by voucher of him in the Remainder in tail who vouched the common Vouchee and if he in the Remainder in Fee were bound by the Recovery because the Statute of 14. Eliz. is That Recoveries suffered by Tenants for Life shall be void against him in Remainder or Reversion and the Proviso doth not extend to bind more of them in the Remainder then those who assent of Record It was adjudged in B. R. that the Remainder in Fee was bound as well as if the Tenant in tail had bin the first Tenant to the Precipe and upon Error brought the Judgment in the Exchequer Chamber was affirmed But because the Defendant in the first Action had pleaded the Recovery by a Writ brought de tenementis praedictis which was not the use in common Recoveries but especial to have the Recovery of so many Messuages so many Acres of Land Meadow Pasture c. in certain and because it did not appear by the Record before them that the Writ did contain any certainty of the Messuages or Acres c. the Judgment was reversed Rotheram and Stibbings Case 905. Action upon the case against an Executor upon Assumpsit of the Testator to pay 100 l. in consideration of Marriage of his Daughter the payment to be made when he should be required upon non Assumpsit Judgment was had in B. R. for the Plaintiff Error brought in the Exchequer Chamber and the Judgment was reversed because the Action did not lie against the Executor Maynard and Bassets Case 906. Trover and Conversion de 3000. cords of Wood the case was A. granted to B. so much wood in Buxsted Wood as would make 4000. cords to be taken by the appointment of A. B. before any appointment assigned his Interest to M. the Plaintiff afterwards A. granted to the Defendant as much wood in the said Wood as should make 6000. cords at the choice of the Defendant then A. appointed B. a certain quantity to satisfie the first Bargain which B. cut down and the Defendant by colour of his Grant took and carried away the same whereupon the Plaintiff brought his Action and had Judgment in B. accordingly And Error brought and assigned because the Declaration is not de bonis propriis 2. Because he sais he was possessed de 3000. cordis ligni and the Defendant cordas praedicti ligni cepit without saying any particular quantity and 3d. because the Declaration is vi armis but all the Exceptions were disallowed by the Court and the Judgment was affirmed Palmâ—r and Sherwoods Case 907. A Trespass for carrying away goods The Judgment in B. R. was that the Plaintiff should recover his Damages for part and the Defendant capiatur and that the Plaintiff sit in misericordia pro residuo transgressionis which is said to be Error and that the Judgment ought to have bin Quaerens nibil capiat per billam pro residuo transgressionis Sed non allocatur but the Judgment was affirmed Chamberlain and Nichols Case 908. In debt upon a single Bill for payment of money at a day the Defendant pleaded payment without an acquittance Issue upon it Judgment for the Plaintiff in B. R. Error assigned because the Issue was joyned upon a matter not material nor pleadable viz. payment without an acquittance but because it was after Verdict and the Error assigned in the Plea which the Defendant himself had pleaded The Judgment was assirmed Only and Font Le Roys Case 909. Debt being against an Executor he pleaded there was another Executor who administred and was alive and concluded Judgment si Action whereas he ought to have pleaded to the abarement of the Bill The Plaintiff replyed Billa cassari non debet It was objected to be Error out holden good notwithstanding the Bar of the Defendant would have concluded the Plaintiff Smithwick and Binghams Case 910. Error brought upon a Judgment in B. R. in Ejectione firme because the Plaintiff entituled himself to a Term for years by an Administration taken of the Arch-Bishop of Canterbury and did not alledge that the Intestate had goods in diverse Diocesses but the same was disallowed because it did not appear to the Court whether he had or not but if it had appeared to them they conceived the Administration taken had been void if the Inrestate had not goods in divers Diocesses Partridge and Turks Case 911. The case was A. seised of two Messuages in the Parish of St. Brides London demised them to the Parson and Churchwardens of St. Brides ad distribuend ' annuatim 5 s. of the profits to the poor of the Parish in honorem duplicationem omnium illorum annorum quibus Dominus noster Jesus Christus vixerat in terra and gave 20 s. to maintain a Priest and dyed and the Parson and Churchwardens were seised and the Jury found the Act of 1 E. 6. and that the King was seised ut Lex postulat and granted the same to I. S. in Fee who devised it to the Plaintiff for Life and that the Parson and Churchwardens reentred and were seised ut Lex postulat and so demised them to the Defendant The Question was whether Partridge the Plaintiff was in by disseisin or not It was adjudged in B. R. he was not in by disseisin Error was brought and it was adjudged that the gift of A. was good and the giving of 5 s. inter pauperes was no Superstitious use and where part is given to a good use and part to a Superstitious use the King shall have but that Rent which is given to the Superstitious use and the Land shall go to the Devisee 2. It was said the entry of Partridge was no Disseisin because no actual expulsion of the Parson and Churchwardens were found but the Court held that because it is found that Partridge when he made the Lease was seised prout lex postulat his Seisin shall be intended lawful and not by disseisin and it cannot be lawful because the Devise was good to the Parson and Churchwardens and therefore it was by disseisin and afterwards the Judgment was reversed Bucknel and Heys Case 912. Error brought upon a Recovery in Battery in B. R. and assigned that there was no Bail there and upon a Certiorari the Chief Justice certified Bail I. H. without addition and with a Blanck for the place of his Habitation The Judgment there was reversed because no bail for the party who was sued and so he was never in the custody of the Marshal nor could be sued there Turges and Beachers Case 913. In Assumpsit in B. R. the Declaration was That the Defendant was indebted to the Intestate 30 l. for the residue of 100 Quarters of Wheat sold to him by the Intestate The Defendant promised the Plaintiff being Administrator to pay it when he should be required Found for the Plaintiff there the Judgment was reversed because in the case Debt lay and not Action upon the case Ody and Yates Case 914. Note It was holden by all
the Justices that a Writ of Error was not maintainable in the Exchequer Chamber by the Statute of 27. Eliz. upon a Judgment in B. R. upon Rescous because it is not within the words of the Statute although it be a Trespass Giddy and Heales Case 915. Action upon the case in B. R. by Heale for these words he being a Counsellor at Law Whereas one said to Giddy that Heal had affirmed upon his credit that the Fee-simple of certain Lands was in the Patentees of the Queen The said Giddy said No friends Heales Warranty we well know a great number of his Country trusting to his Warranty have been undone It was adjudged in B. R. for the Plaintiff and 100 l. damages and Error being brought in Exchequer Chamber and assigned the Words were not actionable The Judgment was affirmed Marronor and Cottons Case 916. Judgment was given against Marroner in the B. R. for Cotton for these words spoken against Cotton a Justice of the Peace viz. He hath received mony of a Thief that was apprehended and brought before him for stealing of Sheep to let him escape and keep him from the Goal Error brought in Exchequer Chamber and assigned the words were not actionable but the Judgment in B. R. was affirmed Bâ—shop and Gins Case 917. Debt upon an Obligation in B. R. for performance of Covenants one was that he delivertd a Ship in London usque portum de Blackney and no time limited for it and the breach was assigned in it that he did not deliver the ship such a day and Judgment there for the Plaintiff Error brought and assigned that the Issue was ill joyned because he had time to deliver it during his Life that the Court said was but the misjoyning of the Issue which was remedied by the Statute of Jeofails after Verdict 2. Error that the Venire was of Blackney where it ought to be de Portu Blackney The Court held it no Error but good and the Judgment was affirmed Falsowe and Thornies Case 918. In Debt the Venire upon the Roll was retornable die Martis post 15. Trin. and the Writ in facto was returned die Jovis post 15. Trin. that was assigned for Error but non allocatur because but misawarding of Process which is aided by the Statute of Jeofails and the Judgment was affirmed Cundey and Edgecombs Case 919. In Debt the Venire was filed Trin. 35. Eliz. to try an Issue between Richard Cundey de Bodrygan querent Peter Edgecombe de Mount Edgecomb in Com. Devon Defendant The Writ was direct Vic' Cornubiae Hill 39 Eliz. The continuance upon the Roll was Juratores inter Richardum Cundey de Bodygran in Comitatu Cornubiae mercatorum queren Petrum Edgecombt de Mount Edgecomb in Com-Devon in placito debiti ponitur in respectu nisi Justitiarii ad Assisas in Comitatu praedict capiendas assignat prius venerint c. upon the Margent was written Cornubiae It was assigned for Error that the last County is Devon in the Addition of the Defendant for the habitation of the Defendant The Justices held it no Error because Cornubiae was in the Margent and where there are two Counties before Com. praedict shall extend to that which will affirm the Judgment although the other be the Prochine antecedent Wilcoks â—nd Hewsons Case 920. Debt upon a Bill of 30. l. The Defendant pleaded he delivered the Bill upon a Condition to the Plaintiff that if he did procuer a particular of certain Land that it should not be his Deed but if he did not procure the particular it should be his Deed The Plaintiff took Issue it was his Deed and so found by Verdict Error brought and assigned that the Defendants plea was insufficient and the Plaintiff ought to have demurred upon it and the Issue which he took was vain and void because the especial matter had confessed the Deed and so the Issue is taken upon a thing confessed the Judgment was affirmed because the Defendant cannot assign Error in his own Plea and although the Issue be joyned upon a thing confessed the same is but surplussage and it was in the Election of the Court to give Judgment either upon the Plea or the Verdict Joyner and Ognells Case 921. Debt upon a Bill of 100 l. by Humphrey Joyner Executor of George Skiner against the Defendant the Defendant pleaded per minas and after Issue joyned befor Nisi prius he confessed the Action in Court The confession was entred non potest dedicere quia ipse debuit praedict ' Georgio Skinner in vita sua praedict ' 100. l. modo forma poout and upon that the Judgment was Quod praedict Humfred Joyner recuperet versus praedict ' Georgium Ognel debittum suum praedict ' necnon quatuor libras pro damnis suis quae sustinuit tam occasione detentionis debiti praedict ' quam pro missis c. eidem Humfredo Skinner per curiam adjudicat upon this Judgment Error was brought and assigned that the confession of the Action is not according to the Declaration for the Declaration is in the debuit to the Testator and Detinet of the Executor as it ought to be but the Confession is in the Debuit only 2. Error the Judgment is Quod Humfrey Joyner recuperet debitum eidem Humfredo Skinner adjudicant whereas it ought to be eidem Humfredo Joyner adjudicat As to the first Error the Court said that after the Defendant hath relinquished the Bar the Declaration remains without defence for which cause the Court may well judge for the Plaintiff and for the second Error it was amended by the Court. Gomersall and Watkinsons Case 922. Eliz. Watkinson the Defendant brought Debt in B. R. against the Plaintiff Executor of William Gomersall and shewed that the Testator retained her in his Service 28 Eliz. taking 40 s. for one year for her Wages and so from year to year and that she had served the Testator five years who died her wages not paid The Defendant the Executor pleaded Nihil debet which was found against him and Judgment for the said Eliz. the Plaintiff Error was brought and assigned the Action did not lie against the Executor It was said by the Justices it appeareth prima facie upon the Declaration that the said Eliz. was compellable to serve by the Statute of 5 Eliz. and then when he voluntarily retains her in service being compellable to serve the Master cannot wage his Law in Debt for the wages and therefore the Action is maintainable against his Executors Stanton and Suliards Case 923. Note It was Resolved in this Case Whereas the Sheriff brought an Action upon the case against the Defendant in the Kings Bench upon Assumpsit to pay the Sheriffs Fee upon arresting the party in Execution which was 12 d. for every pound where the Execution did exceed a 100 l. and there Judgment was given for the Plaintiff that upon Error thereupon brought in the Exchequer the Judgment was reversed because an Action
a Libell or false Rumor although he produceth his Author yet he is fineable Damuâ—'s Case 1038. The Case was I. S. was indebted to M. 1800 l. upon a Statute who dyed Intestare A. his Wife took Administration of his goods and married B. and during her Coverture made her Will by which she appoinâ—ed to her Kindred 400 l. in Charitable uses Proviso if any crosse in Law or losse of the said Debt of 1000. should arise it should fall upon the last 900 l. mentioned befor the Proviso of which 900 l. the 408 l. the Charitable use was the last A. dyed Administration de bonis non c. of M. was committed to D. which had of the Debts 2000. besides the 1800 l. upon a Commission upon the Statute of 43 Eliz. of Charitable uses against D. it was Decreed for the Charitable uses to which Exceptions was taken 1. That A. had not power to make a Will of this Debt 2. That the 2000 l. were desperate debts 3. That there was a crosse in this Debt there being a Suit by the next of Kin to revoke the Administration committed to D. Vpon the exceptions it was Decreed in Chancery with the Assistance of the Judges 1. That though the Will of A. was void in Law yet it would serve by the Statute if there was assers of that estate or of the estate of A. her self to support the Charitable use For the goods in the hands of Administrators are all to Charitable uses and it is the Office of the Administrator so to imploy them and the Children or Kinred have no property in them but under the Title of Charity 2. Because it appeared that at the time of the making of the Decree that the estate would bear both the Legacies and the Charitable use also with an Overplus and if any of the debts of the 2000 l. became desperate it was by the negligence of the Administrators and should not retard the Charitable use The King and Howards Case 1049. In this Case these points were Resolved by the Justices 1. A man makes a Feoffment of Lands in 5. Counties with a Condition of Re-assurance a Re-assurance is made of Lands in 5. Counties It is a breach of the Condition but only for the Lands in one County and a good performance for the other 2. Tenant in Tail Remainder in Tail Remainder in Fee he who hath the Remainder in Fee grants it to the first Tenant in Tail this acceptance of the Deed is an Attornement which shall bind those in the Remainder â— If an Act of Parliament be certified into the Chancery no averment shall be against it that it was not an act of Parliament because the Commons did not assent to it but with a Proviso which is lost but if it appeaâ—eth in the body of the Act that the Commons did not assent the Act is void The Case of the Commissioners of Sewers 1050. Upon complaints against diveâ—s ill disposed persons of Suits and vexations by them against the Commissiâ—ners of Sewers and their Officers for the counties of Northamoâ—â—â— Huntingdoâ— Cambridge and Lincoln It was holden by the Lords of the Council the Commissioners of Sewers may make new works as well to stop the fury of the waters as to repaire the old when necessity requires it 2. That for the safety of the Country they may lay a Tax or Rate upon any Hundreds Towns or Inhabitaâ—ts thereof in general who are interessed in the Benefit or Loss without attending a particular Survey or Admeasurement of Acres when the Service is to have a speedy and suddain execution 3. That they have sufficient power to imprison Refractory and Disobâ—dient persons to their Orders Warrants and Decrees and that Actions of Trespass False Imprisonment c. brought against the Commissioners or their Officers for extremity of their Order or Warranty are not maintainable nor will lie Goodson and Dâ—ffâ—â—dâ— Case 1051. Error of a Judgment in a Court of Pipowders in Rochestâ—r The case was A. dwelling in the Town was bound to pay B. 150 l. the first day of May at the House of B. in Rochâ—ster the Bond was sued there 24. September in the Court of Pipowders the Defendant pleaded payment at the House Issue upon it It was found for the Plaintiff Error brought and assigned that the Prescription was alledged to hold a Court of Pipowders before the Mayâ—r and two Citizens and by the Plea it appeareth it was holden before the Deputy of the Mayor and two Citizens The Court held the same to be Error 2. Error The Issue was misjoyned for the payment is alledged at the House of the Plaintiff in Rochester and it ought to have been pleaded apud Rochester in domo mansionali of the Plaintiff This the Court conceived to be Error and the Judgment was reversed Billingsby and Hercys Case 1052. A Demise was made of Lands in D. for years by the word Demise and to Farm let the Mannor and also all Timber Trees growing upon the same with an exception of six Oaks during the Term the Term was assigned to a Feme Sole who took Husband the Plaintiff and they assigned all their Interest to the Defendant reserving the Wood and Trees the Husband died his Executors cut down the Trees the Wife brought Trespass It was adjudged the Action did not lie because no propriety in the Trees passed by the words Demise Grant and to Farm Let though there was Liberty to Fell and Sell. Price and Almeries Case 1053. A possessed of a Term for Forty years devised the same to his Wife if she should live so long the remainder to I. his Son and the Heirs of his Body and made his Wife his Executor who entred and claimed the Term as a Legacy the Son died in the Life of the Wife the Wife died the Executor of the Son entred Adjudged his Entry was not lawful because the Son had not any Interest but a possibility Edwards and Dentons Case 1054. A man seised in Fee of the Mannor of D. and of an house called W. in D. and also of a Lease for years in D. by Deed did grant bargaine and sell the Mannor of D. and all his Lands and Tenements in â— to I. S. and his Heirs It was adjudged that the Term for years did not pass for the intent appears that nothing shall pass but that which the Heir might take for that the Habendum was to him and his Heirs Sir William Waller and Hangers Case 1055. The case was King Ed. 3. reciting that he had of every 10. Tun of Wine imported a tun and of every 20. Tun two Tuns one before the Mast and another behind the Mast granted to the citizens ef London that Nulla prisagia sint soluta de vinibus civium liberorum hominum London The Husband of the Defendant a Freeman and citizen of London having Wines in the Port and others upon the Sea died and made his wife his Executrix An Information was against her
for not paying of Prisage she pleaded she was Libera foemina de London and pleaded the Charteâ— of 1 E. 3. vide the Charter at large put in this case in Buâ—strodes Reports It was after many loâ—g Arguments adjudged in this case that the husband of the Defendant was a compleat citizen in every respect and that those Wines remaining in the hands of his wife were bona civium and so within the discharge to be freed from the payment of Prisage Wheeler and Heydon Case 1056. Debt upon the Statute of 2 E. 6. for not setting forth of Tythes and declared that I. S. was Parson of S. and let him the Rectory for six years if he so long lived and continued Parson there It was found that the Parson made the Lease for six years and the words if he continued Parson there were omitted in the Lease It was the opinion of the Justices that this variance betwixt the Lease and the Declaration and the Lease found is all one in substance and the addition in the Declaration is no more then what the Law tacite implies Heydon Shepherd and others Case 1057. Error in Parliament the case was In Assize brought against the Defendant Judgment was given for the Plaintiff he brought Error in the Kings Bench and there the Judgment was affirmed and upon that Judgment he brought Error in Parliament It was Resolved that a Writ of Error did not lie in Parliament to reverse a Judgment given in the Kings Bench in Error brought there for that there is a double Judgement and the reversal of a Judgment in a Writ of Error given shall not reverse the first Judgment but that execution shall issue upon the first Judgment in the Assize The Case of the Sheriffs of Bristol 1058. The Commissioners upon the Statute of Bankrupts committed a Bankrupt to their custody for refusing to be examined upon Interrogatories and they let him escape whereupon Action upon the case was brought against them It was objected the Action did not lie because he was not committed till satisfaction of the Debt But Resolved the Action did well lie the commitment being only for refusing to be examined upon Interrogatories although it doth not appear what the Interrogatories were so as the Court might judge whether they were lawful or not for they shall be intended lawfull till the contrary be shewed Hill and Hawkes Case 1059. Trover and Conversion of four Bushels of Wheat The Defendant justified that the Bayliffs of L. time out of mind had used to choose one to be Bell-man for keeping the Market-place clean and the Bell-man and his Predecessors had used time out of mind c. to take out of every Sack of Corn which contained more then a Bushel a Quart for the Toll of the corn brought in Sacks to the Market to be sold and that he was chosen Bell-man by the Bayliffs and that the Plaintiff brought a Sack of corn containing four Bushels to be sold and he took a Quart for Toll It was adjudged a good custom although the corn was not sold but only brought there to be sold but without a special custome Toll shall not be paid of Corn brought to sell if it be not sold 1060. Debt upon an Obligation The Defendant pleaded non est factum it was so that the Bond was sealed and delivered by the Defendant but that afterwards viz. Vicecomiti Comitatus Oxon without the privity of the Plaintiff were interlined in a place not material wherefore adjudged it was a good Bond but if it had bin in a place material or with the privity of the Plaintiff the Obligor the Bond had bin void Poole and Godfreys Case 1061. Action upon the case against the Defendant a Sommoner in the Spiritual Court and having a Citation against the Plaintiff he retorned that he had summoned the Plaintiff whereas in truth he never summoned him for which the Plaintiff was excommunicated to his great damage It was adjudged that the Action did lie Mansfields Case 1062. Information against him because he being a Recusant convict went five miles from the place of his confinement he pleaded a License of four Justices of the Peace but because he did not show that he did take the Oath of Allegiance before the License nor that the License was granted by the privity of the Bishop or the Lieutenant the Plea was disallowed Jesson and Bruns Case 1063. Debt in Yarmouth there the Bail was taken The Cause was removed in B. R. and there new Bail found and the same Term a Procedendo was awarded Adjudged the first Bail should stand and was not discharged by removing of the Record but otherwise if the Procedendo had been awarded in another Term. Wrights Case 1064. It was Resolved in this Case That if any English Court holds Plea of a thing whereof Judgment is given at the common Law a Prohibition lies upon the Statute of 27 E. 3. cap. 1 and 4 H. 4. cap. 23. And therefore whereas the Plaintiff brought Trespass in B. R. and Judgment was against him and after he exhibited a Bill in the Court of Dutchy for the same matter a Prohibition was awarded Worrali and Harpers Case 1065. A seised in Fee of the Mannors of G and N. both holden in capite covenanted to stand seised of G. to the use of himself and his wife and the Heirs Males of their two bodies the Remainder over in tail and of N. to the use of himself and his wife for their Lives the remainder to the Heirs of his own body Afterwards he purchased Soccage Lands and devised that they should be sold by his Executors who sold them to the Plaintiff It was Resolved that the Devise was good for two parts of the Soccage Lands only and not void for the whole Soccage Lands for they held that the Reversion expectant upon the Estate tail of the Land holden in capite was a good Impediment to devise more then two parts of the Soccage Lands Glanviles Case 1066. The case was A Jewel of Gold with a Diamond was sold by Glanvile to Courtney It was affirmed by Glanvil to be a good Diamond whereas it was but a Topaz so as Courtney was deceived for the Jewel was sold to him for 300 l whereas in truth it was not worth 30 l. Glanvil got a Judgment in the Kings Bench against Courtney for 800 l. upon non suum informatus by assent of the parties Upon a Bill preferred in Chancery and upon examination of the cause it was decreed that Glanvil should take back the Jewel and should have a 100 l. and should acknowledge satisfaction of the Judgment which he refused to do and for breach of this Decree he was committed and upon an Habtas corpus brought in B. R. he was discharged and it was said a Suit in Chancery after a Judgment at the common Law and to be reversed was not good by the Statute of 27 Ed. 3. and the Statute of 4 H. 4. and divers
