the hundred pounds but in the Information no corruption in the bargain was alledged and therefore Iudgment was given against the Informer But in the Case at Bar corruption is set forth in facto and therefore as to that the Information is good enough As unto the forbearing giving of days of payment the same is alledged in the Information but not according to the Statute for the Statute is in the disjunctive but the Information is in the copulative here in our Case the issue is Not guilty under which general issue all the points of the Statute are included and ought to be tried as unto the corruption the same is not sufficiently laid for no place is assigned where the corrupt bargain was made ergo no visne for it to be tried ergo no trial can be ergo no issue for it ergo this point of the Statute doth not come in issue nor can it be tried upon the general issue Not guilty Also he held that all the Offence ought to be within the year for if one make a corrupt bargain for this year and ten years after he takes excessive usury the same is not within the Statute to inform upon it And in truth there is no such offence without corrupt bargain so as he conceived that the word Lending is a strange word but where the Statute is forbearing or giving day of payment in the Information it is giving and forbearing in the copulative that is good enough for the one word enforceth the other and is not double Also the Information hath not shewed whose money it is and therefore it is not good And afterwards Iudgment was given against the Informer and a Writ of Error thereupon brought in the Erchequer Chamber And it was argued by Popham Attorney General that Iudgment ought to have been given for the Queen and the Informer for the shewing of the place where the corrupt bargain was made needs not to be alledged in the Information for the offence punishable by the Statute is the receipt of excessive usury and not the contract And it was the Case of one Bird 20 Eliz. where the Plaintiff shewed the place of the Receipt and not of the contract and yet had Iudgment for the Queen without any exception to it before Iudgment or Error after for the contract is but inducement to the receipt and it shall be tried where the taking was therefore it is not necessary to shew the place of the bargain And it was adjorned CXXVI Saliard and Everats Case Mich. 30 Eliz. In the Exchequer THomas Saliard and Hen. Everat being Recusants convicted Recusants Owen Rep. 37. and not having paid twenty pounds for every month a Commission issued forth to enquire of their Goods and Lands in the County of Suffolk to levy thereon the Debt and penalty due to the Queen And now the Commission being returned the parties appeared and by their Council shewed that some of their Lands returned in the Commission are Copy-hold and prayed as to those Manus Dominae Reginae amoveantur and that upon the Statute of 29 Eliz. cap 5. concerning Recusants viz. that upon default of payment of penalties c.

And at another day Wray said Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good but in this case it appears that the parties who made the partition were in the house for they were Tenants in common of the Messuage and a close adjoyning to it and made partition that one should have the house 6 Co. 12. and the other the close so as they were not upon the close when they made the partition and then it was void for the close and if for the close then also for the house And Iudgment was given accordingly CXXXVII Cook and Songats Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the case by Cook against Songat the Plaintiff declared Quod cum quaedam Lis and controversie had been moved betwixt the Plaintiff Lord of the Manor c. and the Defendant claiming certain Lands parcel of the said Manor to hold it by copy and whereas both parties submitted themselves to the Iudgment and Arbitrament of I. S. Counsellor at Law concerning the said Land and the title of the Defendant to it The Defendant in consideration that the Plaintiff promised to the Defendant that if the said I. S. should adjudge the said Copy to be good and sufficient for the title of the Defendant that then he would suffer the Defendant to enjoy the said Land accordingly without molestation The Defendant reciprocally promised the Plaintiff that if the said I. S. should adjuge the said Copy not sufficient to maintain the title of the Defendant that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute And shewed further that I. S. had awarded the said Copy utterly insufficient c. yet the Defendant did continue the possession of the Land c. And by Godfrey here is not any consideration But by Gawdy the same is a good and sufficient consideration because it is to avoid variances and sutes And Iudgment was given for the Plaintiff CXXXVIII Pawlet and Lawrences Case Pasc 30 Eliz. In the Kings Bench. GEorge Pawlet brought an Action of Trespass against one Lawrence Parson of the Church of D. for the taking of certain Carts loaded with Corn which he claimed as a portion of Tythes in the Right of his Wife and supposed the Trespass to be done the seven and twentieth of August 29 Eliz. upon Not guilty it was given in evidence on the Defendants part that the Plaintiff delivered to him a Licence to be married bearing date the eight and twentieth of August 29 Eliz. and that he married the Plaintiff and his said Wife the same day so as the Trespass was before his title to the Tythes And it was holden by the whole Court that that matter did abate his Bill But it was holden that if the Trespass had been assigned to be committed one day after that it had been good but now it is apparent to the Court that at the time of the Trespass assigned by himself the Plaintiff had not Title and therefore the Action cannot be maintained upon that evidence for which cause the Plaintiff was Non-suit CXXXIX Sir John Braunches Case Mich. 30 Eliz. In the Kings Bench. Forfeiture IN the Case of Sir John Braunch it was said by Cook that if a Copy-holder be dwelling in a Town long distant from the Manor a general warning within the Manor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a wilful refusal Copy-holder So if a man be so weak and feeble that he cannot travel without danger so if he hath a great Office c. these are good causes of excuse It was also holden that if a Copy-holder makes default at the Court and be there amerced although that the amercement be not estreated or levyed yet it is a dispensation of the forfeiture Gawdy Iustice If the Copy-holder be impotent the Lord may set a Fine upon him and if he will not pay the Fine then it is reason that he shall forfeit his Land. Egerton Sollicitor Warning to the person of the Copy-holder is not necessary for then if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal and another in York c. the Lord ought to send his Bayliff to give notice of the Court to them which should be very inconvenient and by him continual default at the Court doth amount to a wilful refusal And by the whole Court general warning within the Parish is sufficient 1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold but elsewhere his Farmer may send to him notice of the Court And it was further given in evidence that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold And it was holden that such a person so appointed might essoin Sir John but not do the services for him for none can do the same but the Tenant himself CXL Wilkes and Persons Case Mich. 30 Eliz. In the Kings Bench. JOhn Wilkes and Margery his Wife and Thomas Persons brought Trespass Quare clausum fregit herbam suam messuit foenum suum asportavit Trespass ad damnum ipsius Johannis Margeriae Thomae And exception was taken that it was not the Hay of the Wife nor she was not damnified by it but her Husband Wray Iustice the Declaration is good enough 1 Cro. 96. Record for although it be not good for the Hay yet clausum fregit herbam messuit makes it good And Iudgment was given for the Plaintiffs CXLI Atkinson and Rolses Case Mich. 30 Eliz. In the Common Pleas. IN an Action upon the case by Atkinson against Rolfe the Plaintiff declared that the Defendant in consideration of the love which he ●ore unto A. his Father did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And declared further that he had discharged the Father of the Defendant from the said Debt and is become bounden to the said I. S. in an Obligation for the payment of the said Debt upon which Obligation the said I. S. hath sued the Plaintiff and hath recovered and had execution accordingly and so hath not been saved harmless c. It was objected that the Declaration was not good because the Plaintiff hath not shewed in his Declaration that he had given notice to the Defendant of the said Obligation or of the suit brought against him but that was not allowed but the Declaration was holden to be good notwithstanding the exception Shuttleworth if I be bound to make to you such an assurance as I. S. shall devise I am bound

this matter for although the Town in discretion might have stayed the offender before the death of the party yet it is not bound so to do And the Court took time to advise of the Case CXLVI Jerom and Knights Case Pasch 30 Eliz. In the Kings Bench. JOan Jerom brought an Action upon the Case in the nature of Conspiracy against one Knight and declared Conspiracy 1 Cro. 70. that the said Knight had malitiously caused the Plaintiff to be endicted of Felony and to be arrained upon it and that she was legitimo modo acquietat c. And the Case was that the Defendant came into the Court where the Sessions was holden and complained of the Plaintiff for the said Felony for which the Iustices there comanded her to cause an Indictment to be drawn c. Coke upon the Books of 27 H. 6. 12. 35 H. 6. 14. 27 H. 8. 2. Fitz. 115. It appeareth that if one come voluntarily into the Court and discover Felonies and if it be true which he saith or if he come in Court and draw an Indictment by the command of the Iustices or if he be bound by order of Law to cause the party to be Indicted or to give in Evidence although he do it falsely yet he shall not be punished for the same in Conspiracy or in an Action upon the Case But if he come gratis with malice in him before and maliciosly and falsely cause the party to be Indicted so as falsity and malice are the ground of it c. it is otherwise Gawdy Iustice How shall it be tried if he doth it with malice or not Coke It may be enquired of for malice makes the difference betwixt Murder and Manslaughter and in such case it is to be enquired and here he came to do the same without Process or cohersion in Law. But if he will safely do such office his direct course is to come to a Iustice of Peace and to shew to him that his Goods are stolen and that he doth suspect such a one and then upon examination he shall be bound to come and give in Evidence against the party c. and in such case although that his Evidence he false yet he is not punishable Owen 158. At another day it was said by Coke in the same case ut supra If a man be bound to give Evidence against any person although he give false Evidence no Action lieth Also if one come into Court gratis and discloseth a Felony and gives Evidence if no malice proceed against the party it is not punishable and here fore thought malice is alledged and put in the Declaration to which the Defendant hath pleaded not guilty And now he is found guilty See the Statute of Westminster 2. Cap. 12. Si inveniatur per inquisitionem quod aliquis sit abettator per malitiam c. Wray Iustice It should be hard to charge one with this Action where he hath his goods stolen from him and therefore causeth an Indictment to be drawn against one who he suspects of it who shall be found guilty who should be punished for it for many Malefactors notwithstanding that the Evidence against them be full and pregnant in favour of life are acquitted whereas by Law they ought to be hanged and it is not reason Upon an Acquital of Grace no Conspiracy lieth that upon such an acquital of grace and mercy he should have this Action if such person had used any words of malice before the Sessions an Action upon the case would have lain And afterwards Iudgment was given for the Plaintiff Trin. 27 Eliz. 750. Ratford and afterwards a Writ of Error was brought Trin. 29 Eliz. Rot. 669. In the Original Action the Writ and Declaration were that the Defendant malitiose intendens querentem in nomine vita fama bonis defraudare quandam Billam Indictamenti scribi fecit eam exhibuit to the grand Enquest ibidem false deposuit omnia in ea contenta esse vera which by Coke is full matter of conspiracy for the drawing of an Indictment is not the office of a witness but if it were by the commandment of the Court or of one Iustice of Peace it should be otherwise for there he goes by course of Iustice 21 E. 3. 17. If one conspire with another and afterwards he procures himself to be one of the Indictors his oath shall not excuse his malice before Gawdy If the party had taken upon him to proceed against the party upon any good presumtions he might have pleaded it as to say he found the party in the house suspiciously c. but because he doth not plead any such matter but generally not guilty and the Writ and Declaration stand not answered specially nor controlled with the Verdict there is no reason but that the Iudgment should be affirmed And afterwards the Iudgment was affirmed and it was said by Wray that here the words in the Writ and Declaration are all one as the words in a Writ of conspiracy and the Defendant hath not shewed any special matter to enduce him to the proceedings CXLVII Ferrers Case Pasch 30 Eliz. In the Kings Bench. HUmphry Ferrers brought an Action upon the case and declared that he is seised of an ancient messuage in the Town of Tamworth Prescription and that he and all his Ancestors whose heir he is owners of the Messuage c. have used time out of mind c. to erect Herdells in aperta platea of Tamworth juxta Messuagium praedict every Market day to make Penns there for Sheep and that he c. have used for such penning of Sheep there to take divers sums of mony of such persons who would Penn their Sheep there and further declared that the Defendant had broken and pulled down his Herdels per quod proficuum suum inde amisit And upon this Declaration Godfrey did demur in Law 1. The Plaintiff hath not shewed in his Declaration specially where he hath used to erect his Herdels but generally in aperta platea without shewing in his own Land or in the Land of another if in the Land of another it is no good title for although that those who fish in the Sea may prescribe to set Stakes on the Land adjoyning to the Sea to hang their Nets to dry after they have done Fishing and that is through the whole County of Kent 8 E. 4. for their prescription is for the common Wealth but the same is not so here but only for a private gain also no prescription is good but where some profit comes to him who prescribes for it which see in the case of the Abbot of Buckfast 21 E. 4. 4. 21 H. 7. 20. Also the Declaration is that the Plaintiff hath taken diversas denariorum summas and see the Prior of Dunstables case 11 H. 6. 19. 19 R. 2. Action surle Case 51. But the certainty of the sums do not appear in this Declaration so as the reasonableness of

Close of wood called Frith-Close but as to the Park for the Defendant for that Frifth-Close was all excepted scil the wood and the soil And these words supra praemissa shall be intended such things which were demised and no other and by this Covenant Dy. 199. Hob. 173. 2 Cro. 172. Bridg. 117. the Lessee hath power to take the wood upon the other Lands although that the wood be excepted for the soile was demised and he shall not be punished in Trespass and put to his remedy by Action of Covenant against the Lessor And by Wray there is not any colour against the Plaintiff for the Frith-Close if not that the Defendant had averred that there is not any wood upon the other Lands not excepted but demised And this word Praemissa doth not extend by construction to this mentioned before being excepted but only to the things demised CLIX. Rivett and Rivetts Case Trin. 30 Eliz. In the Kings Bench. EDmund Rivett brought an Action upon the Case against Geoge Rivett and declared that where it was pretended by the Defendant that one R. made his Will and by the same devised certain Legacies to the Defendant and the Plaintiff upon that had sued in the Prerogative Court of Canterbury for to disprove the said Will And if he prosecutus fuisset he might have disproved the said Will and so defeated the Defendant of his pretended Legacies Assumpsit Owen 133 134. The Defendant in consideration that the Plaintiff ultra non procederet did promise to give to the Plaintiff one hundred pounds and averred that he had surceased his said suit And further declared that licet the Defendant ad hoc requisitusfuerit tali die anno c. It was moved in arrest of Iudgment that here is not any consideration for the Defendant hath not any means to compel the Plaintiff for to surcease his suit for there is not any cross promise set forth in the Declaration And although that he doth surcease his suit yet he may begin the same again and therefore the Plaintiff ought to have shewed in his Declaration a Release or other discharge of it as the case was 3 Eliz. reported by Bendloe A. was bound unto B. in twenty pounds and afterwards A. promised B. that in consideration the said A. should not be damnified by reason of the said Bond to give the said B. ten pounds and upon that promise B. brought an Action upon the Case and shewed that the Defendant was not damnified by reason of the said Bond. But it was adjudged that the Action was not maintainable upon that matter because that the Plaintiff did not shew in his Declaration that he had released or otherwise discharged the Defendant of the said Bond and so no consideration in the case Request Another Exception was because the request is not layed certainly but generally licet requisitus and doth not say by whom he was required or what thing to do And afterwards a Precedent was shewed Trinit 28 Eliz. rot 523. betwixt Smith and Smith An Assumpsit in consideration that the Plaintiff should not implead the Defendant upon Bond And the Plaintiff had Iudgment to recover And as to the request it ws said by Kempe that there are many Precedents that a Request generally layed is sufficient And afterwards in the principal Case Iudgment was given for the Plaintiff CXL Wheeler and Twogoods Case Trin. 30 Eliz. In the Kings Bench. WHeeler brought an Ejectione firmae against Twogood and it was found by special verdict that the Earl of Oxford was seised of the Manor of Hornely in which were divers Copy-holds And that the said Earl leased the said Manor to one Heywood for one and twenty years to begin two years after Except all casualties and profits of Courts which severally did not pass the value of six shillings eight pence And afterwards the Earl bargained and sold the Reversion to Anthony Cage And afterwards a composition was made betwixt Anthony Cage and the Lessee by which the Lessee did grant and covenant to and with the said A. Cage that he would permit the said Anthony Cage peaceably to hold the Courts and to take the profits to his own use Proviso that the said Lessee should have the Rents of the Copy-holders Free-holders And afterwards the Lessee granted over his Interest in the said Term. It was moved by Towse that by this Exception the Court Baron is not excepted nor severed from the Manor nor destroyed Covenant amounts to a grant for it is incident to the Manor and this Covenant betwixt the Lessee and Anthony Cage amounts to a grant of the Court to Anthony Cage See 44 E. 3. Fitz. Mannors de faits 144 29 E. 3. Burr 280. and see 37 H. 8. 1 E. 6. Br. Leases 60. That where I.S. Covenants concessit to I. N. that he shall have twenty acres of Land in B. for one and twenty years it is a good Lease for this word concessit is as strong as dimisit And it was moved that here the Earl leased for years to begin two years after and the Lessee being in possession doth continue it after the two years and afterwards before any entry the Lessee assignes over his Interest that the same is not a good grant but only a Right But by the whole Court the grant was holden good notwithstanding the said Exception And it was holden also that the Covenant ut supra was void for although that Anthony Cage hath authority to hold the Courts yet it ought to be in the name of the Lessee CLXI Stretton and Taylors Case Trin. 30 Eliz. In the Kings Bench. STretton did inform against Taylor upon the Statute of Vsury Information upon the Statute of Usury Retraxit by the Queens Attorney shall not bind the Informer 1 Cro. 138. 583. Qui sequitur tam pro Domina Regina quam pro seipso And the Queens Attorney entred upon it c. non vult prosequi and that was pleaded in Bar against the Informer for the whole And by Wray the same is not any Barr to the Informer But Popham the Attorney general said that by the favour of the Court he would maintain the authority of his place which his Predecessors had enjoyed for he said it cannot be found by any Record in this Court Common Pleas or the Exchequer that the Informer had proceeded where the Attorney General had made such an Entry for we have not used to do it without great consideration for if the Informer hath ceased to prosecute the Suit two or three Terms then we used to enter a Non vult prosequi For it is not reason that the Subject should be molested or attendant so long without just cause and it is not against Law that in personal Suits the act of one should prejudice the other And the Queen is the principal party in this Suit for the Replication shall be made in the name of the Queen only and not

otherwise it should be idle And afterwards Iudgment was given against the Queen CLXIII Piers and Leversuchs Case In Ejectione firmae Trin. 30 Eliz. In the Kings Bench. IT was found by special verdict that one Robert Leversuch Grand-father of the Defendant was Tenant in tail of certain Lands whereof c. and made a Lease for years to one Pur. who assigned it over to P. father of the Plaintiff Robert Leversuch died W. his Son and Heir entred upon P. who re-entred W. demised without other words the Land to the said P. for life the remainder to Joan his Wife for life the remainder to the Son of P. for life with warranty and made a Letter of Attorney therein to enter and deliver seisin accordingly P. died before that the Livery was executed and afterwards the Attorney made livery to Joan. W. died Ed. his Son and Heir entred upon the Wife she re-entred and leased to the Plaintiff who upon an ouster brought the Action Heale When P. entred upon W. Leversuch the issue in tail he was a disseisor and by his death the Land descending to his Heir the entry of W. Leversuch the issue in tail was taken away 3 Cro. 222. Cook contrary P. by his entry was not a disseisor but at the Election of W. for when P. accepted such a deed from W. it appeareth that his intent was not to enter as a disseisor and it is not found that the said P. had any Son and Heir at the time of his death and if not then no descent and there is not any disseisin found that P. expulit Leversuch out of the Land. And Iudgment was given against the Plaintiff And Cook cited a Case which was adjudged in the Common Pleas and it was the Case of Shipwith Grand-father Tenant in tail Father and Son The Grand-father died the Father entred and paid the Rent to the Lessor and died in possession and adjudged that it was not any descent for the paying of the Rent doth explain by what title he entred and so he shall not be a Disseisor but at the Election of another CLXIV Severn and Clerks Case Trin. 30 Eliz. In the Kings Bench. ●ts THe Case was that A. by his Deed Poll recited That whereas he was possessed of certain Lands for years of a certain Term By good and lawful conveyance he assigned the same to I. S. with divers Covenants Articles and Agreements in the said deed contained which are or ought to be performed on his part It was moved if this recital whereas he was be an Article or Agreement within the meaning of the condition of the said Obligation which was given to perform c. Gawdy conceived that it is an agreement For in such case I agree that I am possessed of it for every thing contained in the deed is an Agreement and not only that which I am bound to perform As if I recite by my deed that I am possessed of such an interest in certain Land and assign it over by the same deed and thereby covenant to perform all Agreements in the deed if I be not possessed of such Interest the covenant is broken And it was moved if that recital be within these words of the condition which are or ought to be performed on my part And some were of opinion that it is not within those words for that extends only in futurum but this recital is of a thing past or at the least present Recital 2 Cro. 281. Yyl. 206. Clench Recital of it self is nothing but being joyned and considered with the rest of the deed it is material as here for against this recital he cannot say that he hath not any thing in the Term. And at the length it was clearly resolved that if the party had not that Interest by a good and lawful conveyance the Obligation was forfeited CLXV Page and Jourdens Case Trin. 30. Eliz. In the Kings Bench. IN Trepass betwixt Page and Jourden the case was A Woman Tenant in tail took a Husband who made a Feoffment in Fee and died The Wife without any Entry made a Lease for years It was moved that the making of this Lease is an Entry in Law. As if A. make a Lease for years of the Land of B. who enters by force of that Lease A general entry amounts to a disseisin now the Lessor without any Entry is a Disseisor And it was resolved that by that Leas● the Free-hold is not reduced without an Entry CLXVI Havithlome and Harvies Case Trin. 30. Eliz. In the Kings Bench. Action upon the Statute of 5 Eliz. cap. 9. 1 Cro. 130. 3 Cro. Goodwin vers West HAvithlome brought an Action upon the Statute of 5 Eliz. cap. 9. against Harvy and his Wife for the penalty of ten pounds given by the said Statute against him who was served with process ad testificandum c. and doth not appear not having any impediment c. and shewed that process was served upon the Defendants Wife and sufficient charges having regard to her degree and the distance of the place c. tendred to her and yet she did not appear And it was found for the Plaintiff It was moved in arrest of Iudgment that the Declaration is not good because the Plaintiff in setting forth that he was damaged for the not appearance of the Wife according to the process hath not shewed how damnified Also it was moved that a Feme Covert is not within the said Statute for no mention is made of a Feme Covert and therefore upon the Statute of West 2. cap. 25. If a Feme Covert fail of her Record she shall not be holden disseisseress nor imprisoned Also here the Declaration is that the Plaintiff tendered the charges to the Wife where he ought to have tendered the same to the Husband To these three Exceptions it was answered 1. That although the party be not at all damnified yet the penalty is forfeited 2. Feme Coverts are within the said Statute otherwise it should be a great mischeif for it might be that she might be the only witness And Feme Coverts if they had not been expresly excepted had been within the Statute of 4 H. 7. of Fines 3. The wife ought to appear therefore the tender ought to be to her And afterwards Iudgment was given for the Plaintiff CLXVII Dellaby and Hassels Case Pasch 30 Eliz. In the Kings Bench. IN an Action upon the Case 1 Cro. 132. the Plaintiff declared that the Defendant in consideration that he had retained the Plaintiff to go from London to Paris to Merchandize diverse goods to the profit of the Defendant promised to give to him so much as should content him and also to give him all and every sum of money which he should expend there in his Affairs and further declared that he was contented to have twenty-pounds for his labour which the Defendant refused to pay And exception was taken to the Declaration because there is

