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	error_n	trespass_n	1,801	5	11.6758	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A47716	The second part of Reports and cases of law argued and adjudged in the courts at Westminster in the time of the late Q. Elizabeth, from the XVIIIth to the XXXIIId year of her reign collected by that learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases and of the matters contained in the book.; Reports and cases of law argued and adjudged in the courts at Westminster. Part 2	Leonard, William.	1687 (1687)	Wing L1105; ESTC R19612	303,434	242

in execution it was adjudged in this Case that the Conusee should have the Corn sowed The same Law in case of a Recognizance LXXVI Smalman and Lane 's Case Trin. 29 Eliz. In the Common-Pleas THE Case was a Capias upon an original Process was delivered to the new Sheriff of Warwick against Lane at the suit of Smalman And the Sheriff informed the Court that before that the Process was directed to him That the said Lane was taken in Execution by the old Sheriff upon a judgment given against him in the King's-Bench and that the said old Sheriff had imprisoned the said Lane by force of the Execution in his own house and there he remained and prayed the advice of the Court what retorn he should make upon that matter because the said Lane was never in his possession for all the other prisoners which were in the Gaol and in the ordinary Prisons were delivered to him and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered And it was the opinion of all the Iustices That by the Law the old Sheriff ought to deliver the body of him who is in his custody by view to the new Sheriff and such Prisoners ought to be brought unto him to view and from that time the Law shall adjudge such Prisoners to be in the possession of the new Sheriff and not before for he is not bound to go to them not being in the ordinary Prison of the County Anderson The new Sheriff may retorn That the said Lane is in Execution in custodia sua and so charge himself For although the Office of the old Sheriff be determined yet it is not an escape so long as the party be in custodia and not at large Periam contrary It is an escape in the old Sheriff as soon as his authority is determined the Prisoner not delivered See now C. 3. part 71. Wesby's Case LXXVII Megot and Broughton and Davie 's Case Mich. 29 Eliz. In the King's-Bench 1 Cro. 105. IN an Action upon the Case upon Assumpsit it was found by Nisi prius for the Plaintiff and afterwards before the day in Bank one of the Defendants died and after Iudgment given the other Defendant brought a Writ of Error in the same Court where the Iudgment was given and assigned an Error in fact scil the death of one of the Defendants pendant the Writ Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said that the Case is not like the Case of an Action of Trespass for every Trespass done by many is several by each of them but every Assumpsit is joint and not several Another point was moved If the Court could reverse their own Iudgement Quaere LXXVIII Farrington and Fleetwood 's Case Trin. 29 Eliz. In the Exchequer THE Case upon the Statute of 31 H. 8. of Monasteries was this 3 Len. 164 165. ante 333. Plus The Abbat and Convent of A. c. 29 H. 8. made a Lease of certain Lands for three lives to begin after the death of one F. if they so long live and afterwards 30 H. 8 within a year before the dissolution they make another Lease to Fleetwood If the first Lease in the life of the said F. be such an Estate and Interest as by virtue of the said Statute shall make the second Lease void was the Question for it was not in esse but a future Interest Manwood All the reason that hath been made for the second Lease is because the first Lease is but a possibility for F. by possibility may survive all the said three and so it shall never take effect But notwithstanding be it a possibility or otherwise it is such a thing which may be granted or forfeited and that during the life of F. And note the words of the Statute If any Abbat c. within one year next before the first day of this present Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Manors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance and hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of the Lease to Fleetwood And of such Opinion were all the Barons and divers other Iustices and therefore a Decree was made against the Lease c. LXXIX Beaumont 's Case Trin. 29 Eliz. In the Exchequer NOte it was holden by all the Barons in the Exchequer Owen Rep. 46. That a Duty which is not naturally a Debt but by circumstances onely as Debt upon a Bond for performance of Covenants or to save harmless may be assigned over to the Queen for a Debt but in such case a present Extent shall not issue but a Scire facias shall issue forth to know if the party hath any thing to plead against such Assignment LXXX Goddard 's Case Trin. 29 Eliz. In the Exchequer IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised and the Disseisor aliens the Lands and afterwards the Disseisee doth re-enter Manwood said That the Land shall not be charged with a Fine for alienation without licence because the Title of the Alienee grew under the wrong of the Disseisor but the person of the Disseisor shall be charged with such Fine Tenant of the King in Capite makes a Lease for life the Lessee for life makes a Feoffment in Fee without licence the Lessor re-entreth neither his person nor the Land shall be charged But if my Feoffee upon Condition maketh a Feoffment without license and I re-enter for the Condition broken now my Land shall be charged with the Fine upon Alienation for the Feoffee was in by me by good and lawfull Title because he had power to make a Feoffment over although subject to the Condition So if Tenant in tail or the Husband seised in the Right of his Wife make a Feoffment in Fee and afterwards the Land is recontinued the Fine accruing for Alienation without licence shall bind the Land And if Tenant for life loseth issues and dieth the Lands shall be charged with the same LXXXI The Lord of Northampton and Lord St. John 's Case Trin. 29 Eliz. In the Exchequer 2 Roll. 195. Co. 12. 1 2. Co. 4. 95. Dyer 262. THE Lord of Northampton had by ancient Letters Patents bona catalla felonum fugitivorum within the Isle of Ely and one dwelling within the Island was attainted of Felony to whom another was indebted by Obligation and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's who within his Manor

the Lessee entred 29 Sept. which is before the Term begins For the words of the Habendum are From the Feast of St. Michael therefore the Feast of St. Michael is no part of the Term and then was the Defendant a Disseisor and the day after the Term began which cannot alter his Estate but that he continueth a Disseisor and then he is not in by force of the said Lease and so no Rent can be due Williams As the Declaration is here the same is not any disseisin for the Plaintiff set forth in his Declaration That the Lessee the Defendant hath occupied the Land demised the whole year and so hath not admitted any Disseisin it being in his election to make it a Disseisin or not Clench Iustice Be it a Disseisin or not or be it that the Defendant entreth or not he is to pay the Rent Gawdy The Lessee is a Disseisor and continueth a Disseisor and yet Debt lieth against him for the Rent by reason of the privity of Contract which see Rysden's Case 24 H. 8. Dyer 5. And so in our Case Quod fuit concessum per totam Curiam and afterwards Iudgment was given for the Plaintiff CXXII Monings and Worley 's Case Hill. 32 Eliz. In the King's-Bench Rot. 561. Error IN Debt upon an Obligation brought by Mary Worley against Monings in the Common-Pleas The Condition was That if Mary Worley the Plaintiff in the said Action doth not depart out of the service of the Defendant without license of the Defendant Monings nor marry her self but with his consent Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made of Monings at his house at Waldersey 100 l. That then c. And the Defendant in the said Action pleaded That the said Mary the Plaintiff in the said Action 4 Maii 30 Eliz. departed out of his service without licence The Plaintiff Mary by Replication said That 6 Septemb. the same year she departed out of his service with licence and that 4 Octob. after she demanded the said 100 l. at Waldersey aforesaid and he refused to pay it Absque hoc that she departed out of his service 4 Maii 30 Eliz. without licence and the Writ bare date 18. of October next after the demand And it was found for the Plaintiff and Iudgment given for her in the Common-Pleas and now a Writ of Error is brought by Monings Tanfield The Iudgment ought to be reversed for always the Replication in such cases ought to contain sufficient Cause of Action and sufficient breach of the Condition or otherwise the Plaintiff shall not have Iudgment although that the Issue be found for him as 7 E. 4. 31. In trespass for taking of goods of A. and B. A. pleads Not guilty B. justifies the Plaintiff makes Title to the goods by a gift B. traverseth the gift and it is found for him against the Plaintiff A. is found guilty Now although A. be found guilty yet the Plaintiff shall not have judgment against him for it is found that he hath not any Title to the goods As in Debt upon a Bond against A. and B. A. pleads Non est factum B. pleads the release of the Plaintiff and it is found the Deed of A. and that the Plaintiff hath released to B. the Plaintiff shall never have Iudgment for upon the Verdict it appears that he hath not cause of Action And here in the Replication there is not a sufficient breach shewed of the Condition for although that Mary hath not departed from the service of the said Defendant yet the same is not material but the Defendant had twenty eight days after the demand to pay the 100 l. but the same is not so here for the Plaintiff hath prevented the Defendant for the demand is alledged to be 4. Oct. and the Writ bears date 18. Octob. the same year and so the Defendant had not his time allowed him Gawdy The issue is taken upon the departure out of his service so as the demand is not now material and therefore the alledging of the same is surplusage and shall not hurt And the Defendant hath pleaded in Bar the departure of the Plaintiff out of his service upon which he relieth and the demand set forth in the Replication is not to be regarded as to prejudice the Plaintiff As 3 Ma. Dyer 115. Lessee for years covenants that he will not cut any Trees The Lessor assigns the breach of the Covenant in succidendo twenty Oaks The Lessee pleads that he did not cut the twenty Trees nor any of them The Iury found that the Defendant had cut down ten Trees The Plaintiff upon that Verdict shall have Iudgment for the rest is but surplusage and more put in issue than there needs to be Fenner It is not any full Plea to say That the Plaintiff did not depart out of the service of the Defendant 4 Maii for if she departeth at any other time she shall not recover for which cause she ought to have pleaded That she continued in his service untill such a day and then she departed with his licence and the inducement to the traverse ought to be sufficient matter otherwise it is not a full Plea nor the Traverse is not good And if it be surplusage yet if it be not matter against her self it makes the Plea naught which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived that the Iudgment was well given for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence or to stand upon the demand And now although he pleads the departure yet the demand is not confessed And afterwards the Iudgment given in the Court of Common-Pleas was affirmed CXXIII Bashpool 's Case 27 Eliz. In the King's-Bench THE Case was this The Father seised of Lands Stiles Rep. 148. is bound in an Obligation and deviseth his Lands to his Wife untill his Son cometh to the age of twenty one years the remainder to the Son in Fee and dieth and no other Lands descend or come to the Son from his Father It was moved by Godfrey That the Heir in that case at his Election might wave the Devise and take by descent or è contra See 9 E. 4. 18. by Needham But Gawdy and Shute Iustices 3 Len. 118. were of opinion That the Son should be adjudged in by Descent Clench contrary CXXIV Bennet and Shortwright 's Case Trin. 30 Eliz. In the King's-Bench THE Case was 1 Cro. 206. The Defendant sued the Plaintiff in the Spiritual Court for Tythes in kind and now the Plaintiff prayed a Prohibition and suggested That they had used in the said Parish time out of mind c. to take the tenth Sheaf in satisfaction of Tythe of Corn c. and in those years in which the Plaintiff had supposed the subtraction of his Tythes he had severed the tenth Sheaf from the nine parts and the Parson would not take

discharge is onely material As in debt for arrearages of Rent reserved on a Lease for years if the time and place of the making of the Lease be not set forth in the Declaration the Declaration is not good But if the Defendant plead a collateral matter as release of the arrearages or other such matter now all the imperfections of the Declaration are waved c. At another day the matter was argued again There are three manner of considerations upon which an Assumpsit may be grounded 1 A debt precedent 2 Where he to whom such a promise is made is damnified by doing any thing or spends his labour at the instance of the Promiser although no benefit cometh to the Promiser As I agree with a Surgeon to cure a poor man who is a stranger unto me of a sore who doth it accordingly he shall have an Action 3 Or there is a present consideration c. The first Exception was because the Assumpsit being laid to procure such a Lease which another had i. e. one A. it is not shewed in the Declaration in facto That A. had such a Lease and if he had not any such Lease then there cannot be any consideration to procure it For Ex nihilo nihil fit Secondly the Declaration is That A. was possessed of a Lease for years to be ended and determined in An. 1606. without shewing any beginning of it and although that Lease be but matter of Conveyance and inducement yet because it is the ground of the Action it ought to be certainly and sufficiently set forth Thirdly the Lease to be procured is laid to be made by a College in Cambridge and it is not shewed for what term of years i. e. for 21 years or under for if it be above then such Lease is void Fourthly It is not laid in the Declaration that the Lease was by writing and then void for a College cannot make a Lease without writing and it shall be intended it was made without Deed because it is not laid to be by Deed As if a Corporation makes a Lease for life and afterwards granteth the Reversion for years he that will entitle himself to the said Reversion ought to say in pleading That he made the Lease for life by Deed although the Lease for life in such case be but matter of Conveyance Fifthly It is not laid in the Declaration That the Lease to be assured was in esse and had continuance at the time it was to be assured for although it be laid to be in esse at the time of the promise yet being a particular interest it shall not be intended to continue if it be not specially shewed As 10 H. 7. 26. Sixthly Here the Plaintiff hath not cause of Action but Palmer for the Assumpsit upon which the Action is grounded the money is to be payable to Palmer not to the Plaintiff 2 E. 4. 5. My Bailiff lets my Land to Farm rendring Rent he shall not have an Action for the Rent but I my self in whose right he leased 25 Eliz. It was the Case of one Crewe I promised unto J. S. 25 Eliz. Crew 's Case That in consideration that he will make unto me a Lease for years of such Lands I will assign the same to his servant If he will not make the Lease not J. S. but his servant shall have Action upon the promise and although the Defendant hath pleaded collateral matter by which the promise is confessed yet the same doth not amend the matter for if the Declaration be insufficient the Court ex Officio ought to stay Iudgment As 6 H. 7. 10. In trespass the Defendant pleads That there was an Accord betwixt them that in satisfaction of the said Trespass he should pay to the Plaintiff such a sum and make two Windows the which sum he had paid before the day without speaking any thing of the Windows The Plaintiff pleaded No such Accord and it was found for the Plaintiff and although the Plaintiff doth admit the Plea as good yet the Court ex Officio shall stay the Iudgment See the Book of Entries 4. A Carpenter brought an Action upon the Case and declared generally upon the Assumpsit Pro diversis rebus vocat Carpenters wares pro diversis laboribus per querent at the instance of the Defendant in arte lignaria c. and holden good without any particulars It was adjourned CCLVI. Payne 's Case Mich. 29 Eliz. In the Exchequer-Chamber A Writ of Error was brought by Payne 3 Len. 144. Treasurer of the Records of the King's-Bench in the Exchequer-Chamber upon a Iudgment given in the Court of Exchequer upon an assignment of a Lease for years by the Earl of Oxford to the Queen One Error is assigned That whereas the issue was joined upon intrusion in taking of the profits and so two matters put in issue The Iury have found Payne guilty of intrusion but have said nothing of the taking of the profits and so the verdict doth not fully meet with the issue But the great matter of the Ease was upon this point The Information is That the Assignment to the Queen was 16 Maii the Intrusion 17 Maii the Inrollment of the Deed of Assignment the 18. of May. So it appeareth upon the Record That the intrusion is supposed to be done before the Queen have any interest in the Lands in which the intrusion is supposed for nothing was in the Queen before the Inrollment For the Queen is a Corporation of State of such prerogative and excellency that she cannot give or take interest in any Lands without matter of Record and this Lease is a Chattel Real and interest in Lands See as to the Inrollment 1 H. 7. 30 31. 5 E. 4. 7. 7 E. 4. 16. But I grant that if the Lessee for years be outlawed the Lease shall be in the King without Office for the Outlawry it self is a sufficient Record to entitle the King to it If the Queen makes a Lease for years of Land rendring Rent with clause That if the Rent be behind that the Lease shall cease if the Rent be not paid it was agreed here in Sir Moile Finche's Case Sir Moile Finches Case That the Lessee continuing his possession shall not be accounted an intruder before Office thereof found but he shall be accountant to the Queen for the profits as Bailiff of his own wrong But here we are charged with intrusion It hath been doubted if personal things be in the King without Office 37 H. 6. but now it is clear that it is as 35 E. 3. Br. Praerogat 113. The Villain of the the King purchaseth goods the property thereof is in the King without seisure and so of all personal Chattels because transitory 1 H. 7. 17. 4 H. 7. 1. 39 H. 6. 26. And here it appeareth upon Record that this Deed of Assignment was delivered to Baron Clark the 16 of May at Westminster and to that we say That the

Rot. 509. Hubbart and Windsmore's Case in Hubbart and Windsmore's Case II. Thatcher and Damport 's Case Mich. 32 and 33 Eliz. In the King's Bench. Rot. 19. THatcher recovered against Damport as Administrator of one Zouch 1 Cro. 145. 215. ib. Error The Defendant put in Bail and afterwards Iudgment was given against the Defendant in this manner Ideo videtur Justiciariis quod querens recuperet debitum suum versus c. and thereupon a Scire facias was sued against the Bail Judgement against the Bail. and a good and lawfull Iudgment given against them And they brought a Writ of Error to reverse the Iudgment given against them and assigned Error because Iudgment was entred against them before a good and lawfull Iudgment was given against the Defendant himself For Videtur Justiciariis quod querens recuperet c. is not any Iudgment and the Court held that the Iudgment given against the Bail ought to be reversed but that the other Iudgment should stand such as it is neither affirmed nor disaffirmed but the Bail should not cause the same Iudgment for their discharge to be entred And afterwards came Thatcher and surmised the nullity of the said Iudgment and prayed that Iudgment might be entred for him in forma juris habuit And now upon this new Iudgment Damport brought a Writ of Error and assigned for Error the entry of that new Iudgment for before a Iudgment was entred tiel queb and Thatcher proceeded upon it and had a Scire facias against the Bail and Iudgment thereupon given against the Bail Also the Record was removed by Writ of Error and this second Iudgment is merely erronious for then there should be two Iudgments and they should give Iudgment upon a Record which was not before them Gawdy Iustice The Writ of Error is to remove the Record Si Judicium inde redditum sit by which if Iudgment be not given the Record doth remain unremoved and then they may well enough give Iudgment For the former pretended Iudgment was no Iudgment at all and the Record is not removed As 4 Eliz. Dyer 206. a Certiorari to remove a Record capt in Curia nostra whereas it was in Curia of the predecessor the Record is not removed The former Writ of Error was to remove the Record of the Scire facias against the Bail which might be removed although the other Record did remain for they are two distinct Iudgments And such was the opinion of the other Iustices And afterwards upon advice of the whole Court the Iudgment against the Defendant himself was affirmed but that which was given against the Bail was reversed because given before Iudgment given against the Defendant himself III. Werdman and Yate 's Case Trinit 32 Eliz. In the King 's Bench. Partition 1 Cro. 155. 281. WErdman brought a Writ of Partition against Yates and others who all appeared and confessed the Action and afterwards brought Error which was entred Pasch 27 Eliz. Rot. 43. and they assigned Errors and the opinion of the Court was against them and they seeing it did discontinue their Writ of Error and now they sued a new Writ of Error out of the Chancery Error directed to the Lord Anderson being dated 19 Nov. 31 Eliz. containing That whereas a Writ had been directed to him to remove such a Record That all the Record is not yet removed wherefore this was to remove the residue of the said Record Vpon which Writ was sent hither a small parcell of the Record upon which the Plaintiffs sued a new Writ of Error out of the Chancery Coram vobis residet and that was Hil. 31 Eliz. and it was entred upon a new Roll of the same Term and not upon the ancient Roll and thereupon new Errors were assign'd in the judicial proces out of the body of the Record 1. That the Plea was discontinued for Pone was awarded against three of the Defendants and idem dies not given to the other two nor any thing spoken of them 2. Because there were not fifteen days betwixt the date of the Pone and the Retorn of it scil the first day of the Retorn i. the first day of Essoins as ought to be by Law. 3. Iudgment was given that the Defendants should be amerced where they appear upon the first Proces and thereupon the Plaintiff sued a new Writ of Diminution one to the Lord Anderson and the other to the Custos Brevium And now came and pleaded all the matter aforesaid viz. the former Writ of Error the proceeding in it and the discontinuance of it and demanded Iudgment if the Plaintiff should have a new Writ of Diminution upon which the Plaintiff did demurr Coke this second Writ of Error is not maintainable For the first Writ sent to the Lord Anderson could not be sued out of the Chancery for it is not a Writ of Error but a Writ of Diminution For in the Register there are but two Writs of Error the first to remove Record the second Quod coram vobis residet 2 H. 7. 19. and in the Writ there is not any mention of Error and therefore it cannot be a Writ of Error and if there be not any such Writ in the Register then it is a good argument to say there is no Writ at all as the Lord Dyer argued in the Lady Hale's Case 5 Eliz. 262. in Plowden in the Case of the Writ of Escheat Also it is against all the precedents that a Writ of Error Quod coram vobis residet should be otherwise entred than upon the first Record and not upon a new Record and the Writ of Diminution is not an Original Writ and ought always issue out of the Court where the Writ of Error is depending And also the party cannot now alledge Diminution i. after a Scire facias ad audiendum Errores which see 22 E. 4. Diminution 45. by Hussey For by the Scire facias ad audiendum Errores he affirms the Record to be full So 7 E. 4. 25. After the Defendant in the Writ of Error hath pleaded in nullo est erratum he shall not alledge Diminution for the parties are agreed upon the Record 28 H. 6. 10. after a Scire facias the Plaintiff shall never assign Errors in fact c. Tanfield contrary he agreed that a Writ of Diminution cannot be sued out of the Chancery but that will not hurt us for it is idle and utterly void And when the Record is removed it is not material how it comes in so as it be here for they are both the King's Court as it is in the common Case of Indictments and then the Writ of Error is to examine the Record Quod coram vobis residet And although the same be in divers Rolls the same is no matter of Exception Entry of Records but if the Roll be entred in a wrong Office it is not good but if all be in one Office the misfiling

of the Roll will be no hurt So here it is not so formal as it ought yet it is not any prejudice to us But the great matter is if the Plaintiff may assign new Errors and have a new Writ of Diminution two of the Errors assigned in the Mesne Proces but the third is in the Record it self i. the Iudgment And there is no doubt but that a man may have divers Writs of Error but he shall have but one Supersedeas and so divers Errors but one delay Also it is not a Writ of Diminution which we have sued for I do not say that it is a thing below which is not here but I say that is not a thing below which ought to be viz. there is not any discontinuance but the Court awarded that Writ for their satisfaction for the non esse of the thing shall come on the other side and 9 E. 4. the Court awarded a Certiorare to enform themselves And he said that after a Scire facias the Plaintiff may assign new Errors Trin. 20. H. 7. Rot. 84. betwixt Edge-Court and London a Writ of Error was brought against two and after Errors assigned one of the Defendants died before a new Writ of Error could be assigned But here the first Record is discontinued and determined for which there is not now any Record which may be objected against us nor any thing in it as 20 H. 7. A man avows for a Rent due at such a day and is nonsuit Now he may avow for the same Rent and suppose the same to be due at another day Estoppell for he shall not be estopped by the Record upon which he was non-suit and so here upon the whole matter the Writ out of the Chancery is not material and the Roll is not misplaced but is in the right Office Also this is not a Writ of Diminution but a Writ to inform the Iustices Wherefore upon the whole matter the Writ of Error will well lie It was adjourned IV. Savacres Case Rot. 7. Mich. 31 and 32 Eliz. In the King's-Bench Error Post 185. A Writ of Error was brought by Savacre and the Bishop of Glocester upon a Iudgment given in a Quare Impedit for the Queen and Errors assigned 1. Attachment was awarded against the Defendants in the Quare Impedit retornable Quind Pasc at which day Savacre appeared and cast an Essoyn and notwithstanding that a Distress was awarded against them both retornable Crastin Trinit and this awarding of the Distress was erroneous for the Essoyn was as appeareth to save c. and therefore against him no Distress ought to have been awarded And upon alledging of Diminution the Record of the Essoyn was certified but the same doth not appear upon the Plea Roll. 2. This Record is ideo ipsi in misericordia and so both the Defendants are amerced for their default of appearance 15 Pasch whereas Savacre was then Essoyned and so no cause to amerce him Coke The Original Writ was sued Mich. 26 Eliz. retorned 15 Hillarii and then both the Defendants made default for which an Attachment was awarded retornable 15 Pasc and then Savacre appeared and Iudgment given quod ipsi sint in misericordia in which point the Error is apparent but I conceive that it is not Error for upon the Attachment the parties ought to put in Sureties for their appearance and the said Sureties took upon them that the Defendants and each of them should appear and if they or any of them make default they shall be amerced And so here this Iudgment ideo ipsi in misericodia doth refer to the Sureties not to the parties for the Defendants shall not be amerced until the end of the Suit and but once onely in an Action which see Book of Entries 464 where there was but one Defendant and therefore if the amercements shall be referred to the Defendant then it shall be ideo ipse not ipsi c. And that is the Reason wherefore the Queen nor an Infant shall not find Pledges for no amercement shall be upon their default therefore it were in vain for them to find Pledges c. If the Sureties be amerced where they ought not to be amerced by the Law yet the Defendant shall not have a Writ of Error thereupon for he is not the party grieved by the amercement and upon that Reason it is if in a Scire facias against the Bail erroneous Iudgment be given the Defendant in the Action shall not have a Writ of Error The awarding of the Distress upon the Roll against both where one of them only made default is not Error especially as this case is for although one of them was essoyned until the day aforesaid yet at that day they make default and so the Distress well awarded against them and although the Writ was not well awarded yet when they appear Crastin Trinit at the day of the Retorn of the Distress all mesn defaults in the Process are saved and so the misawarding of the Distress by appearance after is supplyed as 39 E. 3. 7. The Law requires that in an Action founded upon the Statute of Praemunire c. 27 E. 3. the Defendant gave Garnishment by two Months yet if the Defendant not having warning appear now the Process is good enough So 9 E. 4. 18. where upon any Process the Defendant doth appear although the day of appearance be not lawful yet he shall be put to answer and see many Cases there to that purpose And so was the Opinion of the Court in the principal Case As to the second Error That this Iudgment ideo ipsi in misericordia shall be reserved to the Sureties onely and not to the party and that the Defendant shall be but once amerced in one Action True it is he shall be amerced but once for one default but if there be many defaults the Defendant shall be amerced severally for the several defaults for every offence and it should be unreasonable that the Sureties should be amerced and that the Defendant who is the principal should be freed which see in the book of Entries 193. ipsique plegii sui in misericordia c. V. Nevil and Cook 's Case Trinit 32 Eliz. Rot. 76. In the King's-Bench IN an Action of Covenant the Plaintiff declared Covenant That where it was covenanted betwixt the Plaintiff and the Defendant That each of Them upon request should be accountable to the other for all the Corn growing upon such a place and that upon such account the one of them should deliver to the other the moiety of the Corn or the profit of it and whereas the Defendant had taken all the said Corn scil twenty loads of Wheat forty loads of Barley and thirty loads of Pease growing upon the said Lands and had been required to render account of the said Corn which he refused to do The Defendant traversed the request upon which they were at issue and it was hereupon