of a Judgment upon a Plaint in Debt in an Inferior Court was assigned because the Defendant had not Addition But the Judgment was affirmed because it is not of necessity to have Addition for the Defendant in a Base Court where Process of Outlawry doth not lie Collins Case 456. Audita Querela was brought by Fraud by A. B. and C. for all Executions being several Suits of divers persons Adjudged it was unduly granted and therefore a Vacat was made thereof upon Record because one Audita Quaerela cannot be upon several Suits Hoâ— and Taylors Case 457. The Lord of a Mannor granted by Copy to one and his Heirs Subboscum in M. Wood and G. Grove annuatim succidendum by four or five Acres at the least and after made a Lease of the Mannor The Lessee cut down certain Wood the Copyholder brought Trespass and the Lessee justified with averment that he had left sufficient for the Copyholder to be cut by four or five Acres yearly Resolved First that Under-wood might be granted by Copy if the Custome permit it Secondly That the whole Wood passed and the word annutim succidendi to be an order only appointed for the cuâ—ing of it not to restrain the Grant Yelding and Fayâ—s Case 458. The custom of a Parish was That the Parson had used to keep within the Parish a common Bull and Boar for the encrease of the Parishioners Chattel and the Defendant being Parson had not kept them for four years together for which the Plaintiff brought action upon the Case the Defendant by Protestation there was no such Custom pleaded Not guilty It was adjudged a good Custom and that the Action did lie and the Plea of Not guilty not good the offence being in non feasance of a thing and the Protestation not good against the Custom Morgan and Wyes Case 459. In Trover and Conversion The Plaintiff put in exception that the Sheriff was his Cosen and prayed a Venire to the Coroners which issued accordingly and at the Nisi prius the Tales de circumstantibus was awarded and found for the Plaintiff and Judgment and upon Error brought this was assigned for Error and it was adjudged Error and the Judgment reversed Downhall and Catesbyes Case 360. In a Formedon in the remainder the Case was A. seized in Fee gave Instructions to one to make his Will in writing and to give the Land to his Son for Life who put the Will in wriing and therein writ the Estate to be in Fee It was Resolved that the Will was void being contrary to the intent of the Devisor Evington and Brimstons Case 461. A man left his Gates open ad nocumentum Inhabitantium for which he was amerced in the Leet and his Chattel distreined for the amercement he brought Trespass It was adjudged That it was an Offence not amerceable in a Leet and the Distress unlawful and the action well brought Eatons Case 462. Debt upon an Obligation The Condition was If the Obligor and his Wife sell the Wives Land then if the Obligor during his Life purchase to the Wife and her Heirs so much Land and of that value as that which should be sold or else shall leave to his Wife so much money or money worth after his death to her own use that then c. The Defendant pleaded the Wife was dead the Plaintiff said the Husband and Wife had aliened the Land and the Husband had not purchased so much other Lands to the Wife and her Heirs It was adjudged against the Plaintiff because the Condition was for the benefit of the Obligor and gave him Election either to purchase Land or leave money of which Election he is prevented by the death of the Wife which is the act of God and so discharged of one part of the Condition and then the whole Condition and Obligation are both discharged Thyn and Cholmlys Case 463. A Lease for years was rendring Rent at Mich. and our Lady with a Nomine poenae of 3 s. 4. d. the Lessee assigned the Term adjudged that the Assignee was chargable with the Nomine poenae incurred after the Assignment not before Carter and Loves Case 464. The Case was A Termor devised his Term to I. S. who made his Wife his Executor and died the Wife entred and proves the Will and afterwards took Husband and the Husband takes a Lease of the Lessor afterwards the Devisee entred and granted his Estate to the Husband and Wife 1. If by this acceptance of the new Lease by the Husband the Term which the Wife had to the use of another viz. the Testator should be determined Resolved It was clear it was a surrender 2. When the Devisee entreth into the Term devised to him without the assent of the Executor and after gâ—ants his right and interest to the Executor if the Grant be good because he hath not any Term in him but only a Right of the Term suspended in the Land It was holden to be a good Grant and that it shall have a protection to enure by way of Grant to pass the Estate of the Devised to the Executor Dell and Higdens Case 465. It was Resolved in this Case That the admittance of Tenant for Life of a Copyhold is the admittance of him in the Remainder because the Fine is entire and no more Fine is due by him in the Remainder but otherwise it is of him in the Reversion 2. Resolved That the surrender of a Copyhold in Tail is not a Discontinuance but a common Recovery without Voucher is a Discontinuance Sams and Pitts Case 466. Assumpsit The Plaintiff and Defendant controversies being betwixt them submitted themselves to Arbitrament and the Plaintiff in consideration of 6. d. given him by the Defendant promised to pay 200 l. to the Defendant if he did not perform the Arbitrament The Defendant also assumed to the Plaintiff in consideration of 6 d. given to him by the Plaintiff that if he did not perform the Arbitrament that he would pay to the Plaintiff 200. l. upon request and alledged in Fact that an Arbitrament was made that the Defendant should be bound to the Plaintiff that the Plaintiff and his Wife should have and enjoy the Land in question without the Let or hindrance of him his Wife or C. their Son and Heir and that the Plaintiff had performed all on his part yet the Defendant did not become bound to the Plaintiff as c. nor paid the 200 l. though requested and because it was not expressed in what Sum the Defendant should become bound to the Plaintiff and because the De-Accord is that the Defendant be bound for Annoyance without Let of the Son of the Defendant which was a Stranger to the Arbitrament It was adjudged against the Plaintiff and that the Arbitrament as to that part was void Dorley and Woods Case 467. In an Action brought the Defendant alledged a Custom of a Copyhold to be demised in Fee Tail or for Life and
long live a Widdow And so note there is a difference between a Limitation and conditional words Harris and Vandergies Case 503. Resolved in this case that an Administrator shall have Trespass de bonis asportatis in vita of the Inteste by the enquiry of the Statute of 4. E. 3. Dudley and Knights Case 504. In Debt The Issue was if the Plaintiff habuit gavisus fuit possidebat the Office of Bedelry of the Court of Conscience of the Bishop of London it was found occupavit Officium praedictum It was said that occupavit did not amount to Gavisus fuit vel habuit but the Court held it good enough Lassels and Lassells Case 505. Action upon the case by the Father against the Son for those words spoken by him of his Father viz. My Brother hath stollen a Black Mare and you were privy to it and sent her away to the Fens to my Brothers House Adjudged the words were slanderous being spoken of a Justice of Peace Jenkingson and Wrays Case 506. Words viz. John Jenkingson meaning the Plaintiff deserveth to have his Ears naild to the Pillory Adjudged the words are actionable being spoken of an Attorney Bale and Rodes Case 507. Words viz. There is a Villain now broken into my Mothers house to rob my Mother and is in the house innuendo the Plaintiff The Court doubted if the innuendo did reduce the words to be spoken of the Plaintiff Barbers Case 508. Words viz. The Plaintiff hath bin in prison for stealing M. Pigotts horse Qu. If the Action lieth because he doth say that he had stole the Horse Atkinsons Case 509. After a Recovery of Detinue the Defendant upon the Distring as pleaded that after the Judgment he had delivered the Goods to the Plaintiff Adjudged no Plea without being returned by the Sheriff or without a Deed shewing it Pen and Glovers Case 510. Lessee for years of a Mannor covenanted that he nor his Assigns would mâ—lest vex or put out any Tenant from his Tenancy upon payment of forfeiture A breach was assigned that the Lessee entred upon the possession of A. a Tenance of the Mannor and beat and wounded and troubled the said A. for his Tenement It was adjudged no breach without an Ouster or disturbing him of the profits of it Carith and Reades Case 511. A Lease was made of certain Fenny Grounds in the County of Cambridge the Lessee covenanted to drein certain other Lands in the said County not in the Lease and in Covenant brought he pleaded that the Lessor had entred upon the Land let Adjudged no Plea because the Covenant was collateral and not for doing any thing inherent to the Land ler. Besey and Hungerfords Case 512. The Venire fac was returned the first day of the Term and the Roll gave day before the Term and Issue was joyned and tried upon it The Court said the Roll is the Warrant for the Writ The Court held the Writ issued without Warrant and the same was not aided by the Statute of 18 Eliz. for that that Statute aids only Discontinuance Miscontinuance and Misconveying of parties Ap Richard and Penrys Case 513. In a Quod ei Desorceat in Wales in the Nature of a Writ of right Issue was joyned and tried upon the meer Right The Demandant upon Non-suit was barred by Judgment and a new Quod ei desorceat brought and the first Judgment pleaded in Bar It was adjudged a good Bar and Judgment final given It was the opinion of the Justices in Error brought and assigned that final Judgment should not be given upon the Demurrer That this Judgment was good and the Judgment was affirmed Gawen and Ludlows Case 514. Note It was Resolved in this case That if in a Replevin the Defendant claims property the Plaintiff may have a Writ de proprietate probanda althought it be two or three years after because by the claime of the property the first Suit is determined Wilford and Mashams Case 515. A constitution in London is That an Apothecary who sells unwholsome Drugs should forfeit a certain pain The Defendant sold unwholsome Drugs in London for which the Chamberlain of London brought Debt in London for the pain Adjudged maintainable there by their By-laws and Customs Wild and Copemans Case 516. Words viz. Thou art a forsworn man for thou wert forsworn in the Leet Adjudged the words actionable because a Leet is a Court of Record Borough and Taylors Case 517. The Queen made a Lease rendring Rent with condition if the Rent was behind by the space of 40. days that the Lease should cease the Rent was payable at the receipt of the Exchequer afterwards the Queen granted the Reversion It was adjudged that in this case the Grantee ought to demand the Rent upon the Lands and not at the Receipt of the Exchequer for that the Grant had altered the place of payment Belchamber and Savages Case 518. Debt was recovered against the Defendant by another who sued Execution and the Plaintiff was Sheriff and had the Defendant in Execution and he escaped and the Sheriff paid the condemnation and brought an Action against the Defendant who pleaded that the Goaler licensed him to escape Adjudged no Plea Beckford and Parncotts Case 519. A man seised of Lands in A. had Issue four Daughters viz. A. B. C. and D. and devised all his Lands in A. to A. and B. his two Daughters and made them his Executors Afterwards he purchased other Lands in A. a Stranger was desirous to purchase those Lands which he had new purchased and he said That the Land should go with the residue of his Lands to his Executors Afterwards the Testator made a Codicill and caused it to be annexed to his Will but in the Codicill no mention was made of this Land and if the new purchased Land should pass by the Will without a new publication of this Land was the Question Resolved the Land newly purchased should not pass for notwithstanding that the reading of the Will and making a new Codicil may amount to a new publication yet it doth not manifest the intent of the Devisor that more shall pass then that which he intended at the first and the reading of the Will and making a new Codicill may not be termed a new publication without an express publication for the Land newly purchased therefore the Land shall not pass by it Ascue and Hollingsbrooks Case 520. The case was A. acknowledged a Statute Merchant at Lincoln before the Mayor there to which Statute there wanted the Seal appointed by the Statute of Acton Burnell wherefore the Conusee brought Debt upon it in Co. B. and had Judgment Error was brought and the Judgment was reversed because it was not an Obligation for it shall not be taken to be an Obligation without express proof of the delivery of it as an Obligation 2. Because three were bound jointly in it and the Action was brought against one of them only and so the Writ did
liberty of Exemption was extinct by the Act of Parliament and the Kings intent was not to grant such a Liberty as was excinct and as to the non obstante it was not sufficient being general but if the Grant or non obstante had been particular there the Grant should have been good Matthew and Woods Case 449. Judgement was given in B. R. in an Action upon the case for words the Plaintiff there brought another Action in C. B. for the same words and had Judgment to recover Error was brough upon the Judgment in B. R. the Court was of opinion to confirme the Judgment in B. R. but they in discretion would not grant execution upon it but only upon the Judgment in their own Court Thimblethorps Case 550. Words viz. when wilt thou bring home my Husbands sheep which thou hast stollen adjudged actionable and the damages to be paid by the Husband Hilliard and Constables Case 551. Words spoken of the Plaintiff a Justice of Peace and Vice President of York viz. He is a blood-sucker and thirsteth after blood but if any man will give him a couple of Capons or a score of Weathers he will take them It was adjudged the words were not Actionable because he may thirst for blood in care of Justice Wheeler and Collyers Case 552. Assumpsit against an Administrator whereas the Intestate was in his life endebted to him 17 l. in consideration the Plaintiff would deliver to the Administrator 6. barrells of Beere he promised to pay the whole 20 l. being found for the Plaintiff Judgment was stayed because the action did not lye joynt for two sums of money Colmans Case 553. In consideration of 4 d. one promised to pay 10 l. upon non Assumpsit Damage shall be given to 10 l. and not to 4 d. adjudged Awder and Nokes Case 554. Lessee for years assigned over his Terme by deed to I. S. and Covenanted that I. S. and his assignes should enjoy the Land during the Terme without Interruption of any After I. S. assigned over his Terme by word and the Assigne being disturbed brought Covenant adjudged it did lye although the Assignement was but by word because there was privity of estate Paramoure and Darings Case 555. The Condition of an Obligation was to pay all Legacies which I. S. had bequeathed by his Will Adjudged the Defendant shall be estopped to say I. S. made no Will but he may plead he gave not any Legacies by his Will Grene and Bufkyns Case 556. The Statute of 31 H. 8. gave all Colledges dissolved to the Crown in which there is a Clause that the King and his Pattentees should hold discharged of Tythes as the Abbots held Afterwards the Statute of 1 Edw. 6. gave all Colledges to the Crown but there is in it no Clause of Discharge of Tythes The Parson Libelled in the spiritual Court and the Farmor of the Lands of the Colledge of Maidston in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of opinion that the King had the Lands of the Colledge by the Statute of 1 E. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands comming to the King by that Statute whether they should be discharged of Tythes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Edw. 6. for dicharge of Tythes but it was Resolved by the Justices that unity without Composition or Prescription was a sufficient discharge of Tythes by the Statute of 31 H. 8. 557. Action upon the case for that the Defendant made a Conigree in his own Lands and that the Conies entred into the Plaintiffs Land and destroyed his Corne Resolved that the Action did not lye because they were not the Defendants Conies when they were out of his Warren But in that case it was holden that the Erection of a Conigree or a Dove Cote was presentable in a Leet and finable there 558. Note Resolved in the Court of Common Pleas by the Justices there That an Information doth not lye upon the Statute for Tanning of Leather but only in the Courts of Record at Westminster and not in any other Inferior Courts The Queen and Hussies Case 559. Tenant in Tail of an Advowson the reversion to the King in 32 H. 8. granted it to the King and his Heirs the King granted the Advowson to the party presented Tenant in Tail dyed without Issue the Church became void Resolved that the Advowson did passe out of the Kings Reversion after the estate Tail was determined and that a Quare Impedit brought by the Queen did not lye But in this case it was Resolved That a double presentation would not put the Queen out of possession if she had had Right Nevill and Barringtons Case 560. After Issue joyned in an Ejectione firme and the Jury at the barre ready to try the Issue A Writ was brought to the Justices not to proceed Regina inconsulta in the Nature of Aide and after great debate the same was allowed by the Court Vide aide in personal actions 2 R. 313. Fennor and Plasketts Case 561. It was Resolved in this case That if the Husband distrain for Rent due to the Wife dum sola fuit and Rescous be made he alone may have a Writ of Rescous or at his Election joyne his Wife with him in the Writ 562. A Rescous was returned without shewing the place where Rescous was and the party was discharged Hinson and Baradges Case 563. If the Jury challenge the Sheriff and the challenge be confessed although the Jury be removed and a new Sheriff chosen Yet Resolved The proces shall go to the Coroners 564. It was Resolved in this case that Ejectione firme doth not lye de pecea terrae Hollman and Collins Case 565. A Judgment in the Court of Plimouth was reversed because the stile of the Court was Placita coram I. Majori c. and did not say secundum Consuetudinem villae nec per litter as Patentes c. Kelsick and Nicholsons Case 566. Two Executors were and one of them gave the Obligation to a Stranger for the payment of his own Debt and died The survivor brought Detinue It was adjudged the Action did not lie Sowel and Garrets Case 567. A devise was made to the Son and if he die without Issue or before his age of 21 years it shall remain to another the Son had Issue but dyed before 21. years Adjudged the Son should have the Land and not he in the Remainder and in that Case Ou was construed for Et. Buckler and Harvyes Case 568. The case is very long but this in effect Tenant for Life the Remainder in Fee Tenant for life made a Lease for years the Lessee entred Tenant for Life granted the Tenements to C. Habendum the Tenements from the Feast of Mich following for Life the Lessee for years attornes C. enters and makes a Lease at Will to whom the Tenant for Life
and he demanded of the Plaintiff what was his Name he answered his name was I. D. therefore he arrested him adjudged for the Plaintiff for that the Defendant at his peril ought to take notice of the party Sharpe and Swaines Case 603. A Feoffment was made of a house and Land which was within the View of the house and the deed of Feoffment was delivered in the house only It was adjudged no Livery for the Land Popham Chief Justice said it was not good for the house Barkby and Forsters Case 604. A man brought Assumpsit in B. R. and declared whereas 16. December at the request of the Defendant he delivered to the Defendant 100 l. to the use of the Defendants Father the Defendant promised to repay it to the Plaintiff ad vel ante the first of May following The Defendant pleaded the Plaintiff had brought an Accoumpt against him for the same money and declared the money to be delivered 10 December and prayed Judgment of the Action pendant the Accoumpt upon Error brought the Judgment was affirmed because damages are recoverable in this Action but not in an Accoumpt Blowfield and Withes Case 605. Debt against 2. one was taken in Execution and suffered to escape by the Goaler It was adjudged that Execution might be sued out against the other 606. Judgment a Writ of Entry was reversed because the Name of the Sommoners were not endorsed upon the Writ Arkingsall and Dennys Case 607. An Archdeacon having a Parsonage appertaining to his Archdeaconâ—y before the Statute of 13 Eliz. made a Lease for 40. years of the Parsonage which was confirmed after the Statute Adjudged the Lease and confirmation were both good Harrington and Wyes Case 608. A. made Articles betwixt him and 2. others by which it is Covenanted by the said A. that the said A. doth let c. and the said A. doth covenant to make a Lease for 21. years according to these Articles Provided that they shall pay to the said A. yearly 28 l. Resolved that it was a present Lease and a Reservation of Rent and that the Rent should be paid during the Terme Parlor and Butlers Case 609. Prohibition the case was the Plaintiff was Convented before the High Commissioners for saying of the Defendant a Minister That he was fiâ—ter to stand in the Pillary then to preach in a Pulpit and that be had taken 2. Orders already and that he lacked but taking the third which was to have his Ears cut off He there Justified the words that the Defendant had forged an Acquittance and shewed it The Commissioners would not allow of the Justification but granted him to aske the Defendant Forgivenesse the Prohibition was granted because they ought not to meddle with the Cause Easton and Newmâ—ns Case 610. If a man find goods and being demanded of him he denyes for to restore them It was adjudged to be a Conversion of them Randals Case 611. An Enfant confessed a Judgment in the Kings Bench in Debt It was Resolved that he could not have Audita Querela during his Nonage to reverse the Judgment in that Court but he might have Error in the Exchequer Chamber by the Statute of 27 Eliz. to reverse it Shephard and Metcalfes Case 612. A Prohibition by 3. Resolved one Nonsuit or Retraxit shall not bar the others Holcome and Rawlins Case 613. If a Disseisor make a Lease for years and the Disseisee reenters It was Resolved that the Disseisee after his reentry shall punish the Lessee for Trespas for the mean profits during his Occupation although he be in by Title but before his reentry he shall not punish him Gooses Case 614. Appeal of death against Principal and Accessaries before the fact and of accessaries after the fact The principal is found not guilty of the Murder but guilty of Manslaughter Resolved all accessaries before the fact should be discharged because to a Manslaughter none can be accessary before the fact Perries Case 615. An Enfant of the age of 9. years was admitted by his Guardian to sue an Appeal de morte fratris 616. A Writ of Error was delivered at the Instant the Judgment was given the Court would not allow of it because it was procured before the Judgment was given 617. Nota per Curiam A Copyholder may prescribe by usitatum est against his Lord but against a stranger he must prescribe in the name of the Lord. Ford and Glanviles Case 618. Administration is committed durante miuore aetate of an Enfant and Debt is brought against him and then the Enfant comes of age Quaere if the Writ shall abate Roberts and Agmondeshams Case 619. A Lease was made of a Rectory a Parson was presented to it and upon a supposition that he was holden out with force had a vi laica removenda upon which the Sheriff returned non inveni vim laicam nec potentiam armatam Notwithstanding which Returun upon Affidavit that he was kept out with force a Writ of Restitution was awarded out of the Kings Bench. Woodlifes Case 620. Accompt for goods delivered to a Factor to Merchandize he pleaded he was robbed of the goods and of divers other goods and Chattells of his own and holden a good plea. Bradshawes Case 621. A man prescribes for Common Appendant Resolved unity extincts it but not Common for arable Land Halliwel and Jervoise 622. A Parson sues before the Ordinary for Tythes and then he Appeals to the Audience where the sentence is affirmed Then the parties Appeal to the Delegates and there both sentences are repealed It was agreed that such a condition ad revidendum the sentences may issue forth but then such a Reviewing shall be final without further Appeal but if the Commissioners do not proceed to the Examination according to the Common Law they shall be restreined by a Prohibition Mortimer and Windgates 623. Accompt for Malt the Defendant said the Plaintiff brought Trover and Conversion for this and other Malt and for part found for him and for part not and demanded Judgment of the Action adjudged no bar for it may be he did not convert the Malt yet he ought to accompt for it Smith and Bowsals Case Vide the same Case 912. Plito 610. before Bradshawes Case the very same with this Case Rogers and Jacksons Case 624. Debt upon a Bond the Defendant pleaded the Statute of usury alledging that agreatum fuit that the Plaintiff should have so much money pro donatione diei solutionis the Plaintiff traversed absque hoc quod agreatum fuit and found for the Plaintiff It was said in stay of Judgment the word Corruptâ— was not pleaded in the Bar It was Resolved the Bar was made good by the Replication and the Declaration being good It is sufficient for Judgment for the Plaintiff Bacon and Hills Case 625. Ejectione firme the case was A. had Issue 3. Sons viz. B. C. and D. and devised to B. and C. certain parcells of Land and to D.