not set down any place or time of the notification of his contentment for the same is traversable Gawdy The Issue here is non Assumpsit Assumpsit and therefore that matter is out of the Book Cook If one assume to pay twenty pounds to another upon request although the Defendant plead non Assumpsit yet if the place and time of request be not shewed Iudgment many times hath been stayed for no Action without a Request so here without notification of his contentment no Action therefore he ought to shew it Gawdy The ground of this Action is the Assumpsit but that cannot be certain without Declaration and thereof notice ought to be given to make certainty of the duty but not to enforce the promise but in our case without a Request Assumpsit will not lye But here it being but conveyance the certainty of the time and place is not necessary to be shewed but the general form shall serve for it is but inducement As if a man will plead a devise of goods to him and assent of the Executors to take them he need not to shew the time and place of the assent Gawdy at another day said that Iudgment ought to be given for the Plaintiff the Assumpsit is the ground and cause of the Action and the shewing of the contentment is only to reduce the Action to certainty And Iudgment was given for the Plaintiff CLXVIII Musket and Coles Case Trin. 30 Eliz. In the Kings Bench. WIlliam Musket brought an Action upon the Case against Cole 1 Cro. 13. and declared that in consideration that the Plaintiff had payed unto the Defendant forty shillings for the Debt of Symon his Son the Defendant promised to deliver to him omnes tales billas Obligationes in which his Son was bounden to him which thing he would not do and it was found by Verdict for the Plaintiff And it was moved for stay of Iudgment because the Plaintiff had not averred in his Declaration that the said Defendant had Bills or Obligations in which Simon his Son was bounden to the Defendant Averment for if there were none then no damage And see Onlies Case 19 Eliz. Dyer 356. D. in consideration that the Plaintiff had expended divers sums of money circa the businesses of the Defendant promised c. Exception was taken to that Declaration by Manwood and Mounson Iustices because it was not shewed in what businesses certain and betwixt what persons Gawdy The Plaintiff here is not to recover the Bills or Obligations but damages only and therefore needeth not to alledge any Bills in certain And 47 E. 3. 3. A. covenants with B. to assure unto B. and his Heirs omnia terras tenementa quas habet in such Counties and for not assurance an Action of Covenant was brought and the Plaintiff declared that the Defendant had broken the said Covenant and that he had required the Defendant to make a Feoffment unto him of all his Lands and Tenements in the said Counties and the plea was not allowed for the Land is not in demand but only damages to be recovered See also 46 E. 3. 4. and 20 E. 3. And in the principal case the Plaintiff had time enough for the shewing to the Iury what Bills or Obligations for the instructing of the Iury of the damages CLXIX English and Pellitary and Smiths Case Trin. 30 Eliz. In the Kings Bench. Assault and Battery 1 Cro. 139 140. IN an Action of Trespass of Assault and Battery and wounding The Defendants say that they were Lessees of certain Lands and the Plaintiff came to the said Lands and took certain Posts which were upon the Lands and they gently took them from him S. pleaded that he found the Plaintiff and P. contending for the said Posts and he to part them mollite put his hands upon the Plaintiff which is the same c. The Plaintiff replyed De injuriis suis propriis absque tali causa per ipsos P. S. allegat upon which issue was joyned which was found for the Plaintiff It was moved in arrest of Iudgment that here was not any issue for the Plaintiff ought severally to reply to both pleas aforesaid for here are several Causes of Iustification and his Replication absque tali causa Nomen Collectivum Post 139. Dy. 182. doth not answer to both Cook This word Causa is nomen Collectivum which may be referred to every Cause by the Defendants alledged reddendo singula singulis and their Iustifications are but one matter and the Defendants might have all joyned in one plea. Wray Both pleas depend upon one matter but are several causes for two justifie by reason of their Interest and the third for the preservation of the Peace And by him and the whole Court although it be not a good form of pleading yet by reasonable construction this word Cause shall be referred to every cause and so the pleading shall be maintained And afterwards Iudgment was given against the Plaintiff CLXX Cater and Boothes Case Trin. 30. Eliz. In the Kings Bench. Intrat Hill. 30 Rot. 58. or 581. IF a Writ of Covenant the Plaintiff declared that the Defendant by his deed bearing date the first of October 28 Eliz. did covenant that he would do every act and acts at his best endeavour to prove the Will of I. S. or otherwise Covenant that he would procure Letters of Administration by which he might convey such a Term lawfully to the Plaintiff which he had not done licet saepius requisitus c. The Defendant pleaded that he came to Doctor Drury into the Court of the Arches and there offered to prove the Will of the said I. S. but because the Wife of the said I.S. would not swear that it was the Will of her Husband they could not be received to prove it Vpon which it was demurred in Law. It was moved by Williams that the Action doth not lie for there is no time limited by the Covenant when the thing should be done by the Defendant for which he hath time during his life for as much as it is a collateral thing See 15 E. 4. 31. if there be not a Request before but admit that the Covenant had been to perform upon request Request then the Plaintiff in his Declaration ought to have shewed an express request with the place and time of it for that is traversable See 33 H. 6. 47 48. 9 E. 4. 22. Gawdy If the Covenant had been eypresly to do it upon request there the request ought to be shewed specially But when a thing upon the exposition of the Law only is to be done upon Request such Request alledged generally is good enough And by Wray the Covenantor hath not time during his life to perform this Covenant but he ought to do it upon request within convenient time but in some case a man shall have time during his life as where no benefit shall be to any of the

the limitation for the life of the Wife cannot extend to both And as to the Book of 24 H. 8. Br. Forfeiture 87. 3 Cro. 167 168. Tenant for life aliens in Fee to B. Habendum sibi haeredibus suis for Term of the life of the Tenant for life the same is not a forfeiture for the whole is but the limitation of the estate And afterwards it was adjudged that it was a forfeiture Gawdy continuing in his former opinion And VVray said that he had conferred with the other Iudges of their House and they all held clearly that it is a forfeiture CLXXII Toft and Tompkins Case Trin. 30 Eliz. In the Kings Bench. Rot. 528. UPon a special Verdict the case was that the Grand-father Tenant for life the Remainder to the Father in tail Discontinuance 1 Cro. 135. that the Grand-father made a Feoffment in fee to the use of himself for life the Remainder to the Father in Fee And afterwards they both came upon the Land and made a Feoffment to Tompkins the Defendant Coke There is not any discontinuance upon this matter for the Father might well wave the advantage of the forfeiture committed by the Grand-father then when the Father joyns with the Grand-father in a Feoffment the same declares that he came upon the Land without intent to enter for a forfeiture It was one Waynmans Case adjudged in the common Pleas where the Disseissee cometh upon the Land to deliver a Release to the Disseissor that the same is no Entry to revest the Land in the Disseissee Then here it is the Livery of the Tenant for life and the grant of him in the Remainder and he in the Remainder here was never seised by force of the tail and so no discontinuance Godfrey Here is a Remitter by the Entry and afterwards a discontinuance for by the Entry of both the Law shall adjudge the possession in him who hath right c. Gawdy This is a discontinuance for when the Father entreth ut supra he shall be adjudged in by the forfeiture and then he hath gained a possession and so a discontinuance for both cannot have the possession Clench The intent of him in the Remainder when he entred was to joyn with the Grand-father and when his intent appeareth that the estate of the Grand-father and his own also shall passe that doth declare that he would not enter for the forfeiture Shute agreed with Gawdy CLXXIII Broake and Doughties Case Hill. 31 Eliz. Rot. 798. Trin. 30. Eliz. In the Kings Bench. AN Action upon the Case for words Action upon the Case for words 1 Cro. 135. viz. Thou wast forsworn in the Court of Requests and I will make thee stand upon a Stage for it It was found for the Plaintiff It was moved in arrest of Iudgment that the Action will not lye for these words for he doth not say that he was there forsworn as Defendant or witness And Trin. 28 Eliz. betwixt Hern and Hex thou wast forsworn in the Court of Whitchurch And Iudgment given against the Plaintiff for the words are not Actionable and as to the residue of the words I will make thee stand upon the Stage for it they are not Actionable as it was adjudged between Rylie and Trowgood If thou hadst Iustice thou hadst stood on the Pillory and Iudgment was given against the Plaintiff Daniel contrary thou wast forsworn before my Lord chief Iustice in an Evidence these words are Actionable for that is perjury upon the matter and between Foster and Thorne T. 23 Eliz. Rot. 882. Thou wast falsly forsworn in the Star-Chamber the Plaintiff had Iudgment for it shall be intended that the Plaintiff was Defendant or a Deponent there And yet the words in the Declaration are not in the Court of Star-Chamber Wray Thou art worthy to stand upon the Pillory are not Actionable for it is but an implication but in the words in the Case at the Bar there is a vehement intendment that his Oath was in the quality of a Defendant or Deponent which Gawdy granted In the Case 28 Eliz. Thou wast forsworn in Whit-Church Court there the words are not actionable for that Court is not known to you as Iudges And it may be it is but a great House or Mansion house called Whit-church Court But here in the principal case it cannot be meant but a Court of Iustice and before the Iudges there juridice and the subsequent words sound so much I will make thee stand upon a Stage for it And afterwards Iudgment was given for the Plaintiff CLXXIV Gatefould and Penns Case Trin. 30 Eliz. In the Kings Bench. Prescription for tythes 1 Cro. 136. 3 Len. 203 265. Antea 94. GAtefould Parson of North-linne libelled against Penne in the spiritual Court for tythes in Kind of certain pastures The Defendant to have prohibition doth surmise that he is Inhabitant of South-linne and that time out of mind c. every Inhabitant of South-linne having pastures in North-linne hath paid tythes in Kind for them unto the Vicars of South-linne where he is not resident and the Vicar hath also time out of mind payed to the Parson of North-linne for the time being two pence for every acre Lewis This surmise is not sufficient to have a prohibition for upon that matter Modus Decimandi shall never come in question but only the right of tythes if they belong to the Parson of North-linne or to the Vicar of South-linne and he might have pleaded this matter in the spiritual Court because it toucheth the right of tythes as it was certified in the Case of Bashly by the Doctors of the Civil Law. Gawdy This prescription doth stand with reason for such benefit hath the Parson of North-linne if any Inhabitant there hath any Pastures in South-linne And afterwards the whole Court was against the prohibition for Modus Decimandi shall never come in debate upon this matter but who shall have the tythes the Vicar of South-linne or the Parson of North-linne and also the prescription is not reasonable CLXXV Gomersal and Bishops Case Hill. 31 Eliz. Rot. 175. Trin. 30 Eliz. In the Kings Bench. 1 Cro. 136. BIshop libelled in the Spiritual Court for tythe Hay the Plaintiff Gomersal made a surmise that there was an agreement betwixt the said parties and for the yearly sum of seven shillings to be paid by Gomersal unto Bishop Bishop faithfully promised to Gomersal that Gomersal should have the tythes of the said Land during his life And upon an Attachment upon a Prohibition Gomersal declared that for the said annual sum Bishop leased to the Plaintiff the said tythes for his life And upon the Declaration Bishop did demur in Law for the variance between the Surmise and the Declaration for in the Surmise a promise is supposed for which Gomersal might have an Action upon the Case and in the Declaration a Lease But note that the Surmise was not entred in the Roll but was recorded

in some cases the Plaintiff himself who libelleth may have a Prohibition and that was the case betwixt Wignal and Brook. And afterwards a Consultation was granted by the Court for Stransham had begun the suit in the Spiritual Court in the principal matter and therefore he cannot have a Prohibition for the costs But afterwards Iudgment was stayed for the said Statute speaks specially in case of Tithes where the Court hath Iurisdiction and here it hath not of the matter But it was said that if a Consultation be once granted 1 Cro 277. the party shall never have another Prohibition in the same cause as it was holden in the case betwixt Hoskins and Jones CLXXVIII Chamberlain and Thorps Case Pasch 31 Eliz. Rot. 186. In the Kings Bench. Recognizances in London by custom 1 Cro. 186. IN Debt upon a Recognizance acknowledged in London the Plaintiff declared that London is antiqua Civitas and that they have used time out of mind c. That the Mayor take Recognizances of any person being of full age and not a Feme Covert every day in the year except Sundays Holy-days Counsel days and days of Quarter Sessions and Gaol-delivery And declared further now that the Defendant such a day did acknowledge a Recognizance to him c. Tanfield the Declaration is not good but the custom as it is laid is unreasonable for thereby the Mayor may take Recognizances of Idiots men of Non sanae Memoriae c. nor is it restrained to any persons or to any matters but is too general and therefore cannot be a good custom Gawdy The Declaration is good notwithstanding the Exception for want of averment for that ought to come in on the other side And as to the custom I conceive it is not good for it is hard That they should take Recognizances of all Persons and for all Causes which rise out of the City and through the whole Realm as well as within the City also none shall take a Recognizance but a Iudge of Record and a Recognizance cannot be taken by prescription As to the first Exception Wray agreed with Gawdy and as to the Custom he held the same to be good For it hath been always allowed and their customs are confirmed by Act of Parliament which makes them good But if the custom be not confirmed by Parliament it is not good also it is not an unreasonable Custom for it is for the benefit of the Subjects to have security for their Debts Coke The Recognizance makes the Debt local and therefore 13 Rich. 2. bar 649. Debt was brought in London upon a Recognizance acknowledged in the Chancery at Westminster and the Writ was abated for the Recognizance makes it local there and by him the custom stands with reason The Mayor is such a person who may take a Recognizance for he is a Iudge of Record See 1 H. 7. 20. and Br. Recognizance 8. and the Recognisee cannot have an Action of Debt upon this Recognizance elsewhere than in London For it is not a Debt out of the Iurisdiction of the Court for the Recognizance hath made it local Wray If the Recognisor be within age the same shall come in of the other side and the Plaintiff needs not shew the same in his Declaration Cooke It was agreed betwixt Mabbe and Frend That such a Recognizance was good Tanfield The said Recognizance was taken for Orphans goods which is a thing within their Iurisdiction Clench They of London cannot take Recognizance of more than they can hold plea of it Wray They have used of long time to take Recognizances and their customs are confirmed by Parliament and a more strange custom than this hath been allowed of here before scil That a feme Covert shall sue an Action alone without her Husband for she is a sole Merchant Also they do certifie Recognizances ore tenus Gawdy A feme Covert may have an Action within the City but not here CLXXIX Pierce against Howe Hill. 32 Eliz. Rot. 434. In the Kings Bench. AN Action upon the Case for these words Action upon the case for words 1 Cro. 185. Pierce hath taken a false Oath in the Consistory Court of the Bishop of Exeter and upon the Declaration the Defendant did demur in Law. And by Prideaux these words are Actionable although the perjury be supposed to be committed in the spiritual Court For he shall be excommunicated if he will not appear and he shall do pennance in a White sheet which is as great a disgrace as to be set upon the Pillory And it was ruled in an action upon the case betwixt Dorrington and Dorrington upon these words Thou art a Bastard that an action lyeth and yet Bastardy is a spiritual matter and there determinable So for these words Thou art a Pirate an action lyeth and yet Piracy is not punishable by the common Law but in the Court of Admiralty And these words He hath taken a false oath do amount to these words He is forsworn Wray conceived that the words are not actionable for there is a proviso in the Statute of Eliz. cap. 9. That the said Act shall not extend to any Ecclesiastical Court but that every such offendor shall be and may be punished by such usual and ordinary Laws as heretofore have been and is yet used and frequent in the said Ecclesiastical Court. Gawdy upon these words an action doth not lye for they are not pregnant of any perjury in the Pl. for he may be meer passive in it for if one of the Masters of the Chancery minister an Oath unto any person or any Commissioners c. and the Plaintiff sweareth falsly a man may say That the Master of the Chancery or the Commissioner hath taken a false oath and yet he is not guilty of falsity And afterwards Wray mutata opinione That the Proviso in the said Statute is to this intent That notwithstanding the said Statute such an offence may be enquirable and examined in the Ecclesiastical Court in such manner as it was before but the same doth not take away or restrain the authority of the Common Law but that such an offence may be here examined And it hath been lately adjudged in the Star-Chamber That such perjury was examinable there for it is not restrained and as to the latter exception upon these words he hath taken a false oath it shall be intended actively and not passively and if so the Defendant ought to have so pleaded it and afterwards Iudgment was given for the Plaintiff CLXXX Palmer and Smalbrooks Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 178. Owen 97. 3 Len. 227. IN an action upon the Case by Palmer against Smalbrook The Plaintiff declared That the Defendant had recovered a certain Debt against A. and thereupon purchased a Writ of Capias against A. to take his body and delivered the said Capias to the Plaintiff being then Sheriff and prayed a Warrant for the serving of the said Capias

plead it specially but as our case is here is no Act to be done but a permittance as abovesaid and it is in the Negative not a disturbance in which case permisit is a good plea and then it shall come on the other side on the Plaintiffs part to shew in what Lands the Defendant non permisit Which difference see agreed 17 E. 4. 26. by the whole Court. And such was the opinion of the whole Court in the principal case 1 Co. 127. Another Exception was taken to it that the Defendant had covenanted that his brother Edward should pay to the Plaintiff the said Rent To which the Defendant pleaded that his said brother had payed to the Platntiff before the said Feast of Michaelmas in full satisfaction of the said Rent three shillings and that was holden a good plea and upon the matter the Covenant well performed for there is not any Rent in this Case for here is not any Lease and therefore not any Rent For if A. covenant with B. that C. shall have his Land for so many years rendring such a Rent 1 Roll. 847. 1 Cro. 173. Owen 97. here is not any Lease and therefore neither Rent But if A. had covenanted with C. himself it had been otherwise because it is betwixt the same parties And if the Lessee covenant to pay his Rent to the Lessor and he payeth it before the day the same is not any performance of the Covenant causa patet contrary of a sum in gross Another Covenant was that the said Humphry solveret ex parte dicti Edwardi 20 l. to which the Defendant pleaded that he had paid ex parte dicti Humfridi 20 l. and that defect was holden incureable and therefore the Plaintiff had Iudgment to recover CLXXXVII Geslin and Warburtons Case Mich. 30 Eliz. In the Common Pleas. 1 Cro. 128. IN an Ejectione firmae by Joan Geslin against Hen. Warburton and Sebastian Crispe of Lands in Dickilborough in the County of Norf. Mich. 30. 31 Eliz. rot 333. upon the general Issue the Iury found a special verdict that before the Trespass supposed one Martin Frenze was seised of the Lands of which the Action was brought in tail to him and his Heirs males of his body so seised suffered a common Recovery to his own use Devises and afterwards devised the same in this manner I give my said Land to Margaret my Wife until such time as Prudence my Daughter shall accomplish the age of nineteen years the Reversion to the said Prudence my Daughter and to the Heirs of her body Lawfully begotten upon condition that she the said Prudence shall pay unto my said Wife yearly during her life in recompence of her Dower of and in all my Lands 12 pounds and if default of payment be made then I will that my said Wife shall enter and have all my Lands during her life c. the Remainder ut supra the Remainder to John Frenze in tail c. Martin Frenze died Margaret entred the said Prudence being within the age of fourteen years Margaret took to Husband one of the Defendants John Frenze being Heir male to the former tail brought a Writ of Error upon the said Recovery and assigned Error because the Writ of Entry upon which the Recovery was had was Praecipe quod reddat unum Messuag and twenty acras prati in Dickelborough Linford Hamblets without naming any Town And thereupon the Iudgment was reversed And it was further found that in the said Writ of Error and the process upon it Hutt 106. 2 Cro. 574. 3 Cro. 196. no Writ of Scire facias issued to warn dictam Prudentiam ten existentem liberi ten praemissorum ad ostendendam quid haberet vel dicere sciret quare Judicium praedict non reversaretur The Iury further found that the said Margaret depending the said Writ of Error was possessed virtute Testamenti ultimae voluntatis dict Martini reversione inde expectant dictae Prudentiae pro ut lex postulat And they further found Error that six pound of the said tewlve pounds were unpaid to the said Margaret at the Feast c. and they found that the said John Frenze praetextu Judicii sic reversat entred into the premisses as Heir male ut supra And so seised a Fine was levyed betwixt John Frenze Plaintiff and one Edward Tindal Owen 157. Dyer 321. 1 Cro. 471. 739. and the said Prudence his Wife Deforceants and that was to the use of the said John Frenze And that afterwards Humphry Warburton and the said Margaret his Wife brought a Writ of Dower against the said John Frenze Edw. Tindal and Prudence his Wife of the said Lands The said Edward and Prudence made default and the Demandants counted against the said Frenze and demanded against him the moity of the third part of the said Lands To which the said Frenze pleaded that the default of the said Edward and Prudence idem John Frenze nomine non debet quia he said that he the said John was sole seised of the Lands aforesaid at the time of the Writ brought c. and pleaded in Bar and it was found against the said John and Iudgment given for the Demandants of the third part of the whole Land and seisin accordingly And that afterwards 17 Eliz. the said Frenze levyed the Fine to the said Tindal to the use of the said Tindal and his Heirs And they found that after the said Feast the said Henry Warburton and Margaret his Wife came to the Messuage aforesaid half an hour before Sun-set of the said day and there did demand the Debt of the said twelve pounds Dower to the said Margaret by the said Martin Frenze devised to be paid unto them and there remained till after Sun-set of the said day demanding the Rent aforesaid and that neither the said Tindal nor any other was there ready to pay the same And first it was moved if the said yearly sum of twelve pounds appointed to be paid to the said Margaret were a Rent or but a sum in gross And the opinion of the Court was that it was a Rent and so it might be fitly collected out of the whole Will where it is said that Prudence his Daughter should have the Land and that she should pay yearly to Margaret twelve pounds in recompence of her Dower c. But if it be not a Rent but a sum in gross it is not much material to the end of the case For put case it be a Rent the same not being pleaded in Bar the Dower is well recovered and then when default of payment is made if the Wife of the Devisor shall have the whole was the Question And the Court was clear of opinion that by the suit and Iudgment in the Writ of Dower the Wife of the Devisor had lost all the benefit which was to come to her by the devise For the said Rent was devised to her in recompence of

and God forbid that Bread and the baking of it should be restrained to any special person especially in a Market Town And as to the case of the Prior of Dunstable that is not to the purpose for there he prescribed to have a Market and the correction of it and the fault there is not in the usurping of a Market in Nusance of the Plaintiff but because the Defendant sold meat there secretly so as the Plaintiff could not have the correction of it See 22 H. 6. 14. And it is not reasonable that such profits be restrained and drawn from the publick good to the private commodity of any person And he cited a case which was ruled in the Exchequer 9 Eliz. upon an Information exhibited there by the Burgesses of Southampton that the King had granted to the Burgesses of Southam that all the sweet Wines brought within the Realm should be unladen at Southam only Grant of the King void And it was agreed by Wray that such a grant was not good to deprive the Common-wealth of such a benefit and to appropriate it to one which might be profitable to many And it was further said by the Lord Wray that if the King will grant by his Letters Patents that A.B. shall be of Counsel only with the Defendant in the Chancery and C.B. with the Plaintiffs in the Exchequer Chamber the same is no good grant c. CC. Park against Moss and How. Trin. 31 Eliz. In the Kings Bench. Intrat Hill. 31 Rot. 31. Trover and Conversion 1 Cro. 181. More 352. 1 Roll. 893. IN an Action upon the Case upon Trover and Conversion The Defendant pleaded that one A. recovered in Debt against I. P. Executor of E. P. one hundred pounds and twenty pounds in Damages The Debt of the goods of the Testator and the Damages of the goods of the Testator si quae fuerint and if not of the goods of the Executor Vpon which A. procured a Fieri facias directed to the Sheriff of N. who made his Warrant to the Defendants to execute the said Writ And before Execution I. P. died intestate and administration was committed to the Plaintiff and the Defendants afterwards did execution of the proper goods of I. P. and sold them and deliver'd the mony to the Sheriff which is the same Trover and Conversion and averred that E. P. had no other goods The Plaintiff by Replication said that the Sheriff upon return of the said Writ of Execution returned as to the principal Debt That the goods of the Testator were wasted and as to the Damages that he could not execute the Writ quia tarde Tanfield I conceive that the false return of the Sheriff shall not make the Defendant punishable for they did execution secundum exigentiam brevis and delivered the monies coming thereby to the Sheriff and if they should not be excused it should be a great inconvenience for it is necessary that the Sheriff have inferiour Officers under him As 37 H. 6. an Executor named in the Will named one to take the goods of the Testator in such a place who did accordingly and afterwards the Executor doth refuse yet the servant shall not be punished for that medling 13 H. 7. 2. 21 H. 7. 23. Where it is said by Read chief Iustice that if the Baily delivereth the body of one who he hath taken in Execution to the Sheriff he shall be excused although that the Sheriff doth not return the Capias And we have pleaded in this case that we have delivered the mony to the Sheriff and that is confessed by the demurrer Altham I conceive that this Execution after the death of the party is not good For an Administrator is another person wherefore new process shall issue against him as in all cases where the person is changed 18 E. 3. If one sueth a Certificate out of a Statute and before execution had he dieth his Executors shall not have execution upon that Certificate but first they ought to have a Scire facias And 28 H. 8. Dyer 29. Transcript of a Fine is removed by the Ancestor out of the Treasury into the Chancery and comes in by Mittimus to have execution and the Ancestor dieth before Execution Now the Heir cannot proceed without a new Mittimus for he is another person See 36 H. 8. Br. Statute Merchant 43. and in our case here at the time of the Execution these are not the goods of the Executor for he is not in esse and it ought to appear whose goods they are which are taken in Execution If Lands be recovered against the Father who dieth and the Heir be ousted by Execution without a Scire facias against the Heir he shall have an Assise And 6 E. 6. Dyer 76. is our case A. is condemned in Debt and a Fieri facias is awarded and before execution A. dieth intestate The Sheriff levyed the Debt upon the goods of the Intestate in the hands of the Administrators upon which the Administrators brought Error and reversed the Execution Tanfield The Execution is erronious but is not void but shall stand until it be reversed by Error And it was holden by the whole Court that the false return of the Sheriff should not prejudice the Defendants At another day it was moved again and it was holden that the averment that the goods put in Execution were the goods of the Testator the day of the Writ of Execution sued was a good averment without saying Execution against an Administrator after the death of the Intestate of the Intestates goods good Execution shall relate to the date of the Writ 3 Cro. 106 330 1 Roll. 893. The day of Execution done for the award of the Writ of Execution shall bind all his goods against whom the Iudgment was given which he had at the day of the Writ of Execution awarded And it was also holden That notwithstanding the death of the party against whom c. The Sheriff might do execution of the goods of the dead in the hands of his Executors according to the opinion of Bryan 16 H. 7. 6. and afterwards in the principal Case Iudgment was given against the Plaintiff CCI. Carie and Denis Case Trin. 31. Eliz. In the Kings Bench. THe Case was Vpon a Latitat the Sheriff returned Retorn of the Sheriff That by vertue of the said process he had arrested the Body of the Defendant and that such a day after and before the Return of the Latitat a Habeas Corpus came to him to bring the body immediately into the Chancery which was done accordingly and there the Prisoner was discharged by the Order of the said Court And the same was holden a good Return for the Sheriff is bound to obey the Kings Writs and to execute them and he cannot compel the party to put in Sureties to appear here And the truth was That the party was brought before the Master of the Rolls and he did discharge him And per