cited a Case adjudged upon a like Act scil the Statute of 35 H. 8. by which it was enacted That the Lady Katharine Wife of the said King should be as a Feme sole and that she might make Leases c. In that case the Leases should not bind the King or his successours for the said Act did not extend to make the Leases good but onely against Coverture And it was observed by Clench Iustice that in the Act of Parliament now in question It is expresly provided that the Rent reserved by the Marchioness should go to the lady Bourcher but no provision made that it should go to the King and therefore it is not reason that the King should be bounden But another matter arising upon the pleading the point did not fall in judgment LXVIII Backhouse and Spencer 's Case Trin. 29 Eliz. In the King's-Bench SAmuel Backhouse brought a Writ of Annuity against Alderman Spencer of London 1 Roll. 228. and declared upon a Grant of an Annuity for term of years and depending the Action the term expired And it was the clear opinion of the whole Court that the Plaintiff could not have Iudgment for the Iudgment in this Writ is Quod querens recuperet annuitatem praedictam and now there is not any Annuity in being See 34 H. 6. 20. 6 Co. Higgin's Case 1 Inst 285. a. 14 H. 7. 31. 19 H. 7. 16. LXIX Mich. 29 Eliz. In the Common-Pleas IN a Writ of Partitione facienda The Defendant prayeth Aid and the Plaintiff counterpleads the Aid upon which counterplea they are at issue and it is found for the Plaintiff It was adjudged that same is peremptory to the Defendant and the Iudgment shall be Non quod respondeat sed quod Partitio fiat c. LXX Rolston and Chamber 's Case 1 Leon. pa. 282. Mich. 29 Eliz. In the Common-Pleas ROlston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible entry against Chambers and upon issue joined it was found for the Plaintiff and damages assessed by the Iury and costs of suit also and costs also de incremento adjudged and all were trebled in the Iudgment with this perclose Quae quidem damna in toto se attingunt ad c. and all by the name of damages and it was objected against this Iudgment That where damages are trebled no costs shall be given as in Wast c. But afterwards it was clearly agreed that not onely the costs assessed by the Iury but that which was also de incremento adjudged should be trebled and so were all the Presidents as it was affirmed by all the Prothonotaries and so are many Books scil 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. Book of Entries 334. and Iudgment was given accordingly It was also agreed that the party so convicted of the force at the suit of the party should be fined notwithstanding that he was fined before upon an Indictment for the same LXXI Wren and Bulman 's Case Mich. 29 Eliz. In the Common-Pleas 1 Len. 282. Rolston and Chambers WRen brought an Action upon the Statute of 1 and 2 of Phil. Ma. for unlawfull impounding of Distresses against Bulman and was Nonsuit and it was moved by Shuttleworth Serjeant If the Defendant should have costs upon the Statute of 23 H. 8. and it was adjudged that he should not and that appears clearly by the words of the Statute c. For this Action is not conceived upon any such matter which is comprised within the Statute And also the Statute upon which this Action is conceived was made after the said Statute of 23 H. 8. which gives costs and therefore the Statute of 23 H. 8. and the remedy thereof cannot extend to any Action given by 1 and 2 Phil. Ma. And so Rhodes Iustice said it was adjudged 8 Elizabeth LXXII Mery and Lewes 's Case Mich. 29 Eliz. In the Common-Pleas MEry brought an Action upon the Case against W. Lewes 3 Len. 91. Executor of David Lewes late Master of St. Katharine juxta London and declared That the said David in consideration that Quaedam pars domus fratrum sororum Sanctae Katharin fuit vitiosa in decasu The said Mery ad requisitionem dicti Davidis repararet eandem assumed to pay to the said Mery all such moneys that the said Mery expenderet in such reparations And farther declared That eandem partem Domus praedict reparavit c. and upon Non assumpsit it was found for the Plaintiff In arrest of Iudgment it was objected That the count was too general Quaedam pars domus For the Plaintiff ought to have shewed specially what part of the house in certain as Hall Chamber or other Rooms but the same was not allowed Another objection was because it is set forth in the consideration that the Plaintiff Ad requisitionem dict Davidis repararet and the Plaintiff declared Quod reparavit generally without saying 2 Cro. 404. ad requisitionem dict Davidis reparavit and that is not the reparation intended in the Declaration scil Reparatio ad requisitionem but a reparation of his own head and at his pleasure and for that Case judgment was reversed LXXIII Brasier 's Case Mich. 29 Eliz. In the Common-Pleas NOTE It was agreed in the Case by all the Iustices and by the Prothonotaries That if the Disseisor levy a Fine and the Disseisee in the preservation of his right against the said Fine enter his claim in the Record of the Foot of the Fine that the same is not any such claim as shall avoid the Statute of 4 H. 7. See for this Case of the Lord Zouch in Plowden's Commentaries LXXIV Ralph Morris 's Case Trin. 29 Eliz. In the King's-Bench RAlph Morris and his Wife libelled in the Spiritual Court for that the Defendant called the Wife of one of the Plaintiffs Veneficam Sortilegam Incantatricem Daemoniorum and now came the Defendant into this Court and surmised that the matter of the Libell is determinable by the Common Law and thereupon prayed a Prohibition and it was holden by the Court That although the offence of Witchery be in some cases triable by Law yet the same doth not take away the jurisdiction of the Spiritual Court and therefore to call one a Witch generally an Action will not lie at Law as it hath been adjudged But to say that he hath bewitched such a one an Action will lie at Law. Wray Such Witchcraft as is made Felony by any Statute is not punishable in the Ecclesiastical Court but in case of slander of such Witchcraft upon such slanderous words of Witchcraft which is not Felony the Ecclesiastical Court shall punish the same and afterwards in the principal Case a Consultation was awarded LXXV Bardens and Withington 's Case Trin. 29 Eliz. In the Common-Pleas A. Is bound in a Statute to B. and sows the Land. B. extends the Lands which are delivered unto him

Disseisor the Disseisee entereth in the life of Tenant in tail who afterwards dieth the warranty works nothing for the cause aforesaid And also he put this Case Tenant in tail of Land grants a Rent-charge in Fee and an Ancestor collateral releaseth to the Grantee with warranty and dieth the Tenant in tail dieth now the issue is bound but if Tenant in tail dieth before him who maketh the Release now the Rent is determined by the death of Tenant in tail and then the warranty cannot attach upon it At another day the Case was moved and conceived in these words scil Tenant for life the Remainder in tail Tenant for life leaseth for years a Recovery is had against him in the Remainder in tail living Tenant for life the Recoverors enter and oust the Lessee for years the Son and Heir of him in the Remainder in tail releaseth with warranty to him to whom the Recoverors have assured the Lands the Lessee enters he against whom the Recovery was had dieth the Releasor dieth c. It was holden that the Entry of the Lessee before that the warranty had attached upon the possession which passed had avoided the warranty And the Lord Anderson conceived That the Recovery should not prejudice the issue in tail but that the issue shall Fauxifie the same And if Tenant in tail be disseised and so disseised suffereth a common Recovery his issue shall not be barred quod fuit concessum per omnes And afterwards another matter was moved scil That the Release is pleaded to be made to Lincoln College by the name of Custodi sociis Scholaribus Lincolniensis Collegii in Oxonia where the true name of the College as is confessed by the Record in the Plea pleaded is Custos sive Rector Socii Scholares Lincolniensis Collegii in Oxonia c. It was adjourned See this Case reported 3 part Lincoln College Case LXXXIII Hall and the Bishop of Bath 's Case Mich. 32 Eliz. In the Common Pleas. HAll brought a Quare Impedit against the Bishop of Bath and others The Incumbent pleaded Quod ipse nihil habet nec habere clamat c. nisi de praesentatione Georgii Sidenham militis not named in the Writ and demanded Iudgment of the Writ upon which the Plaintiff did demur in Law And it was argued by Drew Serjeant for the Plaintiff That the Writ was well brought without naming the Patron for if a Quare Impedit be brought against the Patron and Incumbent and the Patron dieth 1 Leon. 45. pendant the Writ the Writ shall not abate 9 H. 6. 30. It might be that the Plaintiff did not know nor could tell who presented the said Incumbent but he findeth the Incumbent a Disturber by his Incumbency and if of necessity such Patron ought to be named then if such a Vsurper should die before the Writ brought he which hath cause of Action should be remediless And by Anderson and Periam the Writ is good enough for the reason aforesaid And Anderson put this case If A. wrongfully by Vsurpation doth present and his Clark is received and afterwards A. having gained the Patronage grants it over to B. Against whom shall the Quare Impedit be brought Walmsley Against B. which Anderson doubted LXXXIV Hughe 's Case Mich. 32 Eliz. In the Common-Pleas IN a Formedon the Writ was That A. Dedit Aliciae filiae suae and to J.S. and to the Heirs of their two bodies begotten and it was shewed in abatement of the Writ That the name of the Wife is put before the name of the Husband To which it was said by the Court that if such a Writ be brought against the Husband and Wife and the name of the Wife be put before the name of the Husband the Writ shall abate and if in the Case at Bar it had appeared That the Donees at the time of the Gift were Husband and Wife upon such a matter disclosed the Writ should abate but that doth not appear plainly to the Court. LXXXV Mich. 32 Eliz. In the Common-Pleas NOTE It was holden by the Court 1 Cro. 567. 3 Cro. 224. Post 189. That if a Writ of Dower be brought against an Infant who loseth by default at the Grand Cape that he may reverse the same by a Writ of Error but where an Infant appeareth by Guardian and afterwards loseth by default there he shall never avoid it for if any default be in the Guardian the Infant shall recover against him in a Writ of Deceit And afterwards the Iudgment in the first case was reversed LXXXVI Mich. 32 Eliz. In the Exchequer-Chamber NOTE In the Exchequer-Chamber before the Lord Chancellour The two chief Iustices and the chief Baron a Writ of Error was cast upon a Iudgment given in the Court of Exchequer and it was agreed Quod propter absentiam Dom. Thesaurarii Angliae They ought not nor could receive the said Writ and the Statute of 31 Eliz. doth not help the matter for that extends but to discontinuances which before the Statute many times hapned for the not coming of the Chancellour or Treasurer and not to give Conusance in a Writ of Error in the absence of the Treasurer c. LXXXVII Lacy and Fisher 's Case Mich. 32 Eliz. In the Common-Pleas IN a Replevin by Lacy against Fisher The Defendant pleaded that the place where c. is called Spicold and holden of the Manor of Easthall by certain Rent and made Conusance as Bailiff of the Lord of the said Manor and issue being joined hereupon It was tried by the Iury of the Visne of Spicold and it was moved in arrest of Iudgment that the issue was mis-tried For the Visne ought to have been of Spicold and Easthall also Web and Richmond's Case And a Case was cited to have been adjudged accordingly betwixt Webb and Richmond M. 31 Eliz. in the same Court. LXXXVIII Corbet 's Case Mich. 32 Eliz. In the Common-Pleas THE Case was That an Action of Debt was brought by original Writ against an Administrator in another County than where the Administrator was dwelling and before notice of that suit he paid divers other debts of the Intestate due by specialties so as he had not Assets to pay the debt in demand having Assets at the day of the Teste of the original and now the Defendant appearing pleads the same special matter and concluded And so nothing remained in his hands And it was holden per Curiam to be a good Plea See 2 H. 4. 21 22. LXXXIX Sir William Pelham 's Case Pasch 31 Eliz. In the Exchequer 1 Co. 41. THE Case short put was this A. Tenant for life of a Messuage c. the remainder in tail to B. with divers remainders over A. by Deed indented and enrolled bargained and sold the Messuage c. so conveyed to Sir William Pelham in Fee who afterwards suffered a common Recovery thereof in which A. is vouched and so a common Recovery is had and executed and

was holden 5 Julii and then it was void For the Statute of Magna Charta cap. 35 requires that Leets be holden within one Month after Michaelmas and Easter But that Exception was not allowed For by Anderson Windham and Rhodes by force of the Prescription The Lord might hold his Leet what day he pleased and that his Liberty is not restrained by the Statute and such is the common experience for the same Statute provides for it scil Quod quilibet habeat libertates suas quas habuit habere consuevit tempore Regis H. avi nostri vel quas postea perquisiret And by Rhodes the said Statute doth not extend but to the Sheriffs Towns and not to other Leets which see Br. Leets 23. upon the Case of 8 H. 7. 1. which was affirmed by him to be good Law Contrary by Periam but he granted that if a Leet hath used to be holden at one day certain other than that which is limited by the said Statute the same may so continue notwithstanding the Statute for such Liberty is saved by the Statute And by Anderson and Rhodes If the King grant to one a Leet to hold Semel quolibet anno and doth not say Ad libitum of the Grantee yet the Grant is good and the Grantee may hold it at what day he will. C. Goore and others against Dawbeny 13 Eliz. In the Exchequer-Chamber Error A Writ of Error was brought in the Exchequer-Chamber by Goore and Goore Swinnerton and Tedcastel against Dawbeny of a Iudgement given against them in the Court of Exchequer in an Action upon the Case in the nature of a Conspiracy brought by Dawbeny c. who declared That Goore and Goore were joint Merchants of a stock of many wares in moyeties transported in Barbary and Swinnerton and Tedcastel were their Factors and Dawbeny and the Goores were also joint Merchants intire of Merchandizes transported c. And the said Swinnerton and Tedcastel were their Factors therein and that was to merchandize for two years and shewed farther That the said Plaintiffs did conspire against the said Dawbeny See the Declaration in the Number Roll for I could not take it in brief Coke of Councill with the Plaintiff assigned the Errors because Dawbeny in his Declaration hath declared that they were joint Merchants scil the now Plaintiffs and have conspired against him and hath not shewed the place where they were joint Merchants or where they were made joint Merchants and that is issuable although it be not the principal thing in the Declaration for that is the fraud As where Debt is brought for Rent reserved upon a Lease for years the principal matter is the Debt and the principal Issue is Nihil debet Yet the Demise is issuable and Non dimisit is a good Plea And here the Defendant by the Plea of Not guilty hath not lost the advantage of Exception aforesaid And he cited a great Case lately adjudged betwixt Stansam and Matthew in an Action upon the Case conceived upon the Trover of a Bond and the Conversion of it to his use The Defendant pleaded Not guilty and it was found against him And because in the Declaration there was not any place of the Conversion Iudgment was stayed Here in the Declaration are two things First the Conspiracy Secondly the execution of it for the one without the other will not maintain the Action but here the Conspiracy is not pursued nor executed according to that which is laid to be conspired The Conspiracy is laid That the Factor upon his account demanded 4000 l. of Barbary money per nomen bona denariorum summas and the Execution is laid That he demanded in allowance of wares delivered to Isaac Abess And he took a general rule That a Commander shall never be charged but where his Commandment is strictly and precisely pursued Barbary money is included in this word Bona for it is not current in England See as to the pursuing of the Commandment Sanders and Archer's Case Plow 18 Eliz. 437. And in our Case he not onely puts the thing but also the person for the Conspiracy is that he demanded allowance for goods delivered to Isaac and his four sons for Isaac In the one Case it is pretended That Isaac and four sons are Debtors and in the other Case Isaac onely Also here Dawbeny hath allowed and accepted the accompt of the Factors against which he cannot have this Action for it is ignorantia crassa idque facti quae non excusat Also upon such incertain demand as is laid in the Declaration Dawbeny was not holden to make allowance i. for so much wares upon a certain bargain made with Isaac and that was not a lawfull demand and upon such uncertain demand he was not bound to make allowance Et hoc modo est ignorantia juris quae non excusat omnino Also here Swinnerton onely accompts and demands allowances and Swinnerton onely was not Factor but also Tedcastel and therefore Dawbeny was not bounden to allow that accompt to Swinnerton no more than to a mere stranger And also Dawbeny alone was not to make allowance for the two Factors were accomptable to him and to Goores also And so allowance by one of them to whom they are accomptable is not good One Executor where the power is committed to two sells the Land the sale is void and two joint Attorneys c. one onely can doe nothing And here in this Declaration it is many times alledged that they were conjunctim Mercatores conjunctim Factores But I confess that one joint Factor with the express consent of his companion may accompt alone and so of the other one may by express consent take an Accompt onely One Factor is no Factor where there are many joint Factors and in our Case the two Goores and Dawbeny saw the accompt but Dawbeny onely allowed of it and that is not good As if two Arbitrators are and one onely makes the award although both hear the matter 14 E. 3. Fitz. Acc. 72. That the one Accomptant cannot accompt without his companion but there Parn saith That it had been adjudged 6 E. 3. that the one might accompt without the other See 41 E. 3. 3. 9. Tamworth's Case Tanfield contrary As to the first Error it is but conveyance and matter of inducement to the fraud and conspiracy which is the principal point of the Action and therefore needeth not to be so precisely alledged and also by the general issue they have passed the advantage of it and all the special matter of the Count is contained in the general issue for not guilty goes to all and includes the whole Also upon the matter the Iury hath found that they were joint Merchants and although they were joint Factors and the one onely hath accompted yet the same accompt is good enough for it was made with the consent of the other as appeareth by the Declaration Conspiraverunt agreaverunt that Swinnerton in his accompt

the Reign of King H. 8. And if the Common Law doth not warrant such Executions Truly the presidents cannot make such imprisonments lawfull without Act of Parliament It hath been said that Executions ought to be favoured that is true but also Liberty to which the Law hath special respect See the Statute of Magna Charta Nullus liber homo capiatur vel imprisonetur nisi per legale judicium parium suorum vel per legem terrae and this is not Lex terrae but usage onely and Malus usus est abolendus 26 Eliz. Error was brought upon a Iudgment given in Curia de Woodstock which is a Court of Record and Error assigned for that they had awarded Execution secundum consuetudinem Villae against one who had bailed the Defendant without a Scire facias first sued forth against him i. the bailee and it was adjudged Error and the custome could not maintain it for the Bailee might have a release or other matter of discharge to plead And he cited the Case of 13 and 14 Eliz. Dyer 306. That upon a Scire facias out of a Recognizance in Chancery Iudgment was given for the Plaintiff and the Warden of the Fleet was commanded to detain the Conusor in his custody in Execution for the Plaintiff and afterwards the Conusor escaped the Plaintiff not satisfied And it was holden no escape for his body was not liable in case of a Recognizance to the Execution and see also the book of Entries 500 there is a Rule put If the Recognizee will have execution within the year he may have a Fieri facias or Elegit but not a Capias ad satisfaciendum And he conceived that this Process is not onely erroneous but also utterly void As a Capias in a Formedon antea 77. contrary where in Debt a Capias is awarded after the year where it ought to be Scire facias the same is but erroneous for such Process lieth upon such Iudgment if he had not surceased his time Another matter he moved because this issue is not well tried for it was tried by Nisi prius out of the Exchequer and the Statute of West 2. cap. 30. Mar. 14 E. 3. cap. 1. do not give Nisi prius in Causes out of the Exchequer but onely out of both Benches but Causes out of the Exchequer are tried by Commission and here their Commission was insufficient for it was directed Chr. Wray and Williel Periam without saying Et eorum alteri so as it was joynt and not several and Wray at the time of the trial was as the Parliament at London and so the cause was tried before Periam onely and therefore coram non Judice At another day The Case was argued by the Barons of the Exchequer And Clark Baron conceived that the Plaintiff ought to recover and he said That upon the escape the Common Law gave an Action upon the Case against the Sheriff and the reason why the Sheriff shall be charged is that one cannot be in Execution but once and then if the Sheriff should not be charged the party Plaintiff should by negligence of the Sheriff lose his Suit and also his Debt And admit that a Capias doth not lie in the Case yet the Execution by force thereof is not void but voidable onely and Error may be assigned as well in the Execution as in the Iudgment which see 17 Ass 24. where the Recognizor in a Statute Merchant aliened the Land and afterwards the Conusee sued forth Execution so as the Land was extended supposing the payment i. Solvend 14 E. 3. whereas in truth it was 16 E. 3. and the Feoffee brought a Writ of Error thereupon and it was allowed but the Sheriff shall not take advantage of the same And truly the common course is That a Capias lieth upon a Recognizance and 7 H. 4. 101. upon a Recognizance acknowledged for the Peace a Capias lieth for the King and a Recognizance is but an Obligation of Record and wherefore should not a Capias lie thereupon as well as upon an Action brought upon an Obligation The Statute of West 2. cap. 45. Si recens sit Cognitio statim habeat Querens Breve de Executione illius Recognitionis and the Statute doth not speak in certain what manner of Writ or what manner of Execution therefore we ought to resort to the Common Law for it as that is a Capias Gent Baron argued and agreed in every point with Baron Clark. Manwood chief Baron argued That the Plaintiff should recover and he put the Case of Recognizance The Plaintiff sueth two Scire facias's upon which two Nichel's are retorned and afterwards a Levari facias and upon that also Nihil is retorned and then issueth a Capias ad satisfaciendum for to take the said Francis Woodhouse who then was in Prison for Felony upon which Capias the Sheriff did arrest him and he being afterwards convicted of Felony escaped upon this matter Debt is brought against the Sheriff A Recognizance taken in the Chancery is a thing upon Record in a Court of Record an Obligation of Record and a Debt upon Record It hath been objected where no Capias lieth in the Process upon the Original there no Capias lieth upon the Execution but it is good to examine the Reason thereof for Lex plus laudatur quando ratione probatur The Capias upon a Recognizance is not by 25 E. 3. but by the common Law for here is a Debt upon Record wherefore shall not this body be subject to it as well as in the case of a Debt upon a bare Obligation I do admit the Rule That where there is no Capias ad respondendum there is no Capias ad satisfaciendum but that ought to be intended in cases where there is an Original and Mesn Process before Iudgment but here is no Original nor Mesn Process before Iudgment ergo our Case is not within the same Rule But I will put a good Rule It is Debt upon Record ergo a Capias lieth In the King's Bench If the Defendant comes in by Latitat if the cause whereof the Action is brought be of importance he is to put in special Bail and those who bail him shall be bounden in a Recognizance c. The Defendant is condemned in the Action Now if the Defendant cannot be found so as Execution may be sued forth against him then a Scire facias shall issue forth against the Sureties which bailed him and upon that a Capias and that is very frequent therein use So also is the course of the Court of Common Pleas ergo it shall be so in the Chancery in case of a Recognizance If one be taken in Execution upon a Statute Staple and sueth an Audita Querela upon a Release or other matter and be bound with Sureties in the double value c. to the King and to the party If he be condemned in the Audita Querela c. and cannot be found a

also of Statutes We cannot deny but that we have Lands of the Conusor and of the Gift of the Conusor our Ancestor whose Heir we are who was indebted to the Queen and yet we are not within this Statute Was or shall be indebted shall not be intended after the Gift made for if he first convey his Land and afterwards becomes indebted the same is not within the Statute and where a mischief is to be remedied by a Statute the remedy in exposition of the Statute is to be applied according as the mischief doth require Shall be is to be intended of future Debts after the Statute and in our case the Father was not Receivor or other Officer to the Queen And if this Statute should be so construed the Father might take 10000 l. for the Marriage of his son and assurance of Lands unto him and then if he will acknowledge a Debt to the Queen he should defeat the whole which should be a very great mischief The words are By Gift after the Debt acknowledged to the Queen And he cited the Case 19 Eliz. Plow 191. betwixt Ludford and Gretton upon the Statute of 18 H. 6. the words of which are That whatsoever Warrant hereafter to the Chancellor of England addressed the day of the delivery of the same it be entred of Record in the Chancery and that the Chancellour make Letters Patents upon the same Warrants bearing date the day of the said delivery in the Chancery and not before and all Letters Patents made to the contrary shall be void And the Case was That a Warrant was directed to the Chancellour for the making of Letters Patents and delivered to him before the making of them but the day of the delivery was not entred of Record c. And it was holden that notwithstanding that the Letters Patents were good for the mischief at the Common Law intended to be reformed by that Act was not the post-dating of the Letters Patents but the ante-dating and therefore that ought to be principally taken into consideration which mischief being understood the words of the said Statute are to be applied to it ipsae etenim Leges cupiunt ut jure regantur i. with an Equity according to the Mischief and not always according to the precise words and in that case it is sufficient if the Letters Patents bear date after and not before the delivery of the Warrant and that was the matter intended to be reformed Also as our Case here is we are not within this Statute for the words are Of the Gift of his Ancestour but here the Son hath not the Lands of the Gift of his Ancestour but rather by the Statute of Vses and so he is in the Post and not in the Per by his Ancestour for here the Fine was levied to divers persons unto the Vses aforesaid and here the Gift was not a mere gratuity to his Son but in consideration that he should marry the Daughter of Sir Edw. Huddleston and also the Father was the King's Debtor after the Gift and not before Popham Attorney-General to the contrary The letter of the Statute is with us for he comes in of the Gift of his Ancestour who was indebted to the Queen and although that the Gift was by way of use yet the precedents in the Common-Pleas and other Courts are That he may declare of the Feoffment of such a one although it was by way of use and he said If A. be bound to enfeoff B. of such Lands if he maketh a Feoffment to the use of B. and his Heirs he hath well enough performed the Condition and if the Case should not be within the Statute then should that branch of the Statute be idle and to no purpose For if the Ancestour be seised and becometh indebted to the Queen and after makes a conveyance ut supra the same is provided for by the first branch of the Statute For the Land is liable to the Recognizance or Obligation made to the King and that they shall be as effectual as a Statute Staple and reason requires that the son who comes in by mere gratuity of his Ancestour should be charged And it was a common practice before the making of that Statute That the King's Officers would convey their Lands to their children and then become the King's Debtors for the remedy of which mischief the Statute was made and the Statute of 27 Eliz. doth not respect the Heir because he is Heir but as a purchasor onely and that upon good consideration Coke If any fraud can be found in our Case then without doubt we should be within the Statute but being upon good consideration it is out of the Statute nor was there any purpose in the father when he made the said Conveyance to become the King's Debtor or Officer to him for if there were then he is within the Statute also the Gift had been a mere gratuity c. And afterwards at another day the Case was moved by Coke and he said That here is not any Gift because it was in consideration of Marriage and then no gift for it is an old Proverb What is freer than gift Egerton The father giveth to his son and heir the same is within the Statute and yet here is consideration scil of blood Coke contrary Where the father giveth to his younger son or to his daughter which is not his heir and of that opinion was Manwood chief Baron And afterwards as Coke reported the son and his Lands were discharged CXV Amner and Luddington 's Case Mich. 26 Eliz. In the King's-Bench Error 3 Len. 89. 8 Co. 96. ERror was brought in the King's-Bench by Amner against Luddington Mich. 25 and 26 Eliz. Rot. 495. The Case was That one Weldon was seised and leased unto Pierpoint for ninety nine years who devised the same by his Will in this manner I bequeath to my Wife the Lease of my House during her life and after her death I will that it go amongst my Children unpreferred Pierpoint died his Wife entred and was possessed virtute legationis praedict and took Husband one Fulshurst against whom one Beswick recovered in an Action of Debt 140 l. upon which Recovery issued forth a Fieri facias and upon that a Venditioni Exponas upon which the Sheriff sold the said term so devised to one Reynolds Fulshurst died his Executor brought Error to reverse the Iudgment given against the Testator at the Suit of Beswick the Wife did re-enter and sold the Land and died Alice an unpreferred Daughter of Pierpoint did enter and upon that matter found by special Verdict in the Common-Pleas the entry of Alice was adjudged lawfull upon which Iudgment Error was brought in the King's-Bench And it was argued upon the words of the Devise because here the House is not devised but the Lease it self scil all his interest in the thing devised And it is not like unto the Case betwixt Welchden and Elkington 20 Eliz. Plow 519.