the Lands in question without mentioning of any estate after the death of his Wife and paying 10 l. a peece to his daughter when they enter and if any of the Sons marry and have Issue male of their bodies and dyeth before his enty in the Land then that issue to have his part D. takes a Wife and hath Issue male in the life of the Devisor and the Wife of the Devisor dyeth and he enters and pays the portion of 10 l. a year to the Daughters and after dyes B. the eldest brother enters upon the Issue male of D. It was adjudged in this case That D. had but an estate for life and not in Tail for there were three things precedent to the Tail the Mariâ—ge the having Issue male his death before his entry and when it appeareth he did not dye before his entry therefore he had no â—ail and by the word paying 10 l. to the Daughters he had not a Fee simple but that is intended to be for the estate which he had Grey and Willougbyes Case 626. The Venire bore date in December which was out of Terme but retornable at a day in the next Terme and the Issue upon distresse was afterwards tryed It was held the same was but a misconveying of proces which was helped by the Statute of Jeofailes but if the Agard upon the Roll had been had at a day out of the Terme then the Court held the same to be Error Tiping and Bunnings Case 627. Note It was adjudged that if a Copyhold be granted for life the remainder to another in Fee the admittance of the Tenant for life is the admittance of him in the Remainder because the Lord is not to have a new Fine upon the death of the Tenant for life Cheney and Hawes Case 628. Assumpsit to deliver to the Plaintiff in London certain monies when he delivers to the Defendant certain broad Cloathes there the Defendant pleaded Non Assumpsit The opinion of the Court was that the Defendant ought to have said by way of Answer that the Assumpsit was special have traversed the general Assumpsit in the Declaration Stowels Case 629. If there be two Joynt Tenants and one sole brings Trespas against a stranger who pleads Notguilty Resolved the defendant cannot give in evidence the Joynt Tenancy but he ought to have pleaded it Core and Hadgills Case 630. After Execution awarded supersedias issued quia improvidè emanavit executio but no cause of Restitution was in the supersedeas for which it was said that Execution was done before the supersedeas awarded The Court awarded a non supersedeas with a clause of Restitution in it Coles Case 631. He was Indicted of Burglary the Indictment was quod burglarit ' domum cujusdam Richardi fregit without naming his Sirname and the Judgment holden good Saundleys and Oliffs Case 632. A man was seised of a Messuage and granted the Messuage with all Commons appurtenant and in Trespas the Defendant did prescribe for Common and did aver that all the Farmors of the said Messuage in the place where c. and because it did appear that there was unity of possession of the Messuage and Land in which the Common was claimed the Common was extinct but if the grant had been all Commons usually occupied with the Messuage it would have passed the like Common and so it was adjudged Lewes and Bennets Case 633. The next Avoydance was granted to 2. the one Released to the other who brought a Quare impedit in his own name It was adjudged maintenable because it was before the Church was void Dover and Stratfields Case 634. King H. 7. gave Land in Tail to I. S. his Issue was disseised a stranger being in possession levyed a Fine with Proclamation and 5 years passed the Reversion remaining in the Crown It was holden that the Issue of him was only bound in whose time the Fine was Levyed and no other Issues and that by the Statute of 32 and 34 H. 8. 635. Action upon the case because for money he sold to him Tythes sciâ—ns that he had not any right in them Adjudged the Action did lye by the sciens though there was no direct saying that he had not any right in them Beamounts Case 636. He was taken upon an Excommunicato capiendo and the significavit did not mention that he was commorant within the Diocesse of the Bishop at the time of the Excommunication and for that cause the party was discharged Collins and Willies Case 637. The Father promised 10 l. in mariage with his Daughter the Daughter in consideration thereof promised to pay the 10 l. to the Father upon which promise action upon the case was brought against the Husband It was Resolved that ex rigore juris the Action was maintainable but if the Defendant had pleaded the Covin betwixt the Father and Daughter Popham said the action would have destroyed the Action However the Judgment for the practice was stayed Suliard and Stamps Case 638. Assumpsit that if he being Sheriff would execute a Writ of Execution that he would pay him his Fees due per leges Statuta Angliae and the Plaintiff shewed his Fee was 3 l. the Execution being 60 l. found for the Plaintiff Ir was moved in stay of Judgment that the Plaintiff ought to have shewed the Statute upon which the Fees are due but it was dissallowed because the Action is not an Action upon the Statute so as the Statute ought to be snewed Popworth and Arches Case 639. It was holden in an Accompt that the Defendant cannot wage his Law in accompt for the profits of 14. acres of Land for 6. years Hoe and Beltons Case 640. A Scire fac to have Execution of Damages The Defendant said that the Plaintiff had assigned the damages to the Queen and that the Sheriff by Process out of the Exchequer had extended his Lands for them It was adjudged a good Bar though the Sheriff had not retorned his Writ Hoe and Marshals Case 641. The Defendant was Bail for one F. at the Suit of the Plaintiff F. did not pay the money nor render his Body in a Scire facias against the Defendant the Bail he pleaded that the Plaintiff had released to him all actions after the Bail and before the Judgment It was adjudged the Release did not bar the Plaintiff because the Release was before any duty was due for no duty was by the Bail before the Judgment Coo. 1. part Griffin Lawrence and others Case 642. In Ejectione firme two of the Defendants were guilty and the other not he who was found not guilty died Resolved That the Plaintiff should have Judgment against the others for this Action is but in the nature of Trespass in which the death of one shall not abate the Action Garraway and Braybridges Case Ejectione firme the case was A had Issue F. his eldest Son and B. the Defendant his youngest and conveyed the Lands to the use
life and after to the use of his Son and his Heirs The point was if the same did after the use because the Father afterwards devised the Land to his younger Son this Case was argued only and adjorned Collins and Hardings Case 691. A man seised of Freehold and Copyhold by License made a Lease of both at one entire Rent the Lessee assigned his Terme and afterwards the Lessor Released all demands to the first Lessee Afterwards the Lessor granted and surrendred the Reversion of the whole to a stranger who brought Debt against the Assignee for Rent It was Resolved that the Rent was not determined by the Release because the Release was after the assignment of the Terme in which case it was in the Election of the Lessor to charge the Lessee or Assignee but for Rent due before the Release that was extinct by the Release But whether the whole Rent should issue out of the Freehold or should be apportioned the Justices were divided in opinion Cooper â—nd Langworths Case 692. A man sued forth an Elegit upon a Recognizance in Chancery but nothing was done nor Returned upon it Resolved that he might sue a Fieri fac upon the same Recognization and so if a man hath Recovered debt upon a Obligation he shall have another Action of debt if he hath not sued forth Execution Marsh and Edmonds Case 693. Debt upon an Obligation to be such a day at the Kings head in D. and there to choose two Arbitrators to joyne with others to arbitrate all matters betwixt them The Defendant said he was there at the last instant of the day to make the Choice adjudged no plea for he ought to have been there in such time that they might have chosen Arbitrators Bolls and Smiths Case 694. A man made a Feoffment in Fee to the use of himself and Wife for their lives and after to the use of B. their eldest Son and after his decease to the use of him who should be his eldest Son at the time of his death in Tail the Remainder to C. in Tail the Remainder over in Fee the Feoffor dyed the Wife made a Lease to B. for years who enfeoffed a stranger the Wife dyed C levyed a Fine to the Feoffee with Proclamation afterwards B. dyed having issue a Son at his death who entred the Feoffee having granted a Rent charge the grantee distrained and avowed It was adjudged that the Feoffment of B. and the Fine of C. had prevented the future use to rise in the Son of B. and so it was adjudged in Ards and Terringhams Case Stebbing and Goswells Case 695. By the Custome of the Mannor the Copyholders had used to have the tops and loppings of the Trees upon their Copyhold the Lord cut down all the Trees Adjudged that Trespas did lye by the Copyholder against the Lord. Drove and Shorts Case 696. A Jurour delivered to one of his Companions an Escrowle for Evidence which was not given in Evidence at the Tryal Adjudged no Cause to stay Judgment unlesse it appear he received it from one of the parties which did not appear Hewleys and Brices Case 697. A man devised all his Lands whereas but two parts passed the devisee entred and let the whole for years the Heir without actual entry Levyed a Fine to a stranger of a third part the Conusee made a Lease for life to a stranger the Remainder to the Queen by deed enrolled upon condition to be void upon tender of money to the Tenant for life Resolved in this Case that the entry of the devisee into the whole and his making a Lease of the whole for years was no disseisen to the Heir 2. That the Tender of the money to the stranger should devest the Remainder out of the Queen because the condition was not performable to the Queen but to the Tenant for life Markham and Gomastons Case 698. Action upon the Case Whereas the Plaintiff for the debt of I. S. was bound with I. S. in Recognizance to F. and I. S. and F. his servant became bound to the Plaintiff to save him harmlesse in which the first Bond was recited with a blank for the Christian name and dwelling place of T. the Defendant after the sealing and delivery of the Counter bond and before the Plaintiff agreed to it filled up the blank so as in debt brough against F. he pleaded non est factum and the Plaintiff was compelled to be Nonsuit It was holden that the action did well lye against the Defendant Elston and Brets Case 699. Execution was sued upon a Statute in Chancery and the Liberate executed by the Conusee himself being Sheriff and the proper name was not endorsed but only Vic. It was adjudged erroneous and void Mills and Parsons Case 700. Tenant in Tail for 1000 l. bargained and sold by deed enrolled certain Lands to I. S. and Covenanted in consideration of the said 1000 l. and of a Rent then after to be granted by the bargainee that if he sold any other part of his Lands which he held in Fee that the bargainee should have the offer of them before another and if he attempted to sell without offer and notice to the bargainee then he and his Heirs for those considerations would stand seised to the use of the said I. S. and his Heirs of all he should attempt to alien without notice or offer I. S. dyed K. being his Heir the bargainor sold other Land without notice or offer to another and he sold the Land to one who had notice of the Covenant It was in this Case Resolved that the Consideration to raise the use in the other Land was good although but one of the things was performed viz. the payment of the money 2. If the Heir shall have benefit of the contingent use not Resolved Terrâ—ll and Darcyes Case 701. Accompt against the Defendant as Bailiff of Cloathes the Defendant said for part he was Bailiff to the Plaintiff and a stranger joyntly and for the Residue he was as Bailiff to render accompt It was found he was Bailiff for 16 Cloathes but there was no mention if the 16. were to them joyntly or not It was in Co. B. adjudged for the Plaintiff and upon Error brought the Judgment was affirmed Scrogs and Spencers Case 702 A Distringas to the Coroners was returned by them with subscription of their names but not Coronatores It was adjudged Error for both the Sirnames and names of Office ought to be subscribed Medcalfes Case 703. Two shooting at Butts having both but one shott to winne the game waged 40 l. one with the other for the upshot he who won brought Assumpsit against the other for the 40 l. upon nihil dicit Judgment was for the Plaintiff It was holden the action was maintainable Ardes and Watkins Case 704. A. seised of Land made a Lease for 30. years the Lessee made a Lease for 28. years rendring 30 l. rent and afterwards he Devised 28
he was not a person Qualified to take two benefices within the Statute of 21 H. 8. of Pluralities It was agreed that a Countesse a Widdow had power to retain two Chaplains who might purchase Dispensation for plurality But when she had once retained two she could not retain a third Chaplin who might purchase Dispensation within the Statute and therefore in the principal Case the Retainer of Priory being the third Chaplain was not good nor his dispensation good and so the Queen for want of Presentation of the Patron and Ordinary had good title to present Oldbery and Grogonds Case 729. Debt upon an Obligation for payment of certain money at a day certain The Defendant pleaded that the same was agreed to be paid for the Resignation of a Parson of his Benefices to the intent another might be presented unto it and so upon a Symoniacal agreement The Court held it no plea for that an averment shall not be that it was to be paid for other cause then the Obligation expresseth Agor and Candishes Case 730. An information was brought in the Exchequer by an Informer tam pro Domina Regina quam prose ipso upon the Statute of 8 E. 4. cap. 2. of Retainers and Judgment was there given the Informer to have one Moyety of the forfeiture and the Queen the other Moyety Error was brought upon the Judgment and assigned for Error that the Statute limits the party to sue in the Kings Kings Bench and divers other Courts but speaks not of the Exchequer It was the opinnion of the Justices that for that cause the Judgment was erroneous as to the Informer only Then it was moved that the Judgment might be and stand good for the whole forfeiture to the Queen for it was said that a Judgment might be reversed in part and stand for the other part and divers Presidents vouched to that purpose But the Court was of opinion because the first Judgment gave but a Moyery to the Queen this Court had not power to give more nor encrease it but only had power to affirme the Judgement Boddy and Hargraves Case 731. Debt upon a Lease for years was brought against the Administrator in the Debet detinet It was adjudged well brought because the Rent was encreased in the time of the Administrator himself But it was said That in all Cases where the Executor or Administrator brings an Action for a duty Testamentary it ought to be only in the Detinâ—t because the duty demanded ought to be Assets Layton and Garnonces Case 732. A man recovered Debt in Co. B. and had Judgment and he took forth Processe and the party was taken upon a Capias utlagatum within the year after the Judgment upon Processe continued without any discontinuance against him It was adjudged in this Case that he should be in Execution at the suit of the party without prayer because the processe was continued Parker and Sir Ed. cleeves Case 733. The Case was A. seised of three acres of equall value conveyed by act executed two of them for the Joynture of his Wife and the third he conveyed by act executed to the use of such persons and of such estates as he should declare by his last Will afterwards he devised the Land to one under whom the Plaintiff claimed In this Case it was amongst other poynts Resolved that he could not devise the Land because he had Conveyed two parts before by act executed in his life time Sydnam and Courtneys Case 734. Sir George Sydnam possessed of divers Leases for years gave them to his Daughter who was the Wife of C and to the Heirs of her body and if she dyed withot Issue that they should remain to such person of Combe Sydnam which Combe Sydnam he devised to his Cosen and his Heirs males in default of the Issue of the body of his daughter There was a Clause in the Will that his daughter should not alter the Leases but that they should remain according to the Will and made his Daughter his Executrix and dyed C. caused the Daughter to enter upon the Leases as Executrix and so waive the Legacy and afterwards the Daughter dyed without Issue Then C. caused an Administration to be taken of the goods of Sir George Sydenham which was at the Costs of C. and then to convey over the Leases to C. The Heir of Sir Geoâ—ge complained in Chancery and the Leases decreed unto him for the two fraudes which were used by C. in the Obliging of the Leases because the Daughter had them upon special trust and although it was said in this Case that the entail of the Leases was not good yet because there was a trust in the Daughter and expressed in the Will It was said the parties were compellable to execute the Trust and the Lord Chancellour resembled it to the Case where an Assignment was made of a Lease upon an expresse Trust to one and the Heirs of his body and afterwards to another and the Heirs of his body and the Assignes were Compelled to execute the Trust and to suffer the Issues in Tail to take the profits of the Lands The Countesse of Waâ—wicks Case 735. The Case was A. seised in Fee enfeoffed I. S. who dyed without Issue having Issue M. his Sister and Heir of the whole blood and T. of the half blood their Father being long before attainted of Felony dyed seised M. entred and enfeoffed the Countesse The point was if the Corruption of the blood of the Father had disabled the Course of discent and Inheritance between the Brother and Sister Quaere not Resolved Sprakes Case 736. A Copyholder makes a Lease for years Resolved that the Lessee may maintain Ejectione firme though the Lease be not warranted by the Custom Fisher and Smiths Case 737. Note It was Resolved in this Case That if a man plead a Bargain and Sale in which no consideration of mony is expressed there it must be averred that it was for mony and the words for divers considerations will not imply mony but if the deed be for a Competent sum of mony though the certainty of the sum be not expressed it is good enough Worsloy and Charnocks Case 738. A Statute Merchant was by Mâ—ttimus removed out of the Chancery in C. B. an execution awarded there super tenorem Recordi Resolved 1. That Error lyes in B. R. although the Original be in the Chancery and the Execution in C. B. 2. Resolved that in that Case the Conusor cannot alledge for Error that the Statute wants one of the Seales that ought to be to it because he hath admitted the same in C. B. 739. Debt in B. R. upon Mutuatas for 50 l. the Defendant pleaded an Attachment in London and had found pledges and because the pledges were not put in at the day of the last default but at another day it was holden No plea and Judgment was for the Plaintiff Washington and Burgons Case 740. It was holden by the
Large At last it was Resolved That that Ordinance although it had the Warrant of a Charter was against the Common Law because it was against the Liberty of the subject for every subject by the Law hath Freedom and Liberty to put his Cloth to be dressed by what Clotheworker he pleases and cannot be restrained to any persons for that in effect would be a Monopoly Creswell and Holms Case 756. Debt upon Obligation the Condition was If the Obligee his Heirs and assignes shall and may Lawfully hold and enjoy a Messuage c. without the let c. of the Obligor or his Heirs or of every other person discharged or upon reasonable request saved harmlesse by the said Obligor from all former guifts c. the Defendant said no request was made to save him harmlesse It was adjudged for the Plaintiff because the Defendant hath not answered to all the Condition viz. to the enjoying of the Land and there were 2. Conditions viz. the enjoying and the saving harmlesse Chowley and Humbles Case 757. A Covenanted to make a Feoffment within a year to the use of himself for life the Remainder to H. his younger Son and the Heirs males of his body which remain over and if he did not make the Feoffment he Covenanted for those uses for the Continuance of the Land in his name and Blood Proviso if H. or any Heir male make a Feoffment or Levy a Fine his estate to cease as if he were dead and then the Feoffees to stand seised to the use of such person to whom the Land should Remain No Feoffment was made within the year A. dyed H. the Son levyed a Fine to the Defendant Resolved 1. That the Proviso to cease the estate was repugnant upon his estate for life 2. That his estate could not cease when he had levyed a Fine because then he had no estate 3. That the Feoffees and their Heirs could not stand seised to the use of the person next in discent or Remainder because no Feoffment was ever made Nevil and Sydenhams Case 758. In valore Moritagii The opinion of the Justices seemed to be That a tender was not material but that the value of the mariage was due withot a Tender Atkins Case 759. The Father devised his Land to his Son and the Heirs of his body and further I will that after the decease of my Son John the Land shall remain to G. Son of John Adjudged John had Tail and his Wife should be endowed Carter and Cleypales Case 760. All-Soules Colledge made avoid Lease by the Statute of 13 Eliz. because no Rent was reserved It was a Lease only to try title and Judgment Error was brought and assigned after that the Lease was void The Judgment was affirmed because the party did not plead the Statute for otherwise the Judges are not to take Notice of it Clarke and Dayes Case 761. A man devised Lands to his daughter for life And if she marry after my death and have issue of her body then I will that her Heir after my Daughters death shall have the Land and to the Heirs of their bodies begotten the Remainder in Fee to a Stranger It was adjudged she had not tail but only for Life and the Inheritance in his Heir by purchase and therefore in this case it was Resolved the Husband of the wife could not be Tenant by the Curtesie Deacon and Marshes Case 762. A seised in Fee of a house and possessed of Goods Devised in these words The rest of my Goods Lands and Moveables after my Debts paid c. To my three children B. C. and D. equally to be divided amongst them Adjudged they had but an Estate for Life in the House and that they were Tenants in Common of it and not Joynt-Tenants Smith and Mills Case 763. Adjudged that a Sale made of his goods by a Bankrupt after a Commission of Bankrupt is awarded is utterly void Gibons and Marltiwards Case 764. A. devised certain Land to B. and C. his wife who was the daughter of A. upon condition that they within 10. years should give so much of the Land as was of the value of 100 l. per an to F. F. and that he should find a Preacher in such a place and if they failed their Estate to cease and that then his Executors should have the Land to them and their Heirs upon trust and confidence that they should stand seised to the same uses B. within the 10. years made a writing of Gift Grant and Confirmation but no Livery nor Enrolment of it till after the 10. years The Executors refused to take upon them the Execution of the Will yet it was adjudged they should take the Land by the Devise and that the words upon Trust and Confidence made not a condition to their Estates Arrundells Case 765. In Indictment of Murder the Murder was alledged to be apud Civitatem Westm in Com. Middl. in Parochia St. Margaret and for Tryal a Jury was retorned de Vicineto Civitate Westm Resolved the Tryal not good for the Visne ought to have bin of the Parish and not of the city for a Parish is to be intended more certain then a city and when a Parish is alledged to be in a city the Visne shall come out of the Parish Alderion and Mans Case 766. Assumpsit In consideration the Plaintiff would give his good Will and furtherance to the Marriage the Defendant promised after the Marriage had to give him 20 l. he alledged he had given his good Will and that he did further it but did not show particularly how yet the Court held it to be a good consideration and adjudged the Action did lie Savage and Brookes Case 767. Upon an Indictment of Murder It was Resolved by the Justices that the Queen could not challenge Peremptorilie without shewing cause of her challenge 768. Note It was Resolved by the Justices That if a man buy Corn and converts it to meal and afterwards sells it it is not an ingrossing within the Statute of 5. E. 6. Staffords Case 769. Debt upon Obligation the Condition to make such further assurance as the Council of the Obligee shall Devise The Obligor comes to the Obligee and shews his Council had advised him to make to the Obligee a Lease for years which he required him to do and he refused It was adjudged the Obligation was forfeited otherwife if it were to make such assurance as the Council should devise for then the Council ought to draw and engross it ready to be sealed Plaine and Binds Case 770. Assumpsit 11. Septemb. to deliver certain goods to him if no claime be made to them before 14. September and alledged no claime was made post 11. diem usque 14. Septemb. It was said in stay of Judgment that the Declaration ought to have been that no claim was made after the Assumpsit until the 14. day and not post 11. diem The Court adjudged the Declaration good because the