Curiam the same is no offence in the Court but it was an ill act of the Master of the Rolls For we oftentimes have persons here upon Habeas Corpus who are also arrested by Process out of the Exchequer or of the Common Pleas but we will not discharge them before they have found Sureties for their appearance c. and so the said Courts use to do reciprocally and we cannot punish the Sheriff for the Hebas Corpus was first returnable before the Latitat but the party may have an action against the Sheriff but we will speak with the Master of the Rolls c. and afterwards Baill was put in But afterwards another Exception was taken to the Return scil a custodia nostra exoneratus fuit which might be intended as to the Cause in the Chancery only and not for the Cause here for he hath not alledged that he hath not alledged That he was committed to any other in custody and for that cause day was given to the Sheriff to amend his Return CCII. Upton and Wells Case Trin. 31. Eliz. In the Kings Bench. IN an Ejectione firmae by Upton against Wells Iudgment was given for the Plaintiff and upon the habere facias possessionem The Sheriff retuned that in the Execution of the said Writ he took the Plaintiff with him and came to the house recovered and removed thereout a woman and two children which were all the persons which upon diligent search he could find in the said house and delivered to the Plaintiff peaceable possession to his thinking and afterwards departed and immediately after three other persons which were secretly lodged in the said house expulsed the Plaintiff again 2 Len. 12 13. Latch 165. upon notice of which he returned again to the said house to put the Plaintiff in full possession but the other did resist him so as without peril of his life and of them that were with him in company he could not do it And upon this Return the Court awarded a new Writ of execution for that the same was no Execution of the first Writ and also awarded an Attachment against the parties CCIII Marsh and Astreys Case Trin. 31 Eliz. In the Kings Bench. 1 Cro. 175. MArsh brought an Action upon the Case against Astrey and declared That he had procured a Writ of Entry sur disseisin against one A. and thereupon had a summons for Lands in London and delivered the said Summons to Astrey being Vnder-Sheriff of the same County virtute cujus the said Astrey summoned the said A. upon the Land but notwithstanding that did not return the said Summons Astrey pleaded Not guilty And it was tryed in London where the action was brought for the Plaintiff and it was moved by Cook in arrest of Iudgment That here is a mis-trial for this issue ought to be tryed in the County where the Land is because that the cause is local but the Exception was not allowed for the action is well layed in London and so the trial there also is good Trial. Another Exception was moved because the action ought to be against the Sheriff himself and not against the Vnder-Sheriff for the Sheriff is the Officer to the Court and all Returns are in his Name and I grant that an action for any falsity or deceit lyeth against the Vnder-Sheriff as for embesseling rasing of Writs c. but upon Non feasans as the Case is here the not Retorn of the Summons it ought to be brought against the Sheriff himself See 41 E. 3. 12. And if the Vnder-Sheriff take one in Execution and suffereth him to escape debt lyeth against the Sheriff himself Another Exception was taken because the Declaration is that the said Astrey Intendens machinans ipsum querent in actione sua praedict prosequend impedire c. did not retorn the said Summons but doth not say tunc exist Vnder-Sheriff Snag contrary If a Baily Errant of the Sheriff take one in Execution and he suffer him to escape an action lieth against the Baily himself And that was agreed in the Case of a Baily of Middlesex and Sir Richard Dyer Sheriff of Huntington and his Vnder-Sheriff who suffered a Prisoner to escape the action was brought against the Vnder-Sheriff for it may be the Sheriff himself had not notice of the matter because the Writ was delivered to the Vnder-Sheriff and he took a Fee for it and therefore it is reason that he shall be punished As if a Clerk in an Office mis-enter any thing he himself shall be punished and not the Master of the Office because he takes a fee for it But if the Retorn made by the Baily be insufficient Then the Sheriff himself shall be amerced but in the principal case it is clear That the action lieth against the Vnder-Sheriff if the party will and such was the opinion of Gawdy and Clench As to the other matter because it is not alledged in the Declaration That the Defendant was Vnder-Sheriff at the time the Declaration is good enough notwithstanding that for so are all the Presidents and if the Defendant were not Vnder-Sheriff the same shall come in of the other side See 21 E. 4. 23. And afterwards in the principal Case Iudgment was given for the Plaintiff CCIV. Hedd and Chaloners Case Trin. 31 Eliz. In the Common Pleas. 1 Cro. 176. 2 Roll. 42. 176. IN an Ejectione firmae by Hedd against Chaloner upon a Demise for years of Jane Berd It was found by especial Verdict That William Berd was seised in fee made a Feoffment to the use of himself for life afterward to the use of his two Daughters Joan Alice in fee and died and Joan entred into the Land and by Indenture by the name of Jane Berd leased the same to the Plaintiff for three years And it was further found That Joan intended in the Feoffment and Jane who leased are one and the same person Wray It hath been agreed here upon good advice and Conference with Grammarians that Joan and Jane are but one Name And Women because Joan seems to them a homely name would not be called Joan but Jane But admit that they were several Names Then he and Gawdy were of opinion it should not be good But afterwards it was said by Gawdy That this action is not grounded meerly upon the Indenture but upon the Demise and that is the substance and the Indenture is but to enforce it sci the lease 44 E. 3. 42. Another matter was moved here the remainder was limited to Joan and Alice in fee by which they are Ioint Tenants and then when one of them enters the same vests the possession in them both Then by the demise of Joan a moyety passeth only to the Plaintiff Wray Here the Term is incurred and the Plaintiff is to recover damages only and no title at all is found for the Defendant and so there is no cause but that Iudgment should be given for

be a strange construction that the King should be within one part of the Statute and out of the other And 34 H. 6. 3. The Kings Attorney could not have damages which is a great proof and authority that the Iudgment for damages in such case is Error The experience and usage of Law is sufficient to interpret the same to us and from the time of E. 3. until now no damages have been given in such case Thrice this matter hath been in question 1. 3 H. 9. and the Iustices there would not give damages 34 H. 6. there the Councel learned of the King could not have damages for the King. And 7 Eliz. there was no damages And whereas it hath been said that a man shall not have a Writ of Error where Iudgment is given for his benefit that if Iudgment be entred that the Defendant be in Misericordia where it ought to be Capiatur yet the Defendant shall have a Writ of Error And he conceived also that here is but one Iudgment Clench The first President after the making of that Statute was that damages were given for the King in such case but afterwards the practice was always otherwise that the said Statute could not be construed to give in such case damages the reason was because the Iustices took the Law to be otherwise And the King is not within the Statute of 32 H. 8. of buying of Tythes nor any Subjects who buy any title of him And here in our case the Queen is not verus Patronus but hath this presentment by Prerogative And if title do accrue to the Bishop to present for Lapse yet the Patron is verus Patronus At another day the case was moved and it was said by VVray that he had conferred with Anderson Manwood and Periam who held that the Queen could not have damages in this case but Periam somewhat doubted of it Gawdy In 22 E. 4. 46. In Dower the Demandant recovered her Dower and damages by verdict and afterwards for the damages the Iudgment was reversed and stood for the Lands Clench It shall be reversed for all for there is but one Iudgment And afterwards Iudgment was given and that the Queen should have a Writ to the Bishop and damages Popham The Court ought not to proceed to the examination of the Errors without a Petition to the Queen and that was the case of one Mordant where an Infant levyed a Fine to the Queen and thereupon brought a Writ of Error and afterwards by the Resolution of all the Iudges the proceedings thereupon were stayed See 10 H. 4. 148. a good case CCVIII Chapman and Hursts Case Trin. 31 Eliz. In the Kings Bench. BEtwixt Chapman and Hurst Tythes the Defendant did libel in the spiritual Court for Tythes against the Plaintiff who came and surmised that whereas he held certain Lands by the Lease of Sir Ralph Sadler for term of years within such a Parish that the now Defendant being Farmor of the Rectory there The Defendant in consideration that the Plaintiff promised and agreed to pay to the Defendant ten pounds per annum during the Term for his Tythes he promised that the Plaintiff should hold his said Land without Tythes and without any sute for the same and thereupon prayed a Prohibition And by Gawdy the same is a good discharge of the Tythes for the time and a good Composition to have a Prohibition upon and it is not like unto a Covenant See 8 E. 4. 14. by Danby CCIX. Kirdler and Leversages Case Trin. 31 Eliz. In the Common Pleas. IN Avowry the case was Avowry 1 Cro. 241. that A. seised of Lands leased the same at Will rendring rent ten pounds per annum and afterwards granted eundem redditum by another deed to a stranger for life and afterwards the lease at will is determined Periam was of opinion that the Rent did continue and although that the words be eundem redditum yet it is not to be intended eundem numero sed eundem specie so as he shall have such a Rent scil ten pounds per annum As where the King grants to such a Town easdem libertates quas Civitas Chester habet it shall be intended such Liberties and not the same Liberties so in the principal case Also he held that a Rent at will cannot be granted for life and therefore it shall not be meant the same Rent But it was afterwards adjudged that the Rent was well granted for the life of the Grantee CCX Heayes and Alleyns Case Trin. 31 Eliz. In the Common Pleas. Cui in vita 1 Cro. 234. Poph. 13. HEayes brought a sur cui in vita against Alleyn And the case was this The Discontinuee of a Messuage had other Lands of good and indefesible title adjoining to it and demolisht and abated the said house and built another which was larger so as part of it extended upon his own Land to which he had good title And afterwards the heir brought a sur cui in vita and demanded the house by the Name of a Messuage whereas part of the house did extend into the Land to which he had no right And by Periam The Writ ought to be of a Messuage with an Exception of so much of the house which was erected upon the soil of the Tenant Demand and the manner of it in a writ as demand of a Messuage except a Chamber And it was argued by Yelverton That the Writ ought to abate for if the Demandant shall have Iudgment according to his Writ then it shall be entred quod petens recuperet Messuagium which should be Erronious for it appeareth by the verdict it self that the demandant hath not title to part of it and therefore he ought to have demanded it specially 5 H. 7. 9. parcel of Land containing 10 Feet 16 E. 3. Br. Mortdanc of a piece of Land containing so much in breadth and so much in length And the moyetie of two parts of a Messuage and 33 E. 3. br Entrie 8. a Disseisor of a Marsh ground made Meadow of it Now in a Writ of Entry it shall be demanded for Meadow Drue Serjeant contrary and he confessed the Cases put before and that every thing shall be demanded by Writ in such sort as it is at the time of the action brought as a Writ of Dower is brought of two Mills whereas during the Coverture they were but 2 Tofts but at the day of the Writ brought Mills and therefore shall be demanded by the name of Mills 14 H. 4. 33. Dower 21. 13 H. 4. 33. 175. 1 H. 5. 11. Walmesly part of a Msseuage may be demanded by the Name of a Messuage and if a House descend to two Coparceners if they make partition that one of them shall have the upper Chamber and the other the lower here if they be disseised they shall have several Assisses and each of them shall make his plaint of a Messuage and by him a Chamber may be

Charters of Corporations there is always such a clause per tale nomen implacitare implacitari acquirere c. possint and without their Name they are but a Trunk but contrary in the case of particular persons Land is given primogenito filio J. S. It is a good gift although there be no Name of Baptism Lands given omnibus filiis J. S. is a good name of purchase and if a man be bound in an obligation by a wrong or false Name and in an action brought upon the same if it appeareth upon evidence that he was the same person which sealed and delivered it the same is sufficient and the Bond shall bind him But contrary in the case of a Corporation and we cannot give any thing to a Corporation by circumstances inducing or implying their true name As Land given to the first Hospital which the Queen shall found Ante. 161 162. although that it sufficiently appear That such a one was the Hospital which the Queen first founded yet the gift is void And he denied That the four things remembred before are necessarily required in the Name of a Corporation for if the Queen will found a Corporation as an Hospital by the Name of Utopia the same is well enough without any respect of persons place Founder c. set forth in the Charter And also other things besides the said four things are sometimes necessary in a Corporation As if the Queen will found an Hospital by the Name Quod fundavimus ad roga Christ Hatton Cancel Angliae all the same ought to be expressed in every grant made by or to the said Hospital So Quod fundavimus ad relevandum pauperes and sometimes the number of the persons incorporated if it be in the Charter it ought to be used in all acts made by or to them As Master and sir Chaplains so as the said four things recited before are not so necessary in the Name of a Corporation but so far forth as they are parcel of the Name given to them in the Charter of the Corporation And in our case 1. The place de le Savoy is part of their name set down in the Charter of their Corporation and therefore the same ought to be precisely followed And he relyed much upon the argument of Cook in noting material variances betwixt de le Savoy and vocat le Savoy as de signifies part vocat the whole de signifies the place de facto vocat implyes reputation only There is a place near unto Whitehal called Scotland because that the Kings of Scotland when they came to our Parliament used there to reside as the Lord Treasurer affirmed There is also a place in England called Normandy and another called Callais and also a place here in Westminster called Jerusalem but these Scotland c. but by Reputation so as what difference is betwixt the very Scotland and Scotland here c. such and so much difference is there betwixt the Hospital de le Savoy and the Hospital vocat the Savoy And as to that which hath been objected by Atkinson That that word de signifies as well the whole as part as a Rent granted percipiend de Manerio de D. I confess that this word de hath many significations so that we ought not only to consider what de signifyes of it self but rather to observe what goes before what follows for as saith Hillary intelligentia verborum ex causa dicendi sumenda est And this word de is a material word in the Name of a man therefore also in the name of a Corporation 26 H. 6. 31. Assise by I. de S. and it was found for him and afterwards the Tenant in the Assise brought attaint and in the rehersal of the Assise in the writ of attaint he was named I.S. leaving out de and for that cause the Writ did abate 28 E. 3. 92. Debt brought by the Executor of John Holbech where the Testament was John de Holbech and for want of this word de in the Writ it was abated by Award And in a Praecipe quod reddat against Mich. de Triage he cast a Protection for Michael Triage leaving out de and for such variance the Protection was disallowed and a Petit cape awarded And although the Iudges in their private knowledge know well enough That the Hospital de le Savoy and the Hospital vocat the Savoy be all one yet in point of Iudgment they ought not otherwise receive information but out of the Record and therefore if sufficient matter be not within the Record to inform the Iudges of the Identity of the said two Hospitals their private knowledge shall not avail And he cited the cause of the Lord Conniers where the Parties being at issue and the Iury charged for the trial of it It was found by special verdict That a fine was levyed of the Lands in Question c. but nothing found of the Proclamations whereas in truth the Proclamations were as well given in evidence as the fine But found Quod finis levatus fuit prout per recordum finis ipsius in evidenciis ostensum plenius apparet Now in that case although that the Iustices knew well enough That the Proclamations were expressly given in evidence yet because it did not appear unto them as Iudges out of the Record They would not give Iudgment according to the truth of matter but according to the Record for they cannot take notice if the Proclamations be in the Chirographers Office or not But after it appeared unto them That that defect was but a slip of the Clerk they commanded the Record to be brought before them and the Proclamation to be inserted in the verdict and then gave Iudgment according to the verdict reformed as aforesaid And as to the Case of Martin Colledge cited before he said he was of Councel in it and he knew That the Iudgment there was not given for the cause alledged by Cook but because that this word Scholars was left out in the Lease And he held that if in the principal Case the Lease had been That the Master and Chaplains of the house called the Hospital of the Savoy c. it had been well enough for there is de le Savoy See a good case 36 H. 6. fitz Brief 485. by Danby a Corporation cannot be Tenants of Lands but according to their Corporation and their foundation and their very Name nor they cannot be impleaded nor take Lands by a wrong Name nor purchase nor dispose of their possessions but by their true Name And afterwards the matter was compounded by the mediation of Friends and Fanshaw had the Lease for a certain sum of mony See now Cook 10 Report The Case of the Mayor and Burgesses of Lyn Regis See also Cook 11. Report 18. Doctor Arays Case to this purpose CCXXIX Huson and Webbs Case Mich. 30 31 Eliz. In the Common Pleas. RObert Huson brought an action of Debt against Anne Webb Debt lieth not against

of the Contract and being made at the time of the Communication and contract should charge the Defendant but if the promise were at another time it should be otherwise There was a Case lately betwixt Smith and Edmunds Two Merchants being reciprocally endebted the one to the other agreed betwixt themselves to deliver all their Bills and Bonds into the hands of one Smith who promised that he would not deliver them to the parties until all accounts were ended betwixt them and yet he did deliver them and for that an Action brought against him was adjudged maintainable yet there was not any consideration nor was it material for the action is grounded upon the Deceit and so is it here upon the Warranty And of that opinion were Clench and Wray Iustices but Gawdy was of a contrary opinion CCLXII Woodshaw and Fulmerstones Case Hill. 30. Eliz. Rot. 699 In the Kings Bench. WOodshaw Executor of Heywood brought Debt upon a Bond against Richard Fulmerstone and the Writ was dated October Mich. 29 30 Eliz. and the Condition of the Bond was That if Fulmerstone died before his Age of one and twenty years and before that he had made a Ioynture to A. his Wife Daughter of the Testator Heywood Then if the said Defendant caused one hundred pounds to be payed to the said Heywood within three months after the death of the said William that then the Bond should be void and the said William Fulmerstone died 30 September 30 Eliz. which matter he is ready c. The Plaintiff doth traverse absque hoc that the said Heywood died intestate Tanfield It appeareth of Record that the Plaintiff hath not cause of action for this one hundred pounds was to be paid within three Months after the death of William Fulmerstone 1 Cro. 271 325 565. as the Defendant hath alledged which is also confessed by the Plaintiff and this Action is entred Mich. October 30 Eliz. scil within a month after the death of William Fulmerstone and so before the Plaintiff hath cause of action and therefore he shall be barred Gawdy Where it appeareth to the Court that the Plaintiff hath not cause of Action he shall never have Iudgment as in the Case betwixt Tilly and Wordy 7 E. 4. But here it doth appear that the Plaintiff hath cause of Action for where a man is bound in an obligation the same is a duty presently Obligation and the condition is but in defeazance of it which the Defendant may plead in his discharge CCLXIII Windham and Sir Edward Cleers Case Trin. 31 Eliz. In the Kings Bench. ROger Windham brought an Action upon the Case against Sir Ed. C. declared that the said Ed. being a Iustice of Peace in the County of N. and where the Plaintiff was a loyal subject Action upon the Case of sclander 1 Cro. 130. and of good fame all his life time nor ever touched or reproched with any offence of Ro●ery c. the Defendant malitiose invide machinams ipsum Rogerum de bonis nomine fama et vita deprivare directed his warrant to divers Baylifs and Constables of the said County to arrest the said Plaintiff And it was alledged in the said Warrant That the Plaintiff was accused before him of the stealing of the horse of A. B. by reason of which the Plaintiff was arrested and so detained until he had entred into a Bond for his appearance c. whereas in truth he was never accused thereof nor ever stole such horse and whereas the Defendant himself knew that the Plaintiff was guiltless by reason of which he was greatly discredited c. And it was found for the Plaintiff And it was moved that upon this matter an Action doth not lye for a Iustice of Peace if he suspect any person of Felony or other such Offence may direct his Warrant to arrest him 14. H. 8. 16 Gaudy and Clench If a man be accused to a Iustice of Peace for Felony for which he directs his Warrant to arrest him although the accusation be false the Iustice of Peace is excused but if the party in truth was not accused before the Iustice it is otherwise It was a Case lately betwixt the Lord Lumley and Foord where Foord in a letter written by him had written It is reported That my Lord Lumley seeketh my life If it was not Reported an Action upon the Case lieth but if reported no Action lieth So here if he was accused no Action lieth but if not an Action lieth And afterwards in the principal Case Iudgment was given for the Plaintiff CCLXIV Isleys Case Trin. 31 Eliz. In the Kings Bench. ISley and others were Plaintiffs in an Ejectione firmae and upon the general Issue it was found for the Plaintiffs and 4 days after the verdict given was moved in stay of judgment a special ma●ter in Law whereof the Iustices were not resolved for the law but took advisement and gave day over and in the mean time one of the Plaintiffs died which matter the Defendant shewed to the Court in further stay of the Iudgment But by Coke the same is not any cause for the Postea came in Quindena Pasch which was 16 Aprilis at which day the Court ought to have given Iudgment presently but took time to be advised and the 19 of April one of the Plaintiffs died And the favour of the Court ought not to prejudice us for the Iudgment here shall have Relation to the 16 of April at which time he was alive and it was so of late adjudged in the Case of Derick James who died the day after the verdict and yet Iudgment was not stayed for the Court after verdict cannot examine surmises and they have not a day in Court to plead and in our case It was but a day of Grace and no entry is made of it Although no plea can be now pleaded after verdict yet as amicus curiae one may inform us of such matter And sometimes in such case Iudgment hath been stayed as 9 Eliz. and sometimes notwithstanding such Exception as 2 Eliz. So as I conceive the matter is much in the discretion of the Iustices And because the same was a hard verdict and much against the Evidence It is good discretion upon this matter to stay Iudgment and such was the opinion of the Court. CCLXV. Steed and Courtneys Case Trin. 31 Eliz. In the Kings Bench. Error 1 Cro. 116. Owen 93. More 691. Prescription to levy a fine not good ERror was brought upon a Fine levied upon a Plaint in a writ of Covenant in the City of Exceter And two Errors were assigned First The Plaint was quod teneat convent de duobus tenementis Whereas in truth the word Tenement doth not comprehend any certainty for in the Word Tenement is understood Messuage Land Meadow Pasture c. and whatsoever syeth in tenure And 11 H. 6. 18. by grant of Lands and Tenements Rent or Common shall pass And an Ejectione firmae

the opinion in Baintons Case 8 Eliz. Dyer 37. is not Law and so hath the Law been taken of late Popham contrary If before the Statute of 27 H. 8. the Father covenant in consideration of Advancement of his Son to stand seised to the use of I. S. for life and after the death of I. S. to the use of my Son in Fee here the estate of I. S. in the use is void and yet the estate in the use limited to my Son shall not take effect before the death of I. S. for the estate of my Son is not limited to take effect till after the death of I. S and therefore the possession of the Father is not charged with the use during the life of I.S. But if by way of Feoffment I.S. had refused the Son should have it presently and the Father should not have it for he by his Livery hath put all out of him and it was not the intent of the Feoffment that the Feoffee should have the Land to his own use Popham allowed the difference mentioned before out of 2 E. 4 19 H. 6. betwixt a Feoffment upon condition to enfeoff a stranger and to give in tail to a stranger and that is grounded upon the intent of the parties And Owen Serjeant put the Case cited before 1. 3 Eliz. Dyer 330. A Feoffment is made by the Husband to the use of himself for life and afterwards to the use of one Ann whom he intended to marry for during and until the Son which he should beget on the body of the said woman had accomplished the age of thirty one years and after such time that such Son should come unto such age unto the use of the said woman quamdiu she should live sole they entermarry the Husband dyeth without Issue the wife entreth immediately and continues sole and her Entry was adjudged lawful and the estate in Remainder good although she never had any Son and thereupon a Writ of Error was brought and the first Iudgment was affirmed note by Tanfield and others at the Bar that that was the most apt case to the purpose in the Law and the reason of such Iudgment was because they took it that Deeds ought to be expounded according to the meaning of the parties and estates in possession I grant there ought to be a particular estate upon which a Remainder may depend but the same is not necessary where the Conveyance is by way of use And if I covenant that A. shall have my Lands to him his Heirs to pay my Debts and Legacies the same is by way of bargain and sale and nothing passeth without Enrolment And here the Attainder doth not prevent the use as it hath been objected by Master Solicitor for the use doth rise before the Attainder for William Paget had a Remainder in tail in the life of his Father upon the first limitation c. Periam Iustice I lease my Lands to you to begin after the expiration of a Lease which I have made thereof to I.S. and in truth he hath not any Lease the same Lease shall never begin Manwood chief Baron I lease my Lands to you or grant a Rent to you to begin after the death of Prisoit Serjeant at Law when shall that begin Coke Presently Manwood cujus contrarium est Lex CCLXXX The Queen against the Arch-Bishop of Canterbury Fane and Hudson Mich. 31 32 Eliz. In the Common Pleas. Rot. 1832. THe Queen brought a Quare Impedit against the Arch-Bishop of Canterbury the Bishop of Chichester and Hudson Quare Impedit 4 Len. 107. Hob. 303. 175. Owen 155. and counted that John Ashburnham was seised of the advowson of Burwash was outlawed in an action of Debt during which Out-lawry in force the Church voided for which it belongs to the Queen to present The Arch-Bishop and Bishops plead that they claim nothing but as Metropolitan and Ordinary Fane pleaded that King E. 4. Ex gratia sua speciali c. and in consideration of faithful service c. did grant to the Lord Hastings the Castle and Barony of Hastings and Hundred c. Et quod ipse haberet omnia bona catalla tenentium residentium non residentium aliorum residentium quorumcunque hominum de in Castro Baronia c. or within the same pro munero debit c. tam ad sectam Regis c. quam c. Ut legatorem quid ipse faceret per se vel per his sufficient Deputies c. And from him derived to the now Earl of Huntington as Heir and the said Earl so seised and the said Ashburnham seised of the advowson as appendant to the Manor of Ashburnham holden of the said Barony the Church aforesaid during the Out-lawry aforesaid became void For which the said Fane ad dictam Ecclesiam usurpando presentavit the said Hudson who was admitted and instituted c. with this That idem T.C. verificare vult that the said Church of Burwash is and at the time of the grant was within the Precinct Liberty and Franchise aforesaid and that the said Manor of Ashburnham at the time of the grant aforesaid was holden of the said Barony and the Incumbent pleaded the same Plea if by that grant of King Edward the fourth to the Lord Hastings scil omnia bona catalla c. The presentment to the Church should pass or not was the question Shutleworth Serjeant argued for the Queen he confessed that the King might grant such presentment but it ought to be by special and sufficient words so as it may appear by them that the intent of the King was to grant such a thing for the general words omnia bona catalla will not pass such special Chattel in the Kings grant And he conceived that by the subsequent words no Goods or Chattels shall pass by such Grants but such which may be seised which the avoidance of a Church cannot be quod ipse liceret per se vel ministros suos ponere se in seisinam 8 H. 4. 114. 15. the King granted to the Bishop of London that he should have Catalla felonum fugitivor de omnibus hominibus tenentibus de in terris feodis praedict and of all resiants within the Lands and Fees aforesaid Ita quod si praedict homines tenentes residentes de in terris feodis praedict seu aliqui eorum seu aliquis alius infra cadem terra feodis pro aliqua transgressione c. vid. librum c. and by Tirwit By that Grant the goods of those who are put to Pennance shall not pass so of the goods of one Felo de se vid. 42 E. 3. 5. One being impanelled on the Grand Enquest before the Iustices of Oyer and Terminer pleaded the charter of the King of exemption from Enquests and because in the said charter was not this clause More 126. licet tanget nos