where the Case was That Davis being Lessee for years devised that his Wife should have and occupy the Land demised for so many years as she should live nor unto the Case of Paramour and Yardley 21 Eliz. Plow 539. for there the Lesse devised That his Wife shall have the occupation and profits of the Lands untill the full age of his Son For in these two Cases the Land it self is quodam modo devised but in our Case all the Estate is devised i. the Lease it self And also in those two Cases a certain person is assigned and named in the Will who should take the residue of the term which should be expired after the death of the Wife But in the Case at Bar there is not any person certain appointed c. but the Devise as to that is conceived in general words to Children unpreferred therefore neither any possibility nor Remainder in any person certain therefore all the term is wholly in the Wife and then she might well dispose the whole But all the Court was to the Contrary and that in this case the possibility should rise well enough to the death of the Wife to that Daughter unpreferred Another matter was moved If the said term being sold in the possession of the Wife of the Devisor by force of the Execution aforesaid If now the judgment being reversed the sale of the term be also avoided for now the party is to be restored to all that which he had lost And it was argued by Coke That notwithstanding the reversal of the Iudgment the sale did stand good for the Iudgment for the Plaintiff in a Writ of Error is That he shall be restored to all that which he hath lost Ratione judicii praedict and the Iudgment was That the Plaintiff should recover 140 l. and therefore by the Iudgment in the Writ of Error he shall be restored to so much but the mean act scil the sale of the Lease shall stand and shall not be defeated or avoided As 7 H. 6. 42. A Statute Staple is bailed in Ouster le main the Conusee brings Detinue against the Bailee and hath Iudgment and recovers the Statute and upon that hath Execution The Baylee brings a Writ of Error and reverseth the Iudgment given in the Detinue yet the Execution shall stand and Audita Querela doth not lie for the Conusor And see 13 E. 3. t. Bar. 253. Accountant found in Arrearages committed to the next Gaol escapes and reverseth the Iudgment given against him in accompt by an Ex parte talis yet the Action upon the escape lieth and the Court as to that point all agreed but that point did not fall in Iudgment for by the sale nothing shall pass but the interest in praesenti which was in the Wife of the Devisor but the possibility to the children unpreferred was not touched thereby And afterwards the Iudgment was affirmed CXVI Edwards and Halinder 's Case Mich. 36 Eliz. In the Exchequer RIce Edwards brought an Action upon the Case against Halinder See the Case reported in Popham's Reports fol. 46. very short but not with the Arguments and declared That whereas one Banister had demised unto the Plaintiff a Cellar to have from week to week Quandin ambabus partibus placuerit And also whereas the said Banister had leased to the Defendant a Shop directly over the said Cellar there the Defendant had laid so great a burthen upon the floor of the said Shop that there by the said floor fell down and brake certain vessels of the Plaintiff's full of Wine by reason whereof the Plaintiff lost his Wine to the value of c. to his damages c. The Defendant said That before the charging of the floor ut supra The said floor had sustained greater weight and farther that the said Banister let unto him the said Shop for to lay there the weight of 30 Tun and he had laid there but the weight of 12 Tun and also that the Walls of the said Cellar are so weak that the floor of the said Shop fell by reason thereof upon which there was a Demurrer in Law. It was argued by Godfrey for the Plaintiff Where injury or wrong is done unto any the Law gives remedy to the party grieved and although that the Shop was let unto him to lay wares there which he hath done and that it was not his intent to surcharge the said Warehouse although the event be contrary yet forasmuch as by the laying of wares there a wrong and damage follow to the Plaintiff the Defendant shall be punished for the rule is Sic utere tuo ut alienum non laedas If I have a house and another buildeth so high over me that rain-water descends and falls from his house upon my house an Action upon the Case lieth See F. N. B. 184. So if by his building he stops my light as it was lately adjudged in the King's-Bench in the Case betwixt Bland and Mosely See 6 E. 4. 7. 8. Damages recovered for a wrong done against the will of the party and see other Cases upon this Learning 13 H. 4. t. Action upon the Case 48. The Plaintiff had sold certain trusses of Hay to the Defendant within such a Meadow to be carried away from the said Meadow within a certain time but the Defendant let the Hay lie there without carrying the same away so it putrified the Meadow by reason whereof the Plaintiff lost the profit of his Meadow for a great time and thereupon brought an Action of the Case against the Defendant and the Action was adjudged maintainable See 22 E. 4. 8. where the owners of the Plough in turning of the Plough according to the custome in the common fields upon the Land of another one of the Plough Cattel against the will of the driver takes a mouthfull of Grass the same is justifiable but if the driver of the Cattel suffereth the same to continue an Action will lie against him So 22 E. 4. 49. Where I am bound to enclose my Land against another and in default of enclosure the Cattel of the other escaped into my Land and Close I shall not punish him but if he after notice doth suffer them to continue there he shall be punished although it be through my default Also it is alledged in our Declaration That the Defendant intending to hurt and spoil the Plaintiff's Wines did lay such a weight c. And the Defendant answers thereunto That the floor fell in default of repairing of the walls of the Cellar or for the ruinousness of them where he ought to have pleaded farther Absque hoc that the Shop was surcharged with the intent to hurt the Plaintiff's Wines In an Action upon the Case upon a Trover The Defendant pleads that the goods whereof c. were pawned unto him for the security of certain money not yet paid The same is no plea without saying farther Absque hoc that he did convert c. See

upon the floor there so as vi ponderis it fell down To which the Defendant hath said That the walls were ruinous in occultis partibus and doth not answer to the surcharging scil Absque hoc that he did surcharge it Clark Baron It is a general Rule That every material thing alledged in the pleading ought to be traversed confessed and avoided which the Defendant hath not done here but he would excuse himself through the default of another and answer nothing to that with which he himself is charged And afterwards Iudgment was given in the Court of Exchequer for the Plaintiff Whereupon afterwards the Defendant brought a Writ of Error in the Exchequer Chamber where the Case was argued again But there the Iudgment given in the Court of Exchequer was affirmed See this Case reported short in Popham's Reports lately published CXVII Linacre and Rhode 's Case Trin. 31 Eliz. In the Common Pleas. Co. Rep. Blomfield's Case 3 Len. 230. THE Case was That Linacre was bound in a Statute and his body taken in Execution and the Sheriff voluntarily set him at large and afterwards the Conusee sued Execution of the Lands of the Conusor who thereupon brought an Audita Querela It was moved by Yelverton Serjeant That by that voluntary discharge of him by the Sheriff the whole Execution was discharged for the Execution is intire See 15 E. 4. 5. Where the Conusee in a Statute Merchant hath the body and lands of the Conusor in Execution and afterwards the Conusee surrendreth his Estate which he hath by Extent now the Execution of his body is discharged and the Conusor shall have a Scire facias or Audita Querela to discharge his body So if three Conusors be in Execution and the Conusee doth discharge one of them the same is a discharge of them all and in the principal Case the body is the principal and therefore the discharge of the principal part of the Execution is the discharge of the whole Hammon Where the Conusee himself dischargeth the Execution in part it is good for the whole but where discharged by the Sheriff Nihil operatur Anderson If the Conusor dieth in Execution yet the Conusee shall have Execution against his Heir of his land for the having of the body in Execution is not any satisfaction to the party for his body is but a pledge untill the money be paid and there is no reason that the act of the Sheriff should discharge the Execution Windham to the same intent And if the Conusee sueth Execution and hath the body of the Conusor in Execution this day he may the next day sue Execution of the lands and the next day after of the goods and if the Conusee doth discharge the body the whole Execution is discharged and it is true That if A. recovereth against B. in an Action of Debt and B. is taken by a Capias ad satisfaciendum and afterwards the Sheriff permitteth B. voluntarily to escape here B. is discharged although it be not the act of the party for there the Plaintiff had a full Execution which is not here for in Case of Execution upon a Statute-Merchant the Execution by the body is not the full Execution and therefore although the Sheriff hath discharged the body yet the Conusee may have Execution of the goods and lands but not of the body and afterwards Iudgment was given against the Plaintiff That the Audita Querela did not lie and that Execution might be sued of the goods and lands but not of the body CXVIII Webbe and Mainard 's Case Trin. 32 Eliz. In the Common Pleas. IN Ejectione firmae The Case was Walter Goldsmith seised of certain lands made a Feoffment to the use of himself for life and after to the use of John his eldest son in Fee Proviso That after his death his said son shall pay unto his younger son William 30 l. by 3 l. per ann at the Feast of St. Michael untill the entire sum be paid and if he fail of payment then to the use of the said William and his heirs Will. Goldsmith the Feoffor dieth the money is not paid but afterwards the said younger son makes an Acquittance and thereby acknowledgeth the Receipt of the said money according to the Proviso John dieth Now if the younger son may enter And first if the younger son be concluded by that Acquittance to say that the 30 l. was not paid And if he be not concluded Then if because that the words are but words of limitation the younger brother hath Title of Entry and then if this Entry be bound by the descent from John to his Heir or if John by continuance of the possession after the breach of the Proviso be a Dissesor or not were Questions propounded to the Court which the Court took time to consider of yet it was then said That the use was settled in William and the possession executed unto it but not such a possession upon which an Assise or Trespass lieth CXIX Willis and Jermine 's Case Hill. 31 Eliz. In the King's Bench. Rot. 647. IN Ejectione firmae It was found by special Verdict 1 Cro. 167. Roll Tit. Estate 830. That the Dean and Chapter of Exeter Leased the Land where c. to Jermine rendering Rent to be paid at their Chapter-house at Exeter and for default of payment that such Lease shall be void and cease and that the said Jermine conveyed his interest to the Defendant and afterward the Rent was demanded at the Chapter-house but not paid and afterwards The Dean and Chapter by the name of Dean and Chapter of St. Mary of Exeter where they are incorporate by the name of Dean and Chapter of St. Mary in Exeter make an Indenture of Lease for forty years in their Chapter-house to Willis and thereunto put their seal in the Chapter-house and made a Letter of Attorney to another to enter and to make Livery of the said Deed which was done accordingly it was moved by Harris Serjeant That this Lease made in manner c. is not good for the Corporation is misnamed i. of Exeter for in Exeter but the Court disallowed that Exception for there is not any material variance and so it was said it hath been ruled And he said that for another cause the Lease is not good for when the Dean and Chapter in their Chapter-house make this Indenture of Lease Davis Rep. 42. and set their Chapter-seal to it It was their Deed presently without other delivery and then Jermine being in possession at the time of the putting of the seal to it they were out of possession thereof and so the new Lease void because they were not in possession at the time of the making of it for no delivery is necessary to the Deed of a Corporation but the date of the sealing of it makes it a perfect Deed and then the delivery of the same by the Attorney is of no effect Wiat to the

Writ of Account against Robston Hil. 29 Eliz. Rot. 1. and now Robston brought a Writ of Error and assigned for Error That whereas the said Writ of Account was brought against the said Defendant as Receiver of Monies for to render Account quando ad hoc requisitus fuerit the said Writ ought to have been more special But the opinion of the Court was That the Writ in his generalty was holden good And so it was adjudged in the Case of one Gomersal scil quod reddat ei rationabilem computum suum de tempore quo fuit Receptor Denariorum ipsius A. Another Error was assigned That the Iury had assessed damages which ought not to be given in an Action upon Account which see 2 R. 2. Acco 45. and 2 H. 7. 13. But see the Book of Entries fo 22. In a Writ of Account against one as Receivor to Account render damages were given For if my Bailiff 1 Leon. 302. by imploying of my Moneys whereof he was the Receivor might have procured to me profit and gain but he neglects it he shall be chargeable to me in right and shall answer for it And here in our case damages shall be given and afterwards notwithstanding all objections made to the contrary the Iudgment given before was affirmed CLXI Yates 's Case Hill. 30 Eliz. In the King ' s-Bench 3 Len. 231. A Writ of Error was brought by Yates and others upon a Iudgment given in a Writ of Partition and it was assigned for Error that the Writ of Partition was not sufficient for it is there set forth That the Plaintiffs insimul pro indiviso tenent cum defendente c. and do not shew of what Estate or whose inheritance See F. N. B. 61. 5. and 62. a. insimul pro indiviso tenent de haereditate quae fuit A. matris of the Plaintiff and the Defendant 1 Cro. 759 760. And yet see F. N. B. 62. A. A Writ of Partition betwixt strange persons without naming haereditate in the Writ And see also that a Partition of Lands in London without shewing of what Estate Courtney and Polewheel's Case Finch and Firrel's Case L. Cheney and Bell's Case See Register 76. 6 Eliz. in a Partition by Courtney against Polewheel no Estate shewed in the Writ so betwixt Finch and Firrel and betwixt Fry and Drake 14 Eliz. Devon. 26 Eliz. betwixt the Lord Cheney and Bell and Mich. 4 and 5 Ph. and Ma. Rot. 208. It was holden That it is not necessary in such a Writ to shew the Estate and such also was the opinion of the Court in the principal Case but Tenants in common ought to shew it in the Count And the Iudgment given was affirmed CLXII Phillips and Stone 's Case Mich. 29 and 30 Eliz. In the King's-Bench IN Debt upon an Obligation the Defendant pleaded the Statute of 32 H. 6. upon which this special matter was found That one J. S. had heretofore recovered against him 100 l. in an Action of Debt and upon the Capias ad satisfaciend he was taken and committed to the Plaintiff who was Gaoler c. to the Sheriff and so being in Execution he escaped and afterwards he was re-taken by the Plaintiff and kept in prison and so being in prison made the Bond upon which the Action is brought It was said by the Court That if a Prisoner being in Execution escapes with the permission of the Gaoler the Execution is utterly gone and extinguished and the Plaintiff at whose Suit he was taken in Execution shall never resort to him who escapes but shall hold himself to the Goaler for his remedy but if such a Prisoner escapeth of his own wrong without the privity or consent of the Gaoler the Gaoler may well take him again for his indemnity untill the Plaintiff hath determined his Election whether he will have his remedy against the Gaoler or that he will maintain his Execution 13 H. 7. 1 and 2. But as unto the Statute of 23 H. 6. the Court was of Opinion That posito that the party who escapes cannot be taken again yet being taken the Bond which is taken colore Officii is within the said Statute because the party was retaken colore Executionis and so the Bond was void CLXIII Gering 's Case Mich. 29 30 Eliz. In the King 's Bench. IN Debt upon an Obligation against one as Executor 1 Len. 87. the Case was That the Testator of A. by his Will appointed certain lands and named which should be sold by his Executor and the monies thereof coming to be distributed betwixt his daughters when they have accomplished the age of one and twenty years The lands are sold and if the monies thereof being in the hand of the Executor untill the full age of the daughters shall be Assets to pay the debts of the Testator was the question and it was the opinion of the whole Court that the said monies should not be Assets for they said that that money is limited to a special use Quaere of this Case For I have heard that it was afterwards resolved in another Case that the monies in the like Case remaining in their hands should be Assets CLXIV Davies and Percie 's Case Mich. 29 30 Eliz. In the Common Pleas. BEtween Margaret Davies and one Perce the Case was 2 Roll 284. Goldb 58. That one Anth. Perce upon speech of a marriage to be had betwixt the said Anthony and the mother of Margaret covenanted by Indenture with certain friends of the mother to pay to all the daughters of the mother 20 l. a piece at their several ages of four and twenty years and to perform the Covenant was bound to the said friends in an Obligation Anthony Perce made his Will and willed that his Executors should pay to each of the daughters 20 l. at their several ages of four and twenty years in discharge of the said Covenant and died Now the said Margaret sued the Executors in the Spiritual Court for the 20 l. bequeathed to her and upon this matter the Executors prayed a Prohibition And by the Lord Anderson a Prohibition will lie for here is no Legacy but the Will refers to the Covenant and is in discharge of the Covenant As if A. be indebted to B. in 20 l. And if A. by his Will willeth that his Executors shall pay to the said B. 20 l. in discharge of the said debt the same is not any Legacy but a Declaration that the intent of A. is that the debt shall be paid Periam Iustice was of the same opinion as the Lord Anderson and Anderson said If a Legacy be bequeathed to me and the Executor covenants to pay me the said Legacy and afterwards J. sueth the Executor in the Spiritual Court he shall have a Prohibition Quod caeteri Justiciarii negaverunt See F. N. B. 44 Br. If the Testator by his Will charge his Executors to pay his debts and his creditors they do

conjugem matrimonium non esse c. Eosque praecipimus ab invicem seperari Vid. secundum partem Summae Sylvestrianae Si Ecclesia sit decepta in hoc quod ille in quo erat impedimentum carnalem copulam cum alia perfecerit redintegrabitur praecedens matrimonium dirimetur secundum quamvis de sententia Ecclesiae factam Et alibi Si Ecclesia se deceptam invenierit ex hoc quod impedimentum quod judicavit perpetuum apparet temporale redintegrabitur primum matrimonium c. And afterwards the Case was adjourned Afterwards that is to say Mich. 30 and 31 Eliz. the Case was moved again and Iudgment was prayed for the Plaintiff and then the Lord Anderson Ex assensu sociorum commanded that Iudgment should be entred for the Plaintiff and shewed unto the Council of both parties That about the Certificate which the four Doctors have shewed unto us of their opinions upon the point we our selves have conferred with the said Doctors who have given us their answers That the said sentence of Divorce being yet in force not reversed is peremptory and not subject to the success and although in the examinations and depositions taken in the Ecclesiastical Court no matter appeareth upon which such peremptory Divorce might be granted yet it might be as we are informed by the said Doctors that upon the examination of Physicians and Matrons sufficient matter did appear to the said Ecclesiastical Iudges which for modesty sake ought not to be entred of Record and that appeareth within the sentence i. Habito sermone cum matronis medicis which speech not entred of Record causa qua supra might be the cause that induced the Ecclesiastical Iudges to give sentence for the Divorce notwithstanding that the matter within the Record be too general to prove naturalem frigiditatem generandi but rather maleficium and afterwards Iudgment was given for the Plaintiff and so the sentence is bound by the Divorce as long as the sentence doth continue in force See this Case in Coke 5 Part. Where upon a Writ of Error brought 41 Eliz. the Iudgment was affirmed CCVIII Gittinson and Tyrrel 's Case Trin. 29 Eliz. In the Common-Pleas GIttinson brought an Action of Debt against Tyrrel Warden of the Fleet by a Bill of Privilege but he would not appear and the Court was in great doubt what remedy the Plaintiff hath to compell the Defendant to appear For he cannot be fore-judged the Court because he hath an Estate of Inheritance in the said Office And afterwards it was surmised to the Court That the said Tyrrel had made a Lease of his said Office to another for three years and then the Court was clear of opinion That the said Tyrrel should not have the Privilege for now during the Lease he is not Officer but the Lessee CCIX. Harris and the Lord Mountjoy 's Case Trin. 29 Eliz. In the Common-Pleas HArris affirmed a plaint of Debt in the Guildhall in London Dalton's Off. of Sher. 105. against the Lord Mountjoy and made an Attachment of the goods of the said Lord in the hands of Sir Drew Drewrie The Lord removed the matter into the Common-Pleas by a Writ of Privilege If now the said Lord shall find Bail was the question because that he is a Lord of the Parliament c. And the opinion of the whole Court was that he should find Bail for that is the course of the Court whosoever is party And by Anderson admitting the Law to be That the Body of a Lord of Parliament shall not be taken in Execution which I do not believe yet notwithstanding that Bail shall be found in such case For the condition of Bail doth consist upon two points First that he render his Body to Prison in Execution if Iudgment be given against him Secondly or to pay the condemnation And therefore if the Body of a Baron of Parliament is not subject to Execution yet the Bail shall stand for the second i. e. to pay the condemnation and all the Iustices were of clear opinion That for Execution upon a Statute-staple Merchant upon the Statute of Acton Burnel or upon the Statute of 23 H. 8. The Body of a Baron of Parliament shall be taken in Execution for by these Statutes such persons were not exempted CCX Trin. 29 Eliz. In the Common-Pleas NOTE It was said That the division of a great Meadow into many parcels by making of Ditches is not waste for the Meadow may be the better for it and it is for the profit and ease of the occupiers of it Hob. 234. And by Windham and Rhodes Iustices If a Termor converteth a Meadow into a Hop-garden the same is not waste for it is imployed to a greater profit and it may be a Meadow again Periam Iustice Although it be a greater profit yet it is also with greater labour and charges And the conversion of a Meadow into an Orchard is waste although it may be to the greater profit of the occupier CCXI. Mich. 29 30 Eliz. In the Common-Pleas IN a Replevin the Defendant avowed for damage feasant and upon issue joined it was found for the avowant and damages assessed and now issued a Retorno habendo upon which the Sheriff did retorn Averia elongata whereupon a Withernam was awarded and now came the Plaintiff and tendred in Court the damages assessed by the Iury and prayed stay of the Withernam and threw the Moneys into Court but the whole Court was clear against it for in this Case the Plaintiff ought to pay a Fine because he had essoigned the Cattel which is a contempt wherefore the Court assessed a Fine of three shillings four pence upon the Plaintiff and then the Plaintiff had his Prayer CCXII. Shrewsbury and the Inhabitants of the Hundred of Ashton Pasch 29 Eliz. In the Common-Pleas AN Action upon the Statute of Hue and Cry was brought by Shrewsbury against the Inhabitants of the Hundred of the three Hundreds de Ashton in the County of Bucks It was moved on the part of the Defendants That if upon such Hue and Cry the Inhabitants do their endeavours as much as in them is to follow and take the Malefactors and yet they cannot apprehend them that in reason they ought not to be charged by the said Statute But the whole Court was strongly against it And by Anderson The Inhabitants of the Hundred in which the Robbery was done are bound to apprehend the Felons or satisfie the party robbed And the party robbed is not bound to give notice to the Inhabitants nor to direct them which way the Felons took their flight but the Inhabitants are bound to follow the Felons without any such instruction and after the Enquest was taken and gave a Verdict in this manner That whereas the Plaintiff had declared That the Robbery was done in the Parish of D. in the Hundred aforesaid the Iury found that the place where the Robbery was done is a Lane within the said

Hundred and that the one side of the said Lane is within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done in the side of the said Lane which was in the Parish of S. and prayed the opinion of the Court upon that matter And the Court was clear of opinion That notwithstanding that Exception the Plaintiff should have Iudgment for here is the right Hundred which ought to be charged and the mistaking of the Parish is not to any purpose But then it was moved on the part of the Plaintiff that for as much as the Verdict aforesaid was special by reason of the doubt which the Iurors conceived upon the mistaking of the Parish in the Plaintiff's Declaration That the charges of the Iurors should be indifferently born by both parties as the course is in cases of special Verdicts but the whole Court was clear against that and commanded that the Plaintiff alone should pay the said charges for the matter here found specially is not any doubt but out of all question for it is clear that the Action is well brought for as much as the Hundred is charged the mistaking of the Parish shall not hurt CCXIII. Hellyard 's Case Trin. 29 Eliz. In the Common-Pleas A Habeas Corpus was to the Warden of the Fleet to bring the body of one Hellyard who retorned the Writ That the said Hellyard was committed to the Fleet Per mandatum Francisci Walsingham Militis unius principalium Secretariorum Dominae Reginae c. And because the Warden did not shew in his Retorn for what cause the said Hellyard was committed the Court gave him day to amend his Retorn or otherwise the prisoner should be delivered CCXIV. Mich. 30 Eliz. In the Common-Pleas UPon a Recovery in a Writ of Entry Sur disseisin of two acres of land Habere facias seisinam was awarded The Sheriff as to one acre retorned Habere feci as to the other tarde And the Retorn was shewed to the Court and all the Iustices but Periam held that the Sheriff should be amerced for that Retorn contrary and repugnant in it self But by Periam it may be That the acre of which no seisin is had was so far distant from the other acre whereof seisin was that the Sheriff for want of time could not make execution of both being so remote the one from the other To which it was answered That if the truth of the Case was such then might the Sheriff make execution in one acre in the name of both acres And if upon a Capias ad satisfaciend against two the Sheriff doth retorn as to one Cepi and to the other tarde he shall be amerced for those several Retorns cannot stand together CCXV Edgar and Crispe 's Case Mich. 30 Eliz. In the Common Pleas. Edgar recovered against Crispe in Debt and afterwards released to Crispe and afterwards notwithstanding the release Edgar sued for a Capias ad satisfaciend against Crispe and pursued the same untill Crispe was outlawed and it was the opinion of Anderson cheif Iustice That Crispe should have an Audita Querela notwithstanding the Outlawry and if the Audita Querela passeth with Crispe the Outlawry also should be avoided CCXVI Frankwell 's Case Trin. 30 Eliz. In the King 's Bench. IN Trespass for carrying away of Tithes the Case was That Frankwell Parson of the Church of D. was accused in forma Juris before the high Commissioners who pleaded that the same cause and crime was prosecuted against him in the Arches and prayed that he might not be doubly vexed for one and the same offence and notwithstanding that he was deprived and another Clerk presented to the same Church by the Patron and was admitted instituted and inducted and upon entry brought Trespass against the former Incumbent And note the manner of the Deprivation as it was found by Verdict That the Bishop of London with the assent of the other Commissioners gave sentence of Deprivation against him and it was shewed That the high Commissioners had not power by 1 Eliz. to give sentence of any thing which is dependant in another Court For it was not the intent of the said Act to take away the jurisdiction of the other Ecclesiastical Courts for then it is in vain to have such Courts It was also moved because the pleading is That the Bishop of London ex assensu of the other Commissioners gave sentence the same is a void sentence for it ought to be the sentence of all the Commissioners for they shall have equal authority And to this purpose he cited the Case 29 H. 8. Dyer 40. where a Lease is made of Lands whereof the Dean and Chapter are seised in common per nomen Decani ex assensu consensu totius Capitul but it was holden a void Lease for the Chapter ought to be party to such Lease contrary where the Lease is made of the Land which is the proper and peculiar Inheritance of the Dean But that Exception was not allowed for the form of Entries in all cases hath always been so Coke posito That the Commissioners ought not to proceed in this Case yet because they have so done the same ought not to be examined here for the Iudges here ought to think that this Deprivation was duly ma●e for cuique credend in sua arte which Wrey granted And it was said by him That the Court was created for two causes 1 For the expedition of the causes depending in the spiritual Courts Co. 4. Inst 326 327. 2 To give to such Iudges authority to punish offences in more high degrees for before they could not but onely excommunicate but now they may imprison and if the party had Libelled against him in the spiritual Court of the Arches it is no reason but that the party for his own expedition and for to procure due punishment against the offender may send the cause into the high Court and after Iudgment was given according to the Deprivation And afterwards Error was brought thereupon and the Error assigned upon the matter in Law whether the said Deprivation was lawfull or not Coke I remember the reason of the Iudgment given by the Court was That admitting that the sentence of the high Commissioners was erroneous yet it shall bind untill it be reversed by appeal Fenner If the party grieved might be restored by appeal I agree that such sentence should bind untill it were reversed but in our Case no appeal lieth from the high Commissioners wherefore we ought to be helped here or otherwise we are without remedy Coke If the Delegates give sentence no appeal lieth and yet the party grieved shall not be helped here Fenner 16 Eliz. One Foxe was deprived the last day of the Parliament for incontinency which offence was pardoned by the same Parliament and that sentence of Deprivation was holden void Anderson In your Case the offence it self was pardoned and discharged Also it is