Administratrix of W T. her Husband and that W. T. by his Bill such a day c. promised for him and his Executor to deliver to the Plaintiff 5000. Tyles before the Feast of All-Saints and to pay to the Plaintiff tantum quantum incrementuÌ„ and gaines which the Defendant should receive of the said Tyles for a year and averred the said W. T. received of the gaines 8 l. and that the Defendant in consideration the Plaintiff would suffer the Defendant to take and have the sole and only Administration of the goods of her Husband and give her day for the payment as well of the 8 l. as of the 5000. Tyles promised to pay the mony and deliver the Tyles upon request all which the Plaintiff did and yet the Defendant had not performed her promise Judgment upon Nihil dicit against the Defendant Error was brought it was adjudged that the consideration was insufficient because by the Law the Administration was to be counted to the Wife and it doth not appear that the Plaintiff had any Administration committed to him or that he exhibited any Caveat into the Spiritual Cour to hinder the Wife of the Administration and as to the giving day of payment that was not good because the Defendant was not his debtor nor chargeable in Law to pay him and for these causes the Judgment was reversed Hog and Blocks Case 898. Assumpsit The Defendant was indebted to the Plaintiff 10 l. and in consideration the Plaintiff would not sue him for the said 10 l. he promised to deliver to the Plaintiff 14. Quarters of Barley upon request Issue was joyned the Clerk of the Assizes returned the Postea and therein put John Puckering before a Serjeant which was omitted which was assigned for Error but the Court held it no Error and the Judgment was affirmed Levine Vanvive and Michael Vanvies Case 899. Debt upon Obligation to perform the award of A. and B. of for and upon all Actions and other Demands whatsoever had stirred depending having been between the parties till the date of the Obligation The Arbitrators awarded the Defendant should deliver to the Plaintiff before the last day of June next six Kentish cloaths which were battered by I. S. for the thred of the said Levine Issue was upon the deliver of the cloaths and found for the Plaintiff Error brought and assigned the arbitrament was of a thing out of the Submission It was adjudged it was within the Submission and the party was tied to the performance of it The Judgment was affirmed The Lord Mordant and Bridges Case 900. Action upon the case for these words viz. The Lord Mordant did know that Proud robbed Shotbolt and at such time as Proue should be arraignes therefore be willed Bridges to compound with Shotbolt for the same Robbery and told Bridges he would see him satisfied therefore if it cost him 100 l. It was found for the Plaintiff and damages a 1000 l. and the Lord Mordant had Execution by elegiâ— of the Lands of Bridges Bridges died the Administrator broughâ— Error in the Exchequer Chamber the Lord pleaded in abatement oâ— the Writ of Error his Execution by elegit and so the Administraton could not have Error Resolved the Writ of Error did lie for the Administrator because it might be the Land might be evicted and then the Plaintiff might resort to the Goods 2. It was assigned foâ— Error that words were not actionable in themselves for it waâ— said that one may compound for a Robbery knowing of it but noâ— for the Felony and the words are not to compound for the Felony Also it was said that it doth not appear in the Declaration that thâ— Lord was a Justice of Peace at the time of these words spoken tâ— Bridges although he was at the time that Bridges spake the words oâ— him in the Declaration upon the Writ of Error it doth not appeâ—â— if the words were actionable or not for it doth not appear in the boâ—â— that the Judgment in B. R. which was given for the Lord was affirmed or Reversed ideo quaere Callard and Callards Case 801. Ejectione firmae in B. R. The Case was E. C. seised of Lands in Fee in consideration of Marriage of Eustace his Son and Heir apparent being upon the Land spake these words to Eustace viz. Stand forth Eustace I do here reserving an Estate for my own and my Wives Life give unto thee and to thine Heirs for ever these my Lands and Barton of S. And afterwards he enfeoffed R. his younger Son in Fee with Warranty and died Eustace entred and demised to the Plaintiff It was there holden that the words did amount to a Feoffment and Livery being spoken upon the Land and the use to be to the Feoffor and his wife for their Lives and after to Eustace and his Heirs upon that Judgment Error was brought in the Exchequer Chamber and there the former Judgment was reversed for that the greater part of the Justices agreed that it was not any Feoffment executed because the intent was repugnant to Law to pass an Estate Eustace reserving any particular estate to himself and his wife and an use it could not be for the purpose was not to raise but use but by an Estate executed which took not effect and they all agreed if it was an use it could not rise upon natural affection without a Deed. The Judgment was reversed Westby Skinner and Catchers Case 902 A. was in Execution severally under the Sheriffs of London at the Suits of B. and C. the old Sheriffs delivered the body of A. by Indenture in which the Execution of B. was only mentioned and the other was omitted A. in the time of the new Sheriffs escaped It was adjudged in B. R. that the old Sheriffs should be charged in an Action for the Escape They brought Error in the Exchequer Chamber and the Judgment was affirmed because it was not found that the new Sheriffs were Sheriffs at the time of the delivery of A. to them and because they did not give notice to the new Sheriffs of all the Executions which were against A. Sacksord and Phillips Case 903. Assumpsit A. was endebted to the Plaintiff 460 l. the Defendant in consideration the Plaintiff would forbear to sue A. for the said Debt promised to the Plaintiff to pay it before Michaelmas next Upon non assumpsit it was found for the Plaintiff But in the postea the Verdict was not certified that the Plaintiff sustained damage by reason of the not performance of the promise for 460 l. for which the Plaintiff had judgment That was assigned for Error and also because the Declaration did not mention the forbearance of Suit at the Defendants request the Court ordered the postea to be amended and affirmed the Judgment Wiseman and Jennings Case 904. The case upon the matter in Law was this Tenant for Life the Remainder in tail the Remainder in Fee Tenant for Life suffered a common Recovery
upon the case did not lie in such Case Bowes and Powletts Case 924. In the Kings Bench the case was A. and B. were Indebted to the Queen by Recognizance 500 l. C. and D. were indebted in 200 l. to F. by Obligation F. was indebted to A. 200 l. F. at the request of A. assigned the Debt of 200 l. due from C. and D. to the Queen by Deed enrolled in part of satisfaction of the 500 l. due to the Queen by A. B. A. afterwards for his discharge of the 200 l. against the Queen prosecuted Suit in the Exchequer against C. for the levying of the 200 l. of the goods and Chattels of C. C. in consideration that A. would forbear to prosecute any Process against the said C. till Hill Term following promised to pay A. 200 l. and 20 l. to buy him a Gelding and in an Action upon the case brought for it in B. R. upon non Assumpsit It was found for the Plaintiff there and Damages and Judgment Error was brought in the Exchequer and the Judgment upon the body of the Declaration was reversed because the consideration was not lawfull nor sufficient for the surceasing of a Suit was no discharge of the Debt nor was it lawfull to have recompence for the forbearing or surceasing of a Debt which was due to the Queen Hinson and Burridges Case 925. Action upon Assumpsit in B. R. In consideration the Plaintiff would sell and deliver to I. S. the Defendants Factor at the request of the Defendant 200 Hog-labms to the use of the Defendant he promised he would pay so much mony to the Plaintiff as should be agreed betwixt the Plaintiff and I. S. and alledged he delivered them to I. S. and I. S. and the Plaintiff agreed for 40 l. price to be paid at certain dayes since past and the Defendant had not paid the mony It was found for the Plaintiff and Judgment Errour brought and assigned 1. That the Contract was the Contract of the Defendant himself and Debt did lye not Assumpsit Resolved the sale was to I. S. and the use is but a Confidence which gave not property to the Defendant so that Debt did not lye against him but Assumpsit 2. Error no place is alledged where the Plaintiff and I. S. agreed of the price and day of payment which is traversable The Court held it good enough because the Defendant pleaded Non Assumpsit and a verdict was given But the Court said it had been a good cause of Demurrer Palmer and Humfreys Case 926. Ejectione firme de una pecia terrae vocat M. furlong una pecia terrae vocat Ashbrokee uno Gardino vocat Minching-Garden quae omnes singulae parcellae terrae jacent in W. It was assigned for Error that Pecia terrae is uncertain and so the Declaration not good And 2. Because no place certain is alledged in which the Garden is and for these Causes the Judgment was reversed Matthew and Matthewes Case 927. Assumpsit in B. R. whereas the Testator was endebted to the Plaintiff 35 l. The Defendant being his Excecutor in consideration the Plaintiff would give him day promised to pay the money Found there for the Plaintiff and Judgment upon Error brought the Judgment Reversed Because the consideration was not sufficient because the Defendant was not by Law bound to pay the money after the death of the Testator and giving day to pay that which he was not bound to pay was no sufficient Consideration Edmunds and Bufkins Case 928. Debt in B. R. and declared the Dean and Chapter of W. demised the Rectory to A. for 60. years which by mean Conveyance came to F. who demised it to C. for 20. years rendring Rent C. demised it by his will to D. 10. of the last years and afterwards dyed possessed D. entred and granted his Interest to Edmunds F. demised the residue of the Terme to S. his Wife and Executrix S. married Bufkin they brought Debt and had Judgment Error was brought and assigned that C. the first Lessee of F. demised 10. of the last years to D. and it was alledged that the demisor made not any Executor or that the devisee did enter by the assent of the Excecutor nor that he was possessed by virtue of the demise but generall that he entred after the death of the devise and for these Causes the Judgment was reversed Paramour and Pains Case 929. Action upon the Case in B. R. and declared in Consideration the Plaintiff had sold to the Defendant 14. Cowes for 34 l. and 4. Oxon for 16 l. the Defendant promised to pay cum requisitus esset Found for the Plaintiff the Judgment was reversed because the Consideration was not sufficient but Debt lay upon the Contract and not Assumpsit Plaine and Bagshawes Case 930. Debt in B. R. against B. Executor of I. S. and demanded 47 l. 8 s. 8 d. monetae Flandriae attingent ' to 40 l. 12 s. 6 d. English money The Defendant pleaded fully Administred the Jury found Assets and Judgment there that recuperet debitum suum praedict ' damna sua praedict ' Errour brought and assigned for that the Jurours did not inquire of the value of Flanders money and for that cause the Judgment was reversed for although the Plaintiff did affirme the Flanders money did attain to 40 l. 12 s. 6 yet it is no Warrant to the Court to adjudge it so unlesse found by the Jury Stafford and Powlers Case 931. Error was brought of a Judgment in an action upon the Case in B. R. for words the words were viz. One W. Web being arrested as accessary for stealing his own goods Mr. Stafford knowing thereof discharged the said Web by an agreement of 3 l. to which Mr. Stafford was party whereof 30 s. was to be paid to Mr. Stafford and was paid to his man by his appointment Error brought It was said the words were not actionable but the Justices held them actionable and the Judgment was affirmed Bordolf and Perry and his Wives Case 932. Debt in B. R. upon an Obligation made by the Wife dum sola fuit the Defendant pleaded Non est factum found for the Plaintiff The Judgment was that the Husband be in misericordia and the Wife Capiatur And it Reversed because it ought be Capiantur against both Penraddock and Erringtons Case 933. Assault and Battery in B. R. against two Defendants and declared of Assault Battery tantas minas de vita sua imposuer ' quod non audebat ire circa negotia They pleaded Deson Assault demesne It was assigned for Error that the Assault of one cannot be the Assault of the other and they ought to have pleaded several pleas the Court held it no Error for that the Assault might be joynt 2. Error because nothing is said to the Minas yet the Judgment was affirmed because Minas is but to enforce the damages and not the substance of the Declaration Wilcocks and Greenes Case 934.
Debt against Executors upon Obligation of 200 l. they pleaded a Recovery by a stranger of 200 l. upon another Obligation and averred it was a just and true Debt ultra which they had not in their hands the Plaintiff said the Recovery was by Covin It was adjudged in B. R for the Plaintiff Error brought and the Judgment reversed for it could not be by Covin if it was a just Debt and the Replication should have been absque hoc it was a just and true Debt Morses and Rosses Case 935. Assumpsit In consideration the Plaintiff would surcease his Suit which he had in Chancery against the Defendant the Defendant promised to save him harmlesse from all actions which should be brought against him for or Concerning a Lease which the Defendant had assigned to him and alledged he surceased his Suit and that a Stranger had brought an action against him in B. R. by reason of the said Lease and the Defendant did not save him harmlesse Judgment being for the Plaintiff in B. R. It was reversed because he did not shew the certainty of the Action brought against him nor that it was for any matter in esse at the time of the promise Wood and Bukleys Case 936. Action upon the Case whereas Wood exhibited his Bill against Buckley in Star Chamber containing he had nusselled Pirats Murtherers and other Malefactors he being a Justice of Peace and Vice-Admiral Wood afterwards in another place having speech with divers concerning as well of the ill carriage of the said Buckley as of the matter in his Bill against Buckley in the Star Chamber said I will Justify every matter therein to be true The Defendant Justified the speaking of the words being examined upon the truth of his Bill before I. S. and I. D. by Command of the Councell and traversed that he spake them at any other place or time upon demur being adjudged for the Plaintiff upon Error brought the Judgment was reversed because no action lying for the exhibiting of the Bill no action lay for saying the words of his Bill were true Sir Henry Berkley and Earle of Pembrooks Case 937. Action upon the Case by the Earl of Pembroke against Sir Henry Berkley and shewed he was seised of the Mannor of S. to which the Office of the Keeper of the Forrest of F. did appertain in Fee and to have omnia bona forfeited within the Forrest fugam facere bis per annum quicquid de hujusmodi fugatione accidere possit and to have Hony Wax mortuum boscum c. appertaining to his Office and the Defendant disturbed him to exercise the said Office The Defendant pleaded a Deed in Tail in Bar made by the Plaintiff In the Deed there was a Proviso viz. Provided alwayes and the said Sir Henry Berkley doth Covenant for him and the Heirs males of his body to and with the said Earl and his Heirs to preserve the game as far as commonly hath been used and that he nor his Heirs males shall cut or sell any woods there except for browse and necessary reparations and the Plaintiff said the Defendant had cut down four Oakes and converted them to his own use and averred they were not for browse nor reparations and that he entred for the forfeiture It was adjudged upon a demur in B. R. for the Plaintiff Error was brought upon the Exchequer Chamber upon the matter in Law that the Proviso was not a Condition but a Covenant but as to that point it was Resolved by all the Justices that the Proviso was a Condition 2. Error was that the damages were assessed entirely for divers things some of them being uncertainly and insufficiently alledged for he prescribed to have omnia bona forisfacta which could not be without Charter also to have de furgatione quicquid acciderit which was also uncertain and also the damages for them ought to have been severally assessed and not entirely The Court held that for that Cause the Judgment was erroneous and for that Cause only the Judgment was reversed Reymer and Grimstones Case 938. Assumpsit In Consideration he at the Defendants request had promised to wash the Defendants linnen and the linnen of his Servants and to provide meat and drink for the Defendant and his Servants the Defendant promised to pay so much money to the Plaintiff when he should require it so as it should not exceed the proportion used in O. for the like time and further declared that in Consideration the Defendant upon accompt between them made was in arrerage to the Plaintiff 18 l. the Defendant promised to pay him the said 18 l. and the Plaintiff shewed for how long time he had washed the Cloathes c. and that he required 8 l. which did not exceed the proportion in O. upon Non Assumpsit found for the Plaintiff and damages severally assessed for the Costs entirely Error was thereupon brought it was the opinion that the first Assumpsit was good and the second void and the Judgment given for the damages and Costs upon the first Assumpsit was good and the Judgment for them affirmed but for the damages assessed upon the second Assumpsit and for the damages de incremento entirely give for both the Judgment was reversed Goodall and Wyatts Case 939. In Ejectione firme The Case was A. made a Feoffment of Lands to B. in Fee upon Condition if A. paid within a year after the death of the Feoffee to his Heirs Executors or Administrators 100 l. that the Feoffment should be void B. made a Feoffment over to C. and dyed and afterwards within the year it was agreed betwixt A. and the Administrator of the Feoffee that the said A. should pay to the Administrator the 100 l. and that the Administrator should repay back all to A. the Feoffee but only 32 l. which was done accordingly and then A. entred into the Lands pretending the Condition was performed it was adjudged in B. R. that his entry was not Lawfull and that this fraudulent and Covenous payment was no performance of the Condition and upon a Writ of Error brought in the Exchequer Chamber all the Justices a greed that the Judgment given in B. R. should be affirmed Vitsey and Fermours Case 940. The King granted Manerium de H. in Parochia de R. omnia terras decimas haereditamenta sua in R A. in the tenur of I. S nec non omnia alia terras tenementa haereditamenta in R praedict ' It was adjudged in B. R. that the Tythes in H. which was a Town within the Parish of R. did passe But upon Errour brought the Judgment was reversed because R. praedict shall be intended R. the Town and not R. the Parish Adams and Dixons Case 941. Assumpsit the Plaintiff was Bail for I. S. in B. R. the Defendant in Consideration that he should pay him the Condemnation promised to deliver to him the Bond made for the principal Debt and a letter of
Attorney to sue the principal in his name It was adjudged for the Plaintiff in B. R. and upon Error brought the Judgment was reversed because it was an insufficient Consideration Dickenson and Sheres Case 942. Upon the awarding of the Venire facias upon the Roll the day of the return of it was omitted this being assigned after verdict for Error was holden by the Court not to be Error 943. Note it was Resolved by the Justices that an action lyeth for the Rector of a Parsonage against the Parishoners for not seting forth of their Tythes although the Statute of a Edward 6. drâ—h not appoynt who shall have the action English and Bowers Case 944. Covenant upon an Indenture of demyse of the Rectory of S. in the County of O. The Indenture was made at London and the Venire Issued to the Sheriff of O. It was assigned to be Error but the Court held it good because it shall be of the County where the Land lyeth Heley and Rigs Case 945. A Bill was exhibited in the name of Rigs per Johannem Keeling attornaâ— ' suum and the Warrant of Attorny was posuit lcco suo Gulielmum Keeling the same was assigned for Error but the Justices caused it to be amended and affirmed the Judgement Maylard and Kesters Case 946. Assumpsit In Consideration the Plaintiff would sell and deliver to the Defendant pannos laneos pro funer alibus of a Clark he promised to pay him for them cum inde requisitus esset and alledged he sold and delivered divers Cloths to him viz. 31. yards of black Cloth for 19 l. and recited divers other particulars amounting to 160 l. upon Non Assumpsit found for the Plaintiff Error brought in Exchequer Chamber and the Judgment was reversed because Debt properly lay and not Assumpsit Wolley and Mosleys Case 947. Action of Assault and Battery in B. R. upon a demur the Plaintiff had Judgment to recover It was a Warded upon the Roll à Fierifac to enquire of damages returnable die Martis post tres Trinitatis and the Writ was in facto returned die Mercurii post tres Trinitatis which was the very date of the return upon the Roll and the Plaintiff had damages and Costs 40 l. Error was brought and assigned whereas by the Record of the Continuance the Plaintiff appeared by I. P. his Attorney that before that time he was dead The Court held that to be no Error because the Record is to be credited before the allegation of the party 2. Because there was variance between the Roll and the Writ the Court held that was amendable 3. That the Writ is executed the same day of the Return that was holden to be no Error and so it was said it was adjudged Mich. 37. and 38. Eliz. in Gawen and Ludlows Case In the Court of Wards The Queen and Savages Case 948. A. seised of Lands holden in Capity by Knight service by License 27 H. 8. conveyed the same to his Son and Heir apparent and F. and their Heirs in consideration of Marriage betwixt them who intermarried and 2 E. 6. by Fine regranted the Land to the Father who rendred it to the Son and his Wife and to the Heirs of their two bodies begotten the Father dyed the Son haveing Issue three Daughters dyed 5 Mar the eldest Daughter had Issue Fran. Mooâ—e and dyed 25 Eliz. F. took second Husband W. Savage and they 28 Eliz. Leased the Rectory of K. to I. S. for 60. years and after granted the Reversion of the Rectory and Leased the Mannor to A. Savage for the life of F. Afterwards a Common Recovery was had in which S. and his Wife were vouched The Queen prayed to have the Wardship of Fran. Moore and to have the primer seisin and profits of the Land after the death of the Wife W. Savage averred the Recovery was to the use of himself pretending thereby that the Issues in Tail of the Son of Agnes and F. were barred In this Case it was Resolved for the Queen for one moyety and that the first Feoffment by A. to his Son F. before Marriage was not within the Statute of 11 H. 7. but when they Reconveyed back the Land that was a Conveyance of each of them their parts and then the render of the whole to them in special Tail as to the moyety of the Son the gift of the Father to the Son and his Wife within the Statute of 11 H. 7. but as to the gift of the Wife by the Fine was not within the Statute but the Recovery as that should bind the Issue Fishers Case 949. It was found by Office that A. seised in Fee of divers parcells of Lands holden by Knight service in Capite 21. Eliz. by License conveyed them to I. S. and E. his Wife Daughter of the said A. and that afterwards by Indenture he Covenanted for Fatherly love and affection that after the sealing of the said Indenture he would stand seised of the premises to the use of the said I. S. and E. his Wife in Tail Remainder in Fee to a stranger It was not found when the said Indenture was sealed and delivered nor that I. S. and E. his Wife were seised in Tail nor was it found in the Office Sic inde Seisitus did Covenant Notwithstanding these Exceptions it was Resolved that the Office was sufficient wherefore a Travers was to the Office Gervoyes Case 950. A. seised of the Mannor of N. in the County of W. and of Lands called F. in the County of of S. in Consideration of Marrage and for a Jointure for his Wife Covenants that he and his Heirs shall stand seised of the Mannors Lands c. to the use of himself and his Wife for their lives after their deceases to the use of the Heirs of the body of A. The Lands in F. are recovered by verdict from A. only during the Coverture between them A. dyeth his Heir within age It was Resolved in this Case that the Wife should have recompence for the Lands which were Enrolled during the Coverture although she accepted of the Residue of her Joynture after the death of her Hâ—sband Forsters Case 951. The Husband seised of Land in the Right of his Wife which was holden in Knight service the Heir being in Wards committed wast in the Lands Resolved the Husband should be charged to the value of the Lands and lose the possession of the Lands so long as his Wife should live Georges and Stanfields Case 652. Lands by Act of Parliament were assigned to the Countesse of Bindon during her life the Reversion to her Daughter who was in Ward to the Queen the Viscountesse took Husband and she and her Husband committed wast in the Land For the punishing of which a Bill was exhibited in the Court of Wards Resolved that the Court of Wards could not adjudge treble damages for the wast in this Case and therefore the Case was dismissed to Law Bridges Case 953. A. bargained and