haeredes nostros upon challenge it was rejected and the party charged and sworn And if the King grant to me to appropriate an advowson which in truth is holden of the King such a grant is void if there be not special words by which it might appear that the King had notice of it and that his intent was that the grant should extend unto it 16 E. 3. Grants 58. 33 E. 3. Grants 103. So here the Presentment is a special chattel and is not usually intended or thought upon when men speak generally of goods and chattels But admit that it be yet the Plea doth not lye in the Defendants to plead for they do not derive any Interest under this grant but are meer strangers to it and therefore they shall not take any advantage by laying this grant in the Queens way for the Q. hath good title against all persons but those who claim under the grant but that is nothing to the Defendants for one cannot cross the title of the King if he do not make a title to himself As 39 E. 3. 18. 37 E. 3. 11. If the title of the King be found by a false Office the party grieved cannot traverse the Kings title without making title to himself found by Office and then the King may choose whether he will maintain his own title found by Office or traverse the title of the other Walmesley contrary This Title of Presentment is a Chattel Rex habebit omnia catalla felonum c. A Term of years is a Chattel so the Issues and Profits of the Lands of men outlawed for Felony so a right of Action for Goods Therefore a Title to present and if such a Title accrue to the King by such general words they shall pass from the King. And as to that which hath been objected That the Gra●● of King Edward the fourth doth not extend but only to such Goods and Chattels which may be seised he cited the Case of 39 H. 6. 35. b. Where the Grantee of a Rent for Term of years granted omnia bona catalla sua tam viva quam mortua the Rent doth pass and yet the Grantor cannot put him in seisin of it but ought to expect the day of payment of it And this Title to present is not a thing in action for if no disturbance be made the party may have the benefit of it without any action Anderson conceived That this Title to present cannot pass by those general words bona catalla for they do not extend to Rights or things in Action for such things only which are commonly known and understod shall pass by such words By grant of Goods Chattels real will not pass for when men speak of Goods Household-stuff mony and such personal things only are understood So a man cannot be said to have a Chattel but where he is possessed of it and here this Interest is but jus praesentandi Periam This Interest is a Chattel for if the Church become void and before presentment the Patron dieth the Executors shall have the presentment for it was a Chattel vested in the Testator It was adjorned CCLXXXI Jones Case Hill. 31 Eliz. Rot. 1527. In the Common Pleas. HEn Jones had stolen the Plate of Trinity Colledge in Oxford and by mediation of his friends it was concluded and agreed that no Evidence should be given against him at the Sute of the Colledge and that the Colledge should be recompenced for the losse and two of his Friends Brien and Brice were bound uto Doctor Underhil Rector of Lincoln Colledge in Oxford but unto the use of the Master and Scholrs of Trinity Colledge upon condition that if the said Obligor paid forty pounds within six months after the said Hen. Jones should be acquitted released of the troubles wherein he now is with the safety of his life that then c. In debt upon the Obligation The Defendants pleaded that he was indicted at the Assises at Ox. arraigned upon it scil for the stealing of the said Plate and found guilty thereof and had his Clergy and was burned in the hand he demanded Iudgment of this Action upon which there was a Demurrer Wind. If the words had been to pay the money after that Henry Jones should be released and acquitted of the troubles in which he now is without any more the Defendants had been bounden to pay the mony Periam If the words of the condition had been that after Henry Jones should be acquitted of the Felony then no mony payable but here the words are with safety of his life but here he conceived that the intent of the Obligation was that no Evidence should be given and so to save his life from the Gallows for which the Defendants might have shewed the special matter Ante. 73. and averred that the Obligation was made for the discharge of a Felon and so against the Law c. but now they cannot take advantage of it and afterwards Iudgment was given for the Plaintiff CCLXXXII Castle and Oldmans Case Pasc 31 Eliz. In the Common Pleas. CAstle brought Debt against Oldman for a pain ●ossessed in a Court Baron Debt 2 Roll. 106. 3 Cro. 79. 2 Inst 143. and declared That the Defendant was presented at the Court Baron for such an offence and if he did not amend it before the next Court he should pay such a pain And at the next Court it was presented That the Defendant had not amended it and so he had incurred the pain upon which the Action is brought and now the Defendant would wage his Law and it was much doubted whether wager of Law lay in the Case Shutleworth 13. H. 7. 31. Vpon a Recovery in a Court Baron wager of Law lyes not by Conisby which Periam denyed And by him upon an account by another hand it doth not lye for it is a matter of which the Country may have Conusance so here the matter is notorious whi●h lyeth in the knowledge of all the Iurors who presented it And by him the pain ought to be afferred which Anderson denied For there is a difference betwixt an amercement and a pain which Windham granted And see for the amerciament in the Leet 10 H. 6. 7. 12 R. 2 Ley. 43. But in a Court Baron because it is not a Court of Record so in Debt upon an Arbitrament the Law lyeth And Waler one of the Secondaries shewed unto the Court a President 6 Eliz. Where debt was brought by Sir Thomas Tyndal upon a pain forfeited for the breaking of a By-law in a Court Baron against Tyler and the party was received to Wage his Law. CCLXXXIII Thetford and Thetfords Case Pasch 31 Eliz. In the Common Pleas. IN Wast the Plaintiff declared upon the demise of the moyety of the Manor whereof part of the Tenants were Copy-holders and part Freeholders and that A. was seised of the Manor and had 〈◊〉 two Daughters and dyed seised the Daughters entred

appendant to it and conveyed the said capital Messuage and Advowson to the King by the dissolution and from the King to the said Thomas Long who so seised without any Deed did enfeoff the Plaintiff of the said Manor and made Livery and Seisin upon the Demesnes And that the said Thomas Long by his Deed made a grant of the said Advowson to the said Strengham and afterwards the Free-holder attorned to the Plaintiff And by the clear opinion of the whole Court here is a sufficient Manor to which an Advowson may be well appendant and that in Law the Advowson is appendant to all the Manor but most properly to the Demesnes out of which at the commencement it was derived and therefore by the attornment afterwards within construction of the Law shall have relation to the Livery the Advowson did pass included in the Livery And the grant of the advowson made mesne between the Livery and the attornment was void and afterwards Iudgment was given and a Writ to the Bishop granted for the Plaintiff CCXC. Mich. 32 33 Eliz. In Communi Ban●o Debt A Made a Bill of Debt to B. for the payment of twenty pounds at four days scil five pounds at every of the said four days and in the end of the Deed covenanted and granted with B. his Executors and Administrators that if he make default in the payment of any of the said payments that then he will pay the residue that then shall be un-paid and afterwards A. fails in the first payment and before the second day B. brought an action of Debt for the whole twenty pounds It was moved by Puckering Serjeant S●y 31. 32. 1 Cro. 797. That the Action of Debt did not lye before the last day encurred And also if B. will sue A. before the last day that it ought to be by way of covenant not by Debt But by the whole Court the action doth well lye for the manner for if one covenant to pay me one hundred pounds at such a day an action of Debt lyeth a fortiori Owen 42. 1. 2 Rol. 523. when the words of the Deed are covenant and grant for the word covenant sometimes sounds in covenant sometimes in contract secundum subjectum materiae CCXCI. Lancasters Case Mich. 32 33 Eliz. In Communi Banco Roll. Tit. Covenant pl. 72. AN Information was against Lancaster for buying of pretended Rights Titles upon the Statute of 32 H 8. And upon not guilty pleaded It was found for the Plaintiff it was moved in arrest of Iudgment because the Informer had not pursued the Statute in this that it is not set forth that the Defendant nor any of his Ancestors or any by whom he claimed have taken the profits c. and the same was holden a good and material Exception by the Court although it be layed in the Information that the Plaint himself hath been in possession of the Land by twenty years before the buying of the pretended Title for that is but matter of argument not any express allegation for in all penal Stat. the Plaintiff ought to pursue the very words of the Stat. and therefore by Anderson It hath been adjudged by the Iudges of both Benches that if an Information be exhibited upon the Stat. of Vsury by which the Defendant is charged for the taking of twenty pounds for the Loan and forbearing of one hundred pounds for a year there the Information is not good if it be not alledged in it that the said twenty pounds was received by any corrupt or deceitful way or means And in the principal Case for the Cause aforesaid Iudgment was arrested CCXCII Bagshaw and the Earl of Shrewsburies Case Mich. 32 33. Eliz. In the Common Bench. BAgshaw brought a Writ of Annuity against the Earl of Shrewsbury for the arrerages of an Annuity of twenty Marks per annum Annuity granted by the Defendant to the Plaintiff Pro Consilio impenso impendendo The Defendant pleaded that before any arrerages incurred he required the Plaintiff to do him Service and he refused The Plaintiff by replication said that before the refusal such a day and place the Defendant discharged the Plaintiff of his Service c. And the opinion of the Court was that the Plea in Bar was not good for he ought to have shewed for what manner of Service to do the Plaintiff was so retained and for what kind of Service the Annuity was granted and then to have shewed specially what Service he required of the Plaintiff and what Service the Plaintiff refused Another matter was moved If the discharge shall be peremptory and an absolute discharge of the Service of the Plaintiff and of his attendance so that as afterwards the Defendant cannot require Service of the Plaintiff And by Walmesly Iustice it is a peremptory discharge of the Sevice for otherwise how can he be retained with another Master and so he should be out of every Service VVindham contrary For here the Plaintiff hath an Annuity for his life and therefore it is reason that he continue his Service for his life as long as the Annuity doth continue if he requirreth But where one is retained but for one or two years then once discharged is peremptory and absolute CCXCIII Matheson and Trots Case Mich. 31 32. Eliz. In the Common Bench. BEtwixt Matheson and Trot the Case was Sir Anthony Denny seised of certain Lands in and about the Town of Hertford 2 Len. 190. holden in Socage and of divers Mannors Lands and Tenements in other places holden in chief by Knights-service and having Issue two Sons Henry and Edward by his last Will in writing devised the Lands holden in Hertford to Edward Denny his younger Son in Fee Devises and died seised of all the Premisses Henry being then within age After Office was found without any mention of the said Devise the Queen seised the Body of the Heir and the possession of all the Lands whereof the said Sir Anothony died seised and leased the same to a stranger during the Minority of the Heir by force and colour of which Lease the Lessee entred into all the Premisses and did enjoy them according to the Demise And the Heir at his full age sued Livery of the whole and before any entry of the said Edward in the Land to him devised or any entry made by the said Henry the said Henry at London leased the said Lands by Deed indented to I.S. for years rendring Rent by colour of which the said I.S. entred and paid the Rent divers years to the said Henry And afterwards by casualty the said Henry walked over the Grounds demised by him in the company of the said I. S. without any special entry or claim there made I.S. assigned his Interest to I.D. who entred in the Premisses and paid the Rent to the said Henry who died and afterwards the Rent was paid to the Son and Heir of Henry

And after four and twenty years after the death of the said Sir Anthony the said Edward entred into the Land to him devised by the said Devise and leased the same to the Plaintiff Descent where tokes away entire c. And it was moved here if this dying seised of Henry of the Lands in Hertford and descent to his Heir should take away the Entry of Edward the Devisee And by Anderson cleerly If here upon the whole matter be a descent in the Case then the Entry of Edward the Devisee is taken away although that the Devisee at the time of the descent had not any Action or other remedy for it shall be accounted his folly that he would not enter and prevent the descent But VVindham Periam and VValmesly Iustices 2 Len. 147. 1 Cro. 920. 3 Cro. 145. Owen 96. were of a contrary opinion For a Devisee by a Devise hath but a Title of Entry which shall not be bound by any Descent as Entry for Mortmain for Condition broken And after long deliberation they all agreed that there was not any Descent in the Case for by the Devise and death of the Devisor the Frank-tenement in Law and the Fee was vested in the Devisee Edward And then when the Queen seised and leased the same during the Nonage of Henry and the Lessee entred he did wrong to Edward and by his Entry had gained a tortions Estate in fee although he could not be said properly a Disseisor nor an Abator And afterwards when Henry after his full age when by his Indenture he leased without any special Entry ut supra and by colour thereof the Lessee entred now he is a wrong-doer to Edward the Devisee and by his Entry had gained a wrongful Possession in Fee and then the paying of the Rent to Henry nor the walking of Henry upon the Land without any special claim did not gain any Seisin to him and so he was never seised of the Land and could never dye seised and then no Descent and then the Entry of Edward was lawful and the Lease by him made to the Plaintiff was good And so Iudgment was given for the Plaintiff CCXCIV. Greenwood and Weldens Case Mich. 32 33 Eliz. In the Common Bench. Replevin IN a Replevin between Greenwood and VVelden The Defendant made Conusans as Bayliff to John Cornwallis shewed how that seven acres of Land called Pilles is locus in quo and at the time of the taking were holden of the said Cornwallis by certain Rent and other Services And for Rent arrear he made Conusans as Bayliff to Cornwallis The Plaintiff pleaded out of the Fee of Cornwallis upon which they were at Issue And it was found that the Plaintiff is seised of seven acres called Pilles hoden of Cornwallis ut supra But the Iury say That locus in quo doth contain two acres which is called Pilles and these two acres are and then were holden of Agmondesham of the Middle-Temple And if upon the whole matter videbitur Curiae c. And by the opinion of the whole Court out of his Fee upon that matter is not found for although it be found that the two acres be holden of Agmondesham yet it may be that they are within the Fee of Cornwallis for it may be that Cornwallis is Lord Paramount and Agmondesham Mesne and then within the Fee of Cornwallis And therefore for the incertainty of the Verdict a Venire facias de novo was awarded CCXCV. Bishop and Harecourts Case Mich. 32 33. Eliz. In the Common Bench. Assumpsit 1 Cro. 210. IN an Action upon the Case The Plaintiff declared that the 5 Junij 30 Eliz. the Defend in consideration that the Plaintiff the same day and year sold and delivered to the Defend a Horse did promise to pay the Plaintiff a hundred pounds in Trinity Term then next ensuing and shewed that the Term began 7 Junij after And upon Non assumpsit pleaded it was found for the Plaintiff And it was moved in arrest of Iudgment That it appeareth upon the Declaration that the Plaintiff hath not cause of Action for the Trinity Term intended is not yet come for the day of the Assumpsit is the fifth of June and the fourth day was the first day of the said Term scil the day of Essoins and the seventh day 4. die post and then the promise being made at the day aforesaid after the Commencement of the said Term the same is not the Term intended but the Plaintiff must expect the performance of the promise until a year after And of that opinion was Anderson but the three other Iustices were strongly against him to the contrary for by common intendment amongst the people the Term shall not begin until 4. die post and so it is set down usually in the Almanack And afterwards Iudgment was given for the Plaintiff CCICVI Mich. 32 33. Eliz. In the Common-Bench COoper Serjeant came to the Bar and shewed that A. Tenant in tail the Remainder over to B. in Fee. Co. 2 Inst 483. 484. 1 Cro. 323. 471. 567. Hob. 496. 3 Cro. 224. A. for a great sum of mony sold the Land to I. S. and his Heirs and for assurance made a Feoffment in Fee and levied a Fine to the said I. S. to the use of the said I. S. and his Heirs And note that by the Indenture of Bargain and Sale A. covenanted to make such further Assurance within seven days as the said I. S. or his Heirs or their Council should devise And shewed that before any further assurance was made the said I. S. died his Son and Heir being within age And now by advise of Council and of the Friends of the Infant it was devised that for such further assurance and cutting off the Remainder a common Recovery should be suffered in which the said Infant should be Tenant to the Praecipe and should vouch the Vendor Common Recovery suffered by an Infant by his Guardian and because that the said Term of seven years is almost expired and that the said Recovery is intended to be unto the use of the said Infant and his Heirs it was prayed that such a Recovery might be received and allowed And two Presidents in such Case were shewed in the time of this Queen one the Case of the Earl of Shrewsbury and the other one VVisemans Case But the Iustices were very doubtful what to do But at last upon good assurance of people of good Credit that it was unto the use of the Infant and upon the appearance of a good and sufficient Guardian for the Infant in the Recovery who was of ability to answer to the Infant if he should be deceived in the passing of that Recovery and upon consideration had of the two Presidents and upon Affidavit made by two Witnesses that the said intended Recovery was to the use of the Infant the Recovery was received and allowed CCICVII Cottons Case Mich. 32

Disseisor as well to Robert as to the Infant Then if the Defendant be Disseisor and hath no title by the Infant Robert who hath Right in a moyety may well enter into the whole for he hath the possession per my per tout by his Entry and then when the Defendant doth eject him he hath good cause of Action And after at another day the Case was moved and it was agreed That for one moyety the Infant is bound for Sir Thomas had an estate tail in a moyety for he was Issue of the body of the Comisor But for the other moyety the Fine levyed by Tenant for life William the Father being then Tenant beyond the Sea It was holden by Anderson Windham and Walmesly that the Infant was not barred notwithstanding the objection abovesaid That William the Father never returned into England and notwithstanding the words of the Statute of 4 H. 7. And by Walmesley If an infant make his claim within age it is sufficient to avoid the Fine and yet the said Statute seems to appoint to him time within five years after his full age so that according to the very words a claim made before or after should be vain yet in Equity although he be not compelsable to make his claim until the time allowed by the Statute yet if he make it before it is good enough And by Anderson Although that VVilliam the Father did not return yet if he makes not his claim within five years after the death of his Father being of full age and without any impediment c. he shall be barred If in such case a man hath many impediments he is not compellable to make his claim when one of the impediments is removed but when they are all removed So if the Ancestor hath one of the said impediments and dieth before it be removed and his Heir is within age or hath other impediment he is not bound to make is claim till five years after his impediment is removed And Somes case cited before was holden and agreed to be good Law for the Forfeiture may not be known unto him And as to the objection against the Lease at Will because it was made by an Infant and no Rent reserved upon it nor the Lease made upon the Land and therefore the Lessee should be a Disseisor To that it was answered Be the Defendant a Disseisor or not it is not material here for if the Plaintiff had not title according to his Declaration he cannot recover 1 Cro. 220. 1 Cro. 438. whether the Defendant hath title or not for it is not like unto Trespass where the very possession without other title is good contrary in Actions against all who gave not title but in Ejectione firmae if the title of the Plaintiff be not good and sufficient be the title of the Defendant good or not he shall not recover And afterwards Iudgment was given for the Defendant Hill. 33. Eliz. CCXCVIII Cheny and Smiths Case Mich. 32 33 Eliz. In Communi Banco IN an Ejectione firmae by Cheny and his Wife against Smith The Plaintiffs declared upon a Lease made by the Master of the House or Colledge of S. Thomas of Acons in London to I.S. who assigned it over to Knevit who by his Will devised the same to his Wife whom he made also his Executrix and dyed and afterwards she took to Husband one VVaters and died VVaters took Letters of Administration of the Goods and Chattells of his Wife and afterwards leased to the Plaintiffs And upon not guilty they were at Issue And it was given in Evidence That the Lease given in Evidence was not the Lease whereof the Plaintiffs have declared for the ori●inal Lease shewed in Court is Master of the House or Hospital where the Lease specified in the Declaration is Master of the House or Colledge 38 E. 3. 28. And some of the Iustices conceived that there is not any material Variance but if the parties would it might be found by special Verdict For by them Colledge and Hospital are all one And afterwards the Court moved the Plaintiffs to prove if the wife were in as Executrix or as Legatee for by Anderson and Periam until election be made he shall not be said to have it as Legatee especially if it be not alledged in fact that all the debts of the Testator are paid And Anderson doubted although that it be alledged that the debts be paid If the Executor shall be said to have the said Lease as a Legacy before she hath made Election vid. Weldens Case and Paramours Case in Plowd And afterwards it was given in Evidence That the wife after the death of the Husband had repaired the Banks of the Land and produced Witnesses to prove it as if the same should amount to claim it as a Legacy and the Court said that that matter should de referred to the Iury 1 Roll. 620. And it was further shewed in Evidence that the said Wife Executrix and her said Husband Waters formerly made a Lease by Deed reciting thereby that where the Husband was possessed in the right of his said Wife as Executrix of her first Husband c. And by the opinion of the whole Court the same was an express claim as Executrix and then when the Wife died if the Husband would have advantage of it he ought to take Letters of Administration of the Goods of her first Husband and not of the Wife but if she had claimed the Land and the Term in it as Legatee and had not been in possession Administration taken of the Rights and Debts of the Wife had been good as to that intent that his Wife was not actually possessed of it but only had a Right unto it and of such things in Action the Husband might be Executor or Administrator to his Wife but here they have failed of their title The Administration being taken of the goods of the Wife where it should be of the Goods of the Testator the first Husband And for this cause the Plaintiffs were non-suit and the Iury discharged And it was agreed by all the Iustices that if the Wife before Election had taken Husband that the Husband might have made the Election in the Case aforesaid CCXCIX The Lord Cobham and Browns Case Mich. 32 33 Eliz. In the Common Bench. THe Case between the Lord Cobham and Brown was that the Abbot of Grace was seised of the Mannor of Gravesend in the County of Kent which Mannor doth extend to the Parishes of Gravesend and Milton and that the said Abbot and all his Predecessors c. time out of mind c. have had a Water-Court within the said Mannor which Court had been holden at Gravesend Bridge in the end of it and that all the Inhabitants within the said Parishes which have Boats either entirely or joyntly with others and have used to transport or carry passengers from Gravesend to London e contra and have used to fasten

his Manor by prescription which is not a Court-baron Anderson was of opinion that it is not a Court-baron for although it be appertaining to the Manor yet that is not any proof that it is a Court-baron For a Leet may be appertaining to a Manor It was adjourned CCC Green and Edwards Case Mich. 32 33 Eliz. In Communi Banco 1 Cro. 216. 217. BEtween Green and Edwards the Case was this Land is demised to A. for nine years if he shall so long live and if he die within the Term that B. his Wife shall have it durante toto residuo termini praedict The Husband dieth during the Term If the Wife shall have the residue of the Term was the Question And by Periam Walmesly Iustices by the death of the Husband the Term is determined thereupon nothing can remain especially by way of grant but by way of Devise it might be See 9 Eliz. 253. A Lease for forty years to A. if he shall live so long and if he die within the Term that E. his Wife shall have the residue of the years Where it was holden that by the death of A. the Term is determined and then there is no residue and so the Limitation is void vide 3 4 Phil. Mar. 150. Anderson If the Husband and Wife had been parties to the Deed of Demise then the residue of the Term should go to the Wife after the death of the Husband and this word Terminum shall not be taken for the Interest which is given to the Husband but for the time so it is as much as to say that if the Husband die before forty years expired that then his Wife shall have the residue for forty years and it is reason to make such construction rather than to construe the said part of the Deed to be void For if in the construction of this Grant the Term shall be taken for the Interest then the Limitation shall be void And in all Grants the Deeds shall be taken most beneficially for the Grantee and most strongly against the Grantor especially ut res magis valeat quam pereat And here are several Grants and several Terms But if such matter be limited to the Wife not named in the Deed all is void for it is incertain when the Term shall begin it cannot vest during the particular Estate and it is not certain whether the Husband shall survive the Term or not And by Walmesly Windham the said Limitation is meerly void As if a Termer grants all his Term for so many years as shall be behind after his death the same is a void Grant for the Lessee may over-live all the Term and then it is incertain when it shall begin And in this Case this word Term shall be taken for the Interest and not for time vide 35 H. 8. Br. Conditions 203. vide Co. 1. part in the Rector of Chedingtons Case this Case vouched CCCI. Gawton and the Lord Dacres Case Mich. 32 33 Eliz. In the Common Bench. IN Debt upon Surplusage of an Accompt by Gawton against George Lord Dacres It was said by Periam Iustice and not denied by any that if I make J. S. my Auditor generally to take Accompts of all my Bayliffs and Receivors that he is not a sufficient Auditor without a Patent for when a man is made an Auditor generally he is an Officer and an Officer cannot be without a Deed. But if a Bayliff or Receiver be accomptable to me it is as cleer on the other side that I may appoint one to be my Auditor to take the accompt of him pro hac vice by word which Anderson granted But if he afterwards takes an accompt of any by force or colour of the said Warrant without my Commandment he is not a sufficient Auditor to such intent either to take the accompt or to assess the arrerages if the accomptant be found in arrear or to make allowance if he be found in Surplusage And by him If one become my Bayliff of his own wrong without my appointment he is accomptable to me but I am not compellable to make him any allowance for his Expences about my business And if I assign to such Bayliff of his own wrong an Auditor he cannot make allowance of such Expences Anderson If my Auditor make allowance to my Bayliff for any collateral Expences which he hath expended in my affairs which do not concern my Manor whereof he is Bayliff such allowance shall not bind me And note that in this Action the Plaintiff declared that he was Bayliff to the Defendant of certain Manors Receiver of certain monies and so retained ad diversa negotia procurandum And upon accompt the allowance was made unto him for his Board-wages and other Expences in riding Circa negotia And by Anderson 3 Len. 149. these allowances shall not bind the Defendant for as Bayliff of a Manor no Expences shall be allowed unto him but those which the Bayliff hath expended within the Manor And if I retain one to go about my business he is not accomptable Windham If I retain one to follow my business and deliver to him mony to disburse in such business he is accomptable Anderson It is so truly but it is not in respect of the said Retainer Devises but as he was Receiver and if he expend more than he hath received he doth it without Warrant and no allowance shall be made unto him If the Bayliff be found in Surplusage in the conclusion of the accompt the Auditor ought to enter Allocatur super determinationem Compt. in surplusagiis so much for such and such Expences allocatis allocandis upon the next accompt But in this Case it appeared upon the Evidence that the Entry upon the foot of the accompt was And so he is in Surplusage upon the determination of this accompt twenty six pounds But the Auditor being examined said that it was not his meaning to allow unto him so much but only to find and express the certainty of the whole accompt and so refer the allowance of it to the Defendant to whom he was Auditor and upon that the Court said to the Iury if they believed the Auditor that they should find against the Plaintiff for upon the matter here is not any accompt and so no allowance for the allowance if it had been according to Law ought to be entred before Allocatur c. and such allowance is as a Iudgment but here is not any allowance for the Auditor did refer the same to the Defendant But if the Iury doth not give credit to the Auditor then the Court moved the Iury to find it specially that the party was Auditor without Deed and the finding of the accompt as it is set down in the Declaration and the manner of the conclusion of it viz. That the Plaintiff was in Surplusage upon the determination of the accompt for his Expences in riding Circa negotia defendentis