60 years and afterwards enfeoffed Oxenbridge to the use of the said Cheney and his wife for their lives with divers remainders over and it was adjudged in the Court of Wards that by the Feoffment the term was not extinct And he put the case of the Lord Paget in the King's Bench adjudged A Feoffment was made unto the use of the Feoffor for life the remainder to him whom the Feoffor should name at his death in Fee the Feoffor and the Feoffees for good consideration levied a Fine unto a stranger and afterwards the Feoffor named one and died the party named by the Feoffor shall have the land notwithstanding the Fine Beamount The contingent use here is utterly destroyed by the Feoffment aforesaid and it appeareth by the preamble of the Act of 27 H. 8. That the makers of the Act did not favour Vses but their intent was utterly to extirpate Vses And if contingent Vses which are not nor cannot be excused by the Statute should stand in force The mischief would be That no purchasor should be secured and safe in his purchase but should always be in danger of a new born Vse not known before and he grounded his farther argument upon the reason of Manwood and Dyer Where a man makes a Feoffment in Fee to the use of himself and his Wife which shall be and afterwards he and the Feoffees and those in remainder make a Feoffment to divers new Feoffees and to new Vses and afterwards he takes another Wife and dieth It was the opinion of the said two Iudges That by that Feoffment ut supra the contingent Vses are destroyed For when the Estate which the Feoffees accept is taken away which was the root and foundation of the Vses which are the branches and fruit of the body of the said Tree it necessarily followeth That they be also taken away and because the Feoffees by their Livery are barred to enter to recontinue the Estate which should yield such Vses they also are gone and extinguished Yelverton was of opinion that notwithstanding the said Feoffment that the Vse should rise in his due time according to the limitation of it It was adjourned CCXIX. The Lord North 's Case Trin. 30 Eliz. In the King's-Bench THE Queen granted unto the Lord North and his heirs the Fines pro licentia concordandi and one would not pay him the Fine for which cause the Lord North brought an Action upon the Case against him and declared upon Indebitatus assumpsit c. Godfrey moved this matter to the Court to know their opinion if such Action would lie for the matter or not Fenner For a Fine in a Court-Baron or Court-Leet debt lieth but as he conceived 1 Leon. 249 250. 3 Len. 56. 234. here this Action doth not lie for it is a real Fine and there is no contract betwixt the parties but the same is given by the Law and some were of opinion that debt lieth for a relief for there is a contract by Fealty Gawdy conceived That the Action doth well lie for it is not any casual profit and therefore debt lieth for it although it be an inheritance And see Dyer 28 H. 8. 24. The heir shall have an Action of Debt upon a Nomine poenae reserved by his Ancestour Wray I do not see that he hath any other remedy and therefore I am of opinion that this Action will lie CCXX Mrs. Paschall 's Case Trin. 31 Eliz. In the Exchequer MIstress Paschall was bound with sureties for her appearance before the high Commissioners that she should not depart without licence under the hands of three of them and she pleaded the general Pardon at the last Parliament in which there is an Exception of all Bonds and Recognizances except onely such Bonds and Recognizances as are for appearance And Atkinson argued That she ought to be discharged by the Exception for although the departure without licence be not specially named yet it is within the sense for the not departure without licence is no other thing than to continue her appearance Popham contrary For The Non departure without licence was set down in the Condition to this purpose That she should not go into the Countrey to be corrupted there or to corrupt other and receive Seminaries c. therefore it is another thing than appearance Between Hore and Hare the Case was One was bound to make his appearance at such a day and in the mean time thrice every Month to repair unto such a Preacher to be better informed in Religion although the Non appearance was pardoned yet the other point i. the resorting to the Preacher is to be answered Atkinson There the resorting to the Preacher is collateral and a several point from the appearance But in the Case at Bar the not departure is pursuant to the appearance And the opinion of all the Barons was That the pardon did not extend to the same CCXXI Trin. 31 Eliz. In the Common-Pleas 1 Len. 205. AN Action was brought against an Executor who pleaded That he refused the Executorship upon which the parties were at issue The Bishop certified Quod non recusavit whereas in truth he had refused before the Commissary of the Bishop Fenner Serjeant moved to have the advice of the Court upon this matter and argued That the Court ought to write to the Commissary which was denied by the Court for he is not the Officer to this Court as to that purpose but the Bishop himself is our Officer and the party cannot have an Averment against the Certificate of the Bishop no more than against the Retorn of the Sheriff And the Court also held That the onely remedy for the Defendant was by an Action upon the Case against the Bishop for his false Certificate But it was moved That the issue joined upon the refusal ought to be tried by the Countrey and not by the Certificate of the Bishop and such was the opinion of Windham and Walmsley Periam Where the issue is that the Executor refused before such a day or after there the issue shall be tried by the Countrey contrary Where the issue is upon the refusal generally for the refusal is before him as Iudge as also resignation is CCXXII Giles 's Case Mich. 28 and 29 Eliz. In the King's-Bench A Writ of Error was brought in the King's-Bench to reverse a Iudgment given in an Action upon the Case in the Court of Common-Pleas where the Writ brought against the Defendant there in that Case was Quare exaltavit stagnum per quod pratum of the Plaintiff was inundatum The Defendant in the Action there pleaded Not guilty and the Iury found That the Defendant Erexit stagnum and they said That if the Court shall judge That Erectio and Exaltatio be all one then they find that the Defendant is guilty and afterwards Iudgment was given in the said Court of Common-Pleas for the Plaintiff Whereupon this Writ of Error is brought And Glanvile Serjeant who

land and that he and all those whose Estate c. have common of pasture in 16 acres of land called D. from the time that the corn was reaped untill it be sowed again and also common of pasture in lands called R. omni tempore anni as appendant to the said Messuage and land and that the Defendant had plowed the said lands and so disturbed him of his common and found for the Plaintiff and it was moved in stay of Iudgment That here it appeareth that the Plaintiff was seised in Fee and so he ought to have an Assize and not an action upon the Case but the exception was disallowed per Curiam See 2 H. 4. 11. 8 Eliz. Dyer 250. 11 H. 2. Action upon the Case 36. CCXXX Hore and Wridlesworth 's Case Mich. 32. Eliz. In the King 's Bench. HOre brought an Action of trespass against Wridlesworth Quare clausum domum suam fregit The Defendant pleaded and put the Plaintiff to a new assignment i. a House called a Stable a Barn and another house called a Carthouse and Garnier and that was assigned for Error for that Assignment is not warranted by the Declaration Gawdy The same is good enough for Domus in the Declaration contains all things contained in the new Assignment But if the Declaration had been of a Close and the new Assignment of a Barn it had not been good Wray Domus est nomen collectivum and contains many buildings as Barns Stables c. and so was the opinion of the whole Court. CCXXXI Savacre 's Case Mich. 32 Eliz. In the King 's Bench. A Writ of Error Ante 4. was brought by Savacre and the Bishop of Gloucester M. 31 and 32 Eliz. upon a Iudgment given in a Quare Impedit for the Queen And Error assigned 1. An Attachment was awarded against the Defendant in the Quare Impedit retornable Quind Pasch at which Savacre appeared and cast an Essoin and notwithstanding that a Distringas was awarded against them both retorned Crast Trin. and the awarding the Distringas was erronious for the Essoin was as an appearance for to save c. and therefore against him no Distringas ought to have been awarded And upon alledging of Diminution the Record of the Essoin was certified for the same did not appear upon the Plea Roll. 2 The Record is Ipsi in Misericord and so both of the Defendants are amerced for the default of appearance Quind Pasch whereas Savacre was then Essoined and so no cause of amerciment of him Coke The original Writ was here sued Mic. 26 Eliz. retornable Quind Hillar and then both the Defendants made default for which an Attachment was awarded retornable 15 Pas and then Savacre appeared and Iudgment was given Quod ipsi sint in Misericord in which point the Error is assigned But I conceive that it is not Error for upon the Attachment the parties ought to put in sureties for their appearance and the said sureties took upon them that the Defendants and each of them should appear and if they or one of them maketh default the sureties should be amerced and so here this Iudgment Ideo ipsi in Misericord shall refer to the sureties not to the parties for the Defendants shall not be amerced untill the end of the suit and but once onely in one action which see Book of Entries 464. where there was but one Defendant and therefore If the amerciment shall refer to the Defendant then it should be Ideo ipse not ipsi c. and that is the reason wherefore neither the Queen nor an Infant shall find pledges for no amerciament shall be upon their default therefore in vain for them to find pledges c. And if the pledges be amerced where they ought not to be amerced by the Law yet the Defendant shall not have Error upon it for he is not the party grieved by that amerciament And upon this reason it is That in a Scire facias against the bail if erronious Iudgment be given against him the Defendant in the Action shall not have a Writ of Error The awarding of the Distress upon the Roll against both where the one of them onely makes default is not error especially as this case is for though that one of them was Essoined untill the day aforesaid yet at the said day they make default and so the Distress is well awarded against him and although that the Writ were ill awarded yet when they appear Cr. Trinit at the day of the retorn of the Distress all mean defaults in the Process are saved and so the misawarding of the Distress by appearance afterwards is supplyed As 39 E. 3. 7. The Law requires that in an action grounded upon the Statute of Praemunire 27 E. 3. the Defendant hath warning by two Months yet if the Defendant having not had such warning appeareth the Process is well enough So 9 E. 4. 18. Where upon any Process the Defendant appeareth although the day of appearance be not lawfull yet the parties shall be put to answer and see many cases there to the same purpose and such was the opinion of the Court in the principal Case And as to the second Error that the Iudgment Ideo ipsi in Miseric shall be referred to the sureties onely and not unto the party and that the Defendant shall be but once amerced in one action the same is true that he shall be but once amerced for one default but if many defaults be the Defendant shall be severally amerced for every default And it should be unreasonable that the sureties should be amerced and that the Defendant who is as principal should go free See the Book of Entries 193. Ipsi plegii sui in Misericordia c. CCXXXII Farnam 's Case Mich. 32 Eliz. In the King's-Bench FArnam Schoolmaster and others were Indicted upon the Statute of 8 H. 6. for entring In domum Rectoriae de Putney ac in cert terras eidem domui part jacen in Putney c. Exception was taken to the Indictment because it recited the two parts of the Statute 1 Expulsion and Disseisin with Force 2 Holding out and there is not any offence in it contained as to one of them scil Holding out and although it was not necessary to recite the Statute yet the party meddles with it and doth not apply it to the special matter the same is naught See for that the Case between Strange and Partridge Plow Com. 2 The entry is supposed In domum certas terras eidem domui pertinen jacen in Putney which is incertain as to the lands and it is naught for the house also for it is not shewed in what Town the house is for this clause ac certas-terras eidem domui pertin jacen in Putney is a distinct clause by it self and refers onely to the lands and doth not extend to the house As to the first exception is was disallowed for it is not like unto Partridge's Case for there the

in the house of Robert not by the Will but by descent and this Devise shall not take effect otherwise and the Devise as to that is void and then the Common Law shall hold place and that is to descend to the issue of the one sister and the surviving sister And here the survivor hath but an Estate for life in the house of Robert and then by the death of Robert the Fee-simple accruing to the surviving sister the moyety of her Estate for life is extinct And if one of the daughters had died without issue before Robert the house of such daughter had come to Robert and the other sister as coparceners for the son is to have all the Fee and a moyety of the same executed and a moyety expectant and the other sister should have a moyety for life and so the Devise not void And afterwards Iudgment was given against the husband of the surviving daughter CCXLIV Hurlston 's Case Hill. 29 Eliz. In the King 's Bench. 4 Len. 160. HUrlston brought a Writ of Error against the Queen upon a Iudgment given for the Queen in the County Palatine of Chester It was moved by Gawdy the Queens Serjeant that the Writ did not lye for he ought to sue to the Queen by Petition which see 23 E. 3. 22. A Writ of Error cannot be granted Absque speciali gratia Dom. Regis See also 22 E. 3. 3. And the case was That Iudgment was given for the Queen in a Scire facias to reverse the Patent of the Constableship of the Castle of Chester and by him in Chester there are many Courts King's-Bench Common-Pleas Exchequer Chancery And here a Iudgment or Decree in the Chancery cannot be reversed but by Parliament and so he conceived of a Iudgment given in the Chancery at Chester and it cannot be reversed in the King's-Bench Also they have a custome in Chester that they may reverse within certain Months the Iudgment before Clench There needs no Petition for both the Patentees claim from the Queen and whether there be Error or not the Queen is not prejudiced Coke There needs no Petition for it is now past for the Queens Attorney's hand is to it 11 Eliz. In one Haunce's case a Writ of Error was brought against the Queen and they were compelled to sue to the Queen by Petition Coke In the Exchequer If an erronious Iudgment be given for the Queen in a Bill of Intrusion the party shall have a Writ of Error against the Queen without any Petition It was the case of one Eliz. Mordant 15 Eliz. she brought a Writ of Error to reverse a Fine levyed by her during her minority against the Queen and the proceeding in it was stayed because she had not sued to the Queen by Petition first Wray Many Outlawries have been reversed by Error without any Petition and yet in such case the Queen hath an immediate interest CCXLV Gomersall and Gomersall 's Case Mich. 29 Eliz. In the King 's Bench. IN an Account The Plaintiff charged the Defendant as Bailiff of his Shop Curam habens administrationem bonorum The Defendant answered to the goods onely and said nothing to the Shop Tanfield moved the same matter for Error in arrest of Iudgment As 14. H. 4. 309 310. One charged another as Bailiff of his house Et curam habens bonorum in eo existen the traverse was That he was not Bailiff of the house Pro ut that is good and goeth to all but he cannot answer to the goods and say nothing to the house See 49 E. 3. 7. Br. Accomp 21. A man brought an Accompt against one as Bailiff of his Manor Habens curam of twenty Oxen and Cows and certain quarters of Corn And by Belknap If he have the Manor and no goods yet he shall accompt for the Manor and it shall be no Plea to say that the Plaintiff sold him the goods without traversing without that that he was his Bailiff to accompt render And as to the Manor he may say that the Plaintiff leased the same to himself for years without that that he was his Bailiff Another exception was taken by him That the Plaintiff chargeth him with moneys Ad merchandizandum And he traverseth that he was not his Receivor denarior ad computandum pro ut and so he doth not meet with the Plaintiff and so it is no issue And it is not helped by the Statute of Jeofailes 32 H. 8. but mis-joining of issue is helped by that Statute 19 Eliz. W. an Attorney of the Common-Pleas did charge another Attorney of the same Court with a Covenant to have three years board in marriage with the Defendant's daughter and he pleaded that he did not promise two years board and so issue was joined and tried and the same could not be helped by the Statute because it was no issue and did not meet with the Plaintiff So if one charge in the Debet detinet and he answers to the Detinet onely it is no issue and therefore it is not helped by the Statute In 29 H. 6. in trespass for entring into his house and taking of his goods the Defendant pleaded Non intravit and the issue was tried and damages given and because the taking of the goods was not also in issue all was void 4 E. 3. One shall not accompt by parcels because the Action is intire See 3 E. 3. 8. and Book of Entries 202. A Precedent 14 H. 7. That the Verdict was not full and did not go to the whole and therefore was void Hele Serjeant contrary And as to the first point he said That there is a Case in 9 E. 3. Accompt 35. where the Plaintiff chargeth the Defendant in accompt as Bailiff of his house and that he had the administration of his goods viz. Forty sacks of wooll and upon issue joined the Iury found that he was not Bailiff of his house but they farther find that he had received the forty sacks of wooll to render accompt of the same and the Plaintiff in that Case had Iudgment for the sacks of wooll although there was no Verdict found for the house See 5 H. 7. 24. Where if a Iury be charged with several issues and the one of the issues is found and the other not that the same makes no discontinuance or if one of the issues be discontinued yet it is no discontinuance as to the whole But admit the same be not helped by the Common Law yet he said it is helped by the Statute of 32 H. 8. of Jeofailes which is Non obstant discontinuance or miscontinuance Daniel to the same purpose And he said that the Books before cited of 14 H. 4. and 49 E. 3. are not ruled nor the Cases there adjudged in the one Book the Defendant pleaded That the Plaintiff gave the goods unto him and in the other Book that he sold the said goods unto him and demanded Iudgment of the Action And he said That it is no

good answer for they are Pleas onely before the Auditors and not in an Action upon Accompt and farther he said That although the Verdict be found but for part yet it is good for no damages are to be recovered in an Accompt In trespass it is true if one issue be found and not the other and joint-damages be given the Verdict is not good for any part but if several damages be given then it is good as it is ruled in 21 H. 6. Coke 26 H. 8. is That the Plaintiff cannot declare generally of an house Curam habens administrationem bonorum but he must farther say Twenty quarters of Corn or the like c. In the principal Case it is a joint-charge and but one for the shop and goods and he answers unto one onely but he ought to answer to all or else it is no answer at all But Coke found out another thing viz. That there is a thing put in issue which is not in the Verdict nor found nor touched in the Verdict and that was the Verdict of all which is found not to be good and it is not helped by the Statute of 32 H. 8. of Jeofailes I grant that discontinuances are helped by the Statute of 32 H. 8. but imperfect Verdicts are not helped thereby Vid. 205. It was a great Case argued in the Exchequer Chamber and it was Brache's Case An information was against Brache for entring into a house and an hundred Acres of Lands in Stepney He pleaded not guilty The Iury found him guilty for the hundred acres but said nothing as to the house upon which a Writ of Error was brought and Iudgment was reversed and he said it was not a discontinuance but no verdict for part Daniel That was the default of the Clerks who did not enter it and it hath been the usage to amend the defaults done by the Clerks in another Term All the Iustices said That is true if the Postea be brought in and not entred but here it is entred in the Roll in this form Daniel Where I charge one in Accompt with so much by the hands of such a one and so much by the hands of such a one although there be but one Absque hoc to them all yet they are as several issues The Court answered Not so unless there be several issues joined to every one of them But by Gawdy Iustice If there be several issues and the one be found and the other not no Iudgment shall be given Clench Iustice In the principal Case It is not a charge of the goods but in respect of the shop therefore that ought to be traversed Shute Iustice The Traverse of the shop alone is not good Egerton the Queen's Solicitor said That the Books might be reconciled and that there needed not a Traverse to the goods for the Traverse of the shop Prout is an answer to all But now he takes issue upon the goods onely which issue is not warranted by the Declaration and he said That if one charge me as Bailiff of his goods ad Merchandizandum I shall answer for the increase and shall be punished for my negligence But if he charge me as his Receiver ad computandum I shall not be answerable but for the bare money or thing which was delivered CCXLVI Mich. 29 Eliz. In the Common-Pleas Postea 215. IN Trespass for taking of goods the Defendant justified as Bailiff to J. S. The Plaintiff by Replication saith That the Defendant prest his Cattel of his own wrong Absque hoc that he is Bailiff to J. S. And by Anderson 1 Leon. 50. If one hath good cause to distrain my Cattel and a stranger of his own head without any warrant or authority takes my goods not as servant or Bailiff to another and I bring Trespass against him he cannot excuse himself by saying that he did it as Bailiff c. for once he was a Trespassor but if one do distrain as Bailiff although that in truth he be not Bailiff if afterwards he in whose right he justifies assents to it he shall not be punished as a Trespassor for this assent shall have relation unto the time of the distress taken which Periam concessit and also Rhodes A. distrains and being asked for what cause he distrains and he assigns a cause which is not sufficient and afterwards an Action is brought against him 3 Co. 26. he may avow the distress for another cause CCXLVII. Mich. 29 Eliz. In the Common-Pleas THE Case was That the Queen gave Lands in tail to hold in Capite and afterwards granted the Reversion Windham In this Case the Tenure is not incident to the Reversion but is in respect of the person and therefore the Tenure in Capite doth remain and the Donee shall hold of the Queen as in gross And also the Grantee of the Reversion shall hold of the Queen in Capite and so two Tenures in Capite for the same Lands See 30 H. 8. Dyer 45. If the Queen in this cause had reserved a Rent upon the Gift in tail the same should go with the Reversion CCXLVIII Dighton and Clark 's Case Mich. 29 Eliz. In the King's-Bench DIghton brought Debt upon a Bond the Condition of which was That whereas the Plaintiff was in quiet possession of such lands If now neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said lands by any indirect means but by due course of Law That then c. that Defendant pleaded That neither J. S. nor J. D. or J. G. did disturb the Plaintiff by any indirect means but by due course of Law upon which there was a demurrer Godfrey The Plea in Bar is not good for there is a Negativa pregnans scil a Negative which implies an Affirmative See 21 H. 6.9 In a Writ of Entry Sur Disseisin the Defendant saith That the Demandant by his Deed after the Darrein continuance did confirm and ratifie the possession of the Tenant c. The Demandant said Not his Deed after the Darrein continuance and the same was holden to be Negativa pregnans See more there and see also 5 H. 7. 7. And see farther 39 H. 6. 8 9. Another Exception was taken to the Plea in Bar because he hath pleaded That neque J. S. neque J. D. neque J. G. had disturbed the Demandant by any indirect means but onely by due course of Law and that issue cannot be tried not by the Countrey for they cannot know what is a due course of Law and by the Court it cannot be tried for the Defendant hath not certainly shewed by what due course of Law the Demandant hath been disturbed which see 22 E. 4. 40 41 c. The Lord Lisle's Case In Debt upon a Bond the Condition was That if the Defendant before such a day or any other for him and in his name come to B. and there shew unto the Plaintiff or one of his

moved the Case That the Plea is good and Iudgment was entred accordingly CCLXXI. Richmond and Butcher 's Case Mich. 33 Eliz. In the Common-Pleas 1 Cro. 217. IN a Replevin the Case was this A man made a Lease for years reserving Rent to the Lessor his Executors and Assigns where the Lessor had a Fee-simple in the Lands it was holden by the Court That the Rent should go to the heir notwithstanding the special Reservation because the words of the Reservation are During the term and the other words To his Executors and Assigns shall be void and then the Rent shall go with the Reversion to the heir which see 27 H. 8. 19. by Awdley And it was said by some That a Rent reserved during the term shall go to the heir with the Reversion and 12 E. 4. was cited where a Rent reserved to the Lessor and his Assigns should not go to the heir and that these words During the term did not mend the matter for the Lessor might well overlive the term But in the principal Case it was said by Periam Iustice That the Executors should not have the Rent for they have not the Reversion but if the Lessor grants over the reversion the Grantee shall have the Rent And afterwards Iudgment was given against the Plaintiff for it was in a Replevin and Iudgment was given for the Avowant who was heir to the Lessor CCLXXII Mich. 30 Eliz. In the Common-Pleas IN an Action of Trespass brought by a poor woman for breaking of her Close she declared of a Continuando of the Trespass by six years and upon Nihil dicit pleaded she had Iudgment to recover upon which issued forth a Writ of Enquiry of Damages and now came the poor woman and shewed to the Court That the Iury had found too little damages i. e. but 10 s. whereas the Land is worth 4 l. per ann and the Trespass had continued by six years together and prayed that the said Writ might not be received and that the Court would grant her another Writ to have a Melius inquirendum of the damages but the whole Court denied to grant any such Writ for so there might be infinite enquiries But sometimes at the prayer of the Defendant when excessive damages are found or any misdemeanors alledged in the Plaintiff procuring or using such a Writ of Enquiry of damages we use to relieve the Defendant by granting and issuing forth of a new Writ but to the Plaintiff never because the suing forth of the Writ is his own act And by Rhodes Iustice The late Countess of Darby brought a Writ of Dower and had Iudgment to recover and she surmised that her husband died seised and prayed a Writ of Enquiry of damages and had it granted unto her and because too small damages were found she would have suppressed the said Writ and procured a new Writ but she could not obtain it and at last she was driven to bring in the first Writ and so it was done CCLXXIII Scrog 's and Griffin 's Case Hill. 30 Eliz. In the King 's Bench. IN an Action upon the Case upon a promise by Scrogs against Griffin The Plaintiff declared That whereas such a day one Brown and another did run for a wager from Saint-John-Street to High-gate That he of the said two that first got thither and came again should have 5 l. which wager the said Brown did win and whereas after the said match so performed the said Plaintiff affirmed that there was deceit and covin in the performance of the said match upon which the Defendant in consideration of twelve pence to him delivered by the Plaintiff promised that if the Plaintiff can prove that any deceit or covin was used or practised in the performance of the said match that then upon request he should pay to the Plaintiff 5 l. And upon Non Assumpsit pleaded it was found for the Plaintiff and it was moved by Foster in arrest of Iudgment That here is not any request set forth in the Declaration and also that this deceit is enquired of in London whereas it ought to be in Middlesex where the Race was run and it was agreed by all the Iustices That the proof ought to be made in this Action as in the common Cases of voyages and that request now is but matter of conformity and not of necessity Wray Iustice It is clear That always proof ought to be as it is here if not that the matter be referred to a special proof before a person certain And as to the trial The deceit is not in issue but onely the promise and therefore the issue is well tried in London Also this Action here includes proof and request for there cannot be made any other proof and the proof is the effect for which cause he concluded that Iudgment should be entred for the Plaintiff which was done accordingly CCLXXIV Fuller and Trimwell 's Case Pasch 29 Eliz. In the Common Pleas. IN a Replevin by Fuller against Trimwell who made Conusance 1 Roll 46. ●… as Bailiff to one house for damage fesance The Plaintiff in Bar of the Conusance shewed That one A. T. did pretend right to the land where c. and the Defendant in the right of the said A. T. took the cattel c. Absque hoc that he took them as Bailiff to the said House upon which the Defendant did demur in Law and it was argued by Shuttleworth Serjeant That the traverse is not good which see 26 H. 8. 8. 5 H. 7. 2. Not his Bailiff but if the truth of the Case be so he may plead of his own wrong without such cause c. And see also 28 H. 6. 4. The Commandment is not traverseable but in special Cases where the Commandment determines the interest of the other party which see 13 H. 7. 12 13. Antea 196. in the Case of the Earl of Suffolk in Trespass the Defendant pleaded That before the trespass the Plaintiff was seised and thereof enfeoffed one B. by whose commandment he entred to which the Plaintiff said That after the Feoffment and before the trespass the said B. leased to the Plaintiff to hold at will Absque hoc that the said B. did command him and that was holden a good traverse for the commandment determines that Lease at will and in the principal Case all the Iustices were of clear opinion That the traverse is good and they all said That the Custos Brevium had shewed to them many presidents thereof See 15 H. 7. 17. and see also 7 H. 4. 101 102. In trespass for taking of cattel the Defendant did justifie as servant to such a one for Rent arrere due to his Master The Plaintiff Replicando said That the Defendant was not Bailiff at the time of the taking where it is said by Gascoigne That if the Defendant takes the cattel claiming property as a Heriot due to himself although that afterwards the Lord agrees to the distress