it was Resolved that upon such Writ the Sheriff or his Officer might without any Offence by a Warrant arrest the person of the Countesse for he is not to dispute the authority of the Coâ—rt in awarding the proces but he is to execute the Writ to him directed But because the Defendants did arrest the Countesse upon a feined action of their own heads without Warrant They were fined and sentenced by the Court. Dag and Penkevells Case 1007. A bill was exhibited in the Star Chamber against the Defendant and divers others for several Offences The Defendant for that he inserted the name of a special Bailiff in a Warrant which was made by the Sheriff with blanks without privity or direction of the Sheriff Note in this Case it was holden that where there are several Defendants and one only is sentenced the other shall have Costs because not charged with the offence for which the sentence was but with other Offences of which they were acquitted 2. It was holden in this Case that a Defendant shall not have benefit of a general pardon at hearing of the Cause unlesse he prayes the same upon his answer put into Court Clerks Case 1008. Note in this Case being the Case of a Purveyor who was sentenced in the Star Chamber for several Offences in executing his Office of Purveyor It was said there were 7. properties incident to every Purveyor 1. He ought to be sufficient to answer the King and the party 2. He is to do his service in person and not by Deputy because it is an Office of Tâ—â—st 3. He is to be sworn in Chancery before he execute his Office for he ought to have authority under the great Seal with blank Labells to insert what he takes 5. His Authority is to continue but six moneths without renewing 6. He ought to take where is plenty and in Convenient time and no more then is sufficient 7. He is to take the things in kind and not money for them Lovice and Goddards Case 1009. The Case was A. the Grandfather had Issue two Sons T. and W. and by his Will devised to T. all his Mannors Lands c. within the Counties of D. and C. viz. to T. and the Heirs males of his body after his decease for 500. years Provided if T. or any Issue male of his body give grant c. the premises or any parcel thereof oâ—herwise then to Lease and demise the same for any term or number of years as may or shall be determinable upon the deaths of aâ—y 2. persons c. to be made in the Leases c. then all the premises for default of such Issues males of the said T to be begotten c. immediatly upon such alâ—â—nation gift grant c. shall remain and come to W. and to the Heirs males of his body c. The devisor dyed T. entred and made a Lease for 1000. years to I. S. who never entred T. dyed without Issue male I. being his Daughter and Heir W. dyed having Issue the Plaintiff who entred upon whom I. entred In this Case it was Resolved in C. B. that the devise to T. and the Heirs males was an estate Tail and the limitation for years void 2. Resolved that there ought to be a concurrence of death without Issue male and also of alienation before the rising of the Remainder 3. That the Remainder should never rise because the particular estate was destroyed by the alienation before the Remainder could commence 4. That the Lease for 1000. years made to I. S. was not an alientation within the Proviso upon which the estate might rise to W. when T. was dead without Issue male because that T. who made the Lease was but Tenant in Tail and then the Lease was determined upon his death It was the opinion of all the Justices in C. B. that the Judgment should be for the Defendant upon which Judgment the Plaintiff brought a Writ of Error in B R. and there by all the Justices upon the matter in Law the Judgment was reversed Mich 3. Jan. Cargenter and Collins Case 1010. In Debt for Rent the Case was A. had a Son and a Daughter and devised that his Son should have his Land at his age of 24. years and gave 40 l. to his Daughter to be paid at her age of 22. years and appointed that C. should be his Excecutor and should have the oversight and dealing of his Lands and goods till his Children should come to the ages aforesaid and dyed C. the Plaintiff made a Lease to the Defendant at Will rendering Rent at Mich. and our Lady-day the Daughter entred upon the Tenant at Will the Tenant attorned to her the Son dyed within the age of 24 years the Defendant did not pay the Rent for which C. brought Debt against him It was adjudged against the Plaintiff Resolved 1. The word Oversight and dealâ—ng with his Lands and goods did not give any Interest to C. the Excecutor but an authority only and that the estate discended to the Son 2. That by the death of the Son the Interest of the Executor was determined for it was noâ— the intent of the devisor to bar the Heir of the Son untill the Son should come to the age of 24 years if he lived 3. That the Tenury at Will was determined by the entry of the Daughter because she entred by Title i. e. as Heir to her Brother Lord Aburgavenny and Edwards Case 1011. An Excommengement was pleaded in Bar and the Certificate of the Bishop of Lâ—ndaph shewed of it but doth not mention by what Bishop the party was Excommenge wherefore it was adjudged void Rastoll and Drapers Case 1012. Debt upon an Obligation for payment of so much Flemish mony the Plaintiff declared for so much English money and it was holden good by the Court. Doyly and Drakes Case 1013. A man had two Closes adjoyning time out of mind and sold one of them who should make the Inclosure the Purchasor or the vendor the Court was divided in opinion Vide 21 Eliz. Diâ—r 372. Williams and Vaughans Case 1014 Scire facias by the Plaintiff against the Defendant who was bail in Debt for I. S. who did not render his body nor pay the Debt the Defendant demurred 1. Because no Capias was sued against the principal and also because the Principal was dead before the Scire facias brought but both points overruled because the Condition of the bail was broken before Whitâ—ock and Harâ—wells Case 1015. A. and B. Sisters Joynt Tenant A. Covenanted with a stranger that he should enjoy the moyety which she held with her Sister in Joynture for 60. years from the death of her Sister if she the said A. should so long live and demised to him the other moyety from her own death for 60. years if her Sister so long lived Adjudged the Lease was void for both moyeties â—he one because of her moyety after the death of her Companion and the other is
for Life the Remainder to his Son T. and L. his wife if they have Issue male and if it shall please God to send them Issue Male then it to be reserved and put out for the benefit of such Sons or one of them and died The wife entred as Legatee and died and after T. and L. had Issue Male. It was Resolved that the Issue Male should have the Term and was not restrained to any Term to be born in the Life of the wife and it is a good Devise to the Issue Male though the Term be not expresly devised to the Issue Male. Curtyes Case 1081. Assault and Battery by husband and wife against the Defendant a Constable and two others The Defendant justified that the wife was presented in the Leet to be a common Scold and he Steward made a Warrant to the Constable to punish her according to Law and the Defendants went to the Plaintiffs house to execute the Warrant and the wife assaulted the Constable wherefore he commanded the other Defendants to lay hands upon her which they molliter did It was holden by the Justices to be a good justification although they neither shew the day when the Leet was holden nor that the Plaintiffs house was within the Jurisdiction of the Leet nor shewed the Warrant of the Stewards for that these were all but Inducements to the Justification Herbert and Binghams Case 1082. Error to reverse a Fine because the Writ of Covenant bare teste after the Dedimus potestatem the Defendant pleaded the Land descended to him within age and prayed his age Iâ— was Resolved by the whole Court he should have his age because he was Terre-tenant otherwise he should not have his age in Error Harvyes Case 1083. In Dower Judgment was given by default Error assigned that the Tenant was within age Adjudged no Error for age is not grantable in savorem dotis 1084. A Justice of Peace recorded a Force but did not Fine or commit the Offenders It was adjudged that in such case the Record of the Force was void and the Offenders upan that Record cannot be afterwards Fined nor Imprisoned Moody and Garnons Case 1085. A man made a Lease for years of Land part Fee-simple and part in Lease for years rendring Rent and if it was behind 40. days it should be lawful to restrain and if there should not be sufficient then to reenter Resolved it was not any condition because restraint is not limited to any thing which should be restrained as in Land or chattel and it shall not be taken to distrain and also because no person is expressed who should reenter Caries and Franklyns Case 1086. A seised in Fee made a Feoffment to I. S. Habendum to him and the Heirs of his body to the use of him his Heirs and Assigns It was adjudged he was Tenant in tail because the use to him his Heirs and Assignes shall be intended such Heirs which he had limited before which are Heirs of his Body Buckham and Dendriges Case 1087. Debt upon Obligation The Defendant pleaded to the Jurisdiction that he was a Tinner and pleaded the Grant of King Edward the First that the Tinners of Cornwall should be sued for contracts rising within the Liberty of the Stanneries and not elsewhere and the contract upon which the Debt was brought did arise within the Liberties c. It was Resolved a good Plea but then he must show the Patent or Charter Barrey and Perins Case 1088. Debt upon Obligation The condition was if the Obligor stands to the Arbitrament of four men so as the same be made by four or three of them c. then the Obligation to be void the Arbitrament was made by three It was Resolved the Arbitrament was good for upon consideration of all parts of the Submission the intent appears that four or three might make the Arbitrament and Arbitraments shall be taken by Equity so as all parts may stand Mary Powel and Hermans Case 1089. A sentence was in the Ecclesiastical Court that upon a Contract the Defendant should Marry the Plantiff he did not do it for which cause he was Excommunicated The Defendant Appealed to the Delegaties which was remised to the first Court who sentenced him againe and there also he was excommunicated for not performance of the Sentence He Appealed to the Audience and then had absolution He was taken by a Capias Excom upon the first excommunication upon an Habeas Corpus It was Resolved that the absolution for the Latter had not purged the first Excommunication quia Ecclesia decepta fuit 2. That the Appeal did not suspend the Excommunication although it might suspend the Sentence Don Diego Serviente de Acune and Giffords Case 1090. The Plantiff Embassador for his Master the King of Spaine recovered in an Action upon the Case the Defendant brought Error and removed the Record and then upon the second Scire fac the Bail brought in the body of the Defendant Resolved 1. That the removing of the Record did not so stop the Court that they could not accept of the body of the Defendant in Execution 2. Resolved that the body might be accepted only upon the first Scire fac and not upon the second Roe and Ledshams Case 1091. In False imprisonment in the Stannary Court The Defendant said the imprisonment was at Totnes out of the Jurisdiction Issue being upon it the Viâ—ne was from Totnes and not de Corpore Comitatus and adjudged good upon Error brought Moyslyn and Pierces Case 1092. The Plantiff recovered 200l dammage against the Defendant in B. R. in Assault and Battery and had the body of the Defendant in Execution The Defendant brough Audita Querela in Chancery that the principal had paid the money and thereupon had upon Sureties found a supersedeas to the Sheriff commanding him to discharge the Plantiff out of Execution but the Sheriff did not obey it He brought Habeas Corpus in B. R. and had another Audita Querela and prayed he might be bayled but ' the court would not grant it without Affidavit of payment of the money Coke Chief Justice said upon a Judgement in another Court Audita Querela did not lie in Chancery Eliz. Wilmots Case 1093. She brought Trespasse by the name of a Widdow the Defendant said she was a Feme Covert viz. the Wife of I. Wilmot who was living at Lisborn in Pertugall The Plea was disallowed by the Court for impossibility of Tryall Simonds Case 1094. Trespase for Batterie and entring his Close in B. The defendant justified the entry because it was a Copyhold within the Mannor of W. in W. and to the Battery pleaded Not guilty upon which the Issue was joyned The visne was de B. de Manerie de W. in W. It was Objected it ought to have been of B. only where the Batterie was also de Manerio de W. in W. is double and uncertain But the Court held the visne good because the Custom might
Attornment and not as a Surrender but if the Lessee be not upon the Land then it is not a Feoffment and when the Lessee enters again he shall have his Term and the Feoffee the Reversion and if the Lessee be upon the Land and denyes the Lessor to make Livery notwithstanding that Livery be made nothing passeth by the Feoffment nor is a grant of the Reversion 42. Lessee for life of a Mannor seizeth an Estray and dyeth before the year and the day passed Resolved the Executors of the Lessee shall have it and not he in the Reversion for although the Lessee had not an absolute propriety in it during his life yet when the year is past the property shall have relation to the time of the Seizure 1 2 Ma. Stapleton and Trewlocks Case 43. Debt by Executors of I. S. against A. Trewlock Administratrix of Rich. Trewlock The Will was That the Testator made the Plaintiff and Rich. Trewlock his Executors but said further in his Will I will my Friend Rich. T. shall pay to my other Executor all such debts as he oweth me before he shall meddle with any thing of this my Will by reason I have made him one of my Executors for the discharge of the said Debt The Defendant averred Trewlock in the Will and Trewlock the Intestate to be one and the same Person and said He in his life had paid to the Executor the debt in demand and all other debts which he owed at the time of the death of the Testator Adjudged that the Dfendants plea was not good because she ought to have pleaded an Acquittance of the said debt for that payment without an Acquittance is no plea and for the other Debts she ought to have shewed them certain and pleaded payment of them and she should have shewed that T. administred with the other Executor Agar and Bishop of Peterborough's Case 44. Quare Imp. And for Title to the Avoidance the Statute of 21 Hen. 8. taking a second Benefice with Cure was pleaded Issue was upon the Induction By which it seemed to be admitted That Admission and Institution did not make the first Benefice void without Induction 45. Resolved That upon an Appeal of Manslaughter the Party may challenge 20. peremptorily as well as upon an Indictment 46. Upon an Habere facias seisinam upon Recovery of Dower of 3. Mannors Resolved The Sheriff cannot give her seisin of one Mannor but he must give her seisin of the third part of every Mannor But if the Recovery be of all Lands viz Meadow c. Pasture the Sheriff may assign her her Dower in the Meadow only The Queen and Deans Case 47. Writ of Disceit by the King and Queen upon a Fine levyed by C. to D. of Lands in antient Demesne who rendred to C. for life reversion to K. D. dyed pendent the Writ Resolved The Writ shall not abate because it is in the nature of a Trespasse which doth not demand the Land but is to punish the Disceit Tuck and Frenchman's Case 48. A. seized of Lands in Fee holden in soccage devised the same to C. F. and the Heirs males of his body and if he dyed without Heirs males of his body the Remainder c. C. F. dyed without Issue male of his body Resolved That C. F. had not general tail but special tail to him and the Heirs males of his body Joslin and Chelstons Case 49. Assumpsit In consideration of a Marriage of the Son of the plaintiff with the Defendants Daughter the Defendant assumed to pay to the Plaintiff 40 l. in 7. years next following by equal portions Found upon Non Assumpsit for the Plaintiff and because one of the 7. years was to come at the time of Action brought the Judgement was stayed 3 4. Ma. Eaton Colledge Case 50. A Lease was made by the Dean and Chapter of the Colledge was of Eaton whereas they were incorporated by the name of Dean and Chapter of the Colledge of St. Maryes of Eaton Resolved the Lease was void for the Misnosmer Stokes and Porters Case 51. Debt upon an Obligation against the Defendant Executor of I. S. who pleaded that he was not Executor nor administred as Executor It was found that he received a Debt of 7 l. which was due to the Testator and made an Acquittance thereof and took possession of other Goods of the Testator and converted them to his own use Adjudged That it was an Administration Hill 2 Eliz. Helior and Okedens Case 52. A Lease was made to I. S. of the Mannor of F. Habend from Mich. last past for 20. years and by the same Deed it was agreed That after hold expiration of the 20 years that the said Lessee his Wife and their Son should have hold and enjoy the Mannor Habend for their lives cuilibet diutius vivent and he made a Letter of Attorney to make Livery secundum formam of the said Grant and Lease Resolved If the Deed was delivered by the Attorney and Livery made at one time it was a good Lease for years with a Remainder for their Lives but if the Deed was first delivered by the Lessor to the Lessee and after Livery and Seisin by the Attorney there the Livery was void Thorn and Rolfes Case 53. Dower The Defendant pleaded that the Husband of the Demandant was alive at Canterbury in Com. Kent The Defendant said her Husband dyed at F. in the Parish of P. in the said County of K. upon which they were at Issue Day given to make Proofs the Plaintiffe examined her Witnesses in Court the Defendant examined no Witnesses Judgement was the Plaintiffe should â—â—cover her Dower Hill 3 Eliz. Corket and Sheldons Case 54. A. in consideration of a Marriage intended betwixt him and B. by Deed covenants with S. to execute an Estate in Fee to the use of the said A. for life and after to the use of the said B. for by and untill the Son or one of the Sons of the said A. of the body of the said B. begotten shall accomplish the age of 21. years The Marriage takes effect A. dyed without Issue between them and before any Issue had Resolved That B. had a good Estate for life before any Issue and in Case there was no Issue But if there had been Issue which had accomplisht 21. years the Estate of B. had been abridged 3 4 Eliz. in C. B. Gower and Andrews Case 55. In Trespass for cutting down of Trees the Case was A. a Woman in her Widdow-hood by Indenture bargained and sold to B. and C. all those Woods Underwoods and Hedgerowes as have accustomedly been used to be fallen and sold standing growing and being in upon and within the Mannor of D. to have and to hold for the life of the said A. B. dyed C. survived and cut down by vertue of the said Bargain the VVoods and Underwoods growing and standing at the time of the making of the said Deed. Resolved upon this Bargain
when the Vendee had once cut down the Woods and Underwoods that he could not cut them again if Woods were standing and growing notwithstanding the words in the Grant viz. To Have c. for the life of the said A. Wilson and Wise Case 56. In Trespass for taking of his Cow The Defendant justified that he was seised and held of I. S. as of his Mannor of C. by Fealty rent suit of Court of I. S. And that within the said Mannor the Custom was That the Lord of the Mannor time out of mind c. after the death of every Tenant of any Messuage or Tenements of the said Mannor dying seised used to seise the best Beast of the Tenants found within the Mannor for an Heriot and if the Tenant had no Beast or if it were esloyned out of the Mannor before the Lord seized it Then the Lord had used to seise the best Beast Levant and Couchant upon the Messuage Lands and Tenements It was demurred upon the Custom and it was adjudged that the Custome was void and unreasonable and Judged for the Plaintiff 57. An Infant by his Prochin Amy brought a Scire facias to execute a Plea by Fine limited to his Grandmother The Defendant prayed that the Attainder might demur Resolved it should not But if the Defendant had pleaded the Deed of the Ancestour of the Infant in Barre there the Plea should have stayed 3 Eliz. Austin and Bakers Case 58. Attaint was brought into the Common Pleas upon the Statute of 23 E. 3. cap. 3. against the Executors of I. S. and the Terre Tenants and adjudged it was well brought although the Statute is that the Attaint shall be between the Parties of the first Judgement 59. A Subsidy is granted by Parliament That every one who expends in Land above 20 s. shall pay A man is assessed and before payment he dyes the Lands in the hands of the Heir shall be charged with it because it is a Duty upon Record and the Land chargeable with it 60. Judgement being against two upon an Avowry in Replevin They brought an Attaint depending which one of them dyed It was adjudged that the Writ should abate and it differs from the Case of Nonsuit for the Nonsuit is the Judgement of the Court that the Heir may proceed in Suit but when one is dead it is not so for then no act is done by the Court. 61. Note It was resolved That after a Verdict given it is no Plea for to say that the Jurors did eat and drink mean between the Court and their Verdict given but such Exception ought to be before the Verdict given 62. A Lease for years the Remainder for Life the Reversion in Fee Lessee for years committed Waste he in Remainder for Life dyed It was holden by the Justices That he in the Reversion in Fee should have an Action of Waste for waste done before the death of him in the Remainder because that the mean Remainder was the Cause that he could not have the Action at the first but when that Estate is ended the Action is maintenable because it was to the dis-inheritance of him in the Remainder in Fee 63. Tenant in Dower had power to cut down the Trees growing upon the Land and she covenanted with him in the Reversion that it should be lawfull for him every year to cut down 20. Trees and afterwards she cut down and destroyed all the Trees It was the opinion of the Justices That an Action of Covenant did lye against her and it was agreed by them That if a Covenant be that it shall be lawfull for the Covenantee to take the Trees and sell them or imploy them to his own use That in that Case the Covenantor cannot cut down the Trees because he hath given a propriety in the Trees to the Covenantee Mich 2 Eliz. 64. Trespass The Case was A man made a Lease for years of Lands a Stranger entred upon the Land let and cut down Trees growing and made them Tymber and carryed unto the Land where the Trespass is supposed and then gave the Timber to the Plaintiff and the Defendant entred into the Land and took the Timber It was the opinion of the Justices That in all Cases where a thing is taken wrongfully and altered in form If yet that which remains is the Principal part of the Substance the Notice of it is not lost and therefore if a man takes Trees and makes Boards of them The Owner may retake them quia major pars substantiae remanet and so in the principal Case But if an House had been made of the Timber there it had been otherwise 65. Father and Son made a Feofment in Fee with VVarranty the Father dyed The Feoffee impleaded brought a Warrantia Chartae against the Son unde Chartam Patris sui habet cujus haeres ipse est and in his Count shewed the Deed was made by them both It was the Opinion of the Justices the Count was agreeable to the VVrit and that the VVarranty against the Son was double the one of his Father the other of himself and that each of them warranted the whole so the Action well brought 66. Resolved by the Justices If Lessee for Life makes a Lease for years and afterwards purchaseth the Reversion and dyeth within the Term the Lease for years is determined But if one who hath nothing in the Lands makes a Lease for years and afterwards purchaseth the Lands and dyes if it be by Indenture his Heir is estopped to avoid the Lease 67. Two Copartners are one grants her Part and warrants that the Grantee shall have and hold it in common without partition It is a void Warranty because it is against Law 68. A Lease was made to Husband and VVife for years Provided that if the possession of the Lands came to the hands of any ther than the Husband and VVife and their Issues then upon tender of 100 l. it shall be lawful for the Lessor to reenter the Husband dyed the Wife took an other Husband the Lessor tendred the 1000 l. It was the greater opinion of the Justices That the Condition was not broken because that the second Husband was not possessed by vertue of the Lease but in the right of his Wife But the Court doubted of it It was adjourned 68. A Capias ad satisfaciend was awarded and an Extent and between the date of the Writ and before the Sheriff took the Inquisition the Defendant sold his Goods It was the Opinion of the Justices That the Sheriff might extend the Goods which were sold and it was said That if the Tenant in a Precipe allien after the date of the Writ and before the Retorn yet he continnes Tenant to the Action 69. Note it was holden by the Justices That if an Infant for Monies by Indentures bargain and sells Lands and afterwards levyes a Fine Sur Conusans de droit with Proclamations the Indenture is not void but voidable and