Steward as if the Lord of a Manor be beyond the Sea * More 1 Rep. the Writ of Right shall be directed to the Bayliff of the Manor and see 21 H. 7. 36 37. Where the Sheriff or Steward of a Manor may be without Deed and here in the principal case the Retainer is not to keep one Court but to keep the Courts of the Lady of the Manor scil all her Courts until he be discharged It was adjourned CCCX Ascew and Fuliambs Case Pasch 33 Eliz. In the Common Pleas. Andita Querela 1 Cro. 233. AScew was bounden by Statute to Fuliamb and there was not two Seals put to the Statute and Execution was sued upon the said Statute the Conusor brought an Audita Querela and they were at Issue if two Seals were to the said Statute and tried for the Plaintiff in an Audita Querela by the Sheriff of the City of Lincoln And it was moved by Glanvil Serjant That the Issue ought to have been tryed by the Certificate of the Mayor of Lincoln before whom the acknowledgment was and not by Iury which was denyed for the Issue is not whether any such Statute was acknowledged or not but whether the Statute in question hath two Seals or not and that is not recorded by the Mayor as the Statute it self is Another Exception was taken It appeareth by the Margent of the Record that the Issue was tryed by the County of Lincoln where it ought to be tryed by the County of the City of Linc. for Linc. only is in the Margent But to that it was said that such is the usual form to which the Preignothories agreed and the Book of 18 E. 3. 25. was urged where execution of Lands of the Conusor was awarded upon a Statute Merchant and the Statute was to pay c. 16 E. 3. But the Original Writ which issued to take the body of the Conusor was 14 E. 3. And upon that Error brought And the Court agreed that case but these two cases do differ for there the Process was misawarded not so here And although a Writ of Error may lye yet the same doth not prove but that an Audita Querela may lye also And afterwards Iudgment was given for the Plaintiff CCCXI. Jennings and Gowers Case Pasch 31. Eliz. In the Common Pleas. IN the Case betwixt Jennings and Gower the words were 1 Cro. 219. That if the wife of the Devisor would permit one Wats to enjoy such a Term for the Term of three years next following that then she should have all the residue of his Goods and Chattels as his sole Executrix c. Anderson chief Iustice conceived That she should not be Executrix For she is to be Executrix upon a condition precedent to be performed before that she be Executrix And the condition is impossible to be performed and then she shall never be Executrix for where an estate is to be created upon a condition impossible to be performed there the estate shall never come in esse and here the condition is impossible for how can she suffer Wats to enjoy the Term for 3. years next following the 3. years ought to be past before she hath any power either to permit or resist for until the three years be encurred she cannot be Executrix nor before the three years expired can she bring any action as Executrix for her authority doth not begin before the three years be expired Walm Peri. Wind. contrary Although a grant upon a condition precedent doth not take effect until the condition be performed yet such a construction ought not to be used in this case so the intent of the Devisor in this case shall stand If the condition had been that if the wife will find meat and drink to such a person until his death That then she shall be Executrix shall not the Wife be Executrix till after the death of such party truly yes for otherwise she should never be Executrix which is utterly against the meaning of the Testator for it was not his intent that the Ordinary should commit Administration of his goods in the mean time And afterwards Anderson changed his opinion and agreed with the other Iustices Periam The subsequent words prove directly that the meaning of the Testator was to make his Wife Executrix immediately until she were disturbed by the said Wats for the words are that if she refuse to suffer the said Wats to enjoy c. Then his Son shall be his Executor which words imply that by a disturbance made by the Wife her Executor-ship should cease and that the Son should have it which cannot properly be if she was not Executrix from the beginning And it is the usual course in the construction of Wills to consider all the clauses of the Will and to judge upon all the words of the Will and not upon one part only and such construction the Iudges used in the cases of Param and Yardley and Welden and Elhing And afterwards at another day Iudgment was given for the Wife That she was Executrix presently and her authority should not expect until the three years were expired if not that any actual disturbance can be proved to be or have been made by the Wife against the Will of the Devisor and the words of the Will will receive such construction that she shall be Executrix until an actual disturbance of Wats CCCXII Palmes and the Bishop of Peterboroughs Case Pasch 33. Eliz. in the Common Pleas. Quare Impedit 1 Cor. 241. IN a Quare Impedit by Margaret Palmes against the Bishop of Peterborough who pleaded That the Plaintiff did present unto him one I. S. of whom the Bishop asked if he were within Orders and if he had his Letters of orders and because the Presentee could not shew the Bishop his Orders he refused him And commanded him to come another time and shew to him his Orders and that the Presentee did never do it nor offered to the said Bishop his said Orders without that he did disturb him in other manner And by Periam and Anderson it is no Plea for upon his own shewing the Defendant is a disturber Refusal of the Bishop Degg 75. For although that the Statute of 13 Eliz. requires that no man shall be admitted to a Benefice with cure of souls if he be not a Deacon yet the Statute doth not extend to compel the Clark to shew his Orders and therefore when he for such a frivilous cause doth refuse to admit him the same is a disturbance And afterwards exception was taken to the Count because that the Plaintiff being Tenant for life of the Advowson of the gift of her Husband Co. 5 Rep. 57. had not alleadged any Presentment in her Husband or any of his Ancestors but only in her self But that was not allowed for that point hath been lately over-ruled in this Court in the case betwixt Specot and the Bishop of Exeter 8 H. 5. 4. adjudged

all Lands which are ancient Demesn are holden in Socage so as they were all Husbandmen who manured their Lands for the sustentation of the Kings Subjects to which they had such such priviledges to be the better able to follow their Husbandry and therefore to disable such profitable Subjects and to prescribe against these Liberties and Priviledges is to take away the name of ancient Demesn and to make their Lands at the common Law. Hobart contrary To shew the authority to demand is not necessary for our Prescription is not upon demand to distrain For the common Officer hath authority to demand for they ought to demand it who ought to take the thing demanded and those are the Bailiffs and Burgesses and then when their Water-bayly doth it it is as much as if it had been done by the corporation which see 48 E. 3. 17. The Mayor and comminalty of Lincoln brought an action of covenant against the Mayor and comminalty of Derby and declared that the Mayor and comminalty of Derby had covenanted with the Mayor and comminalty of Lin. that they should be quit of Murage Pontage Custom and Toll within the Town of Derby of all Merchandises of those of the Town of Lin. and further declared That I.W. and H.M. two Burgesses of the Town of Derby had taken certain Toll of certain Burgesses of the Town of Lin. c. Exception was taken to this Declaration because they had alleadged the taking of such Toll not by the corporation of Derby but by I. and H. two of the Burgesses of it in which case the Plaintiffs might have an action of Trespass against the Burgesses for the act of any of the corporation is not the breaking of the covenant made by the comminalty but it was not allowed for if the common Officer of the Town doth any thing for their common use as it is intended such thing was done by the Officer it is reason all the Town be answerable for it and the whole comminalty by intendment cannot come at one time to take c. and so in our case for as much as the corporation ought to make the demand and their common Officer doth it to their use the same is the act of the whole corporation As to the matter in Law we have pleaded specially That we took Toll only of those things which are brought by Sea by Merchants and not otherwise and I conceive that Tenants in ancient Demesn are not discharged of Toll for all things but only for such which arise out of their Tenements or are bought for their Tenements or Families there and their sustentations according to the quantity of their Tenements 9 H. 6. 25. 19 H. 6. 66. They shall be quit of Toll of all things sold and bought coming of their Lands or for the manurance of their Lands And 7 H. 4. 111. Tenants of ancient Demesn ought to be quit of Toll for Oxen or Beasts bought and sold for tillage and manurance of their Lands and for their sustenance and maintenance of their Families and for putting them to Pasture to make them fat and more vendable and so to sell them c. And see accordingly F.N.B. 224. D. See Crook 138. 139. 28 Eliz. A Iudgment was given for the said parties for the Plaintiffs but there the Plaintiff declared generally and the Defendant did demur in Law generally wherefore by common intendment the Cattel were bought for the tillage and manurance of their Lands For there it was not shewed as it is here that it was to Merchandize Also we have justified not only for Toll but also for Trouage and that they have not shewed and therefore as to the Trouage our justification is good enough for their priviledge shall not be construed to extend beyond the words of it As the priviledge of the Law is That if I leave my horse at a Smiths Forge to be shod there my horse cannot be distrained but if I or my Servant take the Saddle from the Horses back and lay it in the Smiths Forge the Saddle may be distrained Then here are two customs meeting together and to begin together and the one was not before the other then the particular custom shall stand And I conceive that by the Writ de exoneratione sect Fitz. N. B. 161. b. The Tenants in ancient Demesn have not always such priviledges for the Writ saith quod si ita sit then c. and nisi ipsi eorum antecessores tenentes de eodem manerio venire consueverunt temporibus retroactis and see the same matter in the Register 181. And afterwards Iudgment was given quod querens nihil capiat par billam for the Iustices were of opinion that the Tenants in ancient Demesn should pay Toll for their Merchandizes CCCXVI. Lancaster and Lucas Case Mich. 32 33 Eliz. in the Kings Bench. TRespass was brought for entring into the Parsonage-house of Ringhall and divers Lands appertaining to it Leas●● The Defendant being Farmor of the Parsonage pleaded Not guilty and the Iury found that one Tybbin was Parson of the said Church and that one Ash and Dorothy his Wife Wivell and Drausfield were Patrons of the said Church scil Ash and his Wife in the Right of his Wife Wivell as Tenant by the Curtesie the Reversion to his Son and Drausfield also as Tenant by the Curtesie but without Issue by his Wife c. so as the Inheritance of the said Parsonage was in Wivell and Ash and afterwards the Bishop of Chester being Ordinary the Parson and Patron 4 E. 6. joyned in a Lease of the Rectory which Lease was void as to the Wife of Ash to S. who assigned it to the Defendant All the Lessors dyed and further found that Ash and Wivell were Heirs of the Patronage and that the Church being void the Presentment came to the Bishop by reason of Lapse and that the Successor of the Bishop had Collated his Clark. Cook argued And he conceived that the same now Incumbent should avoid the Lease in toto and the case is but this Three Coparceners Patrons of an Advowson or Tenants in Common the Parson three Patrons and the Ordinary joyn in a Lease where the one of them is a Feme-covert and so her Act void If the Successor of the Incumbent being presented by Lapse shall avoid it in all And he conceived that he should for all three have interest in the Parsonage and all three ought to agree but the agreement of the one is worth nothing But it hath been said that that is but matter of assent and that the assent of the one is as strong as the assent of them all Atto●nment As if many Ioynt-tenants hold by certain Services and the Lord granteth the Services to a stranger and one of the Ioynt-tenants attorneth to the Grant the same is as sufficient as if they had all attorned Lit. 128. 566. Otherwise it is of a Rent-charge for there all the Ioynt-tenants of the Lands charged

of her Dower of all his Lands and dyed and the said A. took to Husband the Defendant And that after betwixt the Plaintiff and Defendant colloquium quoddam habebatur c. upon which conference and communication the Defendant in consideration that the Plaintiff promised to pay to him the said one hundred pounds promised to make to him a discharge of the said one hundred pounds and also of the Dower of his Wife and shewed further that notwithstanding that the said Pett was ready and offered the said one hundred pounds and Dower also yet c. Vpon which there was a Demurrer in Law It was moved by Tan. that here is not any cause to have a prohibition for the agreement upon the communication is not any cause for it doth not appear that it was performed Coke A Prohibition lieth for the Wife cannot have both money and Dower for that was not the meaning of the Devisor and therefore it hath been holden that if a man deviseth a Term for years to his Wife in satisfaction and recompence of her Dower if she recovereth Dower she hath lost her Term Also here is modus and conventio which alters the Law scil mutual agreement So if the Parson and one of the Parishioners agree betwixt them that for forty shillings per annum he shall retain his Tithes for three years c. as it was in the Case betwixt Green and Pendleton c. it is good CCCXIX. Martingdall and Andrews Case Mich. 32 33. Eliz. In Banco Regis Action upon the case for Wast IN an Action upon the Case the Plaintiff declared that one Mildmay was seised of a House in A. and that he and all those whose estate c. time out of mind c. have had a way over certain Lands of the Defendants called C. pro quibusdam averiis suis and shewed that the said Mildmay enfeoffed him of the said House and that the Defendant stopt the said way to his damage c. And it was found for the Plaintiff and it was moved in Arrest of Iudgment that the title to the way is not certainly set forth i.e. pro quibusdam averiis suis quod omnes Justiciarii concesserunt But Gawdy Iustice conceived that the same was no cause to stay Iudgment For it appeareth to us that the Plaintiff hath cause of Action although that the matter be incertainly alleadged and of this incertainty the Defendant hath lost the advantage having surceased his time by pleading to it as 20 E. 3. Trespass for taking and carrying away of Charters the Defendant pleaded Not guilty and it was found for the Plaintiff to the damage c. And Error was brought because the Plaintiff had not set down in his Declaration the certainty of the Lands comprized in the Charters But non allocatur for the Defendant ought to have challenged that before and also 47 E. 3. 3. In a Writ of Covenant the Plaintiff declared of a Covenant by which the Defendant covenanted with the Plaintiff to assure to him all his Lands and Tenements which he had in the Counties of Gloucester and Lincoln and declared that at a certain day he required the Defendant to make him assurance of all the Lands c. And the Writ of Covenant was general quod teneat conventionem de omnibus terris quas habeat in c. And it was objected as here that the Writ wanted certainty as how many Acres or such a Mannor but non allocatur for here the Plaintiff is not to recover Land but only Damages and the Writ was awarded good Fenner Iustice the Cases are not like to the Case at Bar for in the said Cases the certainty is not needful but for the taxing of the Damages but here the certainty of the number of the Cattel is part of the title CCCXX Beale and Taylors Case Mich. 32 33 Eliz. In the Kings Bench. UPon Evidence to a Iury Leases 1 Cro. 222. it was holden by Gawdy and Clench Iustices that if a Lease for years be made and the Lessor covenants to repair during the Term if now the Lessor will not do it the Lessee himself may do it and pay himself by way of Retainer of so much out of the Rent which see 12 H. 8. 1. 14 H. 4. 316. Retainer of Rent A Lease for years by Indenture and the Lessor covenants to repair the Houses and afterwards the Lessor commands the Lessee to mend the Houses with the Rent who doth it accordingly and expends the Rent in the charges c. So 11 R. 2. Bar. 242. The Lessor covenants that the Lessee shall repair the Tenements when they are ruinous at the charge of the Lessor In debt for the Rent the Lessee pleaded that matter and that according to the Covenant he had repaired the Tenements being then ruinous with the Rent and demanded Iudgment if action Jones 242. Yelv. 43. c. and good Fenner Iustice contrary for each shall have action against the other if there be not an express Covenant to do it Quaere If the Lessor covenant to discharge the Land leased and the Lessee of all Rent-Charges issuing out of it If a Rent-charge be due if the Lessee may pay it out of his own Rent to the Lessor ad quod non fuit responsum CCCXXI. Offley and Saltingston and Paynes Case Mich. 32 33 Eliz. In the Kings Bench. OFfley and Saltingston late Sheriffs of London Escape 1 Cro. 237. brought an Action upon the Case against Payne because that he being in Execution under their custody for fifty three pounds in which he was condemned at the Suit of one Spicer made an escape the debt not satisfied by reason whereof they were compelled to pay the money The Defendant confessed all the matter but further pleaded that after the Escape Spicer had acknowledged satisfaction being after the Escape upon Record of the sum recovered upon which there was a Demurrer Owen Serjeant argued that the acknowleding of satisfaction being after the Escape was not any Plea for when the Plaintiffs Sheriffs have paid the money recovered there was no reason that Spicers acknowledging satisfaction should stop the Sheriffs of their Remedy against Payne It was holden by the Iustices that the Plaintiffs in this Action ought to shew that they had been impleaded by him who recovered for they cannot have this Action before they are sued For perhaps the Plaintiffs who recovered must be contented to hold themselves to the Defendant and to be satisfied by him It was said by Glanvil Serjeant that by the Escape the Debt was cast upon the Sheriffs and the Defendant discharged and that it was the Case of Sir Gervas Clyfton who being Sheriff suffered him who was in Execution and in his custody to go and see a Play and the same was adjudged an Escape and the party could not be in Execution again And then he said that this acknowledgment of satisfaction could not be any Bar to the

Plaintiffs At another day the Case was moved again And then it was the clear opinion of the whole Court that the Action was maintainable although that the Plaintiff in the first Action had acknowledged satisfaction And it hath been adjudged here in this Court in the Case betwixt Hill and Hill that notwithstanding such satisfaction that the Action lieth See F.N.B. 130. b. for the payment after doth not take away the Action but mitigate the damages only for the Act of a third person shall not take away an Action once vested CCCXVII Greenliff and Bakers Case Mich. 32 33 Eliz. In the Kings Bench. Assumpsit 1 Cro. 193. THe Plaintiff declared that whereas he was bound to the Defendant in an obligation of forty pounds for the payment of twenty pounds the Defendant the second of No. after in consideration that the Plaintiff at the Request of the Defendant had paid the said twenty pounds without suit at Law promised to deliver to the Plaintiff before such a day an Obligation by which one A. was bounden to the Defendant in forty pounds with a Letter of Attorney to demand the same of the said A. and to sue for it in the name of the Defendant which he had not done and in that matter the Plaintiff had Iudgment and thereupon the Defendant brought a Writ of Error First here is not any consideration for the payment of the mony is no more than he ought to do and which he was compeliable to do c. Secondly the same is no benefit to the Plaintiff but only a matter of charge to sue the said Bond against A. Thirdly upon the Venire facias the Sheriff returned but twenty three Iurors As to the first Error it was the opinion of Gawdy and Fenner Iustices that here is not any consideration for the Defendant hath not any benefit by it and the Plaintiff doth no more than he ought to do and the payment was in respect of the Debt and not of the Defendants Request And by Gawdy upon this promise an action doth not lye for the Plaintiff is not to have any benefit by it but travel Fenner contrary and that the Action lieth for that as to the third Error the same is helped by the Statute of 32 H. 8. and the Statute of 18 Eliz. of imperfect and insufficient return of any Sheriff Fenner Not only the return is naught but also the Pannel is insufficient And it was moved by Tanfield that it was adjudged in this Court Pasch 25 Eliz. betwixt Cook and Huet that where A. was bounden to B. in forty pounds B. promised to A. that if A. would pay the mony without suit he would deliver him the said Bond by which he is bound to the said B. and it was holden a good consideration Quod fuit concessum per totam Curiam but that is not like to the case at Bar and it was holden in the same Plea That if the Obligor pay the duty at the day and place that if the Obligee will not deliver the Bond yet the Obligor shall not have the Detinue for it CCCXII Guildfords Case Mich. 32 33 Eliz. In the Kings Bench. Indictment upon the Statute of 23 Eliz. GUilford was Indicted upon the Statute of 23 Eliz. cap. 1. for withdrawing divers persons her Majesties Subjects from the Religion established in England to the Roman Religion and to promise obedience to the Church of Rome and for that he himself was with-drawn from the obedience of the Queen Coke took Exception to the Indictment because that the Indictment was not found within the year after the offence committed In the said Act there is a Proviso That all offences against the Act shall and may be enquired of within the year and day after the offence committed Popham Attorney General This case is not within that Proviso but doth depend upon other Statutes before viz. 1 5 13 Eliz. touching the acknowledging of her Majesties supream Government in causes Ecclesiastical or other matters touching the service of God or coming to Church or establishing of true Religion within this Realm shall and may be enquired as well before the Iustices of the Peace as other Iustices named in the said Statute within one year and a day after such offence committed And he said these words in the Proviso refer only to such offences contained in the said Act which toucheth the Supremacy and causes Ecclesiastical c. and such offences ought to be enquired within the year and day But this Indictment here doth consist upon other matter for withdrawing himself from the obedience of the Queen which is an offence out of the compass of the said Proviso and therefore the enquiry of it not restrained unto any time and the Statute of 13 Eliz. extends to Bills Writings Instruments c. and not to the words with-drawing by words which is supplied by 13 Eliz. with-drawing by other means and the restraint of the Enquiry at the time goes to the hearing of Mass and saying of Mass and not repairing to the Church but as to with-drawing the same is at large not restrained by that Statute And he said that this Indictment doth consist upon many offences some to offences within the Proviso and as to those the Indictment is void Some to other offences as Treason the offence of with-drawing the Enquiry of which is not restrained and therefore this Indictment shall stand Also it was the intent of this Statute not to restrain this Court but only the Iustices of Peace for they are specially named Coke conceived that this word Touching c. did not extend to any thing contained in the Statute of 23 Eliz. but only to offences within the Acts of 1 5 13 Eliz. which were incertain before also this Proviso is in the Disjunctive against this or against the Acts of 1 5 or 13 Eliz. so as that which follows is to be applied to the last Disjunctive and not to the whole sentence and always when a thing is named certain and after general things the words subsequent shall be referred to the general words and not to that which is certain Also if Touching c. doth refer to this Statute the sentence would have begun with it but here it begins with the Supremacy of which nothing is spoken in this Statute and therefore it ought to be referred to the Statute which begins it and that is 1 Eliz. and then it shall be preposterous to come after 23 Eliz. and these words shall and may ought to be so construed shall is restrictive of it self and may shall be referred to that which was restrained before as the proceedings upon the Statute of 1 Eliz. cap. 2. were restrained to the next Sheriffs And he conceived that this Court is as well restrained to Time as any other Court for the words are as well before Iustices of the Peace as before other Iustices named in the said Statutes and in the Statute of 5 Eliz.