of the Hundred upon this Statute and it seemed hard to the Inhabitants there that they should answer for the Robberies done at Gadds Hill because Robberies are there so frequent that if they should answer for all of them that they should be utterly undone And Harris Serjeant was of Councill with the Inhabitants of Gravesend and pleaded for them that time out of mind c. Felons had used to rob at Gadds Hill and so prescribed and afterwards by award they were charged And note That the Case was that three men were robbed and they three joined in the Action against the Inhabitants XX. Colshil and Hasting 's Case 20 Eliz. In the Common-Pleas AN Extent was sued forth upon a Statute-Merchant by Colshil against Hastings for Lands in his possession in the County of Southampton The Sheriff put the Plaintiff the Conusee in possession of parcel of a House and of Lands and suffered Hastings to continue in the rest of the House Execution executed 1 Leon. 145. by reason whereof Hastings kept the possession of the whole and held the Conusee out The Conusee to the intent that he might have full and perfect possession of the whole caused the Sheriff that he did not retorn the Writ of Extent upon which it is entred on the Roll Quod Vice-Comes nihil inde fecit nec misit breve Whereupon issued an Alias extendi facias upon which the new Sheriff did retorn That in the time of the old Sheriff a Writ of Extent issued forth c. and that the said Sheriff had extended the Lands by reason whereof the now Sheriff could not extend them upon the new Writ It was moved for the Conusee That the retorn was not good For although that the Lands be extended by the first Writ Yet because it is not retorned it is not any Execution in Law nor could the Conusee have an Assise which Manwood Iustice denied Loare Preignothory Our course is when no retorn of such Writ is made to grant an Alias at the prayers of the party and to enter upon the Roll That the Sheriff upon the first Writ Nihil inde fecit nec misit breve And that was taken by the Court to be a good and lawfull course in such Case for upon such surmise that no Execution hath been done and that upon such entry on the Roll an Alias Breve might be well awarded And afterwards this second Writ of Extent was not filed by order of the Court And note that the new Sheriff was examined upon his Oath by the Court of the Action and he said that he made the retorn by the advice of Master Plowden who told him that he might safely retorn that the Land was formerly extended and although that the said Extent was not retorned yet it is an Execution for the Party Manwood Certainly this is an insufficient retorn But perhaps Master Plowden did not know of this entry in the Roll as aforesaid for now it appeareth upon Record that no Execution was done If this entry had not been I should well agree with Master Plowden that the same is an Execution for the party although it be not retorned XXI Steward 's Case 19 Eliz. In the Common-Pleas THE Case was A. seised of certain Lands in Fee granted a Rent-charge out of the same to another and afterwards aliened the Lands to a stranger The Grantee in a Replevin did avow for the Rent and the other party pleaded that nothing passed by the Deed It was holden by the whole Court to be no plea nor can any issue be joined upon it but the Plaintiff ought to have said That he did not grant by the Deed For the same is a Rent newly created and which had not his essence before the grant and it cannot properly be said That nothing passed by the Deed but not of a thing that is in esse but of things not in esse That he did not grant is the most natural issue for a thing not in esse non potest transire XXII 19 Eliz. In the King's-Bench IN an Action upon the Case upon a Trover and Conversion to his own use per venditionem quibusdam hominibus ignotis Trover and Conversion the Defendant pleaded That the goods were bailed to him to bail over to J. S. to whom he had delivered them absque hoc that he did convert them to his own use per venditionem hominibus ignotis It was moved by Egerton that that matter is not traversable quod Wray concessit for the conversion to his own use is the cause and ground of the Action and not the selling of the goods c. XXIII Mich. 19 and 20 Eliz. In the Common-Pleas A Man was outlawed in the Court of Hustings of London and the Hustings in which the Iudgment of Outlawry was given Outlawry was holden two Weeks next after the last Hustings so as there was but two Weeks betwixt the two Hustings whereas commonly the Hustings is holden but every three Weeks and now the Sheriffs of London were in doubt if they might safely retorn the Outlawry without danger of an Action upon the Case brought against them by the party outlawed It was holden by Dyer and the whole Court that they ought and might safely retorn the said Outlawry for the Lord Dyer said That there is a Record in the time of R. 2. whereby it appeareth that in London they might hold their Hustings every Week if they pleased and afterwards he commanded Mosley and Christopher Secondaries to retorn the Outlawry which was done accordingly XXIV Lovelesse 's Case 19 Eliz. In the Common-Pleas Debt upon Recognizance 1 Cro. 608. 817. LOvelesse Serjeant brought a Scire facias upon a Recognizance and had Iudgment upon default Quod habeat Executionem and afterwards he brought an Action of Debt upon the said Iudgment and exception was taken to the Action for that he ought to proceed upon the Iudgment given upon the Scire facias and ought to sue Execution according to the said Iudgment by Elegit or Scire facias but not by Capias but the Exception was not allowed For the Recognizance is a Iudgment in it self and an Action of Debt will lie upon it without any Iudgment in the Scire facias And Debt lieth as well upon the Iudgment as upon the Recognizance it self and so was the opinion of the whole Court. XXV Eliz. In the Common-Pleas Brent 's Case Dyer 340. b. THE Case was That Robert-Brent being seised of Lands in Fee made a Feoffment thereof unto the use of himself and Dorothy his Wife for their lives and if he do survive his said Wife then to the use of him the said Robert and such a Woman as he should after marry for the Iointure of such Wife the Remainder over to a stranger in Fee And afterward with the privity and assent of the Feoffor he in the Remainder and the Feoffees join in a Feoffment to divers persons Note both Feoffments were

remain in the Feoffees who are put in Trust with it and therefore have interest in the Lands until all the Trusts be performed and therefore the second Wife was advised by her Council to make her Entry in name of the surviving Feoffee and the interest which the Feoffees have in the interim untill the execution of all the uses is a Fee-simple determinable for the whole interest is not devested or driven out of the Feoffees untill the whole Trust be accomplished i. untill all the uses limited upon the Feoffment are executed and have their full perfection And whereas it hath been alledged on the other side That upon the second Feoffment nothing passed out of the Feoffees for which it shall not be said in Law their Livery but that the Attorney shall be said the sole Disseisor As to that I conceive That whatsoever was lost in the Feoffees passed by that Livery If he in Reversion upon an Estate for life makes a Charter of a Feoffment and a Letter of Attorney to make Livery of seisin without words ad expellendas omnes c. if Livery be made by force thereof the Fee-simple shall pass And he cited a Case which was argued before all the Iustices of England reported by himself 2 and 3 Ma. 131. Divers Leases for years were made of the Demeans of an Abby after which the Reversion was granted to the Countess of Richmond for life after which King Edw. 6. granted the Reversion in Fee to the Earl of Warwick who made a Feoffment of all to certain persons to the use of his eldest Son and his Wife for her Iointure with a Letter of Attorney to make Livery and seisin the Attorney made Livery accordingly and by that Feoffment and Livery it was adjudged that the Fee-simple did pass So in our Case upon this second Feoffment a Disseisin is done to D. the first Wife and yet the right of the Feoffees doth pass thereby and although it shall not be taken in Law their Livery yet it shall be adjudged their confirmation because they have joined in the Deed and that shall bind their right to establish the same in the new Feoffees as if the Disseisee join in a Feoffee by Deed with the heir of the Disseisor And as to that which hath been objected that because at the time of the Feoffment the Feoffees had not any thing c. and therefore nothing shall pass and they have likened to the Case where the Father is disseised and the Son and heir doth release to the Disseisor the same shall not bind the heir after the death of his Father The same is not like our Case for there is a great difference betwixt a Release and a Feoffment for if the Son disseise the Father and maketh a Feoffment in Fee in the life of his Father notwithstanding that he had not any right at the time of the Feoffment yet he is bound XXVI Thurkettell and Tey 's Case Trin. 29 Eliz. In the King's-Bench Rot. 342. 1 Cro. 110 111. IN Debt by John Thurkettell against Edw. Tey and Mary his Wife Executrix of Robert Thurkettell the Case was That Agnes Thurkettell Mother of Robert the Testator devised certain Lands to Robert and afterwards devised 40 l. to the Plaintiff John upon condition that the said John Cum requisitus esset acquietaret retaxaret praedict Roberto omnes actiones reales personales querelas c. praedict 40 l. per dict voluntat legatis tantummodo exceptis Agnes died Robert made two Bonds to John The first was endorsed to pay 20 l. parcell of the said Legacy within a year after the death of the said Agnes so as the Plaintiff release according to the will of the said Agnes The second Obligation was with the same condition to pay 20 l. residue of the said Legacy within two years after the death of the said Agnes upon condition to release ut supra and all this matter was pleaded in barr And farther That Robert required the said John to make the Release c. which he refused and they were at issue upon the request and it was found for the Plaintiff i. Quod dict Robert. non requisivit c. upon which Verdict Iudgment was given for the Plaintiff upon which the Defendants brought Error because it appeareth upon the Record here quod Billa praedict prosecuta fuit infra duos annos post mortem dict Agnet sic ante diem solutionis For the second Bond see 46 E. 3. 28. by Finchden and Persay and see there by Persay That if my Writ be brought before the day of payment and doth depend in suit till after the day of payment that my Writ is made good for at all times the Defendant was my Debtor And afterwards in the principal Case the Iudgment was affirmed in the Exchequer-Chamber and note that the day of payment did incurr pendent the Writ XXVII Lightfoot and Butler 's Case 29 Eliz. In the Exchequer IT was said in this Case by the Solicitor General That if one holdeth of the Queen as of her Manor he shall not have the privilege of the Exchequer for that cause But if the King grants Tithes and thereupon reserveth a Rent nomine decimae and a Tenure of him there he shall have the privilege The principal Case was Co. 4. Inst 118 119. that one of the parties claimed the Lands in question as his Freehold but holden of the Queen as of such a Manor and the other claimed it as Copyhold holden of the same Manor And the Freeholder did suggest in the Exchequer That the demands of the Manor are not indifferent Clark Baron If it be so this Court shall have jurisdiction Manwood If the matter pass against you wrongfully wherefore may you not have an Assise And the Case of Beaumorris was cited but I remember not to what purpose i. The Mayor and Commonalty of Beaumorris were Patrons of a Chantry and they and the Chantry Priest made a Lease for years by Indenture in the end of which was this Clause In cujus rei testimonium tam the Priest quam the Mayor and Commonalty have put their common seal and it was moved that there was not any seal for the Priest for he could not have a common seal with the Mayor and Commonalty Clark Twenty men may seal with one seal and they may also seal with one seal upon one piece of Wax onely and that shall serve for them all if they all lay their hands upon the seal together Manwood They may all seal with one seal but upon several pieces of Wax Gent when many are parties to a Deed the words are Sigilla omnia which cannot be aptly said in this Case where all seal upon one piece of Wax XXVIII Barns and Smith 's Case 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of London 3 Len. 171. brought Debt for arrerages of Rent reserved upon a Lease for years of certain Mines demised

Inhabitants had used to till and sowe their Lands c. and they had used to be discharged of their Tithes of rakings after that the shocks were carried away And Coke who was of Council with the Parson durst not demurr upon it but traversed the Prescription Wray Chief Iustice The want of Meadow and Pasture in the Parish is the great matter here and there is not any mischief here as if they had surmised that for want of Meadow and Pasture they had eaten their Meadows with their Cattel And it was held by the whole Court that it was a good Prescription XXXI The Queen and Partridge 's Case Trin. 30 Eliz. In the King's-Bench 1 Cro. 125. IN a Quo Warranto brought against Partridge It was holden by all the Iustices That a man might prescribe to hold a Leet oftner than twice in a year and at other days than are set forth in the Statute of Magna Charta Cap. 35. because the said Statute is in the affirmative But Popham Attorney General said That one cannot prescribe against a Statute And it was moved by him If a general Pardon be granted with general Exception in it he which will have advantage of it ought to plead it and shew that he is not any person excepted for otherwise the Iudges cannot allow him the benefit of it because they do not know if he be a person excepted or not But if there be special persons excepted by name and no others excepted but so many persons there he need not to plead it for the Court may discern J. D. from J. S. 8 E. 4. 7. vide 26 H. 8. 7. If a man commits Felony and also Treason and afterwards comes a general pardon for Felony but Treason is excepted and the party is arraigned for Felony By Coke he shall have the benefit of the pardon Popham contrary For he is disabled by the Treason See Coke's Case 13 Eliz. Plowd 401. he pleaded to the Felony the general pardon by Act of Parliament and added that neither himself nor the said offence was excepted And it was agreed by the whole Court That in a Quo Warranto it is not sufficient for the Defendant to say That such a Subject hath lawfull interest to hold Leets without making title to himself for the Writ is Quo Warranto he claims them And afterwards Iudgment was given for the Queen XXXII Woodward and Bugg 's Case Trin. 30 Eliz. In the King's-Bench WOodward libelled in the Spiritual Court against Bugg and Nelson for Tithes of certain Lands called Christian-Hill 1 Cro. 188. Owen Rep. 103. 2 Roll. 63. 3 Len. 257. The Defendant sued a Prohibition and surmised That one Prettiman was seised of the said Land and in consideration of 5 l. by him paid to the said Parson it was agreed betwixt them That the said Prettiman and his assigns should be discharged of the Tithes of the said Lands during his life And afterwards the said Prettiman leased the same to the Defendants upon which a Prohibition was granted and it was holden that the party need not to make proof thereof within six months for it is not within the Statute because a composition with the Parson But now a consultation was granted in the same Cause because the agreement is shewed but no need of it the which cannot be any discharge but if it had been for a time i. Unica vice it had been good but contrary being for life Also there is not any express Grant of Tithes but onely a Covenant and agreement that he should be discharged upon which he may have an Action but no Prohibition It was said on the other side That although without Deed Tithes cannot pass in point of interest yet by way of discharge they well may Coke It was holden betwixt Pendleton and Green That upon such words of Covenant and agreement the party should hold the Lands discharged of Tithes which was denied For if the Grantee of a Rent-charge will grant it to the Lands without Deed it is not good And there was of late a Case betwixt Westbed and Pepper where it was agreed betwixt the Parson and one of his Parish that for twenty shillings Rent per ann the Parishioner should be discharged of Tithes for twenty years if he lived so long and it was holden that no Prohibition did lie thereupon a Fortiori where the Estate is for life Gawdy In a Case of grant of Tithes for life a Deed is requisite but here it is but a Covenant for money See 21 H. 6. 43. Wray If it had been for years it had been good but here it is not any Contract but onely a discharge for life which cannot be during his life without Deed And afterwards the Record was read which was Concordatum agreatum fuit between the two parties pro omnibus decimis during the time that one should be Parson and the other occupier of the said Lands that in consideration of 5 l. the said Prettiman and his assigns should hold the said Lands discharged of Tithes Wray The same is not a Contract but Promise for he doth not grant any Tithes c. XXXIII Devered and Ratcliff 's Case Pasch 32 Eliz. In the King's-Bench IN Debt the Plaintiff declared 1 Cro. 185. That he himself had brought an Action in London against one A. and had Iudgment to remove and a Capias was awarded and issued forth to take the said A. in execution upon which Non est inventus was returned upon which one of the sureties of A. being in prison in London under the custody of the Defendant upon a Plaint against him was detained in Prison for the said Debt so recovered against A. Secundum consuetudinem Civitatis praedict prout per record ejusdem Curiae apparet and after the Defendant suffered the surety to escape upon which there was a demurr The matter was If the said surety was a Prisoner in Law for the said Debt as surety of A. for in the Declaration it is not expresly laid that there was such a custom in London ut supra but onely Secundum consuetudinem c. And secondly there were two sureties of A. and the one of them onely is detained in execution Also the custome as it is here laid is not reasonable For a Scire facias ought to issue out against the sureties and they ought not to be taken or detained in execution presently For the condition of the Recognizance of sureties is That they bring in the Defendant if he be condemned or to pray the Debt and now by this custome the party who is surety being taken cannot plead the release of the Plaintiff or the death of the Defendant in his discharge as he might upon a Scire facias which was agreed per Curiam and adjudged accordingly XXXIV Clark and Green 's Case Trin. 30 Eliz. In the King's-Bench AN Action upon the Case was brought for these words He liveth by Charming Sorcery and Witchcraft It was moved

Postea 82 83. IN Ejectione firmae It was found by special Verdict That Mr. Graunt was seised of the Lands c. and by his Will devised the same to Joan his Wife for life and farther he willed That when Richard his brother shall come to the age of 25 years he should have the Lands to him and the heirs of his body lawfully begotten Mr. Graunt died having issue of his body who is his heir Richard before he had attained the age of 25 years levied a Fine of the said Lands with Proclamations in the life and during the seisin of Joan to A. Sic ut partes ad finem nihil habuerunt and if this Fine should bind the Estate-tail was the Question And the Iustices cited the case of the Lord Zouch which was adjudged M. 29 and 30 Eliz. Tenant in tail discontinues to E. and afterwards levieth a Fine to B. although the partes ad finem nihil habuerunt yet the Fine shall bind the entail But the Serjeants at Bar argued That there is a great difference betwixt the Case cited and the Case at Bar for in that Case the said Fine was pleaded in Bar but here the Fine is not pleaded but found by special Verdict To which it was said by the Court that the same was not any difference For the Fine by the Statute is not any matter of Estoppel or conclusion but by the Statute doth bind and extinguish the Estate-tail and the right of it and Fines are as effectual to bind the right of the entail when they are found by especial Verdict as when they are pleaded in Bar And by Periam Collateral Warranty found by Verdict is of as great force as if it were pleaded in Bar And afterwards Iudgment was given That the Estate-tail by the Fine was utterly destroyed and extinct XLIX Jay 's Case Trin. 29 Eliz. In the Common-Pleas JAY brought an Action of Debt before the Mayor of Shrewsbury c. and declared upon an Obligation which was upon condition to pay money at London and issue was there joined upon the payment And it was moved how this issue should be tried viz. 4 Inst 205. If it may be removed by Certiorare into the Chancery and thence by Mittimus into the Common-Pleas and from thence sent into London to be tried and when it is tried to be remanded back to Shrewsbury to have Iudgment See 21 H. 7. 33. Vpon voucher in the County Palatine of Lancaster the Law is such in matters real for real actions cannot be sued but in the said County Palatine but in personal matters it is otherwise for such actions may be sued elsewhere at the pleasure of the party And thereunto agreed the whole Court and although such matters have been removed before yet the same were without motion to the Court or opposition of the other party and so not to be accounted Precedents See 3 H. 4. 46. abridg'd by Brook Cause de remover Plea 41. Where he saith That a Foreign Plea pleaded in London in Debt goes to the jurisdiction but upon a Foreign Voucher in a Plea real the Plea shall be removed in Bank by the Statute to try the Warranty and afterward shall be remanded L. Sands and Scagnard 's Case Trin. 29 Eliz. In the Common Pleas. IN an Action upon the Case The Plaintiff declared that he was possessed of certain Chattels which came to the Defendant by Trover The Defendant pleaded That heretofore the Plaintiff brought Debt against the now Defendant and demanded certain moneys and declared that the Defendant bought of him the same goods whereof the Action is now brought for the summ then in demand to which the then Defendant waged his Law and had his Law by which Nihil Capiat per breve c. was entred And demanded Iudgment if c. And by Windham and Rodes Iustices The same is no bar in this Action for the waging of the Law and the doing of it utterly disproves the Contract supposed by the Declaration in the said Action of Debt and then the Plaintiff is not bound by the supposal of it but is at large to bring this Action and so Iudgment was given for the Plaintiff LI. Spittle and Davie 's Case Trin. 29 Eliz. In the Common-Pleas Owen Rep. 8 55. IN a Replevin the Case was That one Turk was seised of certain Lands in Fee and by his Will devised parcell of his said Lands to his eldest Son in tail and the residue of his Lands to his younger Son in Fee Provided that neither of my said Sons shall sell or make Leases of the Lands given or bequeathed unto them by this my Will or doe any Act with any of the said Lands to the hindrance of their children or mine by any devise or means before they come to the age of 30 years and if any of my Sons doe so then my other Son shall have the portion of my Lands so devised to his Brother the eldest Son before his age of 30 years leased the Lands to him devised ut supra for years against the intent of the said Proviso The younger Son entred 2 Cro. 398. and he leased the same Land for years before his age of 30 years Vpon which the eldest Son did re-enter and the opinion of the Court was that here is a Limitation and not a Condition and here the re-entry of the eldest Son was holden unlawfull for this Proviso did not extend but to the immediate Estate devised expresly to them and not to any new Estate which did arise upon the limitation and when the younger Son enters upon the eldest Son by the said Limitation he shall hold his Estate discharged of the Proviso or any limitation contained in it LII Martin Van Henbeck 's Case Trin. 30 Eliz. In the Exchequer AN Information was exhibited in the Exchequer against Martin Van Henbeck Merchant-stranger upon the Statute of 18 H. 6. Cap. 17. concerning the gaging of vessels of Wine and shewed That the Defendant had sold to such a one so many pipes of Wine and that none of them did contain as they ought 126. gallons and although they were so defective yet the Defendant had not defalked the price c. according to the want of measure for which he had forfeited to the Queen all the value of all the Wine so defective Exception was taken to the Information because there is not set down how much in every pipe was wanting as one or two gallons c. To as a ratable defalcation might be made according to the proportion of the want of measure But if the Informer had set forth in his Information that no defalcation was at all such general allegation of want of measure without other certainty had been good And the Case was cited 32 E. 4. 40. Lysle's Case Where the plea wants certainty or where he pleads that he was ready to shew to the Council of the Plaintiff his discharge of an Annuity c. and doth not shew

14. but contrary in a Writ of Habere facias seisinam or in a Liberate for in these Writs there are not such words and therefore although they be not retorned Execution done by virtue of them is good enough See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deliver the moyety of the Land and doth not retorn the Writ if the Plaintiff will plead a new Action of Debt the Defendant may plead in Bar the Execution aforesaid although the Writ be not retorned nor doth remain upon Record and it is not like unto the Case of Partition made by the Sheriff for that must be retorned because that after the Retorn of it a secondary Iudgment is to be given scil Quod Partitio praedict firma stabilis remaneat in perpetuum firma stabilis in perpetuum tenetur says the Book of Entries 114. And Egerton the Solicitor-General cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield Earl of Leicester and Tanfields case That such an Execution was well enough although the Liberate was not retorned The second point was Admitting that it be a good Execution If the Executors being in possession of the Manor and suffering the Conusor to hold a Court there and saying the words aforesaid in the presence of the Lord who is Conusor if the same do amount unto a Surrender or not And it was the Opinion of Wray chief Iustice That it was not a Surrender for that here the words are not addressed to the Conusor who was capable of a Surrender but to other persons And it is not like unto the Case of 40 E. 3. 23 24. Chamberlains Assise where Tenant for life saith to him in the Reversion That his Will is that he enter upon the Land the same is a good Surrender because here is a person certain who may take the Land But in our case it is but a general speech and therefore it shall not be a Surrender LXVI Baskervile and Bishop of Hereford 's Case Mich. 29 Eliz. In the Common Pleas. IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford and others the Plaintiff counted That Sir Nicholas Arnold Knight was seised of the Advowson 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 died his Heir being within the age of twenty three years that then the Grantees and their Heirs should be seised to themselves and their Heirs until the said Richard had accomplished the said age Sir Nicholas died Richard being but of the age of fourteen years by force whereof the Grantees were possessed of the said Advowson c. and afterwards the Church became void and so it appertained to them to present Exception was taken to the Count by Serjeant Gawdy because the Plaintiff had not averred the life of Richard upon whose life the interest of the Plaintiff did depend and he compared the same to the Case of the Parson which had been adjudged 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 the life of the Parson was not averred and for that cause the Iudgment was stayed Anderson Vpon the dying of Sir Nicholas Richard being but of the age of fourteen years an absolute Interest for nine years vested in the Grantees not determinable upon the death of Richard or rather they are seised of a Fee determinable upon the coming of Richard to the age of 23 years Rhodes and Windham Iustices contrary and 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 it was argued by Puckering Serjeant That the Count was good enough for although the life of Richard be not expresly added yet such an averment is strongly implied and so supplyed For the Count is Quod dictus Nich. obiit dicto Richardo being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem Nich. sic possessionato existente the Church voided and possessed he could not be if not that the said Richard had then been alive and that is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking of his Close the Defendant pleaded 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 whom B. re-entred and leased to the Plaintiff at will by force whereof he was possessed untill the Defendant did the Trespass and that was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is supplied by the words scil virtute cujus the Plaintiff was possessed untill the Defendant did the Trespass See also 10 H. 7. 12. In an Assise of Common The Defendant made Title that he was seised of a House and a Carve of Land to which he and all those whose Estate he hath c. had common appendant and doth not say That he is now seised of the House but the exception was disallowed for seisin shall be intended to continue untill the contrary be shewed LXVII Morgan and Chandler 's Case Trin. 29 Eliz. In the King's-Bench IN Debt for Arrerages of Rent by Morgan against Chandler It was found by special Verdict That the Land out of which c. was assured by an Act of Parliament to the Marchioness of Northampton for the term of her life the remainder to the Lady Bourcher her daughter and the heirs males of her body the remainder to King H. 8. in Fee And it was ordained by the same Act Quod omnes concessiones dimissiones Anglice Grants and Leases factae vel in posterum fiendae by the said Marchioness of the Lands aforesaid per script Indentat dict Marchio bonae validae in Lege erunt durante termino c. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendring 10 l. Rent who assigned the same to the Defendant The Lady Bourcher died without Issue the Marchioness died and if the Lease should now bind the Queen was the Question And it was moved by Clark of Lincoln's-Inn That it should for the King was party to the Act of Parliament and those Estates for life in Tail and in Fee are all as one Estate and derived out of one Estate and the Estate of the King is bound with the Lease and it was moved by Broughton That the Lease should not bind the Queen and so by consequence not her Patentee and he

all this was before the Statute of 14 Eliz. And if the said Recovery should bind B. who was in the remainder in tail or if it be a forfeiture was the Question Altham of Gray's-Inn argued that here is a forfeiture First it is to see if a common Recovery suffered hy Tenant for life who is also Bargainor in this case be a forfeiture or not by the Common Law if no Execution be sued upon the same Recovery Secondly If the Recovery be executed if he in the Remainder may enter for the forfeiture When Tenant for life bargaineth and selleth the Messuage Post 65. acc 1 Len. 264. 1 Inst 251. b. acc 1 Inst 330. b. c. although upon it an Estate in Fee be limited yet nothing passeth from him but that which he may lawfully pass and that was the Estate for the life of the Bargainor for such Estate onely might lawfully pass and here the Bargainee is but Tenant for the life of another and when with his own consent he suffers a common Recovery and that without right the same is a forfeiture By matter in fact a particular Tenant may commit a forfeiture as well as by matter of Record By matter in fact he cannot commit a forfeiture if the Reversion be not thereby pulled out of him in the reversion As if Lessee for ten years maketh a Lease for 1000 years the same is no forfeiture for by that the Reversion is not touched but if he in matter of Record doe any thing which sounds to the disinheriting of him in the Reversion although in truth it doth not touch the inheritance yet it is a forfeiture which see 39 E. 3. 16. If Tenant for life plead any thing against the right of him in the Reversion it is a forfeiture And by Finchden and Belknap he cannot plead to the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution and the Lessor brought an issue and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the Reversion in another because it is an alienation to the disinheritance of the Plaintiff i. the Lessor 19 E. 3. t. Receit 14. where Tenant for life pleads in chief or doth not gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate but if a Rent be demanded against Tenant for life and he render the same it is no forfeiture 22 Ass 31. Tenant for life is impleaded by Covin betwixt him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the Reversion may enter In a Quid juris clamat against Tenant for life who pleaded faulty traversing the point of the Action he in the Reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. of default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In a Scire facias to execute a Fine against Tenant for life who pleaded to the Enquest whereas in truth the Land in demand was not comprised within the Fine and Iudgment is given for the Demandant in the Scire facias that he in the Reversion may enter In the principal Case here there is apparent and manifest covin for the Tenant for life is vouched without cause and this Recovery is by assent and is to the use of the Bargainee who is Tenant for the life of another and therefore by the Common Law he in the Reversion may enter before the Execution be sued And it is well known that these common Recoveries are used to dock a Remainder in tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the vouchee and it is found for him he in the Reversion hath no remedy but a Writ of Right and if such vouchee enters into the Warranty and loseth by Action tried or by default c. That Book is to be intended of a Recovery executed for there in such a case he in the Reversion may not enter but is put to his Writ of Entry by the Common Law vide Br. Tit. Forfeit 87. 24 H. 8. Tenant for life is impleaded and prayes in aid of a stranger he in the reversion may enter but if he doth not enter untill the other hath recovered then he cannot enter but he is put to his Writ of Entry Ad terminum qui praeteriit vel de ingress ad com Legem and therein shall falsifie the Recovery And there by Brook Voucher of a stranger is not a cause of forfeiture for he doth not disaffirm the Reversion to be in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the Right without aid prayer and so he argued That before execution he in the Remainder might enter but after execution he is put to his Action but in our Case although Execution be sued yet he in the Remainder may enter for it is found by verdict That at the time of the Recovery he was within age and then no Laches of entry shall be imputed unto him and then he shall not be driven to his Action As if Tenant by the Curtesie maketh a Feoffment with Warranty and dieth and the same descendeth to his Heir within age yet he shall enter although that he had not avoided the Warranty in the life of his Ancestor And he also conceived that the Statute of 32 H. 8. cap. 31. did extend to this Case For Sir William Pelham the Bargainee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life The words of the Statute are or otherwise for the term of life or lives quo ad nom As upon the Statute of 20 E. 1. which gives receit i. de defensione juris the words are Cum quis aliquod Breve Dom. Regis impetret versus tenentem per Legem Angliae vel feodum talliatum vel sub nomine Dotis vel alio modo ad terminum vitae c. Also although that he who entreth at the time of the recovery was not next in the Remainder to the particular Estate yet he is within the Statute of 32 H. 8. for he was in the Remainder at the time of the Recovery and at the time of the entry he in the immediate Remainder was dead and then he next in Remainder See 15 E. 4. 9. by Littleton If I grant my services to one for life and he in a Praecipe brought against him plead in the Right or granteth unto another the said services in Fee the same is not any