6ly That the Chapters are not of Capacity to take by Purchase or Guift without the Dean who is their Head 147. A man made his Will in this manner Item I give my Mannor of D. to my second Son Item I give my Mannor of S. to my said Son and to his Heirs It was resolved by the Justices that in the first he had but an Estate for life and the Item seems to be a new Guift to a greater Preferment in the second place for the amendment of the other 148. A man seized in Fee took a Wife and afterwards levyed a Fine of his Lands with Proclamation and 5. years passed in his life he dyed and after other 5. years passed Resolved That the Wife should be barred of her Dower because she did not claim it within the 5. years after the Title of Dower accrued 149. Assise against divers who pleaded Nul tort c. the Assise found that all the Defendants were Disseisors but that one of them did the Desseisin with force It was the opinion of the Justices That the Verdict was good for that the Force and Disseisin was two things for Force is not incident to every Disseisin for it should be enquired by the Assise if they or any of them had done the Disseisin with force and if Lessee for years be re-ousted with force and he in the Reversion bring an Assise and the Disseisin is found with force yet the Force is not punishable for the Force was to the Lessee for years 150. Nota. It was resolved by the Justices That if the Demandant do recover in an Assise he may enter and execute the Judgement without being put in seisin by the view of the Recognitors of the Assise but if he be disseised again he shall not have Re-disseisin but is put to his Writ of Post disseisin 151. Note It was agreed by the Justices That if Tenant in tayl discontinue and dyeth and an Ancestor Collateral in the life of the Tenant in tayle releaseth to the Discontinuee with warranty and dyeth and afterwards the Issue in tayle brings a Foâ—medon and is barred by the Collateral warranty if after that which was a Collateral warranty become a lineal warranty as it may yet he and his Heirs shall never have remedy against that Bar But if an Exchange be between Tenant in tayl and another and the Tenant in tayl dyeth and the Issue enter into the Lands taken in Exchange and afterwards brings a Formedon and is barred and dyeth yet his Issue may enter into the Lands exchanged or recover the same by Action notwithstanding the bar in the first Actâ—on for that is out a warranty in Law which is not so strong as a warranty in fact but he may disagree to the Exchange and enter or bring his Action at his Election 152. A man leaseth a Mannor to another with all the members and appurtenances To have and to hold all the members of the said Mannor to the Lessee for years It was holden It was a good Lease of the Mannor for years for the limitation of the word Member was void and so it was a good Lease of the Premisses without the Habendum Sutton and Robertsons Case 153. In Ravishment of Ward the Case was Lord and Tenant The Tenant enfeoffeth the Lord and another of the Tenancy and they reenfeoffed the Tenant It was resolved by all the Justices That the Seignory was extinct for by the Feoffment to them all the Seignory was suspended in their hands and then when they departed with the Lands discharged of the Seignory it was an Extinguishment of the Seignory and when the Lord joyned with his Companion in the Feoffment all passed by the Feoffment of any of them and if the Lord releaseth all his Right in one Acre of the Lands holden it is an Extingushment of the whole Seignory 154. A man by his Will deviseth his Lands to his Wife to imploy and dispose them upon herself and his Sons at her will and pleasure Resolved It was a good devise in fee to her but the Estate in her was conditional by reason of the words eâ intentione which makes a Condition in a Devise but not in a Feoffment Guift or Grant 155. A man recovered and sued forth a Capias ad satisfaciend to the Sheriff who arrested the Defendant and he after escaped and at the day the Sheriff did not return his Writ A Sicut alias issued to the Sheriff upon which the Sheriff arrested him again and the Defendant brought an Audita Querela Resolved the Writ did well lye for although the Parâ—y himself might have a false Imprisonment against the Sheriff because he had not returned his Writ and so was a Trespassor ab initio yet by the first taking in Execution the Arrest cannot be lost by the not returning of the Writ but having respect to the Party Plaintiff he is in Execution by the first taking presently And in this Case it was said That if a man be condemned in Debt or Trespass and be taken in Execution although he be chosen a Burgesse of Parliament he cannot have the Priviledge of Parliament to discharge him of the Execution Term. Pasc 6 Eliz. Broughton and Conwayes Case 156. Debt upon Obligation The Condition was whereas the Defendant had sold to the Plaintiff a Lease of the Mannor of S. that he should not do nor had done any act to disturb the Plaintiff of the possession of it but that the Plaintiff should hold enjoy it peaceably without the disturbance of the Defendant or any other and assigns a Breach That A. had brought a Writ of Dower against one B. of the said Mannor and had Judgment and Execution and so he was disturbed The Defendant said That the Recovery in the Dower was before the sale made to the Plaintiff Resolved The Plaintiff should be barred because the Defendant is not bound by the words of the Condition to warrant the peaceable possession to the Vendee but only for acts by himself done or to be done and here no act was done by him 157. It was holden by the Justices That in an Action brought upon the Statute De Malefactoribus in parcis That notwithstanding that the Queen pardons the offence yet by the Statutee the Party hath remedy for the Trespass done to him 158. A man made a Feoffment in Fee upon Condition that if the Feoffor paid certain Monyes to the Feoffee before such a day or to his Executors or Assignes then he might enter before the Day the Feoffee made the Feoffor his Executor and by his Will gave all his Goods and Chattels to his Wife and dyed Brown Justice held That by making the Feoffor Executour the Debt was released because the Executor could not pay the Debt to himself But the better opinion was that the Feoffee was to pay the Money being a thing Testamentary to the Wife as an Assignee of the Feoffee Quaere the Case was not resolved to whom the payment should
be 159. Dower brought the Defendant pleaded that he had assigned to the Wife 20 acres of Corn out of the Land in recompence of her Dower and adjudged a good barr as well as of Rent or any other profit out of the Land 160. Three Coparceners Daughters the one of them and her Husband enter into the whole the other being supposed out of the Realm in the right of his Wife and afterwards the other two return and release to the Husband and Wife and their Heirs It was holden that the Release should enure only to the Wife and her Heirs because the same enures only by way of Extinguishment and the Baron is seised in the right of his Wife But admit the Husband and Wife both enter and are Disseisors then the Release shall enure to them both and then when the Wife survives the Husband she shall have the whole 161. It was held by the Justices upon the Statute of 31 H. 8. of Monasteries That if a Woman who hath a Widdows estate of Lands holden by Copy whereof the Inheritance was in the Abby That if the Abbot will make a Lease of the same in reversion it is no good Lease by that Statute but otherwise it is of a Lease at will by the Common-law 162. Note by the Justices If Issue be joyned if a Church be void by a Cession Deprivation or Resignation it shall be tryed by the Country because it is a thing mixt for the Avoydance is Temporal and the Deprivation is Spiritual But habilitie Bastardy ne unque accouple en loyal Matrimonie shall be tryed by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the VVrit shall be tryed by the Country 163. VVords spoken of an Attorney of the Common-Pleas viz. He is the falsest Knave in England and by Gods blood he will cut thy Throat Adjudged Actionable 164. A man devised his Land to his wife for life the Remainder to another for his life and after their deaths he devised that the same Lands should be sold by his Executors or the Executors of his Executors he dyed after the Wife and he in the Reversion dyed and during their lives one of the Executors dyed intestate It was the opinion of the Justices That the Executors of one Executor should not make the sale for they had authority joyntly and if one of them fail the other cannot execute the Testament and so it was said it was adjudged in Franklyn's Case where a man devised that I. S. and I. D. by advice of the Parson of D. should make sale of his Lands after his death and before the sale the Parson dyed the other two could not sell the Lands 165. Wast assigned in a Marsh for that the Lessee suffered a Sea wall adjoyning to the Marsh to be ruinous by which by the flowing of the Sea the Marsh was drowned The Court conceived That if it was a small breach in the Wall and the Lessee did not repair it but suffered it to continue it was waste bet if it was suddenly done by the violence of the water the Defendant might plead that matter in barr Sir Edward Bray and Andrews Case 166. Action for words viz. My Master was not content to take my Living from me but sent his Man Andrews to kill me Resolved the Declaration was not good for the incertainty for the words My Master comprehends a generality and doth not refer to any Person certain and therefore it cannot be intended the Defendant intended to tax the Plaintiff more then any other Person and it may be he had at that time many Masters and it ought to appear to the Court of what Person certain the Defendant intended the words 167. An Action upon the Statute of Apparel The Writ was Ad respondendum Dominae Reginae quam I. S. Resolved the Action was not well brought because the Queen and the Party cannot joyne in the Action but they ought to have several Actions viz. the Queen shall have an Action for her part and the Informer for the other part For although by the Premises of the Statute it is an entire duty yet the sequel of the Statute determines how the penalty shall be taken and it is as several forfeitures The Earl of Northumberlands Case 168. Resolved one cannot have a VVrit of Forfeiture of Marriage without a Tender made to the Heir contra of a Writ De Valoâ—e Maritagii 169. Upon an Exigent a Writ of Proclamation issued which was returned served but the Name of the Sheriff was not to the Writ Quaere if it be Error The Court would advise of it Felton and Capells Case 170. In a Formedon in the Discender the Tenant vouched to Warranty I. S. who entred into the Warranty and vouched I. D. It was the opinion of the Justices That is a good Counter plea that the vouchee nor any of his Ancestors had any thing after the guift so as he could enfeoff him who vouched him 171. In Debt upon an Indenture the Defendant pleaded that it was rased after the delivery by the Plaintiff But he cannot plead That it is not his deed and give in Evidence the rasure but he ought to plead the special matter 172. A Bishop made a Lease for years which was confirmed by the Dean and Chapter and after he let the same Land to another for 20. years and afterwards before any Confirmation of it he let the same Lands to a third person for 60. years and the last Lease was first Confirmed and after the Lease in Reversion was Confirmed also Resolved that that Lease was good and the Confirmation good notwithstanding the last Lease was first Confirmed for the Lease is not to have any Interest by the Confirmation but only to make it perdurable and effectual Squier and Reads Case 173. It was holden by the the Justices in this Case That it is a good Challenge in a Writ of Right to the 4. Knights that they are not gladiis cincti And a Challenge to them must be made upon their appearance for after they are once sworn they are not Challengeable Also the 4. Knights are to make the Pannell and they need not to put their Names to it at the Return of it as the Sheriff useth to do and they ought to return to be of the Grand Assise but 12. persons besides themselves 174. A man had Judgment to recover in trespasse and had Execution of the Reversion of a Lease for years and of the Rent It was the opinion of the Justices that the Rent and Reversion was presently in him and that he might avow for the Rent without alledging any attornment of the Lessee for years 175. Debt upon Obligation conditioned to pay mony to the Obligee and the Parishoners of D. at such a Feast payment to the Obligee and two of the Parishoners of the Parish is good and it is not requisite the payment be made to all the Parishoners 176. In an Assise of Novel desseisin the Assise
passed against the Plantiff who thereupon brought an Attaint and alledged that the Jurors to the Attaint had not the view of the Tenements in demand It was the opinion of the Court that after the Verdict given it cannot be alledged that the Jurours had not the View and Judgement was given without the View 177. In Dower the Defendant pleaded That the Husband of the demandant did not dye seised so that she could not have damages and because there were Woods upon the Lands she prayed a Writ of Estrepment Quaere if it doth Lie It was not Resolved Griffiths Case 178. Lessee for years suffered the Banks of the River of Trent which ran by the Lands let to be unrepaired so as the Water brake the Banks and drowned the Lands Adjudged That River was not so violent but that the Lessee by his Industry might repair the Banks and to make the water run in its Current and therefore adjudged it was Wast 179. Debt was against Executors upon an Obligation which was that if the Testator or his Executors at Mich. every year during the life of the Obligee delivered to the Obligee a Load of Dung that then the Defendants pleaded that they and their Testator had performed not shewing how which was found against them It was adjudged that for this false plea of the Executors Judgment should be against them de bonis propriis 180. One was named in the Original in Debt A. B. of C. in the County of Denbigh He appeared upon the Cepi Corpus and said that he was dwelling at D. at the time of the Action brought It was holden it was No plea that he was not dwelling at C. at the time of the Action brought unlesse he say Ne unque puis 181. Lands in London which by the Custom were deviseable came to the King by Escheat who granted them over to I. S. to hold by Knights service It was holden That notwithstanding the Statute the devise of the whole Land was good as it was by the Custome which is not taken away by the Statute 182. The King by his Letters Patents gave authority to his Surveyour to make Leases of certain Lands for life reserving the antient Rent He by Indenture between the King of the one part and I. S. of the other part Quod Dominus Rex dimisit c. and the Surveyour put his own Seal to the Deed. It was adjudged a void Lease for he ought not to have put his Seal to it but the Seal of the King and it cannot be the Lease of the King without his Seal 183. Grandfather Father and Sonne The Grandfather is Tenant for life the Remainder to the Son in tayl the Remainder to the right Heirs of the Grandfather The Grandfather suffers a Recovery and levyes a Fine with Proclamation to I. S. and after the Statute of 27 H. 8. is made and the Grandfather enfeoffeth the Sonne of the Land and dyeth Resolved that the entry of the Father upon the Son was lawful and he shall not be estopped by the warranty of the Grandfather for that the Warranty was gone by the reprisal of the estate and it was holden That although the 5. years were past in the life of the Grandfather yet when the Grandfather dyes the Father shall have other 5. years to make his Entry or clayme and that by the Statute of 4 H. 7. 184. Lessee for years rendering Rent upon Condition if the Rent be behind the Lessor to Reenter a Recovery in Debt is had against the Lessor and the Reversion and Rent extended by Elegit and given in Execution It is a good Execution and the Condition suspended so as if the Rent be behinde the Lessor cannot enter into the other moety 185. Two Tenants in Common of a Wood one Leaseth his part for years who cuts Trees and commits Wast he shall be punished for the moety of the Wast and the Lessor Recover the moety of the Land Wasted 186. The Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free Chapel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majesties Free Chapel of of the Castle of Windsor in the County of Berks. Resolved the Lease was good for although the King in the Act of Parliament call it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Newdigates Case 187. Lessee for life and he in the Reversion joyned in a Lease for years Lessee for life dyed the Lessee committed Wast Resolved that during the life of the Lessee for life it was her Lease and the Confirmation of him in the Reversion But when the Tenant for life dyed then it was the Lease of him in the Reversion and that he should have an Action of Wast ex divisione propria 188. A man hath 3. daughters and Covenants with I. S. that he shall have the disposition in marriage of one of them the Election is in the Father of which of the daughters the other shall have the Mariage and he is not to deliver the daughter till request but upon request he is to deliver the daughter to I. S. otherwise he cannot have the effect of the Covenant 189. In a Writ of False Judgment the Sheriff returned Quod accept is secum 4. legalibus Militibus de Com. suo accessint c. Et recordum illud habeo c. coram c. sub sigillo meo sigillis praedict Militum It was adjudged to be no good return nor the Record removed but it ought to be sub sigillis ex his qui Recordo illo intersuerant and not of the 4. Knights 190. It was holden by the Justices that if upon the Exigent the Defendant hath a supersedeas but doth not deliver the same before the 5th County so as he is returned Outlawed yet because the Supersedeas was upon Record the Justices held the Outlawry to be void 191. A Writ of Wast was Quod secit vastationem in the Land and assigned the Wast in cutting down of Trees It was holden that was not good but if he had assigned the Wast in digging of Clay or such other things it had been otherwise for that is Wast in the Land 192. A man devised his Lands to his eldest Son in Tail the remainder to his youngest Son in Tail the remainder to his Daughter in Tail and if they all dyed without Issue that then the Land should be sold by his Executors the eldest entred and dyed without Issue the younger Son entred and suffered a Comon-Recovery and after dyed without Issue and the daughter also dyed without Issue Resolved That the Executors could not now sell the Land 193. Note If an Enfant levy a Fine and take back an Estate for life or in Tail by render he shall not avoid after the Fine by
being at Rome and his Return into England that the Obligation should be void In debt brought the Defendant pleaded and tendred Issue that the Obligor never was at Rome It was said by the Justices That where the condition contains matter not triable the condition is void but where the matter is parcell tryable parcel not that the Condition is good But in this Case the Justices doubted of it because 2. things are Coupled by a Conjunction so as they cannot be severed otherwise if they were mentioned in the Disjunctive 302. A man was Arraigned and Condemned of Felony and Imprisoned for it in Newgate and an Execution out of the Exchequer at the suit of a comon person was delivered to the Sheriff against him who served it upon him It was the opinion of all the Barons that the Sheriffs might choose to serve the Executon or not because the King had an Interest in the body of the person Imprisoned but if they do serve the Execution notwithstanding the pardon yet it is good by which it appeareth that the Attainder shall not extinct the debts of other Subjects but that if the Attainder be purged by a Pardon the Execution of all other duties are revived and stand good for the parties 303. A man made a Feoffment in Fee reserving Rent Suit of Court and Relief and by the deed granted that if the Feoffee his Heirs or assignes should be destrained for other services then are reserved in the deed that then it should be Lawfull for the Feoffee his Heirs and Assignes to distrain in his Mannor of D and keep the distresse till he was satisfied the damage of so much as he had sustained by the distresse The Feoffee made a Feoffment over It was Resolved that in such Case the second Feoffee might Destrain because it was a Covenant which ranne with the Lands 304. Words for calling the Plaintiff a Caterpiller for he liveth by Robbing of his Guests he being an Inholder Adjudge the words not Actionable otherwise if he say He is a Caterpiller and liveth by Robbing in the High way 305. Resolved that an Action upon the Case lyeth for calling an Attorney a Common Barretor It was Colborns Case 306. Note it was Resolved by the Justices that for a Common Nusans done in via Regia as for making a ditch in it so as he cannot passe the way with his Cart and Carriages an Action upon the Case will not lye without shewing some particular injury thereby done to his person for that he is thereby no more endamaged then the Kings other Subjects but such Offence is to be presented in the Leet being a Common Neusans and not punishable by a private Action but where there is to him a particular damage 307. Debt upon Obligation the Condition was if the Obligor his Excecutors or Assignes do pay to the Obligee 10 l. within 3. Moneths next after his Arrival from Rome the said Obligee proving the same by Testimonial or other Witnesses that then c. the Defendant said that the Plaintiff had not made proof that he was at Rome the Plaintiff shewed a Testimonial under the seals of several great Persons living at Rome that he was there It was Resolved in this Case that the proof might be by Witnesses or Testimonial and it is no Mischief for if the Testimonial be Counterfeit he may take Issue upon it that it is not a true Testimoniall James Case 308. A man seised of Lands in Fee took a Lease for years of a stranger by deed Indented of his own Land the Terme expired and the stranger entred and the other brough Trespas Resolved by all the Justices that it should be an estoppel against the Lessee but only during the Terme Linsâ—is Case 309. It was Resolved in this Case That an Action upon the Case doth not lye for calling the Plaintiff a Common Extortioner unlesse it be averred that the Plaintiff was an Officer for that none can be a Common Extortioner unlesse he be an Officer 310. An Action was brought for speaking these words viz. Thoâ— meaning such an one art a perjured man and a procurer of perjury and many the like words tending to that purpose The Court said that the Action did not lye for the words if they were not spoken directly and in the affirmative and an Action doth not lye for words by circumstance tending to slander Manxells Case 311. A man made a Feoffment in Fee of his Lands and bound himself in an Obligation that he and his Son would do all Acts devised by the Obligee The Obligee devised a Deed of Release the Father delivered it as his deed but the Son did not deliver it but because hâ— was unlearned he required the Obligee to read it unto him and refused to seal and deliver it where Debt was brought against the Fâ—ther It was Resolved that the Son was bound to deliver it at his peril because the Father had bound himself that his Son should do it and that Debt did well lye against the Father his Son not sealing and delivering the Release 312. Diverse persons brought one Joynt Quare Impedit and in the Declaration they varied upon the title It was adjudged that the Writ should abate for the Judgment ought to be according to the Writ unlesse there be Summons and severance and upon diverse titles a joynt Judgement cannot be given because there is but one Lawfull title 313. Note It was holden by the Justices That an Attaint did not lye upon a verdict given in a Rediâ—â—eisin before the Sheriff and Coroners notwithstanding the Register fol. 20. is that Attaint doth Lie 314 The Lord licensed his Copyholder to make a Lease of Copyhold for 21. years to begin at Mich. following the Copyholder made a Lease accordingly by Indenture and also before Mich. by deed made another Lease to another for 21. years to begin also at Mich. following Anderson Chief Justice said the making of the second Lease was a forfeiture Hide and Neuports Case 315. A Copyholder in Fee took a Lease for years of the Mannor Resolved the Copyhold was extinct for ever and not only during the Lease Allen and Givers Case vide â—03 316. Husband and Wife brought an Action upon the Case against the Defendant and his Wife because the Defendants Wife said that the Wife of the Plaintiff had procured one to Murder I. S. It was adjudgeâ— that the Action did well lye and it was said that where one said to another that he layed wait in the Highway to Rob him that the Action did lye for the slander though nothing succeeded upon it 317. In false Imprisonment the Defendant said at the time of the Imprisonment he was Sheriff of the County of W. and Justified by reason of a Capias directed to him to arrest the Plaintiff the Plaintiff said the Defendant was not Sheriff but one I. S. It was adjudged against the Plantiff for the Court said That all things which he did as Sheriff were