this Court is especially named Wray This Proviso begins with Iustices of the Peace therefore it doth not extend to offences which are Treason and the meaning of this Statute of 23 Eliz. was to enlarge the Statutes of 1 5 Eliz. for where the offence against the Statutes before was to be enquired at the next Session and the other within six Months now by this Statute it may be enquired at any time within the year and day but it doth not extend to restrain the proceedings against offences of Treason for the words of the Statute are That such offences shall be inquired before Iustices of Peace within a year c. But in the next clause the Iustices of Peace may punish all offences against this Act but Treason by which it appeareth that no offences are restrained to time but those which the Iustices of the Peace have authority to hear and determine and that is not Treason Gawdy to the same purpose For all the Proviso is but one sentence and there the whole shall be referred to spiritual offences as the not coming to Church c. CCCXXIII Filcocks and Holts Case Mich. 32 33 Eliz. In the Exchequer Error Assumpsit IN an Action by Filcocks against Holt Administrator of A. the Plaintiff declared how that the Husband of the Defendant who died intestate was indebted to the Plaintiff in ten pounds by Bill and that the Defendant in consideration that the Plaintiff would permit the Defendant to take Letters of Administration and give to her further day for the payment of the said ten pounds promised to pay the said ten pounds to the Plaintiff at the day And upon a Writ of Error brought in the Exchequer upon a Iudgment in the Kings Bench in that case It was assigned for Error that here is not any consideration for by the Law she is to have Administration being wife of the Intestate and as to the giving of further day for the payment of the ten pounds the same will not make it good for it doth not appear that she was Administratrix at the time of the promise made and then she is not chargeable and then c. And such was the opinion of the Court. And it was said by Periam Iustice and Manwood chief Baron That the Bishop might grant Letters of Administration to whom he pleased if he would forfeit the penalty limited by the Statute ●atch 67 68. Also it was said where an Executor or Administrator is charged upon his own promise Iudgment shall be given de boni● propriis for his promise is his own act CCCXXIV Adams and Bafealds Case Mich. 33 Eliz. In the Kings Bench. Action upon the Case AN Action upon the Case was brought and the Plaintiff declared That where such an one his Servant departed his service without cause or license the Defendant knowing him to be his Servant did retain him in his Service and so kept him Tanfeild The Action doth not lye for if my Servant depart out of my service and another doth retain him an Action doth not lye at the Common Law if he do not procure him to leave my service and afterwards retain him or immediately taketh him out of my service And this Action is not grounded upon any Statute See 11 H. 4. 176. 47 E. 3. 14. 9 E. 4. 32. Gawdy The Action lieth for here is damage and wrong done to the Plaintiff Fenner contrary For the wrong is in the departure and not in the Retainer and upon the Statutes it is a good Plea to say for the Defendant that the party was vagrant at the time of the Retainer and the sciens doth not alter the matter CCCXXV Nash and Mollins Case Mich. 32 33 Eliz. In the Kings Bench. Prohibition 1 Cro. 206. Tithes NAsh and Usher sued a Prohibition against Mollins for that the Defendant had libelled against them in the Spiritual Court for Tithes of Wood growing in Barking Park in Essex the other did surmise that the Lands were parcel of the possessions of the Prior and Covent of Cree Church and that the said Prior and his Successors time out of mind c. had held the said Lands discharged of Tithes and held them so at the time of the Dissolution c. and the other part traversed it whereupon they were at Issue if the Prior c. held the Land discharged tempore Dissolutionis c. And now on the part of the Plaintiff in the Prohibition certain old persons were produced who remembred the time of the Monasteries and that they did not pay any Tithes then or from thence Exception was taken to the suggestion by Coke that here is nothing else than a Prescription de non Decimando for here is not set forth any discharge as composition unity of possession priviledge of order as Templarii Hospitiarii c. ●enner Iustice Spiritual persons may prescribe in non Decimando for it is not any prejudice to the Church Wray Although it is not set down the special manner of discharge yet it is well enough for we ought to take it that it was by a lawful means as composition c. or otherwise For the Statute is that the King shall hold discharged as the Abbot c. and we ought to take it that it was a lawful discharge of Tithes tempore dissolutionis And afterwards the Iury found for the Plaintiffs in the Prohibition But no Evidence was given to prove that the Defendant did prosecute in the Spiritual Court contrary to the Prohibition CCCXXVI Sheldons Case Mich. 32 33 Eliz. In the Kings Bench. SHeldon Talbot and two other four persons in all Indictment upon the Statute of 23 Eliz. were Indicted upon the Statute of 23 Eliz. of Recusancy the words of the Indictment were Quod illi nec eorum uterque venerunt to any Parish Church c. It was moved by Atkinson That the Indictment is not good for uterque doth refer unto one of them and not where they are many as here and so is an insensible word and so upon the matter there is no offence laid to their charge And the Iustices doubting of it demanded the opinions of Grammarians who delivered their opinions that this word uterque doth aptly signifie one of them Exposition of words and in such signification it is used by all Writers Gawdy I conceive that the opinions of the Grammarians is not to be asked in this case But I agree that when an unusual word in our Law comes in question for the true construction of it then the opinion of Grammarians is necessary But uterque is no unusual word in our Law but hath had a reasonable Exposition heretofore which we ought to adhere unto which see 28 H. 8. 19. Three bound in an Obligation Obligamus nos utrumque nostrum and by the whole Court uterque doth amount to quilibet And see 16 Eliz. Dyer 337 338. Three Ioyntenants in Fee and by Indenture Tripartite each of them

chargeth the Defendant with cutting of Wood without the assent and assignment of the Lessor so he would compel us to prove more than we ought for if he did it with their assent only or by their assignment only it is sufficient but if the Covenant had been in the copulative both was necessary And for the nature of Copulatives he cited the Case where two Churchwardens bring an Action of Trespass the Defendant pleads That the Plaintiffs are not Churchwardens upon which they are at Issue The Iury find That the one was Church-warden and the other not and for that the Plaintiffs could not have Iudgment for if the one of them be not Churchwarden then the Plaintiffs are not Churchwardens for the copulatives ought not to be disjoyned And he cited the case lately ruled in the Common Pleas betwixt Ognel and Underwood concerning Crucifield Grange A. leased unto B. certain Lands for forty years B. leased part of the same to C. for ten years A. grants a Rent-charge out of the Lands in tenura occupatione B. It was resolved That the Lands leased to C. should not be charged with that Rent for although it was in tenura B. yet it was not in his occupation and both are exquisite because in the copulative So here the Lessee may cut Wood with the assent of the Lessor without any assignment Also here the substance of the covenant cannot charge the Defendant for although it be in the Negative yet it is not absolute in the Negative but doth refer unto the covenant precedent for the words are That the Lessee shall not cut Woods aliter quam according to the intent of the Indenture where the covenant precedent is not that the Lessee shall not cut Woods but in the Dole but that the Lessor might cut down any Trees in the Dole leaving sufficient for the Lessee which covenant in it self doth not restrain the Lessee to cut down any Trees in any part of the Lands demised nor abridgeth the power which the Law giveth to him by reason of the demise Then when this last covenant comes i. e. That the Lessee will not cut aliter then according to the meaning of the Indenture without the assent c. the same doth not restrain him from the power which the meaning of the Indenture gives and so no breach of covenant can be assigned in this For by virtue of the Lease the Lessee of common Right may take necessary Fuel upon any part of the Land leased Also this first covenant being in the Affirmative doth not abridge any Interest as 28 H. 8. 19. The Lessor covenants That the Lessee shall have sufficient Hedge-boot by assignment of the Baily It is holden by Baldwin and Shelley That the Lessee may take it without assignment because there are no Negative words non aliter So 8 E. 3. 10. A Rent of ten pounds was granted to Husband and Wife and if the Husband overlive his Wife that he shall have three pounds Rent and if the Wife do over-live the Husband she shall have forty shillings there it was holden that the Rent of ten pounds continued not restrained by the severance of any of them And although peradventure it appeareth here that the meaning of the parties was That the Lessee should not cut down any Wood but in the Dole yet forasmuch as such meaning doth not stand with the Law it shall be rejected as it was holden to be in the case betwixt Benet and French where a man seised of divers Lands devised parcel of it called Gages to the erecting of a School and another parcel unto B. in fee and all his other Lands unto one French in Fee The devise of Gages was holden void because too general for no person is named and it was further holden that it passed by the general devise to French and yet that was not the meaning of the Devisor Also the Plaintiff is not Assignee but of parcel of the Reversion for if the Reversion is granted to him for years Owen Rep. 152. 1 Co. 215. and such Assignee cannot have an Action of Covenant for a Covenant is a thing in Action and annexed to the Reversion so that if the Reversion doth not continue in its first course as it was at the time of the creation of the Covenant but be altered or divided the Covenant is destroyed and therefore it was holden 32 H. 8. betwixt Wiseman and Warringer where a Lease for years was made of one hundred Acres of Lands rendring ten pound Rent and afterwards the Lessor granted fifty Acres of it that the Grantee should not have any part of the Rent but all the Rent was destroyed So in our case here the Grantee hath but parcel of the estate a Term for years and so is not an Assignee intended as the case betwixt Randal and Brown in the Court of Wards ● Co 96●●●● Randal being seised of certain Lands covenanted with B. that if he pay unto him his Heirs and Assigns five hundred pounds that then he and his Heirs would stand seised to the use of the said B. and his Heirs Randal devised the Land to his Wife during the minority of his Son the Remainder to his Son in Fee and died having made his Wife his Executrix Brown at the day and place tendred the money generally the Wife having but an estate for years in the Land took the money It was holden that the same was not a sufficient tender for the Wife is not Assignee for she hath an Interest but for years and here the Son is to bear the loss for by a lawful Tender the Inheritance shall be devested out of him and therefore the Tender ought to be made to him and not to his Wife Also as the case is here he is no Assignee for although Charles Grice and his Wife hath the Reversion to them and the Heirs of the body of Charles and levy a Fine without Proclamations nothing passeth but his own estate and then the Conusee hath not any estate Raph. Rep. 91. ● C●o. 804. ●05 but during the life of Charles and then when a man is seised to him and his Heirs during the life of another he hath not such an estate as he can devise by the Statute and then when he deviseth it to his Wife for years it is void c. It was adjorned CCCXL Smith and Hitchcocks Case Trin. 33 Eliz. In the Kings Bench. Assumpsit ● C●o. 201. IN an Action upon the Case the Plaintiff declared that whereas the Defendant was indebted to him 19 Maii 30 Eliz. The Defendant in consideration that the Plaintiff would forbear to sue him until such a day after promised at the said day to pay the debt The Defendant pleaded how that 29 Maii 29 Eliz. he was indebted unto the Plaintiff in the said sum for assurance of which afterwards he acknowledged a Statute to the Plaintiff upon which he had Execution and had levied the money absque

extinct as if he solely had been seised so if he in the Reversion and a Stranger disseise for life and make a Feoffment over the Seigniory is gone and yet it is the Livery of the Lessee only And although it be but the confirmation of him in the Remainder for life yet thereby the Remainder is gone and extinct And afterwards Iudgment was given that the Entry of him in the Remainder in tail was lawful And it was said by the L. Dyer That if Tenant for life be the Remainder for life the Remainder in fee Tenant for life in possession alieneth in fee that he in the Remainder in fee cannot enter for it was not to his disinheri●in CCCL 20 Eliz. In the Kings Bench. THe Case was That a Capias ad Satisfaciend was delivered to the Sheriff 5 Co. 88 89. and after the Sheriff did arrest the party against whom the Capias issued by force of a Capias Utlagatum and then the party in the Capias came to the Sheriff and prayed that the party remain in Execution for his debt also and notwithstanding that the Sheriff let the Prisoner go at large and upon both Writs returned Non est inventus It was the opinion of all the Iustices That the Sheriff was not bound in point of Escape to detain the Prisoner for the Debt of the Plaintiff and it is not like where one is in the Fleet in Execution there if other condemnations in other Courts be notified to the Warden of the Fleet he shall be chargeable with them all It was holden also per Curiam That if the Body had been returned by Capias Utlagatum that the Court at the prayer of the party would grant that the Prisoner might remain in Execution for the debt as in case of a Capias pro fine CCCLI The Lord Saint John and the Countess of Kents Case 19 Eliz. In the Common Pleas. IN Evidence given to the Iury in an Action of Debt brought by the Plaintiff against the Defendant Grants of Executors of omnia bona sua 1 Cro. 6. It was said by Dyer and Manwood Iustices That if Executors grant omnia bona sua that the goods which they have as Executors do not pass which see 10 E. 4. 1. b. by Danby but the contrary was holden by Wray chief Iustice of the Kings Bench and by Plowden in Bracebridges case P. 18 Eliz. and they denied the opinion of 10 E. 4. to be Law for by such Grant made by Executors the goods of the Testator do pass CCCLII. 19 Eliz. In the Common Pleas. NOte It was said by Dyer and Manwood Iustices That if one be condemned in an Action upon the Case Abatement of Writ 3 Len. 68. or Trespass upon Nihil dicit or demurrer c. And a Writ issueth forth to enquire of the Damages and before the return of it the Defendant dieth that the Writ shall not abate for the awarding of the said Writ is a Iudgment And it was said by Manwood Account In a Writ of Account the Defendant is awarded to account if the Defendant account and be found in Arrearages and dieth the Writ shall not abate but Iudgment shall be given that the Plaintiff shall recover and the Executor shall be charged with the Arrearages and yet account doth not lye against them CCCLIII 19 Eliz. In the Kings Bench. A. Did recover in Debt against B. whereupon a Fieri facias issued to the Sheriff of Devon and the Defendant seeing the Writ of Execution in the Sheriffs hands Attachment of Goods after the Money is in the Sheriffs hand is void said to him that he would pay the Debt recovered at Exeter such a day to satisfie the Execution at which day the Defendant paid the mony accordingly and presently came an Officer of the City of Exeter and attached the mony in the Sheriffs hand supposing the said A. to be indebted so much to one C. in whose name he made the Attachment Antea 29. 1 Cro. 6● and now on the behalf of the said A. a Certiorare was prayed to remove the Attachment hither and it was therefore holden by the whole Court that the Attachment was void and a Certiorare granted And Wray said If it can be proved by Oath that if the Defendant did procure or was assenting to the said Attachment that Process of Contempt should issue against him and the Sheriff demanded of the Court what return he should make because the monies were attached in his hands and taken from him by force to which Wray answered That the Sheriff ought to answer the monies to the Plaintiff which were once in his hands by force of the Execution and that it was his folly to suffer the mony to be taken from him by colour of the said Attachment and if the mony was taken by force the Sheriff had his remedy by an Action of Trespass for the Attachment was void but the Sheriff at the return of the Writ ought to answer for the Mony. CCCLIV. 19 Eliz. In the Common Pleas. TEnant for life bargained and sold his Lands to A. and his Heirs and afterwards levied a Fine to the Bargainee Forfeiture 4 Len. 124. ● Len. 60 65. Sur conusans de droit come ceo c. It was holden by the Court that it was a forfeiture committed by the Bargainee not by the Bargainor who at the time of the Fine had nothing to forfeit and it was said by Manwood Iustice That if Tenant for life be disseised and takes a Fine ut supra of a Stranger it is a forfeiture and yet he in the Reversion hath but a right in Reversion so that if Tenant for life be disseised and the Disseisor commits Wast he in the Reversion shall have an Action of Wast against Tenant for life and if two Tenants for life be disseised by two A. and B. and one of the Tenants for life doth release unto A. and the other Tenant for life doth re-enter he hath the Moiety in common with the other to whom the Release was made and he hath revested the intire Reversion in him in whom the Reversion was before c. CCCLV. 20 Eliz. In the Common Pleas. Bracebridges Case THe Case was Thomas Bracebridge seised of a Manor in Fee leased a Messuage parcel of it to one Curtes for 21 years and afterwards 35 H. 8. leased the same to one Moore for 26 years to begin after the expiration of the former Lease and afterwards 5 E. 6. he enfeoffed Griffith and others to the use of the Feoffees themselves and their Heirs upon condition That if the Feoffees did not pay to the said Thomas Bracebridge 2000 l. within 15 days after that then immediately after the said 15 days the Feoffees should stand seised of the said Manor to the use of the said Thomas Bracebridge and Joyce his wife for their lives without impeachment of Wast and afterwards to the use of T. B. their second Son in tail with divers Remainders

Litis contestationem the right of the Suit is so vested in the Proctor Swinburn 212. that he is a person suable until the end of the Suit and also he reported their Law to be * Bro. Devise 27. 45. Office of Exce 347. Sh●p Touchstone c. 454. Plowd 345. Orphans Legacy 281. Note It was adjudged contrary to this Mich. An. Dom. 1653. in the Kings Bench. in Do●mlowes Case Poph. 11. That if a Legacy be bequeathed to an Infant to be paid when he shall come to the Age of twenty one years if such a Legatory dieth before such age yet the Executor or Administrator of such Legator shall sue for the said Legacy presently and shall not expect until the time in which if the Infant had continued in life he had attained his full age And as to the Prohibition it was argued by Egerton Solicitor General That the Grant aforesaid is not triable in the Spiritual Court As if the said Lady Lodge had suffered a Recovery to be had against her as Executor by Covin c. the same is not examinable in the Spiritual Court but belongs to the temporal Conusans and therefore he prayed a Prohibition But on the other side it was said That if the Prohibition be allowed the Legatory hath no remedy but that was denied for the party might sue in the Chancery And after the Prohibition granted the Court awarded a special Consultation quatenus non extendat ultra manus Executoris quatenus non agitur de validitate facti i. the Grant aforesaid CCCLXXVII Huddy and Fishers Case Hill. 28 Eliz. In the Kings Bench. Debt DEbt was brought upon a Bond the Condition of which was for the performance of Covenants Grants and Agreements in an Indenture And in the Indenture it was recited That in consideration that the said Huddy should build a Mill upon the Land demised by the Defendant to the Plaintiff by the same Indenture Attaint and a Water-course by the Land demised the Defendant leased the said Land to the Plaintiff and the Lease was by the words Dedi concessi And the Plaintiff assigned the breach of the said Covenant in Law in that the Defendant had stopped the said Water-course so made by the Plaintiff upon which they were at Issue and it was found for the Plaintiff upon which the Defendant brought Attaint and the false oath was found and it was moved in Arrest of Iudgment That here is no Issue and then by consequence no Verdict and then no false Oath and then no cause of Attaint for here the Issue is taken upon the stopping of the Water-course which upon the shewing of the party is not any cause of Action for in the Indenture there is not any express Covenant Clause or Agreement that the Lessee should enjoy the Water-course so to be made only there is a Covenant in Law rising upon these words Dedi concessi which cannot extend to a thing not in esse at the time of the making the Indenture Coke who argued for the Defendants in the Attaint resembled this case to the case in 23 E. 3. Garr 77. Where it is holden that the warranty knit to the Manor shall not extend to the Tenancy escheated And 30 E. 3. 14. The Recovery in value shall not be in larger proportion than the Land warranted was at the time of the warranty made So in our case this Covenant shall not extend to any thing which was not in esse at the time of the Covenant made And see 25 Ass 2. where the Court shall reject a Verdict or part of a Verdict c. And because the now Plaintiff might after the Verdict have alledged the same in arrest of Iudgment which he did not he shall not be helped by Attaint but it shall be accounted his folly that he would not for his own ease and to avoid circuity of Action shew the matter in stay of Iudgment As 9 E. 4. 12. by Littleton If a man be Indicted of Felony if the Iudgment be insufficient but he takes not advantage of it but pleads the general Issue and is acquitted he shall never after have a Writ of Conspiracy c. And for another cause Iudgment ought not to be given in this Case because it doth not appear that Execution hath been sued and then here is no party grieved And then this Action being conceived upon the Statute of 23 H. 8. Cap. 3. which gives it to the party grieved doth not lye for a party grieved cannot be intended without Execution sued See 21 H. 6. 55. by Paston False oath Iudgment and Execution do entitle the party grieved to Attaint And see the Stat. of 23 H. 8. which enacts That the party shall be restored to as much as he hath lost therefore he ought to lose by Execution before he be a person able 〈◊〉 bring this Action But as to that matter see the Statute of 1 E. 3. 6. by which it is Enacted That the Iustices shall not leave to take Attaint for the damages not paid so as before the said Statute no Attaint lay before Execution 33 H. 6. 21. by Prisoit 5 H. 7. 22. t. E. 1. Attaint 70. 8 E. 2. Assize 396. And it was moved That for another cause the Attaint doth not lye as it is pursued in Process upon it for the Plaintiff hath not pursued the Statute upon which the Attaint is grounded for the said Statute gives special Process in this case against the Petit Iury Grand Iury and the party viz. Summons Re-summons and Distress infinite but in this Case the Plaintiff hath sued otherwise which is against the direction of the Statute And that was taken to be a material Exception by Clench and Gawdy Iustices for the Verdict doth not save the matter of Process in this case by the Statute of 18 Eliz. which doth not extend to proceedings in penal Causes w●●ch see by the words of the Statute by an express Proviso But Quaere If it be a penal Statute because a lesser punishment is enacted by it than that which was before inflicted upon such offenders And as to the matter of Execution Quaere If the Plaintiff be not pars gravata in hoc only that he is subject to the said Iudgment and so liable to Execution CCCLXXVIII Penruddock and Newmans Case Hill. 28 Eliz. In the Kings Bench. IN an Ejectione firmae Execution 2 Len. 49. the Plaintiff declared upon a Lease made by the Lord Morley and upon Not guilty pleaded this special matter was found that William Lord Mountegle seised of the Manor of D. whereof c. became bounden in a Statute in such a sum to A. who died the Executors of A. sued Execution against the said Lord i. upon the Extendi facias a Libertate issued forth upon which the said Manor was delivered to the said Executors but was not returned It was further found That the said Executors being so possessed of the said Manor the said Lord

commanded a Court Baron to be holden there which was holden accordingly by the sufferance of the Executors and the said Executors were also present at which time the Executors in the presence of the said Lord said these words viz. We have nothing to do with this Manor Return of the Sheriff 4 Co. 67. And upon this Verdict two things were moved If because the Liberate was not returned the Execution was good And as to that divers Books were cited 21 H. 6. 8. 18 E. 3. 25. And it was said that there was a difference betwixt a Liberate and a Capias ad Satisfaciendum and a Fieri facias for these Writs are conditional Ita quod Habeas Corpus c. Ita quod habeas denarios hic in Curia 3 H. 7. 3. 16 H. 7. 14. But contrary in the Writ of Liberate Habere facias seisinam for in such Writs there is not such clause and therefore if such Writs be not returned the Execution done by virtue of them is good enough And see 11 H. 4. 121. If the Sheriff by force of an Elegit delivers to the party the moiety of the Land of the Defendant and doth not return the Writ if now the Plaintiff will bring an Action of Debt de Novo the Defendant may plead in Bar the Execution aforesaid although the Writ of Execution were not returned and yet the Execution is not upon the Record And see the case there put by Hankford And it is not like to the case of Partition made by the Sheriff the same ought to be returned because that after the return thereof a new and secondary Iudgment is to be given i. Quod partitio praedicta firma stabilis maneat in perpetuum firma stabilis in perpetuum teneatur see the Book of Entries 114. And Egerton Solicitor cited a case lately adjudged betwixt the Earl of Leicester and the Widow Tanfeild Earl of Leicester and Tanfeilds Case That such Execution without return was good enough Another matter was moved Admit that here be a good Execution if now the Executors being in possession of the said Manor by force of that Execution and permitting and suffering the Conusor to hold a Court there in the Manor-house and saying in his presence the words aforesaid if the same doth amount to a Surrender by the Executors to the said Conusor Surrender or not And Wray chief Iustice said That here upon this matter is not any Surrender for here the words are not addressed to the said Conusor who is capable of a Surrender nor to any person certain And it is not like to the case of 40 E. 3. 23 24. Chamberlains Assize where Tenant for life saith to him in the Reversion That his will is that he enter the same is a good Surrender for there is a person certain who can take it but contrary in this case for here it is but a general speech It was adjorned CCCLXXIX Baskervile and the Bishop of Herefords Case Pasch 28 Eliz. In the Common Pleas. Quare Impedit IN a Quare Impedit by Walter Baskervile against the Bishop of Hereford c. The Plaintiff counted That Sir Nicholas Arnold was seised of the Advowson as in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas die the said Richard being within age of twenty three years that then the Grantees and their Heirs shall be seised to them and their Heirs until the said Richard hath accomplished the said age Nicholas dieth Richard being of the age of fourteen years by force of which the Grantees were possessed of the said Advowson and afterwards the Church became void and so it belonged to them to present And Exception was taken to the Count because the Plaintiff had not averred the life of Richard upon whose life the Interest of the Plaintiffs doth depend Averment And Gawdy Serjeant likened it to the Case of the Parson which hath been adjudged That where the Lessee of a Parson brought an Ejectione firmae and it was found for him and in arrest of Iudgment exception was taken to the Declaration because that the life of the Parson was not averred and for that cause Iudgment was stayed Anderson chief Iustice Vpon the dying of Sir Nicholas Rich being but of the age of fourteen years an absolute Interest for nine years vests determinable upon the death of Richard or rather they are seised in fee determinable upon the coming of Richard to the age of twenty three years Rhodes and Windham contrary That here is an Interest in the Grantees determinable upon the death of Richard within the Term for if Richard dieth without issue within the Term the Remainder is limited over to a stranger And as to the Exception to the Count Dyer 304. ● 2 Cro. 622 637. 10 Co. 59. it was argued by Puckering Serjeant that the Count was good enough for although the life of Richard be not expresly averred yet such averment is strongly implied and so supplied For the Count is That dictus Nicholas obiit dicto Ric. being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem sic possessionato existente the Church became void and possessed he could not be if the said Richard had not been then alive and the same is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking his Close the Defendant pleads That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon which B. did re-enter and leased to the Plaintiff at will by force of which he was possessed until the Defendant did the Trespass and the same was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is implied by the words i. Virtute cujus 1 Cro. 766. the Plaintiff was possessed until the Defendant did the Trespass And see also 10 H. 7. 12. in an Assize of Common The Plaintiff makes title that he was seised of a Messuage and of a Carve of Land to which he and all those whose estate c. have had Common appendant c. And doth not say that he is now seised of the Messuage But this Exception was disallowed by the Court for seisin shall be intended to continue until the contrary be shewed It was adjorned CCCLXXX Caries Case Pasch 28 Eliz. In the Exchequer IN an Information in the Exchequer by the Queen against Cary Tithes More Rep. 222. the Case was this A man grants situm Rectoriae cum decimis eidem pertinent Habend situm praedict cum suis pertinentiis for twenty years the first Grantee dieth within the Term.