years is out of the Book for by the Statute of 21 H. 8. cap. 15. he may falsifie the Recovery but no Receipt lieth in the case of a common Recovery for that he who recovers cannot put out the Termor As to that which my Brother Clark hath said That the bargain and sale in this case is not any forfeiture but when the bargain and sale is enrolled then it is a forfeiture I am not of such Opinion for although that the Enrolment be of Record yet the Deed is not of Record for against a Deed enrolled a man may plead Infancy although none can plead Non est factum Also he held That although by the bargain and sale and the Enrolment of it the Bargainee had not a fee for by such act the Reversion is not removed yet by the Recovery and the Execution of it the Bargainee hath gained a fee out of the Lessor for the Recovery is to the use of the Bargainee against whom it was had It hath been objected that here is onely a Voucher which paradventure was lawfull in this case by reason of a warranty paramount or of a Release or Confirmation with warranty and two Cases have been vouched to that purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe voucheth a stranger the Demandant counterpleads the Voucher which is found for him he in the Reversion hath no remedy but a Writ of Right so if the Vouchee had entred into the warranty and lost c. As to that book we ought not to conceive That every Case reported in our books is Law but let us observe of what authority that case is truly it is the conceit of the Reporter himself for he puts the Case and resolves the case but no Iudge or Serjeant is named in the case c. The other case is 5 E. 4. 2. b. Note by Heydon clearly If my Tenant for life voucheth a stranger who entreth into the warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the Reversion of that which he hath in value shall be in me in lieu of my former Reversion as a Release to the Tenant for term of life shall enure to him in the Reversion But that is but the Opinion of one Serjeant c. But I answer to these books If the demandant in such recovery hath a good Title so as the Tenant or the Vouchee as Heydon saith do not know how to bar the Demandant there such Voucher of a stranger is no forfeiture nor such Recovery suffered upon it for against his Will volens nolens he suffered it but if the Tenant hath good matter to bar the Demandant and no good cause of Voucher nor any warranty as the matter is in the case of a common Recovery there the Voucher of a stranger or suffering of a Recovery is a forfeiture of his Estate And here in our case if the Demandant hath not any Title the Tenant or Vouchee hath not any warranty but the Tenant might have barred the Demandant if he would And he said That the Voucher onely doth not make the forfeiture but rather the recovery for when Iudgment is given and Execution is had then the Fee is plucked out of the Reversioner vide 6 R. 2. If Tenant for life claimeth a Fee the same is a forfeiture but here Sir William Pelham hath done more for he hath gained Fee by the Iudgment therefore à fortiori it shall be a forfeiture But let us see a little what meddlings or attempts by the particular Tenants are causes of forfeiture and what not 5 Assis 3. A. brought a Writ of Entry against Tenant for life by Collusion to oust B. of his Reversion supposing that the Tenant for life held of his Lease the Tenant confessed the Action upon which Iudgment is given B. enters and his Entry adjudged lawfull for this Recovery is adjudged in Law but an alienation to the disinheritance of him in the Reversion and there it appeareth that such Recovery by Covin is but an alienation and without any strength of a Recovery And he cited many other cases cited before by Altham 14 E. 3. Recept 135. where Tenant for life pleads in chief and prays in aid of a stranger where he might bar the Demandant and would not the same is a forfeiture Also 2 E. 3. 2. and 27 E. 3. where Tenant for life in a Quid juris clamat attorned to the Conusee upon a Fine levyed by him that had not any thing in the Land the same was a forfeiture and yet the Attornment doth not devest the Reversion out of the Lessor 50 E. 3. 7. and 8. Land was given by Fine in tail the Remainder over to a stranger in fee the Donee took a Wife and died without issue the Wife accepted Dower assigned by a stranger he in the remainder brought a Scire facias against the Wife she is Tenant in Dower of the assignment of a stranger and pleads to the Title the Demandant recovereth she hath lost her Dower for she hath not pleaded as she ought being a particular Tenant c. H. 4. Tenant for life loseth his Land in a Recovery against him against his Will and thereupon brings Quod ei deforceat and declares upon an Estate-tail and recovers the same is a forfeiture because he hath challenged a higher Estate than he had 5 H. 5. Tenant for life joyns the Mise upon the meer right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger upon condition come ceo c. all these are forfeitures In the principal Case here the Tenant who suffers his Recovery doth not plead at all to defend the Right but whereas he might have barred the Demandant he giveth strength to his pretended Title and makes it a perfect Title and by suffering this Recovery and Iudgment to pass upon it he hath taken the Reversion out of the Lessor to whom he owed Fealty and therefore he shall forfeit his Estate And without any doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title but the Recoverors in such cases are but as Assignees or Purchasors which appears by the Statute of 7 H. 8. ca. 2. which gives Distress and Avowry to Recoverors c. As to the inventing of Recoveries it was a necessary device for it was to take away Estate-tails which were the causes of great mischiefs and inconveniencies in this Realm and there was great reason for it for Tenant in tail might by the common Law alien his Lands post prolem suscitatam and now he hath an Inheritance and may do Waste But he was so restrained by the Statute of West 2. that all the Realm and the Subjects in it were inveigled thereby Ioyntures of Wives Leases of Fermors Mortgages to Creditors Statutes and other Assurances were defeated by the deaths of Tenants in tail which

was both against the common Law and also against all Conscience These matters coming to the knowledge of the Iustices and the mischiefs thereupon following being very frequent and it appearing that the Tenant in tail was a dangerous fellow and that there was no safe dealing with him they took consideration of them and considering also with themselves That Lineal Warranty and Assets and Collateral Warranty without Assets did bar the Entail upon this consideration they grounded the practice and usage of common Recoveries So as by that means Tenant in tail hath Potestatem alienandi as he hath at the Common Law and by this means right was done to the Common Law because its authority was restored and thereby injury was done to no man But as for Tenant for life he never had Potestatem alienandi And as to that which hath been said That the recovery shall stand in force untill after the death of Tenant for life and in our Case here Tenant in tail is alive Truly if the Law should be such great mischiefs would follow For then great Iointresses the Widows of great persons having assurances to them of great and stately Houses and of Lands furnished with Timber of great yearly value might suffer such Recoveries and so having plucked the Fee out of the Heirs might commit waste and the same should be dispunishable which would be an intolerable mischief and so he concluded that the suffering of a Recovery was a forfeiture and Iudgment Trin. 21 Eliz. was given and entred accordingly XC Noon 's Case Trin. 31 Eliz. In the Exchequer DEBT was brought in London against one as Executor and upon fully administred pleaded it was found for the Plaintiff who assigned the same to the Queen whereupon a Scire facias issued out of the Exchequer against the Defendant into the County of Dorset The Serhiff retorned Nulla bona c. which Scire facias was upon a Constat of goods in another County It was agreed by all the Barons that the Debt was well assigned to the Queen And also that the Scire facias might issue forth of another Court than where the Record of the Iudgment remained and that upon a Constat of goods in another County than where the Writ is brought or where the party is dwelling he may well have a Scire facias in another County But the Retorn was challenged because contrary to the verdict As in a Replevin No such beast is not a good Retorn but Averia elongata or Nullus venit ex parte querentis ad monstrand averia And here the Sheriff might have retorned Devastavit which well stands with the Verdict 5 H. 7. 27. But as to that it was said by the Barons That it is true that the Sheriff of the County where the Writ was brought is concluded by the Verdict to make any retorn contrary to it but the Sheriff of another County shall not so be but the Sheriff of the County where the Writ is brought ought to retorn Devastavit c. and thereupon the Plaintiff shall have Process into another County But the Question farther was If a Scire facias upon Testatum shall issue into another County before that the Sheriff of the County where the Writ is brought had retorned a Devastavit for some conceived That a Devastavit where the Writ was brought ought first to be retorned and then upon a Testatum Process should issue forth into any County within England But others were of opinion That without a Devastavit retorned upon a Testatum Process might be sued forth immediately into any other County Williams said If I recover goods by Action brought in Midd. I may upon a Testatum have a Capias into any foreign County XCI Western and Weild 's Case Trin. 31 Eliz. In the Exchequer IN a Writ of Accompt brought in London the Defendant pleaded Never his Receiver c. which was found for the Plaintiff and Iudgement given that the Defendant should accompt Afterwards the Defendant brought his Writ of Privilege and if the same should be allowed after Iudgment was the Question Coke It shall be allowed for the Defendant hath not surceased his time This Iudgement to accompt is not properly a Iudgment for no Writ of Error lieth upon it before the accompt be ended Manwood Regularly after Iudgment no privilege shall be allowed but that is to be intended of a Iudgment ended but here notwithstanding this Iudgment the Action is depending and therefore he conceived that the privilege should be allowed in this case It was objected That then the Plaintiff should be at great mischief for he should lose the advantage of his Trial for he must begin again and plead again and have a new Trial. Clark the Plaintiff shall have benefit of his former Trial by way of Evidence XCII Brian and Cawsen 's Case Trin. 27 Eliz. In the Common-Pleas Rot. 1353. 3 Len. 115. IN an Action of Trespass by Brian and his Wife and others against Cawsen That William Gardiner was seised in Fee according to the custome of the Manor of C. of certain Lands and surrendred them to the use of his last Will by which he devised them in this manner i. I bequeath to John Th. my House and Land in M. called Larks and Sone To Steph. Th. my House and Land called Stokes and Newmans and to Roger Th. my House and Lands called Lakins and Brox. Moreover If the said John Stephen or Roger live till they be of lawfull age and have issue of their bodies lawfully begotten then I give the said Lands and Houses to them and their Heirs in manner aforesaid to give and sell at their pleasure but if it fortune one of them to die without issue of his body lawfully begotten Then I will that the other brothers or brother have all the said Houses and Lands in manner aforesaid and if it fortune the three to die without issue in like manner Then I will that all the said Houses and Lands be sold by my Executor or his Assigns and the money to be given to the poor The Devisor dieth John Stephen and Roger are admitted according to the intent of the Will Roger dieth within age without issue John and Stephen are admitted to his part John comes of full age and hath issue J. and surrenders all his part of the whole and his Estate therein to the use of Stephen and his heirs who is admitted accordingly Stephen comes of full age John the father dieth Stephen dieth without issue John the son as cosin and heir of Stephen is admitted according to the Will and afterwards dieth without issue The Wives of the Plaintiffs are heirs to him and are admitted to the said Lands called Larks and Sone and to the moyety of the Lands called Lakins and Brox parcell of Lands where c. by force whereof they enter into all the Lands where the Trespass is done and it was found That A. sole Executor died intestate and that Cawsen

adjugded in the Case of one Winnibank in the King's-Bench CIII Seckford and Wolverston 's Case Psach 26 Eliz. In the King's-Bench THE Plaintiff being Bailiff of the Liberty of Esheld in the County of Suffolk the Sheriff of the said County directed a Warrant unto him to arrest the Defendant upon a Latitat retornable in the King's-Bench by force of which the Defendant being arrested became bound in the Obligation upon which the Action is brought the Condition of which is 1 Cro. 672. 776. Owen Rep. 40. That if the Defendant personally appear in the King's Bench at Westminster and there to answer c. It was moved that the Obligation was void by the Statute of 23 H. 6. For the form which the said Statute prescribes for Obligations to be taken by the Sheriff is according to these words Appear at the day contained in the Bill Writ or Warrant and in such place c. and that all Bonds taken in other form shall be void As to the words of surplusage personally the Iustices were of opinion that the Obligation was well enough notwithstanding that because as the Case is the appearance of the Defendant ought to be in person upon a Latitat for the Defendant is supposed to be in Custodia Mariscal And so it hath been adjudged in the Common-Pleas where the appearance of the party arrested is de jure personal c. contrary where personal appearance is not requisite As to the other matter and there to answer Wray put a difference where the words are there to answer that the Bond is well enough for it is no more in effect but that he shall appear eo animo ut respondeat But if the words had been Appear and Answer the same is a void Condition for it may be that the Plaintiff will never declare against him But Gawdy and Ayliff Iustices were of a contrary opinion and that the Bond was void by reason of the words aforesaid but the Court would not give Iudgment against the Plaintiff but ex gratia Curiae suffered the Plaintiff to discontinue his Action CIV Partridg and Pool 's Case Pasc 26 Eliz. In the King's-Bench IN an Action of Trespass by Partridg against Pool 3 Len. 97. the Plaintiff did suppose the Battery at D. in the County of Midd. The Defendant justified by reason of an Assault at S. in the County of Glocester absque hoc that he beat the Plaintiff at D. in the County of Midd. upon which Traverse the Plaintiff did demur in Law. 1 Cro. 842. It was argued by Popham Attorny-General That the Traverse of the County is good and he put the Case 21 H. 6. 8 and 9. In Trespass of Battery at D. in the County of York the Defendant doth justifie by an Assault at London in such a place in such a Parish and the hurt which c. absque hoc that he was guilty de aliqua transgressione in Com. Ebor. upon which issued a Venire facias into Yorkshire and as the book is the Traverse to the County was taken with great deliberation c. prout c. See also 22 E. 4. 39. And the Traverse de jure ought to be allowed for the Iury of Midd. are not bounden to find the Assault in the County of Glocester See 2 Ma. Br. Jurors 50. In Actions upon transitory matters although they be laid in Foreign Counties yet the Iurors if they will may give their Verdict but they are not bounden to it Egerton Solicitor contrary And he put a difference where the justification is local and where transitory As in false Imprisonment the Defendant justifies as Sheriff the taking of the Plaintiff by virtue of a Capias directed to him at D. within the County of G. where the Plaintiff declares of an Imprisonment in another County there the Traverse of the County is good for the Defendant could not take the Plaintiff by force of the said Process in any other County than where he himself is Sheriff and so the justification is local 11 H. 4. 157. But in our case the matter of the justification is merely transitory And at last after many motions it was adjudged That in the principal Case the County was not Traversable and so Iudgment was given for the Plaintiff Gawdy Iustice being of a contrary Opinion but by Wray clearly The Iurors are bounden upon pain of Attaint to take notice of such a transitory thing done in another County which see 2 Ma. Br. Attaint 134. 9 H. 6.63 CV Daw 's and Mollins 's Case Pasc 26 Eliz. In the King 's Bench. IN an Attachment upon a Prohibition by Daws against Mollins for that the Defendant traxit Querent in Curiam Christian for Tithes of great Trees sub nomine sylvae ceduae The Defendant pleaded that the Loppings for the Tithes of which he sued were the Loppings of Trees called Asp Beech and Oak de stipitibus prius succisis crescentes and also for Hornbeams Maples Hazels c. The Plaintiff as to the Asp Oak and Beech did demur in Law and as to the residue he pleaded that with part he mended the Hedges and the rest being de minimo valore were bound up with the boughs of the Oak c. into Faggots upon which the Defendant did demur in Law. It was argued by Egerton Solicitor on the part of the Plaintiff and he held That a Wood of common Right ought not to pay Tithes not because the soil in which it groweth yields other Tithes of the Herbage but because non renovantur in annum and therefore at this day no Consultation shall be granted for Quarry Stone and Coals But after came the Statute of Sarum vide F. N. B. 51. h. by which it was agreed coram Concilio Regis in Parliamento apud Sarum Quod Consultationes fieri debeant de sylva cedua eo non obstante quod non renovantur per annum and see to that purpose the Register 49. Et ulterius super hoc facta fuit quaedam Consultatio pro Abbate de Notley de sylva cedua which Statute was afterwards expounded by the Statute of 45 E. 3. cap. 3. not to extend to great Wood of the growth viginti annorum vel amplius but onely to such Wood which is called Sylva Cedua And at last after many motions it was ruled That because the Defendant had not shewed that the Trees scil Oak Ash and Beech were not before cut within twenty years before the last succision of which the Tithes are now demanded Tithes shall not thereof now be paid And as to the other point That the Hornbeams Sallows c. did grow sparsim amongst the Oaks and the Owner felled the whole Wood and caused them to be promiscuously cut into Faggots and bound up in Faggots together and the most part of every Faggot was Oak and the residue was of little value so as the severance of the Sallows c. from the Oak c. would not quit the charge in such

Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had

them away and that he had offered that matter by way of Plea in the Spiritual Court but they there would not allow of it And the Court was clear of opinion That the suggestion was good for if the Parishioner setteth out his Tythes and the Parson will not take them or if they be destroyed by Cattel by his Laches he shall not have Tythes again and therefore if the Ecclesiastical Court will not allow that Plea it is reason that the party have a Prohibition for after severance transit decima in Catalla But it was said by the Court That if the Parishioner doth set forth his Tythes and takes them again he may be sued for Tythes in the Spiritual Court and the setting forth shall not excuse him CXXV Walter against Pery and Springe Mich. 32 Eliz. In the King's-Bench WAlter brought a Scire facias against Pery and Springe Sureties for one Brook upon Bail in an Action of Debt The Defendants pleaded the death of Brook before Iudgment given against him And all the Iustices except Wray held that the Plea was not good for it is a surmise against the Iudgment for Iudgment cannot be given against a dead man. Wray The same is Error in fact and of such Error the party may have advantage in this Court. Gawdy The Surety cannot take advantage of Error nor plead it for he is a stranger to the Record Wray He may plead that the Defendant is dead after the Iudgment quod fuit concessum but it was ruled That the Defendants should be sworn that their Plea was true CXXVI Aldersley and Duparrie 's Case Mich. 32 Eliz. In the King's-Bench IN Debt upon an Obligation bearing date 4. Julii 30 Eliz. The Defendant pleaded that it was endorsed with condition to pay 50 li. before 15 Octob. 31 Eliz. and pleaded that he had paid it before the 15. of Octob. aforesaid scil the ninth of June 30. Eliz. which is three Weeks before the date of the Obligation upon which the Action is brought And they were at Issue That the Defendant Non solvit before 15 Octob c. And the Iury have found That the Defendant had not paid it before 15 Octob. and that matter was assigned for Error for that Plea is contrary and repugnant in it self to alledg the payment before the date of the Obligation But it was moved That here the day of payment is not material and but matter of surplusage for the Issue is Whether the Defendant paid the money before the 15. day of October and the Iury have found the negative so as the day in the Scilicet is not material and the alledging of that is matter of surplusage As 20 H. 6. 15. Trespass Quare clausum fregit herbam consumpsit continuand transgress from such a day usque ad diem impetrationis brevis praedict Scilicet 14 F. 17 H. 6. whereas the date of the Writ fuit 12. Octob. 17 H. 6. scil the October before February But it was not allowed for the day of the Writ brought is certain enough and the mistaking in the Scilicet is not to any purpose Wray Payment before the day is not a good Plea if he doth not shew the day and place It was adjourned CXXVII Parker and Burton 's Case Trin. 31 Eliz. In the King's-Bench IN an Action upon the Case for slanderous words scil That the Plaintiff was perjured The Defendant doth justifie That whereas a suit was prosecuted in the Exchequer-Chamber at Westminster betwixt the Defendant and another and from thence a Commission was awarded out of the said Court to divers persons to examine certain Witnesses at B. in Berk. and there by virtue of the said Commission the Plaintiff was deposed false deposuit praetextu cujus he spake the said words Antea 811. The Plaintiff replicando saith De injuria sua propria absque tali causa upon which Issue was joined and tried in Berk. and found for the Plaintiff And it was moved by Coke in Arrest of Iudgment That the said Issue ought not to be tried in Berks onely but by both Counties Mid. and Berks for all the matter of justification doth arise out of both Counties the Suit and the Commission which was in Midd. and the Execution of the Commission and the Oath which were in Berks all which matters is but one Case as 2 H. 7. 3. and 4. Atkinson The Trial is well for the manner for the matter of the justification is the Perjury and the Suit and Commission are but induction and conveyance to the Action Also the Defendant hath not shewed that the Exchequer-Chamber is in the County of Midd. as he ought As where a man pleads a thing done in any Court except in the Common-Pleas he ought to shew in what County the said Court was at the time that such thing was done for Communia Placita teneantur in loco certo Gawdy and Wray When the Defendant doth justifie by reason of the Perjury and the Plaintiff replies without such cause the same amounts to as much as if he had traversed the Perjury which being supposed to be committed there shall be tryed there Coke It was the Case of one Loveday 25 Eliz. In an Action upon the Case for slanderous words the Defendant did justifie by reason of a Robbery committed by the Plaintiff in another County and the Plaintiff pleaded De son tort demesne sans tiel Cause the same shall be tryed by both Counties See 2 H. 7. 3. Also it was moved that here it is not shewed in what County the Exchequer Chamber is Admit that it be in Berks yet it ought to be tryed by both Counties and that was Chelderlie's Case And although it be not shewed in what County the Exchequer Chamber is the Plaintiff had Iudgment to recover and the Tryal was held good enough CXXVIII Sir Tho. Bacon 's Case Hill. 31 Eliz. In the King 's Bench. A Writ was awarded out of the Court of Admiralty against Sir Thomas Bacon and Sir Thomas Heyden to shew cause whereas the Earl of Lincoln late High Admiral of England had granted to them by Letters Patents to be Vice-Admirals in the Counties of Norfolk and Suffolk why the said Letters Patents ought not to be repealed and adnulled and so the said Writ was in the nature of a Scire facias And now it was made by Coke Postea 114. That although the Admiral had but an Estate for life yet the Patents did continue in force after his death As the Iustices here in the Common Pleas although they have their places but for life yet they may grant Offices which shall be in force after their deaths c. And because this matter is determinable at the common Law he prayed a Prohibition for in the Admiral Court they will judge according to the Civil Law and the Court gave day unto the other side to shew cause unto the contrary or otherwise a Prohibition should be awarded CXXIX Weshbourn and Mordant

of it is taken away by the act of the Plaintiff himself CLIV. Heal 's Case Pasch 30 Eliz. In the King's-Bench HEal a Bencher of the Inner Temple being at the Bar Wiat another Apprentice at Law informed the Court against the said Heal and shewed That where his Client had obtained a Iudgment in the King's-Bench The said Heal being of Council with the other part did advise his Client to bring the party who had obtained the Iudgment into the Chancery and he procured an Order against him Co. 3 Inst 12. 123 124. 4 Inst 86 91. by which he was cast into Prison Which matter Heal could not excuse but submitted himself to the Court saying That he had seen a precedent which induced him so to doe and that was the Case of one Prince Princes Case where a Iudgment given in this Court was drawn into question and examined in the Chancery But the Iustices said That the same was an ill precedent and against the Statute of 4 H. 4. which is That no Iudgment be undone but by Error or Attaint CLV Gray and Constable 's Case Pasch 30 Eliz. In the King's-Bench SIR Thomas Gray covenanted with the Lady Constable That where he is possessed of a Lease for twenty one years of certain Lands That he will assure convey and assign the said Lease to one Nevil excepting the two last years of the said twenty one years and he said Sir Tho. Gray was bound in a Bond to perform the Covenants of the said Indenture upon which Indenture the Lady brought Debt against the said Sir Tho. Gray who pleaded the Conditions and the performance of them The Plaintiff replicando said That the Defendant non assuravit conveiavit transposuit Anglice set over the said Lease upon which they were at issue And at the day of the Nisi Prius it was moved by Cooper and Beaumont That the Issue was misjoined for the Defendant pleads as the Covenant it self is That he had assured conveyed and assigned the Lease and so pleaded the performance of other Covenants c. The Plaintiff assigned the breach in this Quod non assuravit conveiavit transposuit Anglice set over which word transposuit is not in the Covenant nor in the pleading of the performance thereof and the English word set over although it sounds the same with assigning doth not help the matter and if the Latin word doth not agree with the matter non refert of the English word although in the Plea there be this word Anglice set over Note the Covenant was ut supra The Plaintiff assigned the breach Quod non assuravit conveiavit transposuit Anglice set over c. And the Defendant pleaded Quod assuravit conveiavit transposuit Anglice set over c. And the Court was clear of opinion That the Issue for that cause was not well joined And afterwards by the assent of the parties it was amended CLVI Doghead 's Case Pasch 30 Eliz. In the King's-Bench Hutt 35. Hob. 250. Antea 110. 1 Cro. 177. And. 116. AN Information was upon the Statute of 27 Eliz. cap. 4. by the party grieved which Statute gives unto the King one moyety of the value and the other moyety to the party grieved The Plaintiff was nonsuit It was holden by the Court that he shall not pay costs and damages by the Statute of 18 Eliz. for the Statute as the Title of the same doth imply is to redress Disorders in common Informers and so is the Preamble and the words also of the clause of costs and damages are Every such Informer and so by Ive Secondary of the Crown-Office An Action given to the party grieved is not a popular Action and the Statute of 18 Eliz. extends onely to popular Actions CLVII Cony and Chomley 's Case Pasch 30 Eliz. In the King's-Bench IN an Ejectione Firmae after Verdict in Arrest of Iudgment it was moved That the Plaintiff had declared in Ejectione Firmae Quod cum Robertus Diggon per Indenturam suam gerent dat 20 Maii 1 Cro. 773. 890. dimisit c. where he ought to have said iisdem die anno For although the Indenture bear date ut supra yet it may be that it was delivered at another day and then it doth begin to be a Demise And if in an Action upon the Case upon Assumpsit to pay money upon request although it be found for the Plaintiff yet if no day be put in the Declaration when the request was made but onely licet saepius requisitus in case where a request ought to be made there the Plaintiff shall not have Iudgment as it hath been oftentimes adjudged Quod omnes Justiciarii concesserunt But yet afterwards notwithstanding the Objection aforesaid Iudgment was given for the Plaintiff CLVIII Marsh and Jones 's Case Mich. 29 and 30 Eliz. In the Common-Pleas IN a Replevin the Case upon the Evidence was 3 Len. 114. That before the Statute of Quia Emptores terrarum a man made a Feoffment in Fee to hold of him by the service solvendi post quamlibet vacationem sive alienationem the value of the annual profits of the Lands And it was holden by the Court That the value shall be intended such a value as was the value at the time of the Feoffment made and not as it is improved by succession of time CLIX. Willoughby 's Case Mich. 29 and 30 Eliz. In the King's-Bench WIlliam Willoughby and two other were indicted 1 Cro. 3 Len. 216. That whereas the Parson of the Church of D. and all his predecessours have used to have Common in such a place the said Willoughby c. vi armis c. had inclosed it and the Inclosure was upon their own Lands It was moved That upon this matter they ought not to be indicted but the party grieved is put to his Action as where a Presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Morden Morden's Case 1 Cro. Madox Case 29 Eliz. upon the stopping of a Way upon his own Land And it was said That if it should be upon the Lands of another it were not material for it is but a hindrance from the taking of Common which cannot be vi armis Also it was said That the Indictment is recorded and certified as found before the Iustices of Assise and Gaol-delivery and they cannot take such Presentments And although the said Iustices of Assise and Gaol-delivery were in rei veritate also Iustices of the Peace yet the Indictment being recorded and certified to be taken before them in quality of Iustices of the Peace will not help it for the Court shall not respect any other authority but that which appeareth upon Record and therefore for the causes aforesaid they were discharged by the Court. CLX Collet and Robston 's Case Error Hill. 30 Eliz. In the King's-Bench 3 Len. 149. COllet and Andrews recovered in a