Praecipe but the Recovery as to the estate of the Husband took effect only by way of Estoppel but it was no bar as to him who was in Remainder and in this case it was said That if Lands be given to husband and wife and the heirs of their two bodies and the Husband alone suffers a common Recovery that the same should not bind the Estate tail although the husband doth survive the wife Martin and Wilks Case 335. It was adjudged in this Case in B. R. That Land in Antient Demesne is extendable upon a Statute Staple or Statute Merchant Hill 11. Jac. in t C. B. Cox and Barnesbyes Case adjudged accordingly Wolstan Dixies Case 336. A seised in Fee of Lands in London made a Lease to I. S. for years and after by Deed enrolled in the Chancery he sold the reversion to Dixie and his wife and afterwards the Rent was behind and he brought debt against I. S. The Defendant said That after the Lease and before the Sale to Dixie A. the Lessor by Deed enrolled in London bargained and sold the Land to him It was adjudged a forfeiture of the Term and judgment was for the Plantiff Rudhall and Milwards Case 337. Rudhall Serjeant at Law Cestuy que use before the Statute of 27. H. 8. Devised the use to C. his younger Son and the Heirs Males of his body the Remainder to I. his eldest Son and his Heirs upon condition that C. should not alien nor discontinue but for the Joynture of his Wife and only for the life of such wife C. after the death of his Father entred and levyed a fine to a stranger and declared the use to himself and his wife and to the Heirs Males of his own body the Remainder to the right Heirs of his Father afterwards C. having Issue male died the Wife died the Heir of I. the eldest Son entred upon the Lessee It was adjudged that because the Statute of 27. H. 8. gave the possession in quality and condition with the use and also gave to Cestuy que the same advantages as the Feoffees had that the said Heir was enabled to take advantage of the Condition be it a Condition or a Limitation The Vis-Countess Bindons Case 338. The Executors of Viscount Bindon brought Detinue against the Widdow of the deceased Viscount and declared upon the Detainer of certain Jewels The Defendant did justifie the Detainer of them as her Paraphronalia It was agreed in this Case by the Chief Baron and others That Paraphronalia ought to be allowed to a Widdow having regard to her Degree and in this Case the Husband of the Defendant being a Viscount that 500. Marks was but a good allowance for such a matter Mich. 28 Eliz. in Cur. Wardor Mounsons Case 339. A Commission in the Nature of Diem clausit extremum after the death of Robert Mounson issued to Enquire what Lands and Tenements he had the day of his death of whom by what services the yearly value of them who was his next Heir and of what age he was It was found that the Father of Robert was seised of the Mannor of B. in Fee and gave the same to Robert in tail the remainder to G. brother of Robert the Remainder to the right Heirs of the Father That G. died in the Life of Robert and Robert died without Issue and that F. the Son of G. was within age and the Lands holden of the Queen in Capite and that Robert long before his death was seised in tail of H. Farm and N. and 17. Eliz. levied a Fine to the use of himself in tail the Remainder to F. the Son of G. in tail and died such a day without Issue of his body and upon this Office one Mounson the Heir general prayed a new Office for it was said that the said Office was insufficient to entitle the Queen to the Wardship of F. the Son of G. It was the opinion of the Court that the Office was good to entitle the Queen to the Wardship of F. the Son of G. But if it was not then a Melius inâ—quirendum should issue forth and not a New Office Branches Case 340. In the Case of a Prohibition It was Resolved that an Union of Copyhold Lands and of the Parsonage in the hands of the Parson as Parson Impersonce was no discharge of the Tythes of the Copyhold Lands and in this Case also it was adjudged That a Farmer of Lands might prescribe in modo Decimandi but not in non Decimando Moor and Williams Case 341. Assumpsit The Case was Lessee for years the reversion to M. the Lessee in defence of the Plantiffs Title spent such a Sum money and prayed contribution or recompence Moor said in consideration thereof he should have the like Lease after the expiration of the Term which Williams the Defendant required and the said Lessor refused to make upon which Williams brought Assumpsit Resolved it did not lie because the Consideration was executed before the promise Stanley and Bakers Case 342. A man possessed of a Lease for years devised the same to his eldest Son and the Heirs of his body and if he died without issue to his youngest Son and the heirs of his body and for want of such Issue that the Term should remain to his Daughters he died having two daughters and afterwards another daughter was born The eldest Son sold the Term and died without Issue the youngest Son died without Issue the three daughters entred It was adjudged they all three should have the Term although the youngest Daughter was not born at the time of the death of the Devisor Owens Case 343. Tenant in tail the Remainder in tail Tenant in tail bargained and sold to him and his Heirs and levied a Fine which was not alledged to be with Proclamation It was adjudged that the Bargainee was not such a Grantee of the Reversion as should maintain Wast because it was no discontinuance and but for the Life of Tenant in tail Higham and Harwoods Case 344. A man had houses and Land which had bin in the tenure of those who had the Houses and he devised his Lands with the appurtenances It was adjudged That the Lands did pass by the words with the appurtenances for that it was in a Will in which the intent of the Devisor shall be observed Watkins and Ashwels Case 345. A seised in Fee made a Feoffment upon condition that if he or his Heirs paid such a sum such a day to reenter He died his Son and Heir within the age of 14. years The Mother of the Infant without the privity of the Infant and who was not Guardian in Socage in the name of the Infant tendred the mony at the day It was resolved it was an Insufficient tender otherwise if she had been his Guardian in Socage Carewas Case 346. The Abbot of M. was seised and made a Lease for years De scitu Manerii Rectoriae suae de omnibus aedificis
nostra Regia suscipimus in protectionem nostram Regiam corpus terras bona de Warren Et nolumus quod inquiratur neque quod Praerogativa nostra arguatur The Protection was disallowed by the Court and it was said That the Prerogative of the King which tends to the prejudice of the Subject is not allowble Baldwine and Cooks Case 359. A Lease was made to Husband and Wife for years if they or any issue of their body should so long live one of them died having no Issue Resolved the Lease was not determined for it is to be taken if the Husband or the Wife or the Issue should live the Lease was to continue Kernes Case 360. Debt upon Obligation The condition was That if the Defendant within a Month after the decease of his Mother pay to I. S. 20. l. or 20. Kyne at the Election of I. S. that then the Obligation should be void The Defendant pleaded that the Plantiff did not shew to him his Election which of the things he would have within the month Resolved that he ought to have shewed his Election to the Defendant within convenient time before the expiration of the month for it shall be against Reason that the Defendant shall be charged to make provision of both things 361. The Case was T. B. recovered in a Quare Impedit and before he had Execution he was Out-lawed The Queen brought a Scire facias to execute the Judgment It was resolved that the Scire facias to execute the Judgment was well brought and there was priviledge enough to sue execution of the Judgment because the thing as it was in the Plantiff is in the Queen and that is a thing in action and therefore it cannot be a thing in possession in the Queen and so she is not to present but is to prosecute the Execuâ—ion of the Judgment 362. Note where an Obligation was taken with a Condition that he should not exercise the Art and Mystery of a Black-Smith within such a Town Resolved the Obligation was void and the Condition a Condition against the Law Mascalls Case 363. A. leased an house to B. for years B. covenanted to repair the house and that it should be lawfull for A. his Heirs and Assignes to enter into the House and see in what Reparations it stood and if upon view any default should be found and thereof warning be given to B. his Executors c. then within four months after such warning it should be amended A. granted the Reversion over to C. in Fee who upon view gave warning to B. which upon warning was not repaired upon which C. as Assigne of A. brought Covenant it was said the Action did not lye because the house became ruinous before his interest in the Reversion Resolved the Action did well lye for it is not conceived upon the ruinous Estate of the house but for the not repairing within the time appointed and so it is not material at what time the house became ruinous Caines Case 364. C. and his Wife being Joynt-Tenants the Husband alone was impleaded and made default the Wife prayed to be received it was the opinion of the Court she was not receivable because she was no Party to the first Writ Then he prayed that he in reversion might be received It was said he was receivable because but one of the Tenants for life was impleaded The opinion of the Court that he should be received and might plead the Joynt-Tenancy in abatement of the Demandants Writ Purfreys Case 365. P Leasee of 40. year of a Tavern in London leased the same to J S for three years who covenanted and granted with P. that from time to time he would keep the same a Tavern and sell Wine there and that he monthly and every month upon request would make an account to the Lessor or his Assignes of all Wines should be there uttered or sold and would pay to the Lessor or his Assigns 30. s. for every Tun of Wine sold P. granted the Interest of the Reversion of the Term to a Stranger and afterwarda he demanded an account and the Lessee refused upon which he brought the action upon the Bond to perform Covenants and if the Grantor should give an account notwithstanding his Assignment or the Grantee should have an account as Assignee by the Statute of 32. H. 8. was the Question the Case is argued but not resolved 366. Note by Anderson Chief Justice there is a difference between general words infamous given to a private person and when to a publique Officer or Magistrate for a private person is not slandered without a particular Infamy but by general words a Magistrate or Officer may be slandered Wherefore Resolved that these words spoken of a private person were not actionable viz. Thou shouldst have sit on the Pillory if thou hadst thy desert The Lord Wentworths Case 367. The Case was The Lord Wentworth procured a Grant of the Wardship of Withypoll from the Master of the Wards Attorney and Auditor and dyed The Lord Wentworth his Son procured a Bill assigned and upon it Letters Pattents within four months to be made to him which Letters Pattents were to this effect That the Queen had granted to him Custodiam haeredis terrae de Withypoll Proviso that if the said Withypoll shall die within age not married nor the effect of his marriage taken that then the said Lord Wentworth the Son should have the Ward and marriage of his Heir at the end of his Letters Pattent there was a general Non obstante of all Statutes Restrictions c. The Lord agreed with Withypoll for his Wardship and in consideration of 400. l. to him paid did release to him the Wardship and gave liberty to him to marry at his pleasure Proviso if he did not pay 1200. l. at a certain day the Grant should be void before which day Withypoll died his Brother being his Heir within age and the Lord Wentworth sued to have the Wardship of him by his Letters Pattents There were four points in the Case 1. If the Patent be persuant to the Statute of 32. H. 8. of Erection of the Court of Wards 2. If this Statute which enabled the Masters and Officers of the Court of Wards should have Authority to make Sale and Grants of the Kings Wards had restrained the King himself that he could not grant them 3. If the general Non obstante had dispensed with the Statute in the two points aforesaid The 4. If the effect of the marriage shall be said to be taken This case was argued by Cook and Egerton for the Queen and Heale and Yelverton for the Lord Wentworth but the case was not resolved but adjourned Ideo Qu. Margery Davies Case 368. A man was bound in Covenant and Obligation upon it to pay to the three daughters of a Stranger 10. l. a piece at their several ages of 21. years the party lying sick made his Will and in performance of the
Covenant he devised to each of the Daughters 10. l. to be paid at their several ages of 21. years One of the daughters sued his Executors in the Spiritual Court for her Legacy and upon suggestion by the party that he is bound to pay her 10. l. at her age of 21. years a Prohibition was granted and the intent of the Devise was that he should not be twice charged 369. One sued an Administrator for debt upon pleinement administr The Jury found Assetts for part to the value and Judgment for that part for the Plaintiff and that for the residue the Defendant eat siae die and now he brought a Scire fac surmising Assetts to the value of the Residue It was the opinion of the Court that it did not lie 370. Debt upon Obligation with condition if the Obligor pay to the Obligee 10. l. or four Kine such a day at the then Election of the Obligee the Obligation to be void It was the opinion of the Court that the Obligor is to tender both at the day appointed by reason of the words at the then Election which word then shall have relation to the day appointed 371. A Lease was made to three Habendum to them for 99. years viz. to the first for 99. years if he should so long live and if he died to the Second pro residuo termino anaorum tunc ventur if he should so long live and if he died within the Term then to the third pro residuo termino annorum ad tunc ventur It was the opinion of the Justices that it could not enure by way of Remainder because there was not any Estate in esse during the particular Estate Yet they conceived the Estate of the second was good because it did enure as a new Grant Qu. 372. In a false Imprisonment against a Mayor he justified because he being a Magistrate the Plantiff said he was a Fool It was the opinion of the Justices that if he called him Fool in the place and exercise of his Offic◠that the Imprisonment was lawfull otherwise not Vdeson and the Mayor of Nottinghams Case 373. Vdeson was in the custody of the Mayor upon the Statute of 23. H. 8. and he would not let him at liberty upon Sureties wherefore he sued by Bill here and and Declared against the Mayor in Custodia Marischalli and recovered by Verdict It was the opinion of the Justices that by the Statute of 18. Eliz. none should sue for any penalty upon a penal Law but by original Writ or Information and so it was said it was adjudged in the Bayliffs of Bosworths Case Griffiths Case 374. It was was Resolved by the Justices That Error lyeth in the Kings Bench upon a Judgment given in an Ejectione firmae in Wales given before the Justices there 375. A Draper having a Servant to sell Clothes in his shop the Servant took the clothes and converted them to his own use It was adjudged that Trespasse vi armis lyeth only against the Servant because he had the possession as Servant and it was Resolved That in all cases where the Servant hath not a speciall nor general property Trespasses lyeth 376. One made a Lease for years the Lessee devised the Term to his wife for so many years as she should live and after to his Son the Wife purchased the Inheritance and sold the same again and covenanted that it was discharged of all Incumbrances and died The Son claimed the Term it was adjudged the possibility to the Son was a forfeiture of the Covenant and Bond of the Wife Sir Thomas Gorges Case 377. The Queen seised of a Mannor to which an Advowson was appendant and granted the Mannor una cum advocatione Ecclesiae the Church being then void Adjudged the Avoidance did not pass but the Queen should present pro hac vice 378. A man who was bound in a Recognizance for the good Behavior was indicted that he called one Pealer Lier Druakard and said I will make thee a poor Kirton and also Quare clausam fregit averia cepit injustè detinet It was Resolved by the Justices in B. R. That these were not words which threaten a battery of his Body without which the Recognizance is not forfeited 379. Debt brought in the City of Oxon The Defendant pleaded that he was one of the Barons of the Cinque Ports within the County of Kent and pleaded to the Jurisdiction of the Court upon which the Plaintiff demurred Qu. If a good Plea It was not Resolved Hayward and Bettesworths Case 380. Replevin the Defendant avowed for Rent the Case was The Father was seised in Fee and let the Land to the Plaintiff for years rendring Rent and afterwards he infeoffed a Stranger and executed livery upon parcel of the Land in a Close called D. the Lessee nor any of his Cattel being there but being in the house It was adjudged that nothing passed by the Livery but that the reversion of the whole descended and therefore it was adjudged for the Avowant Pigott Palmers and Grangers Case 381. The Case was A. was seised of Land which he intended to sell to the Father for 160. l. of which 140. l. was paid by G. in consideration of the Marriage of Pigott with the daughter of Granger and that the Land shall be conveyed for the Joynture of the daughter and the Heirs Males of their Bodies they intermaried and had Issue the Plaintiff Pigot died the wife took Husband Palmer the Defendant and they accepted a Fine of a Stranger with a render to the Stranger for 100. years rendering the ancient rent the wife died It was resolved that the taking of the Conveyance with the render for 100. years made the Estate of the wife void by the Statute of 11. H. 7. Zouth and Bamfields Case 382. In a Formedon in the Discender brought of the Moiety of a Mannor The Defendant pleaded in Bar that the Grandfather of the Demandant levied a Fine sur Conusance de droit c. with Proclamation of the moiety of the said Mannor by which Fine it was granted and rendered to the Grandfather and his Heirs whose estate the Tenant in the Formedon had The Defendant replyed that at the time of the Fine levyed and after the Demandant was seised of the Land in his Demesne as of Fee It was Resolved That the Defendant being Heir in tail against such Fine levyed by his Ancestor whose Heir he is was estopped to aver his seisin and continuance thereof as a stranger at the time of the Fine levyed Nor to add Quod partes finis nihil habuerunt Against which it was objected 1. That by the Statute of Donis It is provided Quod finis ipso jure sit nullus 2. That the Statute of 27. E. 1. of Fines doth not extend to Heirs in tail but to Heirs in Fee and that the Issues in tail are not bound by Fines which enure by way of Estoppel 3. That the Statute of Fines
made Title by a Demise in Fee to himself the Plaintiff traversed the Custome and the Custom was found to demise in Fee or for Life but not in Tail It was adjudged that the Issue was found for the Defendant because the substance was found for him and the tail was but Inducement Ewer and Heydons Case 468. A. seised of three Houses and other Lands Pastures and Meadows in W. in the County of H. and of Land in the County of O. devised in this manner viz. I give my Capital Messuage in the County of O. and all other my Lands and Meadows and Pastures in the Parish of W. That the Houses passed by the Devise for that Land comprehends Houses The Bishop of Worcesters Case 469. The Bishop presented a Felon at the Sessions at Newgate who had stollen a Bason and Ewer from him for which the person was attainted and a Writ of Restitution awarded to the Bishop In Bar of the Restitution a Scrivener of London a Freeman came and said That every Shop in London is a Market overt and that he bought the Bason and Ewer in his Shop being a Scriveners Shop Adjudged the sale of it in the Scriveners shop did not alter the propriety of the Plate for it was not a Market overt for such things And it was said That any Shop in London by Custom was a Market overt for the buying of all things It was Resolved that such a Custom was an unreasonable Custome The Lord Norths Case 470. Christ Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon and they made a Lease by the name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon and the Liberties de Accademia did extend further then the Liberties of the City yet it was adjudged a good Lease because the substance of the Corporation was inserted in the words of the Lease Bullen and Bullens Case 471. The case was S. B. being Cestuy que use before the Statute 27. H 8. devised to his Wife certain Lands for her Life and that after her decease R. B. his eldest Son shall have the Land 10 l. under the sum or price it cost and if he died without Issue F. â— his Second Son should have the Land 10. l. under the price it cost and if he died without Issue of his Body then his two Daughters A. and E. shall have the Land paying the value thereof to the Executors of his Wife The Question was if R. B. the Devisee had an Estate Tail or not It was argued it was an Estate tail and it was compared to Frenchams case 2. Eliz. Dyer where a man devised Lands to his Wife for use the Remainder to C. F. and the Heirs Males of his Body and if he die without Heirs of his Body the Remainder over and it was clearly taken that the general Limitation if he die without Heirs of his Body shall not alter the especial Tail On the other side it was said that the Estate was Fee-simple for that the words are That he shall have the Land 10. l. under the price and so the word paying implies a Fee-simple The Court enclined to be of opinion It should be a Fee-simple But the Case was not Resolved but Adjourned Germin and Ascotts Case 472. A. seised of Lands â—n Fee devised the same to his eldest Son and the Heirs males of his body the remainder to his second Son and the Heirs males the like remainder to his third Son the remainder to his Daughter in Tail with remainder over Proviso That if any of the Devisees or their Issues shall go about to alien discontinue and incumber the premisses that then and from the time they shall go about to alien discontinue c. their estate shall cease as if they were naturally dead and from thenceforth it should be Lawfull for him in the next remainder to enter and hold for the life of him who shall so alien c. and presently after his death the Land shall go to his Issue the Devisor dyeth the eldest Son and all the other but the second Son levy a Fine the second Son claimes the said Land by the Devisor It was Resolved in this Case by all the Justices that the Proviso of ceasing of the estates upon an attempt to alien or upon an Alienation was repugnant to the estate Tail and that remainder which was limited to the second Son upon such attempt was void in Law St. Johns Case 473. A. Capias ad satisfaciend was directed to the Sheriff who made a Warrant to a special Bayliff to execute it who arrested the party after a new Sheriff was elected but had not received his Writ of discharge adjudged the Writ was executed well but otherwise if the party had been arrested upon the Warrant after his Writ of discharge was delivered Godwin and Ishams Case 474. Error of a Judgment in debt upon an Oblation to perform Covenant in an Indenture The Covenant was That if the Plantiff pay the Defendant 100 l. at Mich. then the Defendant would pay him 10 l. yearly after during his life and it was alledged that the Defendant did not pay him the 10 l. yearly but did not mention the payment of the 100 l. by him which was assigned for Error It was adjudged No Error because the Defendant by pleading Conditions performed which he did plead had confessed the payment of the 100 l. to him by the Plaintiff The Judgement was affirmed Woodlife and Vaughans Case 475. Words viz. He hath forsworne himself and I will prove him perjured or else I will pay his charges Adjudged the words are actionable notwithstanding the Disjunctive or else I will pay his charges Barton and Lever and Brownloes Case 476. Tenant in tail upon a Recovery had came in as Vouchee It was Resolved that in such Case he had barred his Issue from any Writ of Error to reverse the Fine and it was said That it was adjudged Mich. 32 Eliz. in Carringtons Case That if Tenant in Tail levyeth an Erronious Fine and afterwards levyeth another Fine the Issue in Tail was barred of his Writ of Error upon the first Fine Rolls and Germins Case 477. It was Resolved in this Case where the Testator retained an Attorney of the Common Pleas to prosecute a Suite in that Court That an Action will lye for his Fees which be due to him in that Suit against the Executor of the Testator because the Testator in such Case could not wage his Law but for monies expended in Suites in other Courts by the Attorney the Action will not lye Welcombs Case 478. Debt brought to answer to Tho. Welcomb Excecutor of Joh. Welcomb The Judgment was Quod praedict Johis recuperet where it should have been Quod praedict Tho. recuperet Resolved it was not amendable because no default in the Judgment is amendable being the Act of the Judges and not of the Clarks 479. The Bargainee Covenanted