Surrenders from the said Husband and Wife the Remainder over to the said John Buck in Fee upon condition to pay a certain sum of money c. It was moved That the Surrender is void and without warrant for the warrant was ad capiendum unum fursum redditionem and here are two several Surrenders and so the warrant is not pursued and then the Surrender is void Another matter was because the Remainder to John Buck by the words of the Deputation was absolute and without Condition and now in the Execution of it it is conditional so as this conditional estate is not warranted by the Deputation But the whole Court was clear of a contrary opinion in both the points and that all the proceedings were sufficient and well warranted by the Deputation Another matter was objected because that this Surrender and regrant is entred in the Roll of a Court dated to be holden the second of Maij and the Letter of Deputation bears date the third of June after But as to that The Court was clear of opinion that the mis-entry of the date of the Court should not prejudice the party for this Entry is not matter of Record but is but an Escape and if the parties had been at Issue upon the time of the Surrender made or of the Court holden the same should not be tryed by the Rolls of the Manor but by the Country and the party might give in Evidence the truth of the matter and should not be bound by the Roll and according to this Resolution of the Court Iudgment was given CCCXCVI Mich. 26 27. Eliz. In the Kings Bench. Fines levied THe Case was Tenant in tail leased for sixty years and afterwards levyed a Fine to Lee and Loveday Sur Conusans de droit come ceo c. with a Render to him and his Heirs in Fee And upon a Scire facias against the Conusees supposing the Lands to be ancient Demesn the Defendants made default for which the Fine was avoided and now the Issue in tail entred upon the Lessee for years and he brought an Ejectione firmae Sene facias ● Len. 117. and it was found That the Land was Frank Fee And all the question was If by the Reversal of the Fine by Writ of Disceit without suing forth a Scire facias against the Ter-Tenant should bind him or should be void only against the Conusee and not against the Lessee Atkin. It shall not bind the Lessee for years For a Fine may bind in part and in part not as bind one of the Conusees and not the other 7 H. 4. 111. A Fine levied of Lands part ancient Demesn and part at the common Law the same was by Writ of Disceit reversed in part as to the Land in ancient Demesn and stood in force for the residue 8 H. 4. 136. And there by award of the Court issued forth a Scire facias against the Ter-Tenants and the Iustices would not adnul the Fine without a certificate that the Land was Ancient Demesn notwithstanding that the Defendant had acknowledged it to be so but as to them who were parties to the Fine the Fine is become void as to the said parties and and he who had the Land before might enter i. And he said it should be a great inconvenience if no Scire facias or other Proces should be awarded against the Ter-tenant for he should be dispossessed and disinherited without privity or notice of it where upon a Scire facias he might plead matter of discharge in Bar of the Writ of Disceit as a Release c. which see Fitz. N.B. 98. And so although the Fine be reversed yet he might retain the Land and he resembled this case to the case of 2 H. 4. 16 17. In a Contra formam collationis against an Abbot a Scire facias shall issue forth against the Feoffee and so by the same reason here And for the principal matter he said That the Fine should be avoided against the parties but not against the Lessee Kingsmill The Scire facias brought against the parties only is good enough for they were parties to the Disceit and not the Ter-tenants It was adjorned CCCXCVII Mich. 26 27. Eliz. In the Kings Bench. Error Appearance by Attorney Dyer 135. b. A Writ of Error was brought upon a Iudgment in a Quid juris clamat It was assigned for Error that the Tenant did appear by Attorney whereas he ought not but in person because he is to do an Act in proper person if it be not in case of necessity where the Attorney may be received by the Kings Writ or plead matter in Bar of the Attornment as if he claim Fee c. or other peremptory matter after which Plea pleaded he may make Attorney 48 E. 3. 24. 7 H. 6. 69. 2● E. 3. 48. 1 H. 7. 27. Another Error was because it is not shewed in the Quid juris clamat what estate the Tenant hath Another matter was If the Grantee of the estate of Tenant in tail after possibility of issue extinct shall be driven to attorn ● Len ●● and it was said he should not for the priviledge doth pass with the grant See 43 E. 3. 1. Tenant in tail after possibility of issue extinct shall not be driven to attorn 46 E. 3. 13. 27. Ergo neither his Grantee Williams contrary As to the appearance of the Tenant by Attorney because the same is admitted by the Court and the Plaintiff the same is not Error which see 1 H. 7. 27. by Brian and Conisby 32 H. 6. 22. And he said That the Grantee should be driven to attorn for no other person can have the estate of the Tenant in tail after possibility of issue extinct but the party himself therefore not the priviledge and although he himself be dispunishable of Wast yet his Grantee shall not have such priviledge As if Tenant in Dower or by the curtesie grant over their estates the Heir shall have Wast against the Grantors for Wast done by the Grantee but if the heir granteth over his Reversion then Wast shall be brought against the Grantees See Fitz. N.B. 56. And it two Coparceners be and the one taketh a Husband and dieth the Husband being Tenant by the curtesie a Writ of Partition lyeth against him but if he granteth over his estate no Writ of Partition lyeth against the Grantee 27 H. 6. Stathams Aid If the Grantee of Tenant after possibility shall att●rn Tenant in tail after possibility of issue extinct shall not have Aid but his Grantee shall have Aid Clark The Grantee of Tenant in tail shall not be driven to attorn If Tenant in tail grant totum statum suum the Grantee is dispunishaple of wast so if his Grantee grant it over his Grantee is also dispunishable c. It was adjorned CCCXVIII Gravenor and Masseys Case Mich 26 27. Eliz. In the Kings Bench. GRavenor brought a Writ of Error upon a common

and that appears by the Record but if it had been in before the Writ brought then a Scire facias would lye See 9 H. 6. It was adjorned CCCCIII Flemmings Case Mich. 26 27 Eliz. In the Kings Bench. FLemming was Indicted upon the Statute of 1 Eliz. because he had given the Sacrament of Baptism in other form than is prescribed in the said Statute and in the Book of Common Prayer Indictment upon the Statute of 1 Eliz. and the said Indictment was before the Iustices of Assize Wray and Anderson Of such offence done before and now he is Indicted again for which it was awarded that he suffer Imprisonment for a year and shall be adjudged ipso facto deprived of all his Spiritual promotions And upon the Indictment Flemming brought a Writ of Error and assigned Error because in the second Indictment no mention is made of the first Indictment in which case the second Indictment doth not warrant such a Iudgment Wray Iustice If the first Indictment be before us then is a second Iudgment well given contrary if it be before other Iustices Clench The second Indictment ought to recite the first conviction and if one be Indicted for a Rogue in the second degree the first conviction ought to be contained in such Indictment in an Indictment the day and time are not material as to true recovering in facto And it might be that this last Indictment was for the first offence for any thing appeareth Coke who argued to the same intent compared it to the Case of 2 R. 2. 9. and 22 E. 4. 12. 12 H. 7. 25. Indictment certified to be taken coram A.B. Justiciariis Domini Regis ad pacem c. without saying necnon ad diversas felonias c. is void and if a man hath been once convicted he shall not have his Clergy if it appeareth upon Record before the same Iustices that he had his Clergy before CCCCIV The Mayor of Lynns Case Hill. 27 Eliz. In the Kings Bench. THe Mayor of Lynn was Indicted Indictments for that he had received twenty four shillings of one A. for giving of Iudgment in an Action of Debt depending before him against one B. and he was indicted thereof as of Extortion In contemptum dictae Dominae Reginae contra formam Statuti Coke The Indictment is insufficient for there is not any Statute to punish any Iudge for such a matter For the Statute of West 1. Cap. 26. is made against Sheriffs Cap. 27. Clerks of Iustices Cap. 30. The Marshal and his Servants Statute 23 H. 6. against Sheriffs 3 Inst 145. and other Statutes against Ordinaries But no Action lies against a Iudge for that which a Iudge receives is Bribery and not Extortion Et satis poenae est judici quod Deum habeat ultorem and therefore he said the party indicted ought to be discharged Gawdy Iustice If in the Indictment there be words of Extortion or Bribery although such an offence in a Iudge be not materially Extortion if these words contra pacem c. had been in the Indictment it had been good quod Clench concessit And afterwards the party was discharged CCCCV. Crisp and Goldings Case Mich. 28 29 Eliz. In the Kings Bench. Assumpsit 1 Cro. 50. 2 Len. 71. IN an Action upon the Case by Crisp against Golding the Case was That a Feme sole was Tenant for life and made a Lease to the Plaintiff for five years to begin after the death of Tenant for life and afterwards the 18. of October made another Lease to the same Plaintiff for 21 years to begin at Michaelmass next before and declaring upon all the said matter he said Virtute cujus dimissionis i. e. the later Lease the Plaintiff entred and was possessed Crast Fest S. Mich. which was before the Lease made and further declared that in consideration that the Plaintiff had assigned to the Defendant these two Leases the Defendant promised c. and upon non Assumpsit it was found for the Plaintiff and damages taxed 600 l. Coke argued for the Plaintiff against the Solicitor General who had taken divers exceptions to the Declaration i. Where two or many considerations are put in the Declaration although that some be void yet if one be good the Action well lieth and damages shall be taxed accordingly and here the consideration that the Plaintiff should assign totum statum titulum interesse suum quod habet in terra praedict ' 2. Exception that the Lease in possession was made after Michaelmass i. 18 October and the Declaration is Virtute cujus dimissionis the Defendant entred Crastino Mich. and then he was a disseisor and could not assign his interest and right which was suspended in the tortious disseisin and so it appeared to the Iudges and he said there was not here any disseisin although that the Lessee had entred before that the Lease was made for there was an agreement and communication before of such purposed and intended Lease although it was not as yet effected and if there were any assent or agreement that the Lessee should enter it cannot be any disseisin and here it appeareth that the Lease had his commencement before the making of the Lease and before the entry But put case it be a disseisin yet he assigned all the Interest quod ipse tunc habuit according to the words of the consideration and he delivered both the Indentures of the said Demises and quacunque via data be the assignment good or void it is not material as to the Action for the consideration is good enough Egerton Solicitor contrary In every Action upon the Case upon Assumpsit there ought to be a Consideration promise and breach of promise and here in our Case the Consideration is the assignment of a Lease which is to begin after the death of the Lessor who was but Tenant for life which is meerly void and that appeareth upon the Record and as to the second part of the Consideration and the assignment of the second Lease it appeareth that the Plaintiff at the time had but a Right for by his untimely entry before the making of the Lease he was not to be said Lessee but was a wrong-doer c. in 19 Eliz. in the Kings Bench this difference was taken by the Iustices there and delivered openly by the Lord Chief Iustice i. When in an Action upon the Case upon Assumpsit two Considerations or more are laid in the Declaration but they are not collateral but pursuant as A. is indebted to B. in 100 l. and A. promiseth to B. that in consideration that he oweth him 100 l. and in consideration that B. shall give to A. 2 s. that he will pay to him the said 100 l. at such a day if B. bring an Action upon the Case upon this Assumpsit and declares upon these two promises although the consideration of the 2 s. be not performed yet the Action doth well lye

the Seisin or possession of the Tenant in Demesn who ought immediately to have paid the said Rent so behind to the Testator in his life or in the Seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by Purchase Gift or Discent in like manner as the Testator might or ought to have done in his life time And now it was moved to the Court. If A. grant a Rent-charge to B. the Rent is behind B. dyeth A. infeoffeth C. of the Lands in Fee who diverse years after infeoffeth D. who divers years after infeoffeth E. It was holden by Walmesey Periam and Windham Iustice against Anderson Lord chief Iustice that E. should be chargeable with the said arrearages to the Executors of A. But they all agreed That the Lord by Escheat Tenant in Dower or by the curtesie should not be charged for they do not claim in by the party only but also by the Law. CCCCXIX Wigot and Clarks Case Hill. 32 Eliz. In the Common Pleas. IN a Writ of Right by Wigot against Clark for the Mannor of D. in the County of Glocester the four Knights gladiis cincti did appear Writ of Right and took their corporal Oath that they would choose 12 c. ad faciendum magnam Assisam and by direction of the court they withdrew themselves into the Exchequer chamber and there did return in Parchment the names of the Recognitors and also their own names and at the day of the return of the Pannel by them made the 4 Knights and 12 others were sworn to try the issue and it was ordered by the Court That both the parties scil the Demandant and the Tenant or their Attornies attend the said 4 Knights in the Exchequer chamber and to be present at the making of the Pannel so as each of them might have their challenges for after the return of the Pannel no challenge lieth and thereupon the said 4 Knights went from the Bar and within a short time after sitting the Court they returned the Pannel written in Parchment in this form Nomina Recognitorum c. inter A. petentem B. tenentem and so set down their names six other Knights ten Esquires and four Gentlemen and the Iustices did commend them for their good and sufficient Pannel and thereupon a Venire facias was awarded against the said parties CCCCXX Pory and Allens Case Trin. 30 Eliz. Rot. 611. In the Common Pleas. THe case was That Lessee for 30 years leased for 19 years 1 Cro. 173. Owen 97. Post 322 323. Surrender 1 Cro. 302. and then the first Lessee and one B. by Articles in writing made betwixt them did conclude and agree That the Lessee for 19 years should have a Lease for three years in the said Lands and others and that the same should not be any surrender of his first Term to which Articles the said Lessee for 19 years did after agree and assent unto and it was the opinion of all the Iustices of the Court that the same was not any surrender and they also were of opinion That one Termor could not surrender to another Termor CCCCXXI Glanvil ane Mallarys Case Trin. 31 Eliz. Rot. 321. In the Common Pleas. GLanvil was Plaintiff in Audita Querela Audita Quer●la 1 Cro. 2●8 against Mallary upon a Statute Staple for that the conusor was within age at the time of the acknowledging of it it was moved for the Defendant that the Court ought not to hold Plea of this matter because there was no Record of the Statute remaining here and therefore by Law he was not compellable to answer it c. and a President was disallowed 5 H. 8. where such a pleading was allowed and judgment given that the Defendant eat sine die Loves Case Dudley and Skinners Case vide 16 Eliz. Dier 332. But on the other side divers presidents were shewed that divers such Writs had been shewed in the Common Pleas as 30 Eliz. Loves case and the Lord Dudley and Skinners case and thereupon it was adjudged that the Action did well lye in this Court. CCCCXXII Pet and Callys Case Mich. 32 Eliz. In the Common Pleas. Debt IN Debt upon a Bond for performance of covenants the case was I. S. by Indenture covenanted with I.D. that such a woman viz. R.S. at all times at the request and charges of I.D. should make execute and suffer such reasonable assurances of such Lands to the said I.D. or his heirs as the said I. D. or his heirs should reasonably devise or require I.D. devised a Fine to be levied by the said Woman and required her to come before the Iustices of Assise to acknowledge it and the woman came before the said Iustices to that intent and because the said woman at that time was not compos mentis the said Iustices did refuse to take the Conusans of the said Fine and this was averred in the pleading in an Action brought upon the said Bond for performance of Covenants where the breach was assigned in not acknowledging of the said Fine and upon the special matter the party did demur in Law and the opinion of the whole Court was that the condition was not broken for the words are general to make such reasonable assurances which c. but if the words had been special to acknowledge a Fine there if the Iustice doth refuse to take such acknowledgment the Bond is forfeited for the party hath taken upon him that it should be done Wangford and Sextons Case Mich. 22 Eliz. In the Common Pleas. 1 Cro. 174. Kel 87. a. THe Plaintiff had recovered against the Defendant in an Action of Debt and had execution The Defendant after the day of the Teste of the Fierifacias and before the Sheriff had medled with the execution of the Writ bona fide for money sold certain goods and chattels and delivered them to the buyers it was holden by the Court that notwithstanding the said Sale that the Sheriff might do execution of those goods in the hands of the buyers Executions for that they are liable to the execution and execution once granted or made shall have relation to the Test of the Writ CCCCXXIV Wilmer and Oldfields Case Trin. 29 Eliz. Rot. 2715. In the Common Pleas. Award IN Debt upon a Bond the Condition was to perform the Award of I. S Antea 140. c. the Arbitrators make Award That the Defendant before such a day shall pay to the Plaintiff 1000 l. or otherwise procure one A. being a stranger to the Bond to be bound to the Obligee for the payment of 12 l. per annum to the Plaintiff for his life the Defendant pleaded the performance of the Award generally the Plaintiff assigned the breach of the Award in this That the said A. had not paid the said 100 l. without speaking of the cause of the award of the 12 l. per annum upon which the

yet afterwards he seemed to be of other opinion And as to that which hath been objected That the Lease is void to all intents and purposes according to the words of the Statute for by some it cannot be resembled to the case cited before of the Bishop of Coventry and Lichfeild that such a Grant should bind him and not his Successors for if this Grant in our Case shall not be void presently it shall never be void for the Colledge never dieth no more than Dean and Chapter Mayor and Commonalty To that it was answered by Drew That although there be some difference betwixt such Corporations and that the words of the Statute are general void to all intents constructions and purposes yet they shall construed according to the meaning of the makers of the Act whose scope was to provide for the Successors and not for the present Incumbent and to the utter impoverishing of all Successors without any respect to the party himself as it appeareth by the preamble of the said Statute where it is observed That by long and unreasonable Leases the decay of Spiritual Livings is procured for the remedying and preventing of which long Leases this Act was made and that the Successors should not be bound thereby And these Leases are not void simpliciter sed secundum quid i. e. as to the Successors As upon the Statute of 11 H. 7. cap. 20. Discontinuances made by Women c. shall be void and of none effect yet such a Discontinuance made is good against the Woman her self So upon the Statute of 1 Eliz. concerning Bishops See now Coke Lincoln Colledge Case 37 Eliz. in the third Reports 60. A Lease made by Dean and Chapter not warranted by the said Statute shall not be void untill after the death of the Dean who was party to the Lease So upon the Statute of 13 Eliz. of fraudulent Conveyances such fraudulent Conveyance is not void against the Grantor but against those who are provided for by the said Statute and that the Lease in the principal case is not void but voidable all the Iustices agreed to be avoided by the Colledge or any other who claim by it and by Anderson If such a Lease should be void then great mischief would fall to the Colledge for whose benefit this Statute was made for if such Lease be made rendring a small Rent then if before the defect be found or espied the Rent was arrear the Colledge could not have remedy for the said Rent Also by Periam Such a Lessee might have an Action of Trespass against a stranger who entreth upon the Land which proves that the Lease is not void but voidable and afterwards notwithstanding all the Objections Iudgment was given for the Plaintiff and the chief Authority which moved Periam Iustice to be of such opinion was Lemans case cited before 28 H. 8. Dyer 27. where a Lease was made to a Spiritual person against the Statute of 21 H. 8. and a Bond or Obligation for performance of covenants and thereupon an Action was brought and the Plaintiff therein had Iudgment and recovered which could not have been if the Lease were utterly void against the Lessor and Lessee as the very words of the Statute are and although it is not alledged in the Book that that was any cause of the Iudgment yet in his opinion it was the greatest cause of the Iudgment in that case CCCCXXVIII Bighton and Sawles Case Pasch 35 Eliz. In the Common Pleas. IN an Action upon the case it ws agreed by the whole Court 1 Cro. 235. That where Iudgment is given that the Plaintiff shall recover and because it is not known what damages therefore a Writ issueth to enquire of the damages That the same is not a perfect Iudgment before the damages returned and adjudged and therefore they also agreed that after such award and before the damages adjudged that any matter might be shewed in Court in arrest of the Iudgment and by Periam Iustice the difference is where damages are the principal thing to be recovered and where not for if damages be the principal then the full Iudgment is not given until they be returned but in Debt where a certain sum is demanded it is otherwise CCCCXXIX Maidwell and Andrews Case Pasch 33 Eliz. In the Common Pleas. MAidwell brought an Action of Covenant against Andrews Covenant and the Case was this That R. was seised of Lands and leased the same for life rendring Rent and afterwards devised the Reversion to his wife for life and died Andrews the Defendant took to wife the wife of the Devisor the Devisee of the Reversion afterwards Andrews bargained and sold the said Reversion to one Marland and his heirs during his own life and afterwards granted the Rent to the Plaintiff and covenanted that the Plaintiff should enjoy the said Rent during his Term absque aliquo legitimo impedimento of the said Andrews his Heirs or Assigns or any other person claiming from the said Marland Marland died seised and the same descended to B. his heir and the breach of the Covenant was assigned in this i. in the heir of Marland who hath the Rent by reason of the Grant of the Reversion to Marland ut supra the Defendant pleaded the Grant of the Reversion to Marland per scriptum without saying Sigillo suo sigillat hic in Curia prolat absque hoc that the said Reversion and Rent descended to B. and thereupon the Plaintiff did demur in Law and the causes of the Demurrer was assigned by Yelverton Serjeant 1. The Grant of the Reversion is pleaded per sciptum and he doth not say sigillat for a Reversion cannot pass without Deed although it be granted but for years and a bare writing is not a Deed without sealing of it and therefore the pleading ought to be per scriptum suum sigillat or per factum suum for factum suum implies the ensealing and delivery 2. It ought to be pleaded hic in Cur. prolat for the Court is to see such Deed to the end they may know if it be a lawful Deed Traverse 1 Cro. 278. without razure interlining or other defects 3. The Defendant hath traversed the descent where he ought to have traversed the dying seised for of every thing descendable the dying seised is the substance and the descent is but the effect And although the Grant of the Reversion was but for the life of the Grantor yet the estate granted is descendable as 27 E. 3. 31. Tenant by the Courtesie leaseth his estate to one and his heirs the Grantor dieth his Heir entreth and a good Bar against him in the Reversion and see 14 E. 3. Action 56. Annuity granted to one and his Heirs for the term of another mans life the Grantor dieth living Cestuy que vie the Heir of the Grantor brings a writ of Annuity and it was holden maintainable and he said that were the dying seised is confessed and avoided by