not pay them and the creditors sue them in the Spiritual Court they shall not have a Prohibition Vide 6. H. 3. Prohib 17. which Anderson Vehementer negavit and afterwards the Iustices looked and advised upon the Indenture and found that the indenture and Obligation were made to the friends of the mother of the daughters and not to the daughters themselves to whom the Legacies were give and bequeathed and therefore were of opinion that a Prohibition did not lie CLXV Thorp and Tomson 's Case Hill. 30 Eliz. In the Common Pleas. Rot. 336. IN Ejectione firmae It was found by special Verdict That one Thimblethorp was seised of the lands where c. and by Contract sold the same to Thorp but no assurance was yet made and afterwards Thorp before any assurance made sold likewise the said lands to Tomson and afterwards Thimblethorp made assurance thereof to Tomson and afterwards Tomson being seised devised the Lands to his younger son Dyer 376. by these words I bequeath to R. my son all the lands which I purchased of Thorp whereas in speaking the truth according to Law he purchased them by immediate assurance of Thimblethorp although he did contract with Thorp for the same And the opinion of the whole Court was without argument either at Bar or at the Bench That the Devise was good for in the repute of the people they preseised of Thorp for Tomson paid the monies for the same to Thorp and the Court commanded Iudgment to be entred accordingly And afterwards Exception was taken to the Verdict because it is not found by what service the land devised was holden Socage or Knight-service nor that the Devisor is dead and these were holden to be material Exceptions and for that cause the Iudgment was stayed and afterwards the Verdict was rejected and a Venire facias de novo awarded CLXVI Grove and Sparre 's Case Hill. 30 Eliz. In the Common Pleas. AN Action of Trespass was brought by Grove against Sparre Process continued untill Sparre was outlawed and now it was moved unto the Court to avoid the Outlawry That the original Writ and all the Iudicial Process thereupon are directed Vice-Com Wigorn. and in the Filazar's Roll in the Margent is written Hereford and in the body of the said Roll is written Et praedictus Grove obtulit se quarto die post Et Vicecomes modo mandat quod praedictus Spar non est inventus c. Ideo praeceptum est Vicecom c. and at the Capias retorned it is entred in the Roll as before Hereford whereas the Capias is directed Vicecom Wigorn. as of right it ought to be and the Roll was perused by the Court and it was ut supra and that without any suspicion of Rasure for which the Court gave day to the Queens Serjeants to advise themselves to maintain the Outlawry and the Defendants Council prayed That a Recordatur be made in what Estate the Roll now is for doubt of amendment by way of Rasure or otherwise which was granted by the Court. CLXVII Rushton 's Case Mich. 33 Eliz. In the Exchequer RUshton was indebted to the Queen in 200 marks See this Case vouched in C. 4 part in Palmer's Case 3 Len. 204. upon which issued an Extent against him out of the Exchequer to levy the said sum to the Sheriff of Suffolk and it was found by Inquisition That Rushton 22 Junii 22 Eliz. was possessed of a Lease for the term quorundam annorum adhuc venturorum and the debt of the Queen did begin 12 Febr. 17 Eliz. Exception was taken to this Office because that the term is not certainly found but generally quorundam annorum and it was said by Coke That the Office was good notwithstanding that Exception for the Queen is a stranger to the Lease and therefore ought not to be forced to find the precise certainty which see in Partridge's Case in Plowd The Defendant had made a Lease Pro termino quorundam annorum contra formam statuti Also Rushton came not to the Lease by Contract but by compulsary means as by Execution c. And here we are not in the Case of pleading but of an Office where such precise form is not requisite As if it be found by Office that J. S. was seised in tail without shewing of whose gift the same was it is good so an Indictment De morte cujusdam hominis ignoti the same is good but such Endictment taken before the Coronor is not good And that a Lease for years may be extended see 21 Ass 6. If a man be indebted to the Queen being a Lessee for years and afterwards before any Extent comes sells his term the same cannot be extended after And here it appears That this Lease was to begin at a day to come and that the Lessee did enter before the day by which he was a Disseisor and so he said he had lost his term Tenant for the life of another is disseised and dieth he remains a Disseisor and the occupancy doth not qualifie such disseisin And afterwards the Inquisition for the incertainty aforesaid was holden void and a new Commission was awarded CLXVIII Holland and Boin 's Case Mich. 29 Eliz. In the Common Pleas. IN a Replevin by Thomas Holland against William Boin's 3 Len. 175. 1 Len. 183. Ow. 138. who made Conusans as Bailey to Thomas Lord Howard and shewed that the Prioress of the late dissolved Priory of Hollywell was seised of the Manor of Priors in the County of Hertford and granted the same by words of Dedi Concessi pro certa pecuniae summa to Thomas Audley Chancellor of England and his Heirs who entred and died seised and that the said Manor inter alia descended to Mary daughter and Heir of the said Thomas Audley who entred and also died seised by force whereof the said Manor descended to the said Thomas Lord Howard c. and shewed that the said conveyance by the prioress to Audley bore date 4 Novemb. 29 H. 8. and then enrolled in the Chancery The Plaintiff in Bar of the Avowry shewed that after the making and enrolling of the said Conveyance the said Prioress Leased the said land to Sir H. Parker for 99 years and conveyed the said land to him and shewed farther That the said Conveyance specified in the Conusans was primo deliberatum 4 Nov. 31. H. 8. Absque hoc that the said Prioress the said 4 Novembris 29 H. 8. dedit concessit the said Manor to the said Audley upon which it was demurred in Law and the Court was clear of opinion That the averment of primo deliberatum against a Deed enrolled ought not to be reversed for by the same reason it may be averred never delivered and so upon the matter Non est factum And it was farther objected That bargain and sale by a Corporation is not good for a Corporation cannot be seised to another use and the nature of such Conveyance is to

by the Lessor to the Lessee cannot enure and that for want of privity Lit. 109. And such Lessee cannot attorn and if the Lessor after that accepts of the Rent the same doth not make the Lease good and all for want of privity therefore here is no privity As to property such a Lease shall not be said Assets in the hands of an Executor nor shall be sold upon an Extent nor forfeited by outlawry And here in this Case the Queen cannot be said to take any thing by the breach of the Condition but hath her reversion discharged of the Lease and he said That the Office is found well enough for time and it shall relate to the time when the title accrued that is when the Rent was behind and the arrearages of the Rent do not pass by the grant of the Land or the reversion The Queen hath a Rent-charge out of Lands which is behind the Lands come to the Queen and she grants the same over yet she shall charge the Lands with the said arrearages but contrary in case of an injury done upon the Land of the Queen As the Tenant of the King aliens without licence and afterwards the Lands so aliened came to the King's hands who grants them over the Grantee nor the Land shall be charged but onely he who was party to the alienation his Lands and his Executors So of an Intrusion Tenant for life of the King makes a Feoffment in Fee the King grants over the reversion and afterwards the tortious Feoffment is found by Office this Office is soon enough for time and the Grantee of the reversion shall have advantage of it and the King the mean profits from the time of the alienation and afterward in Mich. Term 33 Eliz. the Case was argued by the Barons Clark Puisne Baron The Lease is conditional and with a limitation also so conditional and limitation mixt together 3 Ass 10. Land given to one untill he come from foreign parts Lands given to one so long as he shall continue sole is an Estate for life with limitation upon her marriage so during the coverture c. and these limitations are not collateral but begin with the Estates when the Estates are limited but conditions always come when the Estate is settled as it is in our Case yet if the intent and substance of the Contract betwixt the King and the Subject be well considered there shall not be any difference c. Lands devised to one Proviso That if the Devisee shall disturb the Executors of the Devisor his Estate shall be void and the land remain over c. the same is a good remainder for it is a limitation conditional See Scholastica's Case Plowd Com. 14 Eliz. 413. concerning an Estate tail with a limitation And Fitz. James Case there put by Dyer See Browning and Beston's Case before cited and Martin Dockra's Case where a condition is conceived in words of Covenant c. Gent Baron argued to the same intent Manwood chief Baron to the same intent The Rents reserved upon the Leases of the Queen are to be paid to Receivors Baileys or at the Receipt of the Exchequer The Queen shall not make any demand of her rent for she hath an infinite number of Farmors and if demand be necessary she were to send an army of Receivors or Baileys to receive and demand her rents If the Rent of the King be to be paid at the Exchequer if the King 's Fermor be there and tender the rent at due time and none be there to receive it he hath saved his Lease for he hath done his possible endeavor although the words of the Condition in the Lease be behind and unpaid yet not tendred shall be understood as in the common case of Mortgages and Obligations But in all the Record before us there is no words of any tender therefore according to the words of the condition the Lease is meerly void and determined in right in privity and in tenure for so is the pleasure of the Prince expressed in her Letters Patents under the great Seal of England That it shall be then void and of no effect Then i. whensoever the Rent shall happen to be behind and therefore as soon as the Rent was behind the Lease was determined so that if after the non-payment a stranger had entred upon him scil the Lessee upon which he brings Ejectione Firmae the Defendant might have pleaded the special matter against him Iudgment if Action so as the Lease is void in Right It is also void in Privity and Tenure for a Release to such Lessee after the Rent is behind is altogether void for he was not then Lessee and so the privity is gone and no acceptance can make such Lease good And if such a Lessee after his Rent would surrender and in consideration of such Surrender obtain a new Lease from the Queen this new Lease is also void for here upon the matter is no surrender Also such a Lease is void in property for if the Lessee in such case dieth his interest such as it is shall not be accounted Assets in the hands of his Executor upon the breach of this Condition for the Rent although that the Lease be become void yet the possession of the land is not resetled in the Queen without Office and although the Office doth not make the Lease void which was void before for non-payment of the Rent yet before Office found the possession is not vested in the Queen for before Office found we cannot award Process against such a Lessee for his continuing the possession after the Rent behind and untill Office found the Lessee cannot be found an Intruder and Tenant at Will he cannot be for no other Will appears of the Queen but that in the Letters Patents and that is to have the Lease void whensoever the Rent shall be behind and that Estate is gone because the Rent is behind Tenant at sufferance he cannot be in this case In case of a common person when Lessee for years holds over his term he is become Tenant at sufferance and such a Tenant shall not pay Rent for it is the folly of his Lessor to suffer his Lessee at sufferance to continue possession of the Land after his term so as every Tenancy at sufferance is made by the Laches of the Lessor which Laches cannot be imputed to the Queen therefore here this Lessee when the Condition is broken is not a Tenant at sufferance nor shall have the profits of the Lands to his own use but the Law shall account him to be a Bailiff of his own wrong and so be accountable to the Queen but no Intruder till Office be found and that appears in our Books 1 H. 7. 17. The King's Tenant dieth his Heir within age if any entreth into the Land of the Heir he shall not be an Intruder untill Office found but the Heir or a stranger who entreth before Office and takes the profits

Tho. Henage Hungate's Case the Queen leased for years unto Hungate provided that he should not do Waste Waste is done the Queen granted the Reversion to Sir Tho. Henage Office is found the Grantee entred and his entry was adjudged lawfull and that the Queen should have the mean profits from the time of the Waste done untill the time of the Grant. Some say Sir Walter Mildmay's Case that that case was not adjudged but compounded And he vouched Sir Walter Mildmay's Case The Lord Sturton held Lands of the Queen in Knights-service and was attainted of Felony by which the Lands escheated to the Queen who granted those Lands and it was holden that the Queen should have the mean profits betwixt the time of the Felony committed and the Grant. And after in the principal Case Iudgment was given for the Plaintiff scil the Patentee of the Queen against the Lessee who cast in a Writ of Error and by his Council prayed That the Writ of Error be not broken open untill the Iudgment be entred Manwood The Iudgment hath reference and relation unto the first day of this Term and therefore do not doubt of that CLXXIX Sted 's Case Mich. 32 Eliz. In the Exchequer 3 Len. 259. STed of Great Melton in the County of Oxford was assessed to 7 s. for Fifteens and upon refusal to pay it the Collectors distrained the Beasts of Sted and sold them Sted brought Trespass thereupon in the King's-Bench and the Collector exhibited his Bill into this Court against Sted who shewed by his Council That the Statute of 29 Eliz. which enacted this Fifteen provideth That the said Fifteen shall be levyed of the movable Goods and Chattels and other things usual to such Fifteens and Tenths to be contributary and chargeable and shewed farther that the Cattel distrained were tempore districtionis upon the Gleab Land of a Parsonage presentative which he had in Lease which Gleab Land is not chargeable usually to Fifteens granted by the Temporalty nor the Chattels upon it But it was the Opinion of the whole Court Although that the Parson himself payeth Tenths to the King yet the Lay-Farmor shall pay Fifteens and his Cattel are distrainable for it even upon the Gleab Land of the Parsonage and therefore it was adjudged that in the principal Case the Distress and Sale were good and lawfull CLXXX The Dean and Chapter of Winsors Case Mich. 32 Eliz. In the Exchequer 3 Len. 258. IN this Case it was moved If one hath a Rectory impropriate and by the Statute of 26 H. 8. cap. 3. is to pay an annual Rent for the same in the name of a Tenth and by that is discharged of Tenths and first fruits If he shall have the Privilege of the Exchequer for he is to pay the same sum yearly And the Barons were of Opinion that he should not for so every one who is to pay any Tenths or first fruits should draw another who sueth him into the Exchequer and so all Controversies concerning Tithes and Parsonages should be drawn hither which should be a great prejudice to the Spiritual Courts But Egerton Conier's Case Solicitor vouched a Case scil Conier's Case where the King gave a Parsonage to a Priory in Frankalmoign and the Tithes thereof being withdrawn the Prior impleaded him who withdrew his Tithes in the Exchequer and in that Case it was holden that the Prior should have the Privilege for the King is in danger to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Tenant of the King in chief or he who pays first fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Privilege here Quaere CLXXXI Cony and Beveridge 's Case Mich. 30 Eliz. In the Common Pleas. 3 Len. 216. IN Debt upon a Bond the Case was That the Plaintiff leased unto the Defendant certain Lands lying in the County of Cambridge rendring Rent and afterwards the Defendant became bounden to the Plaintiff in a Bond for payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton to which the Defendant pleaded payment of the Rent without shewing the place of payment and upon payment they were at issue and found for the Plaintiff by Nisi prius in the County of Northampton In Arrest of Iudgment it was moved that the issue was mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge See 44 E. 3. 42. Anderson was of opinion that no Iudgment should be given for the cause aforesaid Rhodes and Windham contrary for it doth not appear that the issue is mis-tried because that no place of payment is pleaded and it might be for any thing is shewed that the Rent was paid in the County of Northampton CLXXXII Berry and Goodman 's Case Trin. 30 Eliz. In the King's-Bench IN an Ejectione Firmae upon a special Verdict the point was Ow. 95 96. One intruded upon the possession of the Queen into Lands in Kisgrave in Suffolk and during this Intrusion the Queen granted these Lands to A. B. by her Letters Patents and the Patentee before any Entry made in the said Land granted the same over Some held that the Grant was good for the Intruder had gained nothing against the Queen and by the Grant of the Queen and the assignment over nothing accrued to him and where a man hath possession of Lands his continuance therein cannot gain to him any interest or increase his Estate without some other act done of later time If the Guardian do continue in possession after the full age of the Heir he is not a Disseisor nor hath any greater Estate in the Lands and upon the Book of 21 E. 3. 2. this Case was collected The Tenant of the King dieth his Heir within age a stranger intrudes the Heir at full age sueth his Livery out of the King's hands the Intruder dieth in possession the same descent shall not take away Entry Coke contrary The Intruder cannot be Tenant at sufferance for at first he enters by wrong and none can be Tenant at sufferance but he who comes in by Title And it is clear That the Intruder by his first Entry doth not gain any Estate in possession upon which he can have an Action of Trespass but after the Grant of the Queen he hath presently Fee by wrong 8 H. 4. 129. A stranger enters upon the King to which he hath right in the right of the Ward yet the Freehold doth remain in the Heir And he said that if A. levyeth a Fine to B. sur Conusans de droit c. now the Conusee hath possession in Law but not in fact and if before the entry of the Conusee W. entreth and dieth seised he hath no remedy for he had not possession

argued for the Plaintiff in the Writ of Error alledged the general Error viz. That Iudgment was given for the Plaintiff where it ought to be found for the Defendant And he said That Erigere stagnum est de novo facere exaltare is erectum majoris altitudinis facere Deexaltare est ad pristinam altitudinem adducere Prosternere stagnum est penitus tollere And in every Action upon the Case such apt and precise words are to be in the Writ according as his Case requires unto the end that Iudgment may in such Action be given to the Plaintiff according to his plaint and his damages In 7 E. 3. 56. In Assise of Nusans Quare exaltavit stagnum ad nocumentum liberi tenementi sui The Defendant pleaded that he had not inhanced it after it was levied and there it was said by Drew Serjeant That there is not any other Writ in the Chancery but Quare exaltavit stagnum But that was denied by Herle For that he said that the Plaintiff might have a Writ out of the Chancery Quare levavit stagnum And there by that Book it is assigned That Levare stagnum exaltare stagnum do differ and therefore he said that in this Case the Writ should abate for the using of one word for another 8 E. 3. 21. Fitz. Nusans 5. by Chauntrel In a Writ of Nusans Quare levavit if it be found that he levied it to the Nusans c. the whole shall be destroyed but in a Writ Quare exaltavit nothing shall be pulled down if it be found for the Plaintiff but that which is enhaunced onely So 8 Ass 9. Br. Nusans 17. the same Case is put And see 16 E. 3. Fitz. Nusans 11. If the Nusans be found in any other form than the Plaintiff hath declared he shall not recover And in 48 E. 3. 27. the Writ was Quare divertit cursum aquae c. and the Plaintiff shewed that the Defendant had set piles and such other things in the water by reason whereof the course of the water was straitened and because the Plaintiff might have had a Writ Quare coarctavit cursum aquae the Writ was abated Another Exception was taken viz. That the Assise of Nusans ought to be brought against the Tenant of the Freehold and therefore it would not lie in this Case it not being shewed that the Defendant was Tenant of the soil Vid. 33 H. 6. 26. by Moile If a way be straitned and impaired an Action upon the Case lieth but if it be altogether stopped up then an Assise must be brought But there it is said by Prisoit That if the stopping up of the way be done by the Tenant of the Land then an Assise lieth if by a stranger then an Action upon the Case But for common Nusances no Action lieth but they ought to be presented in the Court-Leet or Turn and there redressed and such was the opinion of the whole Court in this Case Then it was moved 6 Co. 25. That one of the Plaintiffs in the Writ of Error had released and the Question was whether that release should bar his companion to which nothing was said At another day the Case was moved again and Drew Serjeant said That Exaltare and Erigere are all one but all the Iustices were against that for that Erigere is de novo facere and Exaltare is in majorem altitudinem attollere and afterwards judgment was affirmed CCXXIII. Freeman and Drew 's Case Trin. 30 Eliz. In the King's-Bench IN an Action upon the Case by Freeman against Drew The Defendant pleaded That after the Assumpsit whereof the Plaintiff had declared There was an agreement betwixt them That the Defendant and two others should be bound in a Bond to the Plaintiff for the sum promised and that they entred Bond accordingly The Plaintiff confessed the agreement and that the Bond was made according to the agreement and that the parties bound did deliver the same as their Deed cuidam ignoto to the Plaintiff The Defendant said That they did deliver the Deed to one J. S. and gave notice thereof unto the servant of the Plaintiff and that they are now ready to deliver it to the Plaintiff upon which there was a Demurrer Godfrey argued That the said Plea of the agreement specially executed ut supra was good as in a Case lately adjudged between Alford and Leigh 1 Cro. 54. Ante 110. Tr. 29 Eliz Where the Arbitrament was made That Leigh should release unto Alford before the Feast Petri ad vincula and before the said Feast Leigh sealed and delivered such a release unto the use of the said Alford and after the Feast he tendred it to Alford but he refused it and brought Debt upon the Bond for performance of the Arbitrament and it was adjudged That the Action would not lie for if he do recover upon that Action he also should take advantage of the release Coke In Alford's Case a tender was to the Plaintiff himself which is not in this Case and although that it was after the Feast yet it was before the suit commenced and also in our Case the tender is depending the suit Gawdy If the Plaintiff should recover in this Action he might plead the recovery in Bar of the suit upon the Obligation Wray Let the Plaintiff release the Bond and take Iudgment here which was done accordingly CCXXIV. Somers and Sir Richard Buckley 's Case 32 Eliz. In the Common-Pleas IN the Case betwixt Somers and Sir Rich Buckley Where the Plaintiff prayed a Prohibition to the Court of Admiralty The Case was That the Defendant sued in the Admiral Court for the moyety of a Ship and prize taken by them upon Letters of Reprizal 2 Inst 205. for the Civil Law is That if two Ships meet at Sea together although they do not go forth as consorts and the one Ship in the presence of the other taketh a Ship with goods in it the other Ship which was present shall have the moyety 2 Roll. 205. or one half of the Ship and goods taken for although it did not take the Ship yet the presence thereof there at the time of the taking was a terrour to the other Ship which was taken Sine quo the other Ship could not be so easily taken And now the Plaintiff for the Prohibition did surmise That after they were arrived in England 2 Roll. 171. they did agree amongst themselves That the Plaintiff should have four parts of the said Ship and goods so taken and the other five parts And the Plaintiff said that he had pleaded this matter in the Court of Admiralty and they would not allow the Plea and thereupon he prayed a Prohibition which was granted but afterwards it was moved on the other side That the said Court of Admiralty would allow the Plea and there trie it and thereupon a conditional consultation was granted by the Court so that that Court allow that Plea and trie

Statute and it was moved If it should not be a good Indictment for the assault so as he might be fined for it and by Sands Clerk of the Crown and the whole Court The Indictment is void for the whole for the conclusion of the Indictment is contra formam Statuti and there the Iury cannot enquire at the Common Law. CCXXXV Mead and Cheney 's Case Mich. 32 Eliz. In the King's-Bench MEad brought an Action of Debt upon a Bond against Cheney Executor of one Skipwith and recovered and upon a Fieri facias the Sheriff did retorn Devastavit and it was moved to have an Elegit and the Iustices would advise of it and afterwards at another day a Precedent was shewed to the Court of 17 Eliz. and thereupon the Elegit was granted CCXXXVI Tompson and Trafford 's Case Trin. 32 Eliz. In the King's-Bench Rot. 910. Poph. 8 9. IN an Ejectione firmae the Case was That the Warden and Fellows of New College in Oxford 8 Eliz. leased a Mansion house in the Burrough of Southwark to one Standish for 21 years and afterwards 25 Octob. 21 Eliz. they demised the same Mansion house to the said Standish for 21 years to commence the Michaelmas after And the Stat. of 14 Eliz. cap. 11. and 18 Eliz. cap. 11. were also found And if this second Lease shall be said a Lease in Reversion and so be void by the Statute of 14 Eliz. was the Question Foster moved That it is a Lease in Reversion for the first Lease doth continue untill Michaelmas and so was the opinion of the Iustices of Assise at the trial Towse contrary For when Standish accepteth the second Lease the same is presently a surrender of the former Lease for he giveth power unto the Lessor for to contract for the house presently and to that purpose he cited Corbet's Case 8 Eliz. Coke It is a surrender presently for you cannot apportion the Term. It was adjourned CCXXXVII Wood and Avery 's Case Mich. 32 Eliz. In the King's-Bench DEBT upon a Bond by Wood against Avery the Condition was That where the Plaintiff had demised to the Defendant for term of years two Messuages c. If the Defendant at all times during the term shall maintain sustain and repair the said two Messuages with good and sufficient reparations that then c. And the Defendant pleaded That he had performed the Conditions in all but as to one Kitchin which was so ruinous at the time of the Demise that he could not maintain or repair and therefore he took it down and rebuilt it again in so short a time as he could possible in the same place so large and so sufficient in breadth length and heighth as the other Kitchin was and that the said Kitchin all times after the re-edifying of it he had sustained and maintained and well repaired and demanded Iudgment c. upon which Plea the Plaintiff did demurr in Law and by the Court the Plea were a good Plea if it were in an Action of Waste but here where he hath by his own Act tied himself to an inconvenience he ought at his perill to provide for it And here it was said That if the Condition be impossible the Bond is single contrary where a man is charged by an Act in Law. CCXXXVIII Bostwick and Bostwick 's Case Mich. 32 Eliz. In the Common-Pleas DOrothy Bostwick brought Dower against Bostwick an Infant Ante 59. and the Case was That the Husband of the Demandant was seised of certain Lands holden by Knight's-service of M. C. and by his last Will devised two parts of the Premisses to his Executors during the non-age of his heir and died his heir within age after whose death M. C. entred into the third part descended as Guardian in Knight's-service and the Executors into the other two parts upon which the Demandant brought one Writ of Dower against the Guardian to be endowed of the third part and another Writ of Dower against the heir within age in whom the Freehold of the two parts was The heir appearing by Attorney pleaded to issue which was found for the Demandant but the Iudgment was afterwards reversed because the heir being within age did not appear by Guardian but by Attorney for which cause she again brought a Writ of Dower against the heir and the Sheriff did retorn him summoned but the heir made default for which cause the Court was moved in the behalf of the Demandant to have the aid of the Court in this Case for if upon default of the Tenant a Grand Cape should issue forth and so a Recovery by default should follow the same would be Error which see 6 H. 8. Br. Liver Defaul 50. And therefore it was prayed that some person be appointed Guardian to the heir who may appear and plead for him for otherwise the Demandant is at great mischief for the Guardian now will not suffer the heir to appear in person And if the Widow now Demandant should stay for her Dower untill the heir should come of full age it would be a great mischief But by Walmesley Periam and Windham We cannot appoint a Guardian to the heir for his appearance here unless the heir be here in person in Court before us and he was appointed to be brought in person into Court. CCXXXIX Sir Anthony Denny 's Case Mich. 32 Eliz. In the Common-Pleas SIR Anthony Denny seised in Fee of the Manor of Chessam extending into Chessam and in the Town of Hertford and also of other Lands in Hertford by his last Will devised the Manor of Chessam to Henry Denny his son and heir in tail and his Lands in Hertford to Edward Denny his younger son c. It was holden by Walmsley Periam and Windham absent Anderson That the younger son should have that part of the Manor of Chessam which lieth in the Town of Hertford Another point in the Case was That upon the death of Sir Anthony and Office was found without any mention of this Devise for which cause the Queen seised and leased all the Lands so devised to a stranger during the minority of the heir The heir comes of full age and hath Livery of the whole and without any express entry leaseth the Lands for years rendring Rent the Lessee entreth and payeth the Rent to the heir the heir dieth the Lessee assigns over his term and the Rent is yearly paid to the right heir of Sir Anthony And how Edward Denny entred and per Curiam his entry is lawfull for if the heir entreth in this Case and many descents follow yet the Devisee may enter at any time for his entry doth not make any abatement or wrong but may well stand with the Devise for if the Devise be waved or the Devise doth defer the execution of the Devisee 1 Inst 111. a. 240. b. 3 Cro. 145. Ow. 86 87. it is reason that the heir enter and take the profits untill the Devisee entreth But if