that was holden by the Court clearly to be Error and afterwards at another day it was moved by Coke That a man attainted of Felony could not make Executors for he is dead in Law and as Bracton saith solus Deus facit Haeredes homo nominat Executores and therefore the Heir only shall have a Writ of Error also an Executor cannot have a Writ of Error but only upon a Iudgment given in a personal Action but this Attainder is a thing of a higher nature as where a Woman poysoneth her Husband the Heir shall not have an Appeal for Murder is changed into Treason and that offence is a thing of a higher nature so this Attainder is of a higher nature than in the personalty Also it may be mischievous to the Heir for the Executor may forthwith bring and pursue his Writ of Error by which the Iudgment shall be affirmed and so the right of the Heir shall be bound also when Error is brought to reverse an Outlawry of Felony a Scire facias ought to be sued against the Lords mediate and immediate which cannot be here at the Suit of the Executors also it was found by Enquest of the Coroner that the Testator fugam fecit so that thereby if he had been acquitted he shall lose his goods and then the Executors have not any reason to bring this Writ of Error but see 11 H. 4. Error 51. That Executors shall have a Writ of Error of an Outlawry pronounced against their Testator and if it be reversed they shall have restitution of the goods of the Testator but it doth not appear there that it was upon an Indictment of Felony Altham As well the Executor as the Heir is a person able for to sue a Writ of Error in such case as 13 E. 4. where a false oath is given against one in Assise and dieth the Heir shall have an Attaint for the Land and the Executor in respect of the damages Popham Attorney General This Outlawry is a real Iudgment therefore the Executor cannot have Error upon it Wray It is good that this case be considered for it may be mischievous for thereby the Executor shall avoid the Attainder against the King and the Lords Fenner That cannot be without a Scire facias Gawdy The Executors shall have this Action and as to that which hath been objected that the party attainted cannot make Executors the same is no reason for the Executors do pretend that their Testator was not lawfully outlawed and so by this Suit they do endeavour to take away that disability and therefore it ought not to be objected against the Executor and if the Case here be That the Testator had not lands but only goods there is no reason but that the Executors should have a Writ of Error otherwise the goods of the Testator should be lost and it was clearly holden by Wray chief Iustice That the Executor might have and pursue this Writ of Error the Outlawry of the Testator notwithstanding and afterwards the Outlawry was reversed accordingly CCCCLX Trussels Case Trin. 31 Eliz. In the Kings Bench. Habeas corpus Owen Rep. 69. ● Cro. 213 516. Co. 3 Inst 213 215. TRussel was removed out of the Counter of London by Habeas corpus into the Kings Bench. Egerton The Queens Solicitor moved the Court that Trussel was a person attainted of Felony and so had not any lands or goods to satisfie c. and also his life was not his own and upon the Return of the Habeas corpus it appeared that Trussel was detained in Prison for an Execution and for divers Actions and it was the opinion of the Court Executions Post 329 330. that as to the Execution he ought not to be discharged for then the party should lose his debt for ever but as to the other actions it was the opinion of all the Iustices that Trussel ought to be discharged of them for a man so attainted ought not to be put to answer nor taken in Execution and so are all our Books And they said that they had conferred with the Iustices of the Common Pleas and with the Barons of the Exchequer which were of a contrary opinion in this case upon the very matter and not upon the manner of the pleading but yet we will discharge our Consciences as we have done for there is not any Book against us Egerton stetit super semitas antiquas and at last it was awarded That Trussel should be discharged of all Actions brought against him CCCCLXI Sovers Case Trin. 31 Eliz. In the Kings Bench. SOver and others were Indicted upon the Statute of 8 H. 6. Indictments upon the Statute of 8 H. 6. of forcible Entry because they had expulsed one A. out of his Land and disseised the Mayor and Commonalty of London who were in Reversion and the same being removed hither Restitution was prayed thereupon and White for the City who was in Reversion and the Lessor prayed that no Restitution might be for they had let the House to another Restitution Yelv. 81. Dy. 141 142. and that he who had procured this Indictment claimed in by a Custom of London That the Executor of the last Termor should not be put out if he shall give as much for it as any other will whereas in truth there is not any such Custom and for that cause the Restitution was stayed and it was said by the Court that Restitution shall be always made to him in the Reversion and not to the Lessee for years for he who is disseised shall be restored and then the Lessee may re-enter CCCCLXII Beal and Carters Case Trin. 31 Eliz. In the Kings Bench. IN an Action of false Imprisonment False Imprisonment Owen Rep. 98 287. the Defendant justified because the Plaintiff brought a Child of the age of six years and not above into the Parish Church of W. eundem ibidem relinquere voluisset intendisset without keeping or nourishment to the danger and destruction of the Child contra pacem for which the Defendant being Constable of the said Parish arrested the Plaintiff and put him in prison until he did agree and promise to carry the Child from whence it came upon which the Plaintiff did demur in Law. It was moved that the Iustification was good for every Subject might do it à fortiori a Constable and if in this case the Child being so exposed should be famished for want of nourishment it had been murder as it was holden at Winchester before the Lord chief Baron 20 Eliz. Another Exception was taken to the Plea because he saith quendam infantem without naming him and he ought to say Quendam infantem ignotum Antea 56. but that Exception was not allowed Another Exception ibidem relinquere intendisset but he doth not say that he did depart from it and then his meaning is not traversable or issuable or to be tried by Iurors See 22 E. 4. 45. Gawdy

appeareth upon his own shewing as it was holden in a Hampshire Case betwixt Sutton and Dowze Sutton and Dowzes Case 2 Len. 55. 3 Len. 155 164. which see Mich. 25 26 Eliz. and in that case the Lease is void for it was made within a year after the Statute of 31 H. 8. the January before and the Statute in April after for he hath not averred that the usual Rent is reserved nor that the Land was usually let to farm for which Leases otherwise made within the year are absolutely void by the said Statute But it will be objected Ante 306. 1 Cro. 707 708. Heydons Case That this matter shall come in of our part and it is sufficient for them to plead the Case but it is not so as it was lately agreed in Heydons Case in the Exchequer where the Case was That the Warden and Canons of the Colledge of Otery leased certain Lands to Heydon for years and he in pleading of his Lease did not shew that the ancient Rent was reserved and therefore naught and so was the opinion of the Iustices of the Common Pleas Lord Cromwel and All-Souls Case in the Case betwixt the Lord Cromwel and All-Souls Colledge upon the Statute of 18 Eliz. cap. 6. upon a branch of it by which it was provided that the third part of the Rent reserved upon any Lease should be paid in Corn c. and the Leases made to the contrary should be void and in an Ejectione firmae brought upon such Lease because it was not shewed in the Declaration that the Corn was reserved according to the Statute Iudgment was arrested and we need not to plead the Statute for although the Statute be particular yet because the King hath interest in it it shall be holden in Law a general Act and the Iudges shall take notice of it although it be not alledged by the party as it was ruled in the Lord Barcklays Case 4 Eliz. Plow 231. but if such Rent was reserved yet the Lease cannot be good for the King cannot have his Rent because it is not incident to the Reversion nor passeth by the Grant of the Reversion for it is not a Rent but rather a sum due by reason of contract which see 30 Ass 6. A man leaseth a Hundred rendring Rent or grants a Rent out of a Hundred the same is not a good Rent but meerly void for a Hundred is not Manorable nor can be put in view nor any Assize lieth of such Rent See 9 Ass 24. and in 20 Eliz. in the Case betwixt Corbet and Cleer 7 Co. 5. Corbet and Cleers Case the Dean and Chapter of Norwich leased a Parsonage and common of Pasture rendring Rent 1 E. 6. they surrendred their possessions to the King and afterwards the King granted the Parsonage without speaking of the common of Pasture It was holden that the Patentee of the Parsonage should have all the Rent and no apportionment should be in respect of the Common for all the Rent issueth out of the Parsonage and nothing out of the Common So here 2 Co. 48. for Tithes are not an Hereditament which cannot support a Rent within this Statute for which cause the Lease is void Also he said that the traverse of the Defendant was not well taken for the Plaintiff hath said That time out of mind c. the Abbot and his Predecessors were seised of the Rectory and Manor aforesaid simul semel and ratione inde was discharged c. at the time of the dissolution the Defendant traverseth absque hoc that the Abbot and his Predecessors held discharged of Tithes time out of mind c. which is not good for he hath traversed our conclusion for our plea is an argument wheresoever is unity time out of mind c. there is a discharge of Tithes but in the Abbot was such an Vnity ergo he held discharged of Tithes as 21 E. 3. 22. In a Praecipe quod reddat the Tenant saith that the Land in demand is parcel of the Manor of D. which is ancient Demesn and c. to which the Plaintiff saith That it is Frank-fee and the same was not good for he denies the conclusion but he ought to plead to the nature of the Manor that it is not ancient Demesn or that the Land in demand is not parcel of it Another matter was because it is pleaded fuit in tenura occupatione of Goodman and others but he did not shew by what Title Disseisin or Lease or other Title c. Buckley contrary And he said This unity of possession is not any discharge of Tithes by the said Statute and as to the Case cited before of 3 H. 7. 12. where Tenant in tail of a Rent entreth upon the Tenant of the Land now is the Rent suspended and then after when he makes a Feoffment in fee by that Feoffment the Rent is extinguished which was but suspended at the time of the Feoffment and therefore some have holden that if after such Entry he makes a Lease for life of the Land that his Rent or Seigniory is utterly gone in perpetuum for by the Livery all passeth out of him which he said cannot be Law and so it seemed to Gawdy Iustice Then upon such Feoffment with warranty he could not vouch as of Land discharged of the Rent generally but as of Land discharged at the time of the Feoffment which proves that the suspension is not a discharge for it was suspended before the Feoffment and discharged by the Feoffment and so suspension is not a discharge à fortiori in the Case of Tithes for in the case of Common and Rent although they are suspended so as they cannot be actually taken yet they are to some intent in esse As where Lands holden of other Lords are in the hands of the King for Primer seisin by reason of Prerogative and during such seisin of the King the Lord gets seisin the same is a good seisin notwithstanding that it was suspended so as he could not distrain And also in Assize of Land damages as to the Rent out of the Land shall be recouped therefore the rent in some sort is in esse and à multo fortiori this Tithe which is a thing of common Right shall be in esse but goes with the Land A Rent in esse to some purposes and suspended to other and therefore by unity of possession shall not be suspended 35 H. 6. He who hath liberty of Warren in the Lands of another entreth into the Land the Warren is not suspended nor by Feoffment of the Land is extinct and in this Case upon the matter during the unity of possession the Tithes were paid although not in specie Also the Abbot had the Tithes as Parson of B. and the Land as Abbot and therefore no suspension for the Tithes were always in esse although not taken in the manner as Tithes commonly are but by way of Retainer 22

E. 4. 44. A Writ of Annuity is brought against a Prior and it appeared That the Prior and his Successors have used to pay the Annuity as Parson of D. and not as Priors which Parsonage was appointed to the said Priory time out of mind and in the Writ the Defendant was named Prior only and not Parson and therefore the Writ was abated See 14 E. 4. 4. 10 H. 7. 5. In an Action of Wast So Bracebridges Case 14 Eliz. Plowd 420. The Case put by Catiline If the Parson Patron and Ordinary make a Lease for years and afterwards the Lessee becomes there Incumbent the Term is not extinct for he hath the Term in his own Right and the inheritance in the Right of his Church which see 30 H. 8. Dyer 43. A Parson purchaseth and after leaseth his Parsonage he himself shall pay Tithes notwithstanding this Vnity and as to the reason of the other side That if such discharge of Tithes be not intended by the Statute but only a Discharge in Law the Statute should be in vain the same is not so for if the Abbot had been discharged by way of Release of Composition for the Monastery being dissolved the Appropriation had been good if it had not been supported by the Statute and then the Release and Composition of no force and the King should not take advantage of it but by this Statute and as to Whartons Case before cited the same cannot be Law for it hath been holden upon the Statute of 18 Eliz. of Confirmations That if an Infant maketh a Lease to the King the same is not made good by the Statute for the said Statute extends to imperfections in circumstances and not in substance And although the Lease be not good yet because the matter of the surmise is naught although our Bar be naught a Consultation ought to be granted also our Lease is well pleaded and if such defect be in it as hath been objected the same ought to come in by Plea on the other side and it is not like Heydons Case for there it was found by special Verdict not to Cromwells Case where such defect was in the Declaration and so no ground of Action as to the Traverse it is good enough as if special Bastardy be pleaded against one born before the marriage and so Bastard the other party shall traverse generally the Bastardy and not the special matter but for the principal matter i. this unity of possession divers rules have been 5 Eliz. in the Common Pleas the Case was An Abbot had a Manor within the Parish of D. and a Composition was made betwixt the Parson of D. and the said Abbot that the Parson should have yearly certain Loads of Wood out of thirty Acres of the said Manor for and in recompence of all the Tithes of Wood there afterwards the Parsonage was appropriated to the said Abbot and afterwards the house was dissolved and the Manor granted to one and the Rectory to another and it was holden That the portion of the Tithes was removed for he had them scil The Manor and the Tithes in several Rights And Manwood Chief Baron and Periam Iustice to whom a Case depending in the Chancery was referred concerning the discharge of Tithes by unity of possession delivered their opinions That such an Vnity is not any discharge within the said Statute It was adjorned CCCCLXVIII Hoskins and Stupers Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Assumpsit That whereas the Plaintiff had sold to the Defendant 1000 couple of Newland Fishes to the use of the Defendant and in consideration that he should ship and should bring and carry the adventure of them from Bristol in portum of Saint Lucar and should carry back again the value of the said Fish to London or Bristoll secundum usum Mercatorum The Defendant did promise that upon the arrival of the said Fish in portum of St. Lucar he would give to the Plaintiff 112 l. and said that he arrived with the said Fish ad portum of St. Lucar and that afterwards he arrived with goods of the value of the said Fish ad portum of London secundum usum Mercatorum It was holden by all the Iudges that in portum and ad portum is all one Exposition of words as the Statute of Wast is Quod vicecomes accedat ad locum vastatum yet he ought to enter into the Land So the Writ of accedas ad Curiam in plena Curia recordari facias c. Another Exception was because he declared That he returned with goods to the value and doth not say whose goods they were but the Exception was not allowed for these words secundum usum mercatorum imply that they were the goods of the Defendant Quod fuit concessum per Curiam and afterwards Iudgment was given for the Plaintiff CCCCLXIX Walgrave and Agurs Case Trin. 32 Eliz. In the Kings Bench. SIr William Walgrave brought an Action upon the Case against Agur upon these words spoken by the Defendant to a servant of the Plaintiff Action for scandalous words 1 Cro. 191. It is well known that I am a true subject but thou innuendo the said servant servest no true subject and thine own conscience may accuse thee thereof It was moved in arrest of Iudgment That these words are not actionable for no slander comes to the Plaintiff thereby for perhaps the Party served no man but the Queen and if the words may receive such sense S●vage and Cooks Case which is no pregnant proof of infamy they are not actionable as in the Case betwixt Savage and Cook These words Thou art not the Queens friend are not actionable for it might be they were spoken in respect of some ordinary misdemeanours as in not payment of Subsidies or the like Also it is not averred that the party to whom the words were spoken was the Plaintiffs servant Coke Where a man is touched in the duty of his Office or in the course of life an Action lieth although that otherwise the words are not actionable and here is set forth in the Declaration That the Plaintiff at the time of the speaking of the said words was a Iustice of Peace and Sheriff of Suffolk and Captain of a Troop of 120 Horse to attend the Preservation of the Queens person So in respect of place and dignity in the Commonwealth as 2 H. 8. The Bishop of Winchester brought an action upon the Statute of Scandal Magnatum upon these words My Lord of Winchester sent for me and imprisoned me until I made a Release to J. S. and in respect of his Place and Dignity the words were holden actionable and 9 Eliz. Dyer In an action upon the Case by the Lord Aburgaveney against Wheeler My Lord of Aburgaveney sent for us and put some of us into the Coal-house and some into the Stocks and me into a place in his house called Little

before And as to the President cited 7 Eliz. the same is not to the purpose for the second Husband was a stranger to the Fine for it would be absurd to reverse the Fine as against him Egerton Solicitor General Presidents are not so holy quod violari non debeant as to be rules to other Iudges in perpetuum and I conceive that the Fine shall be reversed as to the Wife only for the Fine is but a Conveyance and the Husband may lawfully convey the Land of his Wife for his life and if the Husband alone had levyed the Fine the same had bounden the Wife during his life If a woman Lessee for life taketh to Husband him in the Reversion and they joyn in a Fine the Fine shall stand as to the Inheritance of the Husband but shall be reversed as to the Interest of the Wife Coke it shall be intended here all the Interest and estate in the Land to be in the Wife as 20 H. 7. 1. Where the Husband and Wife are vouched it shall be intended by reason of the Warranty of the Wife only and so the Counter-plea shall be of the seisin of the Wife and her Ancestors Wray when the Husband and Wife joyn in the Fine it shall be presumed the Inheritance of the Wife and if it be otherwise it ought to be specially shewed and as to that which hath been said that if the Husband alone had levyed a Fine it should have bounden the Wife during the life of the Husband the same is true but such Fine is but a discontinuance but the right continueth in the Wife but when the Husband and Wife joyn in the Fine all passeth out of her and if the Fine in such case for the Inheritance shall be reversed in all to whom belongs the Free-hold to whom shall he be attendant Gawdy 12 H. 7. 1. In a Praecipe quod reddat against three they vouch severally the Voucher was not received and yet they might have several Causes of Voucher but the Law presumes they are Ioynt-tenants and have a joynt cause of Voucher if the contrary be not shewed And afterwards Iudgment was given quod finis predict reversetur and Wray said he had conferred with many of the other Iustices who were of the same opinion Gawdy the Fine shall be reversed in all for this is an Error in Law of the Court F. B. 21. D. For by this Fine the Husband giveth nothing divided from the estate of the Wife but all passeth from the Wife and therefore all shall be reversed and if the Fine should be reversed as to the Wife only then the Fine levyed now by the Husband alone is a discontinuance by which the Wife by the common Law shall be put to her Cui in vita and that is not reason Also we cannot by this Reversal make the Conusee to have a particular estate during the life of the Wife And therefore the Fine is to be reversed for the whole and as void for the whole to the Conusee CLVIII Cage and Paxlins Case Trin. 30 Eliz. In the Kings Bench. 1 Cro. 125. 3 Len. 16. DAniel Cage brought an Action of Trespass against Thomas Paxlin for Trespass done in a Close of Wood called the Frith-Close and in the Park and for taking of certain Loads of Wood the Defendant pleaded that the Earl of Oxford was seised of the Mannor of W. of which the place where c. is parcel and leased the same to J. S. for years excepting all Woods great Trees Timber-trees and Vnderwoods c. And covenanted with the Lessee and his Assigns that he might take Hedg-boot and Fire-boot super dicta premissa and shewed further that the said I. S. assigned his Interest unto the Defendant and that he came to the said Close called the Frifth-Close Lease of Lands excepting the wood and cut the Wood there for Fire-boot as it was lawful for him to do c. And note that after the Lease aforesaid the said Earl had assured the Inheritance thereof to Cage the Plaintiff And it was argued by Godfrey that the Lessee cannot take Fire-boot in the said Close for the wood c. is excepted and was never demised and by the exception of the wood the soil thereof is excepted See 46 E. 3. 22. A. leased for life certain Lands reserving the great wood by that the soil also is reserved vi 33 H. 8. Br. Reservation 39 28 H. 8. 13. 3 Len. 16. And by the words of the Covenant the intent of the Lessor appeareth that the Lessee shall have his Fire-boot out of the residue of the Lands demised for praemissa here is equivalent with praedimissa And he cited the Case moved by Mountaine cheif Iustice 4 E. 6. in Plowden in the Case betwixt Dive and Manningham 66. A. leaseth unto B. a Manor for years excepting a Close parcel of it rendring a Rent and the Lessee is bounden to perform all Grants Covenants and Agreements contenta expressa aut recitata in the Indenture if the Lessee disturb the Lessor upon his occupation of the Close excepted he hath forfeited his Obligation c. But our Case is not like to that Post 122. And if I let the Manor of D. for years except Green-meadow and afterwards I covenant that the Lessee shall enjoy the Premisses the same doth not extend to Green-meadow Snagg Serjeant to the contrary and by him praemissa are not restrained to praedimissa but to all the Premisses put in the former part of the Indenture of Demise therefore the Lesse shall have Fire-boot in the one and the other 2 Roll. 455. 2 Cro. 524. Post 122. and he put a difference betwixt all Woods excepted and all woods growing excepted for in the one case the soil passeth in the other not And as to the Case cited before in Plowden 66. that is true for exception is an Agreement And he said that by that exception the soil it self is excepted and these woods which are named by name of woods contrary where a Close containeth part in woods and part in Pasture And by the exception of Timber-trees and Vnder woods all the other woods are excepted but not the soil As if a man grant all his Lands in D. Land Meadow Pasture and woods thereby passeth by exception of this Close of wood the soil also is excepted and he conceived that although all the woods be excepted yet by the Covenant an Interest passeth to the Lessee Select Case 155 Hob. 173. Dy. 19 198 314. 21 H. 7 31. More 23. 1 Roll. 939. so as he may take Fire-boot without being put to his Action of Covenant As 21 H. 7. 30. A. leaseth unto B. for life and Covenants in the Indenture of lease that he shall be dispunished of Wast although the same be penned by way of Covenant yet it is a good matter of Bar being all by one Deed And afterwards Iudgment was given for the Plaintiff as to that

issues the Iury might have assessed the damages severally scil for each issue several damages but here is but one issue and it was the folly of the Defendant that he would not demur in Law upon the Declaration for one part scil the not performance of the Award and traverse the other part scil The suing of the Execution or the Assumpsit of it And in our case it may be that the Iury did assess the damages for the suing of the Execution without any regard had to the performance of the Award And note that the verdict for assessing of the Damages was in these Terms scil Et assidunt damna occasione non performationis Assumpsionis praedict c. And Cook who was of Councel in this Case put this Case The late Earl of Lincoln Admiral of England brought his Action of Scandalis Magnatum and declared That the Defendant exhibited in the Star-chamber against him a Bill of Complaint containing diverse great and infamous slanders viz. That the said Earl was a great and outragious oppressour and used outragious oppression and violence against the Defendant and all the Country also The Defendant pleaded Not guilty and found for the Plaintiff and assessed damages and it was moved in stay of Iudgment first That the Plaintiff had declared upon matter of slander for part for which an Action lyeth and for part not For the oppression supposed to be made to himself no Action lieth because every subject may complain for wrong done unto him and although he cannot prove the wrong an Action will not lye But as for the oppression done to others by the supposal of the Bill an Action lieth for what is that to him he hath not to do with it for he is not pars gravata But because the Iury assessed Damages entirement the Iudgment was arrested for the cause aforesaid And afterwards in the principal case the last day of this term Iudgment was staied CCXXXIX Palmer and Thorps Case Hill. 31. Eliz. In the Kings Bench. BEtwixt Palmer and Thorpe the Case was this 1 Cro. 152 A man demised his Manour of M. for thirty two years and the day after let the same Manour for forty years to begin from Michaelmas after the date of the first Lease and the Tenant attorned And by Cook the same is a good grant although to begin at a day to come for it is but a Chattel and so was the opinion of Wray Chief Iustice for a Lease for years may expect its commencement as a man seised of a Rent in Fee grants the same for twenty years from Mich. following and good for no estate passeth presently but only an Interest See 28 H. 8. 26. Dyer CCXL Sir Anthony Shirley and Albanyes Case Hill. 31 Eliz. In the Kings Bench. Rot. 668. IN an Action upon the Case upon Assumpsit by Sir Anthony Shirley against Albany Assumpsit 1 Cro. 150. The Plaintiff declared That he was seised of the Manor of Whittington for the term of his life the Reversion to the Earl of Arrundel in Fee and so seised surrendered all his Estate to the said Earl who afterwards by his Deed granted a Rent-charge of 40 l. per annum out of the said Mannor to him and afterwards conveyed the Manor to the Defendant in Fee. And afterwards 27 Maii 22. Eliz. upon a Communication betwixt the Plaintiff and the Defendant concerning the said Rent the Defendant did promise to the Plaintiff that if the Plaintiff would shew unto the Defendant any Deed by which it might appear that he ought to pay to the Plaintiff such a Rent he would pay that which is due and that which should be due from time to time And further declared that 27 April 27 Eliz. he shewed unto the Defendant a Deed by which it appeared that such a Rent was granted and due And for eighty pounds due for the two last years he brought the Action The Defendant pleaded that after the said promise and before the shewing of the said Deed scil 14 Jan. 22 Eliz. the Plaintiff entred into the said Land and leased the same for three years The Plaintiff Replicando said that 1 Decem. 27 Eliz. the Defendant did re-enter upon which they were at Issue and it was found for the Plaintiff It was moved by Glanvil Serjeant that by the entry the Promise was suspended and being a personal thing once suspended it is always extinct Wray The Action is brought for the Arrerages due the two last years and so at the time of his re-entry the Plaintiff had not cause of Action and therefore it could not be suspended Suspension of Rent Ante. 110. Gawdy When the Plaintiff sheweth the Deed the Defendant is chargable to arrerages due before and after the promise wherefore if the entry maketh a suspending of the Rent the suspension doth continue but I conceive here is not any suspension for this promise is a meer collateral thing and so not discharged by the entry into the Land for it is not issuing out of the Land. But if the Plaintiff before the Deed shewed had released all Actions the same had been a good Bar and I conceive that the Deed was not shewed in time for it ought to be shewn before any arrerages due after the promise but here it is shewn five years after But that was not denied by all ther other Iustices Another exception was taken that where the promise was that if the Plaintiff shewed any Deed by which it might appear that the Defendant should be charged with the said Rent and the Declaration is by which it might appear that the Plaintiff ought to have the Rent c. so as the Declaration doth not agree in the whole See 1 Ma. 143. in Browning and Bestons Case the Condition of the Lease was if the Rent should be arrear not paid by two Months after the Feast c. and the Rejoynder was by the space of two months c. And the pleading holden insufficient for per duos menses doth not affirm directly post duos menses but by Implication and Argument And here it was holden that the Condition was a good consideration Another exception was taken because the promise is layed All the Rent ad tunc debitum aut deinceps debend It was holden that this word ad tunc doth refer to the time of the shewing of the Deed and not to the promise And as to the last exception but one it was resolved that the Declaration notwithstanding the same was good enough scil ostendit factum per quod apparet quod redditus praedict solvi deberet in forma praedict Another exception was taken because here no breach of the promise is alledged for it is pleaded thath eight pounds de annuali redditu arrer fuer but it is not said de redditu praedict 8 l. ergo it may be another Rent and then the promise as to this Rent is not broken Wray Although the word praedict be wanting yet the Declaration is well enough