upon the Statute of 5 R. 2. against J. and E. J. died pendant the Writ and E. pleaded in Bar and the Plaintiff did reply and conclude and so was he seised untill the said E. Simul cum dicto J. named in the Writ entred upon the Plaintiff c. But the opinion of the whole Court was clear to the contrary for here in the case at Bar Drake by his several issue which he hath joyned with the Plaintiff upon Not guilty is severed from the other five Defendants and then when they plead in Bar The Plaintiff ought to reply to them without meddling with Drake who upon his several Plea and issue joyned upon it is a stranger to them as if the said five had been the onely Defendants But if he had not replyed to Drake as if Drake had made default or had died after the Writ brought as in the case before cited of 28 E. 4. there he ought to have replyed as it is objected So in an Ejectione firmae of twenty acres The Defendant as to ten acres pleads Not guilty upon which they are at issue and the Plaintiff replies and says as to the other ten acres and so was he possessed untill by the Defendant of the said ten acres he was ejected this is good without speaking of the other ten acres upon which the general issue is joyned And the Court was ready to have given Iudgment for the Plaintiff but they looked upon the Record and seeing that one issue in this Action was to be tryed between the Plaintiff and the said Drake And although the Plaintiff offered to release his damages and the issue joyned and to have Iudgment against the five Defendants who had demurred Vid. antea 41. yet the Court was clear of opinion that no Iudgment should be given upon the said Demurrer untill the said issue was tryed for the Action is an Ejectione firmae in which Case the possession of the land is to be recovered and it may be for any thing that appeareth That Drake who hath pleaded the general issue hath Title to the land c. But if this Action had been an Action of Trespass there in such case Ut supra upon release of damages and the issue joyned the Plaintiff should have Iudgment presently CCLI French 's Case Mich. 26 Eliz. In the King 's Bench. IT was presented before the Coroner That John French was Felo de se and that certain goods of the said John French were in the possession of J. S. and this presentment was certified into the King's Bench upon which Process issued forth against the said J. S. and continued untill he was Outlawed And now came J. S. and cast in his Writ of Error to reverse the said Outlawry and assigned for Error because that in the presentment upon which he was Outlawed there is not any addition given to the said J. S. And at the first it was doubted If upon that presentment Process of Outlawry did lye and Ive one of the chief Clerks of the Crown-Office said to the Court That such Process in such case did lye and that he could shew five hundred precedents to that purpose Another matter was moved upon the Statute of 1 H. 5. 5. of Additions If this Outlawry by the Statute aforesaid ought to be reversed by default of Addition for as much as the said Statute speaks onely of Outlawries upon original Writs in personal Actions Appeals and Indictments But it was agreed by the whole Court That as to this purpose the presentment should be accounted in Law as an Indictment and afterwards the Outlawry against French was reversed CCLII Mich. 26 Eliz. In the King 's Bench. A Lease for thirty years was made by Husband and Wife if they so long should live and if they die c. That the land should remain to A. their son during the term aforesaid And it was holden by Wray Iustice That if the Husband and Wife do die within the term that the son should have the land De novo for thirty years But Gawdy was of opinion that he shall have it for so many years which after their death should be expired CCLIII Cooper 's Case Mich. 26 Eliz. In the King 's Bench. IN an Ejectionefirmae The Case was That the Husband and Wife had right to enter into certain lands in the right of the wife and a Deed of Lease for years is written in the name of the Husband and Wife to one A. for to try the Title and also a Letter of Attorney to B. to enter into the land and to deliver the said Deed of Lease to the said A. in the name of the Husband and Wife 3 Cro. 118. 2 Cro. 617. Yel and as well the Letter of Attorney as the said Deed of Lease are sealed by the said Husband and Wife with their seals and entry and delivery is made accordingly the said A. enters and upon Ejectment brings an Ejectione firmae and the whole matter aforesaid was found by special Verdict and the Plaintiff had Iudgment to recover for the special matter found by Verdict i. e. the Deed of Lease and the Letter of Attorney do maintain the Declaration well enough and here is a Lease made by Husband and Wife according to that the Plaintiff hath declared CCLIV Mich. 29 Eliz. In the King's-Bench IN an Action of Trespass for breaking of the Plaintiff's Close Owen 114. 1 Cro. 876. 2 Cro. 195. 229. Godb. 123. and killing of eighteen Conies there the Defendant as to all the Trespass but to the killing of the Conies pleaded Not guilty and as to the killing of the said Conies He said that the place Where is a Heath in which he hath common of pasture and that he found the Conies eating the grass there and he killed them and carried them away as it was lawfull for him to do Cowper Although Conies be Ferae naturae yet when they are in in-grounds they are reduced to such a property that if they be killed or carried away I shall have an Action of trespass Vid. 43 E. 3. 24. And if a Deer be hunted by the Plaintiff in a Forest and afterwards in hunting it be driven out of the Forest and the Forrester doth follow the chase and the Plaintiff kill the Deer in his own grounds yet the Forrester may enter into the land of the Plaintiff and re-take the Deer 12 H. 8. 9. And although the Defendant hath common in the soil yet he cannot meddle with the wood there nor with the land nor with the grass otherwise than with the feeding of his cattel for he hath but a faint interest And if he who hath the Freehold in the land bringeth an Action of trespass against such a commoner for entring into his land and the Defendant plead Not guilty he cannot give in evidence that he hath common there And it hath been late adjudged That where commoners prescribe Godb. 123. That the Lord hath used to put in

as taken for Rent arrere yet he cannot be said his Bailiff at the time of the distress which was granted by Rhodes Periam and Windham and as to that which hath been objected That if this traverse be allowed the meaning of the party shall be drawn in question i. e. the meaning of him who took the cattel the same is not any mischief for so it is in other cases as in the case of Recaption See 9 H. 6. 1. 45 E. 3 4. CCLXXV Humphreston 's Case Pasch 16 Eliz. In the King 's Bench. More 103. 1 Anders 40. Dyer 337. Owen 64. Sty 293. IN an Ejectione firmae It was found by special Verdict That W. Humphreston seised of the Manor of Humphreston suffered a common Recovery to be had thereof by Kinnersley and Fowk in the Writ of Entry in the Post to the intent that they should make an Estate to the said W. Humphreston and Elionar his wife for their lives the remainder Seniori puero dicti W. and to the heirs of the body dicti senioris pueri legitime procreat the remainder to the heirs of the body of the said W. Humphreston with divers remainders over And afterwards the Recoverers in December following by Indenture made an Estate accordingly and made Livery to W. Humphreston and his wife and afterwards in November 2 E. 6. by Indenture between the said W. Humphreston of the one party and Kinnersley on the other part The said W. Humphreston did covenant with the said Kinnersley to do all such lawfull and reasonable things for to assure the said lands unto the use of the said W. Humphreston and Elionar his wife for their lives and afterwards to the use of the eldest child of the body of the said W. Humphreston lawfully begotten and to the heirs of the body of the said eldest child of the body of the said W. Humphreston and after to divers other uses over and afterwards Ter. Pasch 2 E. 6. W. Humphreston and Elionar his wife levyed a Fine of the said land to C. and B. in Fee to the use of the said Indenture Elionar died W. Humphreston married another wife and had issue a daughter named Frances and afterwards had issue a son named William and died William the son being of the age of six years entred into the lands and leased the same to the Plaintiff for years who being ejected by the Defendant brought the Ejectione firmae And this special Verdict And the points moved upon it were argued by Atkins Phetiplace Fenner Fleetwood Plowden and Bromley and afterwards this Case was argued by the Iustices And Gawdy puisne Iustice conceived That Iudgment ought to be given for the Plaintiff First he conceived that this Lease for years made by the Infant without Deed and without Rent reserved is not void so as every stranger shall take advantage of it but onely voidable for an Infant may make a Bond and a Contract for his commodity and profit and the same shall bind him as for his meat and drink apparel c. But if upon such Lease he had reserved a small Rent as one peny where the land was worth 100 l. per ann such a Lease had been void and in our Case this Lease was made upon the land and was made for to try the title to it which is a good consideration and to the profit of the Infant and for his advancement and then the Lease is not void It hath been objected That here the Recovery being suffered to the intent that the Recoverers should make an Estate ut supra c. that the use shall rise presently upon the Recovery to him who suffered the Recovery and then the Recoverers could not make Livery unto him he held strongly That the use and the possession should be adjudged in the Recoverers untill they made the Estates c. for they otherwise could not make the Estates c. 2 Roll 789. and these words To the intent shall be construed that they shall have the lands untill they made the Estates c. And he held that the remainder limited Seniori puero where there is not any in rerum natura is good enough as a remainder limited to him who shall first come to Pauls And he conceived that the son should take this remainder and not the daughter and he conceived that the Estate tail here was not executed i. e. the second intail Divers Authors of Grammer have been produced to prove that Puer may be taken both ways Tam puer quam puella Desporterius Calapine Melancthon and the Grammer allowed but I conceive that Puer is a word proper for a Boy and Puella for a Maid and where we have proper words we ought not to iudge but according to them and because the word is doubtfull we ought to consider the cause upon the circumstances and therefore it is to be intended that W. Humphreston had a greater desire that his son should have his Inheritance than his daughter if there be not some special matter to prove that the intent of the father was for his daughter Southcote Iustice agreed with Gawdy in the first point and also that the Recoverers have convenient time to make the Estates and that they are to make the same without request for the benefit of the wife who is a stranger to it and is to have the lands for her ioynture and he cited the Case of the Abbat of York 44 E. 3. 8. and 9. where the difference is taken between a Feoffment made upon condition to re-enfeoff the Feoffor or to enfeoff a stranger And here in our Case the Feoffment is made in convenient time and here is sufficient consideration That the Recoverers shall be seised to their own uses untill c. And these words Roll supra Roll 407. Ea intentione shall be taken for a Condition And also that this remainder limited Seniori puero is good notwithstanding that there be not any Senior puer alive at the time And as to the word puer he held that it did extend to both Sexes indifferently and because it is doubtfull what Sex the father intended we are to construe the same upon the circumstances which appear upon the parts of the Indentures and here it appeareth upon the Indenture that he hath explained his mind scil Eldest child be it Male or Female As if I have two sons named J. and I devise my lands or limit a remainder to J. my son the Law shall construe this Devise to extend to my younger son for without devise or limitation my eldest son should have it But if J. S. hath two sons known by the names of A. and I Devise lands to A. son of J.S. there I ought to explain my meaning openly And he conceived That the Estate tail is executed defeasiable in W. Humphreston upon issue afterwards had and that the daughter should have the lands and not the son and if the Fine destroy the remainder in abeyance limited

Legacies c. did promise to pay to the Plaintiff 400 l. at four several days The first day of payment incurred and no money was paid whereupon the Plaintiff brought the Action the Defendant pleaded That he made no such promise and it was found for the Plaintiff and damages were assessed for the default of payment at the first day and that was moved in arrest of Iudgment because the Assumpsit was intire and the Plaintiff ought to have forborn his suit until all the days of payment were past and then to have one entire Action for the whole but the opinion of the whole Court was against that for they said It is not like unto a Debt upon a Contract or a Bill where the debt is to be paid at several days for here no debt is to be recovered but onely damages for the debt and this default of payment is a wrong and therefore the Action will well lie and so it was adjudged CCLXXX Pasch 16 Eliz. In the King's-Bench A. Devised that his lands should descend to his son but he willed 1 Cro. 252. Hob. 285. Dyer 251. a. Dy. 210. a. 3 Len. 9. 79. Yel en Ayleff Choppins Case Vaugh. 184. That his wife should take the profits thereof until the full age of his son for his education and bringing up and died the wife married another husband and died before the full age of the son and it was the opinion of Wray and Southcote Iustices That the second husband should not have the profits of the lands until the full age of the son for nothing is devised to the wife but a confidence and she is as Guardian or Bailiff for to help the Infant which by her death is determined and the same confidence cannot be transferred to the husband but contrary if he had devised the profits of the land unto his wife until the age of the Infant to bring him up and educate him for that is a Devise of the land it self CCLXXXI Bawell and Lucas 's Case Pasch 16 Eliz. In the Common-Pleas IN a Replevin by Bawell against Lucas It was agreed by all the Iustices viz. Mounson Manwood Harper and Dyer That if a man seised of a Manor leased part of the Demeans for years or for life That the reversion doth remain parcel of the Manor but such a Reversion by the Grant of the Manor doth not pass without Attornment of the Lessee And where a Manor is granted by Feoffment unto another and afterwards the Tenants attorn the services pass by the Livery and not by any Grant and although in the first Grant the Lessee doth not attorn but a long time after yet the Reversion is not severed from the Manor for the Attornment as to that intent shall have relation to the Livery to make the Reversion to pass from the time of the Grant but not to charge the Lessee with Waste and Dyer said That if a Feoffment in Fee be made of a Manor with an Advowson appendant and the Tenants do not attorn yet the Feoffee shall have the Advowson for the Advowson is appendant to the principal part of the Manor scil the Demeans and cannot be appendant to the services and Dyer said That if A. maketh a Feoffment in Fee of a Manor part of which is in Lease for years Habendum to the Feoffee and his heirs to the use of the Feoffee and his heirs upon condition that the Feoffee shall pay to the Feoffor within ten days 1000 l. and if he fail then to the use of the Feoffor for life the remainder to the use of his son in tail and the money is not paid the Lessee attorns after the ten days to the Feoffee 2 Leon. 265 266. the same is a good Attornment to raise secondary uses although that the first uses did not take effect for the condition is not annexed to the Estate of the Land but unto the use onely and the meaning was that the Feoffor should never have again the Inheritance A Feoffment is upon condition that the Feoffee shall give the Land in tail to a stranger who refuseth the gift there the Feoffor may re-enter but a Feoffment upon condition to enfeoff a stranger or to grant a Rent-charge if the stranger refuseth there the Feoffor shall not re-enter for his intent was not that the Land should revert c. CCLXXXII Vavasor 's Case Hill. 16 Eliz. In the Common-Pleas THE Case was That Nicholas Ellis seised of the Manor of Woodhall leased the same to William Vavasor and his wife for the life of the wife the remainder to the right heirs of the husband The husband made a Feoffment in Fee to the use of himself and his wife for their lives the remainder to his right heirs the husband died the wife held in and committed waste in a Park parcel of the Manor It was moved If the Writ of Waste shall suppose that the wife holdeth in Ex dimissione Nichol. Ellis or Ex dimissione viri and the opinion of all the Iustices was That the Writ upon this matter ought to be general viz. That she holds in de haereditate J. S. haeredis c. without saying ex dimissione hujus vel illius for she is not in by the Lessor nor by the Feoffees but by the Statute of Uses and therefore the Writ shall be Ex haereditate c. And also the opinion of the Iustices was That the wife in this case is not remitted but that she is in according to the form of the Feoffment Dyer The Formedon brought against Manures rehearsed in the Writ a Will and divers Conveyances by reason of which the Writ was of exceeding length and in such cases the Writ is good yet if the Writ be general it is sufficient Note in this Case That the Plaintiff assigned the waste in destroying of Deer in the Park And Mead Serjeant said That waste cannot be assigned in the Deer unless the Defendant hath destroyed all the Deer and of that opinion was Dyer Manwood If the Lessee of a Pigeon-house destroy all the old Pigeons but one or two couple the same is waste and if the Keeper doth destroy all the Deer so as the ground is become not Parkable the same is waste although he hath not destroyed the whole See 8 R. 2. Fitz. Wast 97. If there be a sufficient store left in a Park Pond c. it is well enough c. CCLXXXIII Mutton 's Case Hill. 16 Eliz. In the Common Pleas. JAne Mutton brought a Writ of Entry Sur disseisin 1 Anders 42. More 96. against Anne Mutton who pleaded That one John Mutton was seised and levyed a Fine to the use of himself and such wife and wives as the said John should after marry by what name or names they should be called for term of their lives and afterwards to the use of the same Jane now Demandant in tail the remainder over to the right heirs of the said John Mutton and afterwards the said

J. S. he was constrained to pay the money J. S. promised for the same consideration to repay the money 286 D DIminution 3 Distress for Rent 8 Debt 10 26 33 49 88 90 122 126 136 150 153 162 163 172 181 189 200 208 248 Debt for Rent 14 28 67 121 Dower 15 85 174 238 Devise 16 92 123 165 171 198 239 243 276 279 280 287 Debt upon Recognizance 24 Descent no plea nor any title against the Queen 37 Debts of the King by the Statute of 33 H. 8. 39 Disseisin 80 Distress 179 Detinue 201 Discharge of a promise a good plea upon an Assumpsit 270 E ERror 2 3 4 77 86 100 115 132 135 160 161 222 231 244 251 255 256 263 Entry of Records 3 Estopell 3 17 Extent 20 75 167 Exceptions to a Writ 47 Extendi facias sued out and the Liberate not returned if good 65 Escape an Action of Debt brought upon it 112 Execution upon a Statute and the Sheriff voluntarily sets him at large 117 Execution 202 Enquest taken at the instance of the Plaintiff 203 Ejectione firme 250 Exposition of Statutes do belong unto the Queen 's temporal Courts 267 F FEoffments to Uses 7 25 118 183 194 218 233 257 282 285 False imprisonment 43 Fine 38 73 139 169 191 206 263 Formedon 84 196 Feoffment in Fee of Lands parcell of the Dutchy of Lancaster how and of whom the Tenure shall be 184 Fines in Courts 219 G GRant de Advocatione Ecclesiae what passeth 106 Grant of Lands of the Dutchy of Lancaster by the King unto another Tenend in Fee-farm if this Land shall be holden of the King in Capite or holden of the Dutchy 197 Gift where void both by Common-Law and the Statute of 13 Eliz. 284 H HEriot 10 Habeas Corpus not well returned day given to amend it 213 I JUdgment against Bail 2 Indictment upon the Statute of 23 Eliz. of Recusancy 6 Justicies no Original but a Commission to the Sheriff 41 260 Information upon the Statute of 18 H. 6. cap. 17. concerning the gaging of vessels of wine 52 In consideration that the Plaintiff would stay an intended suit in Chancery promised that if the Plaintiff can prove that the father of the Defendant took the profits of the Lands in question that he would pay to him for all the said profits 133 Information upon the Statute of Usury 144 In consideration of marriage the Defendant promised to pay to the Plaintiff 100 l. 146 Joint-tenants in Fee grant a Lease for years rendring Rent and one dies how the Rent shall be divided 148 In consideration that the Testator would forbear the payment of a sum of money for a week he promised to pay him within a week if the Action will lie for the Executors 149 Judgment not to be reversed but by Error or Attaint 154 Information upon the Statute of 27 Eliz. cap. 4. by the party grieved The Plaintiff was non-suit yet shall not pay costs and damages 156 Indenture delivered at another day and not the day of the date 157 Indictment for inclosing of Common vi armis c. not good 159 Intruder dying in possession the same descent taketh not away an Entry 182 Indictment upon the Statute of 23 Eliz. of Recusants 204 Indictment upon the Statute of Praemunire of 13 15 R. 2. 225 Indictment upon the Statute of 8 H. 6. of forcible entry 226 232 Indictment for not repairing of a Bridge 227 Indictment for an unlawfull assembly and entry 228 Indictment upon the Statute of 5 E. 6. cap. 4. for drawing of his dagger in the Church 234 Indictment upon the Statute of 5 Eliz. of Perjury 262 Judgment joynt against three will not lie against one of them in particular 277 L LEases 1 40 78 96 102 110 116 119 131 134 169 178 192 207 236 252 253 261 Leet how holden 31 98 266 Love is no consideration upon which to ground an Action 35 Letters Patents Bona Catalla felonum c. 81 Letters Patents of Offices not to be repealed after the death of the Grantor 128 Limitation and Condition with their difference 52 M MAintenance in returning a partial Jury 177 N NUsance for stopping a River with earth by which land was drowned 129 222 Nudum pactum quid 187 O OUtlawry 23 166 Obligation for appearance upon a Latitat where void 103 220 Office found 169 Obligation that the Obligor shall not exercise his Trade within a Town nor within a certain precinct of it void and against Law 259 P PArtition 3 Prescription 13 Property 35 113 Partitione facienda 69 Privilege is not for an Atturney against an Attachment by the custome of London 190 Presentments several make the Church litigious 205 Privilege pleaded for a Lord of Parliament 209 Prohibition prayed to the Court of Admiralty 224 Payment no good Plea without alledging it upon Record 269 Proof how to be made 273 Q QVare Impedit ●● 83 Quo Warranto 266 R REceit of the wife 11 Rectory Quid 13 Rent charge 21 185 186 Replevin 29 58 82 87 107 158 168 170 211 274 281 Rents and Services 57 Reparations 72 Replicando of his own wrong how construed 108 Remainder in tail who was attainted of Felony 169 Recognizance of good behaviour 199 Recovery in a Writ of Entry 214 Return of a Devastavit upon a Fieri facias a motion to have an Elegit 235 Replication where good by Executors 265 S SEals 27 Special Plea to an English Bill if it may be relinquished 38 Sheriff must deliver all the prisoners in his custody over to his successor 76 Scire facias against the bail in an action of Debt to which was pleaded the death of the Defendant before Judgment given against him 125 T TEnancy several where no good Plea 9 Trover and conversion 22 50 217 278 Tythes 30 32 93 95 98 105 124 180 216 Tail. 51 54 63 170 247 Trespass against the Warden of the Fleet brought in the King's Bench 56 Tenant per auter vye after the death of Cestuy que use holdeth over if he be a Disseisor 59 Tenant at will if he may grant Copihold Estates to Copiholders 59 Trespass upon the Statute of 8 H. 6. of forcible entry 70 Trespass for an assault and battery 104 Tender of rent if refused where good and where not 173 Trespass by one Administrator against another for taking away the goods of the intestate 188 Trespass Quare clausum fregit and new assignment pleaded 230 Toll no lands to be discharged of it but lands Socage onely 240 Trespass Quare clausum fregit 241 Trespass for taking of goods and the Defendant justifies as Bailiff to J. S. 246 Trespass for breaking of the Plaintiffs close and for killing his Conies 254 Trespass for cutting down of four Oaks and the Defendant pleads that he and all those whose Estate he hath c. Habere consueverunt rationabile estoverium suum for fuel c. 258 W WRit of entry in the Per 9 Will of the Request of Land and the name of the Devisor not in it if good 44 Waste 45 46 62 210 282 Writ of Annuity 68 Wager of Law 143 Writ of Enquirie of damages if too little damages be found no other Writ pro meliore Enquir can be granted 272 Writ of Entry Sur Disseisin 283 FINIS

Iudgment and upon that a Levari facias and then a Capias ad satisfaciendum upon which Paston the Defendant a Sheriff of Norfolk to whom the Capias was directed took the party and afterwards suffered him to escape The Defendant pleaded That before the said Capias the said Francis Woodhouse was committed to him and in his ward continued for Felony and after the Capias was endicted thereof and arraigned and found guilty after which he escaped And all this was found by special verdict First it was argued if upon a Recognizance acknowledged in the Chancery an Action lieth and it was said by Bois That it doth not lie in the mouth of the Sheriff to say that this Capias doth not lie in the Case As if a Iustice of Peace maketh a Warrant to a Constable which Warrant is not good in Law yet the Constable is not to examine that or to dispute the validity of it 5 H. 7. And a Capias hath lain in such case and so it hath been the course for the space of 200 years and he said That although Francis Woodhouse was convict of Felony yet the same is not any discharge of the execution as 35 H. 6. 8. although the husband be attainted of Felony yet he is not so dead in Law but if the King pardon him afterwards he shall be restored and his wife shall have Dower and if he be killed his wife shall have an Appeal 12 H. 4. My Villain is attainted the same is no discharge of his villainage as to me But if the King pardon him after he shall be my Villain 6 E. 4. 4. One is in Execution pro fine Regis and afterwards is outlawed for Felony and hath his Charter of pardon for the Felony yet he remains in Execution for the interest of the party for there the Execution is not extinct but onely suspended Godfrey contrary Capias doth not lie upon a Recognizance but if Debt be brought upon a Recognizance and the Plaintiff recovereth then a Capias lieth which see 14 Eliz. Dyer 306. Puttenham's Case 2 H. 4. 6. In Dower the Demandant recovereth her Dower and damages and prayeth a Capias ad satisfaciendum for the damages but she could not have it for no Capias lieth upon the original and to the same purpose see 8 R. 2. Fitz. Execution 164. 15 H. 7. 15. Capias pro fine lieth for the King where no Capias lieth in the Original but no Capias ad satisfaciendum for the party no Capias in Debt before the Statute of 25 E. 3. and see the Stat. of West 2. cap. 18. cum debitum fuerit recognit si in electione sequent execut habere per Fiere facias or Elegit therefore no other manner of Execution for the Statute hath provided ut supra And he said That debt doth not lie upon a Statute Merchant or Staple See 15 H. 7. 16. Another reason why a Capias doth not lie in such case is upon the words of the Recognizance Et nisi fecerit tunc concedit quod summa praedict levetur de bonis catallis terris tenementis Ergo not of the body And when Woodhouse was convict of Felony the Queen had an interest in his body and upon the pardon the Execution which was suspended during the conviction is now received And he confessed the case of Villainage that during the attainder the Lord cannot meddle with the Villain in the presence of the King See 27 Ass 49. and see 2 H. 4. 65. A. was condemned to B. in certain damages upon an Action of Trespass brought by B. against A. and A. was committed to Newgate in Execution upon a Capias ad satisfaciend and afterwards was arraigned of Felony and thereof attainted and committed to the Ordinary as Clark Attaint And the Iustices commanded the Ordinary That after that the prisoner had made his purgation that he should not let him go at large but should conduct him to the prison of Newgate again And there is a Quaere made by the Reporter If after purgation the Ordinary might suffer him to escape and if he at whose suit he was condemned in Trespass shall have debt against the Ordinary for such escape At another day the matter was argued by Coke for the Plaintiff at the Common Law No Land was subject to Execution i. no Lands of the Debtor himself but yet the Lands of the Debtor being descended to his heir should be chargeable to the Obligee of the Debtor in which he and his heirs were bound and that seemed to be very strange and he conceived That in that point custome and usage had encroached upon the Common Law The Statute of West 2. c. 13. gave Elegit of the moyety of the Lands but yet there was no Capias in Debt before 25 E. 3. cap. 17. before which Statute it was a general Rule That no Capias lay at the Common Law but where the King was to have a Fine See 35 H. 6.6 At the Common Law Capias did not lie but where the Action is vi armis or that the King is to have a Fine For there was Outlawry at the Common Law in such case It will be objected That the Statute of 25 E. 3. which gave Capias in Debt doth not extend to a Scire facias upon Recovery That such Process shall be made in a Writ of Debt as is used in a Writ of Accompt and here is no Writ of Debt but a Scire facias onely If my Debtor upon an Obligation cometh without a Writ and confesseth the Debt I shall have a Capias against him and yet the same is not in a Writ of Debt Ergo so in case of Recognizance Where a Statute speaks precisely of a Writ Original yet oftentimes by Equity it shall extend to a Scire facias and other judicial Process As upon the Statute of 25 E. 3. cap. 7. which enables the Incumbent to plead in a Quare Impedit It shall extend to a Scire facias upon a Recovery in a Quare Impedit 46 E. 3. 13. And in our case a Capias doth not lie by the Letter yet it lieth by Equity And he said That Statute which helps the Subjects to get their debts and rights are to be and have been taken beneficially and liberally expounded in advantage of the Creditors And see 48 E. 3. 14. Where a Scire facias is sued upon a Recognizance a Capias doth not lie but there it is holden that in a Scire facias upon a Recovery in debt a Capias lieth And as to this Capias the Sheriff is but the minister to the Court and he is not to controll the Court but to accept of the same as the same is directed to him It is a common learning in our Law That although the Court doth proceed inverso ordine yet it shall not be utterly void 36 H. 6. 34. Iudgment given at the Common Law of Lands within the five Ports for the five Ports in times past