That if the Bargainor paid a certain sum of money at a certain day and place that the Bargainee and his Heirs would stand seised of the Land to the use of the Bargainor and his Heirs and entred Recognizance to performe the Covenants The Bargainor paid the money before the day at another place and after day tendred a deed to be sealed by the bargainee containing the receit of the mony and also a Release of all his right in the Land the Bargainee refused to Seal it The Court doubted if by the Refusal the Recognizance was forfeited because he was not bound to Seal the Deed not being pertinent to the Assurance of the Land But the Court conceived that the acceptance of the money before the day was sufficient to excuse the forfeit of the Recognizance Isams Case 480. Three Women and the Husband of one of them recovered Debt in C. B. the Record was removed by Error in B. R. where the Judgment was affirmed the Husband dyed The Women sued forth a Capias against the party without first suing a scire facias It was adjudged that there ought to have been a scire facias first sued forth because the Defendant perhaps had a Release of the Husband who was dead to plead Morgan and Williams Case 481. An Administrator brought debt and declared That Administration was Committed to him by A. B. sacrae Theologiae praefessorem and doth not say loci illius Ordinarium and for that cause the Judgment was reversed Sheffield and Rises Case 482. Assumpsit In consideration that the Plaintiff had submitted himself to the Arbitrament of I. S. the Defendant ad tunc ibidem assumpsit It was said the Action did not lye because it was upon a Consideration executed But adjudged for the Plaintiff because the words ad tunc ibidem extend to the time of the Assumpsit Sir John Perrots Case 483. In Intrusion against the Lady Dorothy Perrot and James Perrot the Case though very long was thus in effect Sir John Perrot 26 Eliz. before his Attainder seised of diverse Mannors by Indenture tripartite Reciting that whereas he had 2. Sons viz. F. and W. by diverse venters for Love and affection which he bore to his said 2. Sons and such other Issue male as should be of his body and for the Love which he boâ—e to I. his reputed Son and other Considerations Covenanted that he his Heirs and Assigns and all other persons who had Interest in the said Mannors should stand seised thereof to the use of himself for life without impeachment of Wast and after to the use of W. for life and after to the use of the first Son of the said first Son for life and after to the use of all the Sons and Issues male of the said W. by his first Wife which he should Marry one after the other in such Course and forme as they successively ought to discend by due course of Law for the terme of the lives of the said Sons and Issues males and for want of such Issue Then he limited the remainder in use to F. for life and after to his first Son for life and so further as the same was limited to W. and for want of such Issue to I. and for want of all such Issue the remainder to himself and his Heirs and Assignes There was a Proviso for the making of Joyntures to the Sonnes Wife Proviso That Sir John by any Writing signed and sealed with his hand and seal might revoke alter change any use estate or limitation in the said tripartite Indenture that then the said Sir John and all other seised and all assurances aforesaid should be of such estate or in such manner as by such Revocation enlargement or limitation should be declared W. dyed without Issue male Sir John Perrot afterwards 35 Eliz. by writing under his hand and seal did limit the Lady Dorothy his Wife the Defendant for her Joynture a third part of the Mannors in 3. equal parts to be divided 36 Eliz. T. dyed seised in possession and Dorothy entred and took the 3d. part of the profits of the said Mannor and averred the Feoffment was by writing with and under the proper hand of Sir John and traversed the Intrusion upon which it was demurred There were many points in this Case both upon the pleading and matter in Law 1. If all the estates perpetually limited in Freehold for life to all the Sons were void or which of them were good which void 2. If Sir John in making of the Feoffment had duly pursued the Authority limited to him by the Proviso 3. If Sir John in the Assignment of the Joynture to Dorothy his Wife which is the principal title by which she Justifies had duly pursued the Authority limited to him by the other Proviso for making of Joyntures The Case was very Learnedly oftentimes argued at large and Tr. 38 Eliz. It was adjudged for the Queen against the Defendants not upon the matters in Law but upon a poynt of pleading only For it was said by the Barons that they did not take plea sufficient that he did enfeoffe such person Habend to them and their Heirs to the uses in the Indentutres unlesse it had been pleaded the Feoffment was by writing or so averred to be which shall not be intended so to be without special pleading or averment of it King and Hunts Case 484. Tenant in Tail enfeoffed his Son of full age and afterwards disseised and levyed a Fine with Proclamation before the last Proclamation the Son entred and made a Feoffment the Father and Son dyed the Feoffee made a Lease for years to a stranger and dyed seised The Issue in Tail brought a Formedon and recovered by faint pleader It was adjudged in this case because it appeared by the plea That the Fine was levyed to the Lessee for years himself and not averred it was to other uses the Terme was extinct and so he could not falsifie the Recovery East and Hardings Case 485. Note It was adjudged by the whole Court in this Case That if a Copyholder cut down Trees without a Custome it is a forfeiture unlesse it be for Reparations Barwicks Case 486. Intrusion the Case was That the Queen made a Lease to Barwick of a Mannor for 21. years he surrendered the same to the Queen Anno 23. and the Queen in Consideration of the surrender granted him the Mannor a die Confectionis of the Patent for the life of I. S. and the Lessee pur auter vye devysed the same to him for 40. years and averred the life of I. S. The Plaintiff said That after the Lease made by the Queen to him for 21. years that he granted all his estate in a part of the Mannor to a stranger and afterwards in Consideration of the surrender the Queen made the Lease pur auter vye Resolved the 2d Lease made by the Queen was void because all in the first Lease was not surrendered and so the Queen
in opinion if it was a good Lease Rosse and Mores Case 675. Assumpsit In consideration that the Plaintiff would relinquish a Suit which he had against a Stranger the Defendant promised to save the Defendant harmless from all actions concerning such a Lease It was adjudged no good Consideration because he may afterwards prosecute the Suit again when he pleaseth Bannister and Lillyes Case 676. Debt for Rent upon a Lease for years The Defendant said I. S. was seised and died and his Heir entred and the Plaintiff disseised him and made the Lease and the Son reentred before the Rent day The Plaintiff said I. S. was not seised nor died seized and that he did not disseise the Son The point was if the disseisin or discent was traversable adjudged the Disseisin Stoner and Gibsons Case 677. It was adjudged in this Case that the Lessee for years of a Copyholder might maintain Ejectione firmae Digby and Vernans Case 678. Resolved It is a good Plea in abatement of an Ejectione firme that the Plaintiff hath an other Ejectione firme depending of the same Land Waston and Ridges Case 679. It was Resolved in this Case That upon an Information exhibited in the Spiritual Court for laying of violent hands upon a Clerk and costs there given against the Defendant for which he was excommunicate for not paying them a Prohibition should issue forth because it was not at the Suit of the party and costs are not grantable there upon an Information Butler and Goodales Case 680. Upon an Information upon the Statute of 21 H. 8. of Non-Residence It was Resolved That the Parson ought to dwell upon the Parsonage house and not upon another house although it be within the Parish both for serving the Cure and maintaining of Hospitality v. Coo. 6. par the same case Odiham and Smiths Case 681. Error of a Judgment in C. B. for Trespas there for taking of an Ox the Plaintiff there assigned the Trespass generally in D. the Defendant justified the taking of the Ox damage Feasants the Plaintiff made a new Assignment upon which the Defendant justified for Heriot Service and the Judgment there passed against the Defendant because he could not varie from his former Justification but should be estopped by it It was the clear opinion of all the Justices that he might well varie in his Justification upon the new Assignment and therefore the Judgment was reversed Reyner and Parkers Case 682. An Apparator came to the Church of a Parson and said to him he is to pay Tenths to such an one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop certified that he refused to pay them according to the Statute of 26. H. 8. It was Resolved the demand was not according to that Statute and the Summons to pay them not according to the Statute for the demand ought to have been by one who hath authority to receive them which the Summoner had not and they held the demand not good although the Bishop certified it was duly made 683. One who exhibited an Information upon a penal Law died It was Resolved That notwithstanding the death of the Informer yet the Queens Attorney might repay and prosecute the Information for that neither death nor the Release of the Informing party could bar the Queen from the moiety Holliday and Lees Case 684. In a Prohibition It was Resolved that Tythes should not be paid of Beeches although above twenty years growth Cartwright and Dalesworths Case 685. Debt upon an Obligation taken by the Plaintiff Sheriff of the Detendant his Clerk upon condition to pay the Queens Silver into the Exchequer within 14. days after hereceived it The Defendant pleaded he Statute of 23 H. 8. c. 10. and averred it was taken colore Officii Upon demur it was adjudged for the Plaintiff for the Statute doth not intend such Obligations taken of them which are not to appear nor are in custody 686. It was holden by the Justices that if the Sheriff takes goods in Execution upon a Scire fac and hath the goods in his hands and a Supersedeas comes to him yet he shall not thereupon redeliver the goods but may proceed and sell them upon the Execution Armiger and Hollands Case 687. In case of a Prohibition It was Resolved that by the Common Law before the Statute of 21. H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Arch-Bishop had not Authority by the Statute of 25. H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute but yet the Statute as to those Dispensations which the Arch-Bishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal Mosley and Fossets Case 688. In Action upon the Case the Plaintiff declared that the Defendant took the Plaintiffs Gelding to pasture for 2 s. the Week and the Defendant was to keep it safe and redeliver it upon Request and that the Defendant kept it so negligently that it was taken away by persons unknown The Court was divided in opinion if the action lay without alledging a Request for delivery of it But it was agreed by them all that without a speciall Assumpsit the action did not lye against the Defendant Sharington and Minors Case 689. A man devised Lands in Tail with diverse Remainders over and with this Clause viz My minde is that if any of the said persons afore entailed to my said Lands or their Heirs do unlawfully vex disquiet or trouble any other of them for the same Or do Mortgage pledge or sell the same or any part thereof or his interest possibility or title therein or do hurt fully dismember or waste the same c. That then every such person and his and their Heirs shall forthwith be cleerly discharged excluded and dismissed as touching the said entail of mine and the conveyance by words forgoing of the entail of my said Lands to be of no force to him or them but the same immediatly to discend and come to the party next in Tail to him or them effectually as if such disordered person had never been minded of in thiâ— my Will B. having this Land by the forfeiture of the former estate she and her Husband levyed a Fine of it he in the next Remainder entred It was holden by the Justices that the estate of each of them in the Remainder was subject to the limitation to cease by alienation and that the next in the Remainder might enter Corbens Case 690. In Consideration of Marriage the Father agreed by word to stand seised of Land to the use of himself for
Justices that if one be bounden to make such assurance of all his Land that another will devise and require if it be to be done at the Costs of the Devisor he may devise one Assurance of one part and another of another part of the Land but if be at the Costs of the other he can devise but a joynt assurance for the whole Land Gage and Topers Case 741. Resolved in this Case If the Writ of Covenant upon which a fine is levyed be returned before the date it is Error because it is an Original Writ and not amendable by any Statute Strougborough and Biggins Case 742. In Appeal by a Woman of the death of her Husband of Murther the Defendant is found guilty of Manslaughter It was holden that a general pardon could not pardon the burning of the hand because it is at the suit of the party Vide Co. 6. p. the Case Reported to be adjudged contrary 743. It was holden by the Justices that in a scire fac to have Execution of a Fine it is no plea that there are other Terre-Tenants not named in the Writ otherwise it is upon a scire fac to have Execution of a Recognizance Bennes and Edwards Case 744. The Patron of the Advowson granted the next Avoydance to B. and after granted an other next Avoydance to R. who first presented and the Bishop refused the B. presented and the Bishop refused his Clerk also R. brought duplex Querela against the Bishop before the Metropolitan against B. and upon default his Clark was Inducted by the Metropolitan but depending the duplex Querela B. recovered against the Bishops Ordinary in a Quare Impedit and his Clark was Instituted and inducted and he took the profits of the Gleab Lands which were sowed by the Clark of R. It was Resolved in this Case that the Clark of R. being in upon the Judgment in the duplex Querela the Clark who was in upon the Recovery in the Quare Impedit could not oust the Clark of R. without a scire facias first brought Foxley and Ansleys Case 745. The Bayliff of the Queens Mannor which had waifes and estrays appertenant took goods esloyned by a Felon and relinquished in the Mannor and seased them for the use of the Queen and in Trover brought against him prayed in aide of the Queen Resolved the Aide not grantable being an action transitory and not local James and Rudledges Case 746. Words viz. Hang him he is full of the Pox I marvel you will eate or drinke with him adjudged not Actionable for it may be the small Pox and not to defame the party but to Counsell his friend 747. The Sheriff sells a Terme upon a scire fac and afterwards the Judgment is reversed Resolved the party shall not be restored to the Terme but to the money for which it was fold Holford and Andrewes Case 748. Debt upon an Obligation the Condition was to pay a sum at a certain day The Defendant pleaded that in respect of a Trespas done by the Plaintiffs beasts upon the Defendants Lands the Plaintiff gave him a longer day of payment which is not yet come Resolved it was no plea for that an agreement by perol cannot dispense with the Obligation Scrogs and Stevensons Case 749. In a Leet a payne was assessed upon the Town for not making of a Tombrell and Stocks and the Bailiff of the Mannor destrained one of the Town for the payne and avowed for it Adjudged the Avowry not good because it was not alledged that the payne was unpaid to the Lord for if any of the Town paid it the Plaintiff in the Replevin was not destrainable and also he doth not show that he had a Precept from the Steward to distrain which he ought to have Resolved that the Lord of the Mannor and Leet is to finde the Tombrell and Stocks upon payne of forfeiture of his Liberty and not the Inhabitants Johnson and Clarks Case 750. Debt upon Obligation The Defendant pleaded the Statute of Usury Quod Corrupte agreaâ—un fuit quod Querens Corrupte recepit Issue upon them found for the Defendant it was said that the double Issue was a Mistâ—yal The Court held the tryal good because an Issue is taken upon a thing material the other upon a thing not material and both being found for the Defendant it is a sufficient warrant for the Court to give Judgment for the Defendant Whitcalfe and Jones Case 751. Assumpsit The Consideration was that the Plaintiff assumed to a stranger to pay a debt which the Defendant owed him It was holden to be a good consideration although he doth not alledge payment of the money Smith and Shepherds Case 752. Trespas for taking of his sheep The Defendant justified as servant to the Lord Barkley by Prescription to take 2 d. for every score of sheep passing through the Town and if it was denyed upon request to detain the sheep till payment Resolved the Prescription was not good to take Toll for passages in via Regia for that the Inheritance of every man for passage in via Regia is precedent to all Prescription 2. Resolved a man may prescribe for Toll Traverse because it is a passage over his own freehold but not for Toll thorough 3. In this Case it was adjudged against the Defendant because it was not shewed that the Sheep were passing thorough the Town before he took the distresse otherwise it doth not sure with the Prescription Warner and his Wife and Babingtons Case 753. Debt upon an Obligation by Husband and Wife the Defendant pleaded the Wife had another Husband living The Plaintiff said the Wife ad annos nubiles disagreed to the former marriage It was said by Popham if she marry another Husband infra annos nubiles it is a disagreement to the first marriage à fortiori where she cohabits with the second Husband after years of Consent adjudged for the Plaintiff White and Gerishes Case 754. The Case was A. and B. levyed a Fine of Land to I. S. with a Render of a rent of 5 l. to B. yearly with a Clause of distresse the Remainder of the Land to A. and his Heirs I. S. dyed his Son distrained for the Rent It was adjudged against the Avowant for the Rent in a Replevin brought because the limiting over of the Remainder of the Land over was an Extinguishment of the Rent Davenant and Hardis Case 755. The Case long put was shortly this The Company of Merchant Taylors of London having power by Charter to make Ordinances for the better Rule and Government of the said Company made an Order that every Brother of the same society who should put any Cloth to be dressed by any Clotheworker not being a Brother of the same society should expose one half of his Cloths to be dressed to some Brother of the Company upon pain of forfeiting 10 l. and to destrain for it This Case was very long and very Learnedly argued vide the Book at
especial matter upon the division of the day ought to come on the other side otherwise it shall not be intended Bullock and Bibleys Case 771. A Woman Copyholder in Fee took Husband who without his Wife surrendred to the use of a Stranger who was admitted and surrendred to the use of D. the Defendant who was admitted the Husband died the wife survived and died the Heir before admittance made a Lease to trie the Title It was adjudged that the Surrender of the Husband alone made no discontinuance of the Copy-hold of the wife 2. Resolved that the Lease was good before Admittance otherwise it was of a Surrender before Admittance Gooles and Granes Case 772. An Infant surrendred Land which was Copyhold to the use of a Stranger who was admitted It was adjudged that the Infant at his full age might enter because it was no bar nor discontinuance Ford and Holborns Case 773. A. let the Mannor of D. to H. for 17. years rendring yearly to D. G. 10 l. and he was bound in an Obligee to A. to pay the said Rent to D. G. if she so long lived and the said H. or his Assignes should or might so long enjoy the Premises In Debt by the Executors of A. against H. he pleaded that after the Lease to him he himself surrendred the Lease to A. which he accepted and that till the Surrender no Rent was unpaid It was adjudged for the Plaintiff because the acceptance of the Surrender was no conclusion against the collateral payment to a Stranger and H. but for his own Act might have enjoyed the Land still Savage and Bechams Case 774. In Action upon the case for an Escape against the Prisoner brought by the Plaintiff Sheriff It was Resolved that upon a voluntary escape the Sheriff should not maintain an Action against the Prisoner but otherwise upon a negligent escape West and Blackwells Case 775. A. Outlawed after Judgment was taken upon the Capias utlagatum and afterwards escaped Resolved that he was not in Execution for the party without prayer Williams and Beathles Case 776. Debt upon an Obligation after Verdict and Judgment it was assigned for Error that the Teste of the Original was before the day of payment in the Condition It was holden Error and the Judgment for that cause reversed Wells and Dennyes Case 777. Upon a Recovery in Debt of 400 l. upon 2 Fieri fac 100 l. was levyed and returned Afterwards a Capias ad satisfaciend issued for the whole 400 l. It was the opinion of the Court it ought to issue forth but 300 l. and the Judgment for Execution was reversed May and Middletons Case 778. After Debt brought the Plaintiff attached in London a debt due by another man to the Defendant and had Judgment to recover Adjudged a good bar to the Action for so much Bufkin and Edmonds Case 779. It was adjudged in this Case That a Rent payable off the Land upon Cesser of an Estate ought to be demanded where no entry may be Hughton and Princes Case 780. Resolved Tythes shall not be paid of Turkies nor their Eggs nor of tame Patridges or Pheasants quia ferae naturae Beswick and Cundens Case 781. It was adjudged in this case That the Feoffee shall have Action upon the case for a Nusance continued though it was erected before his time Sharington and Fleetwoods Case 782. It was Resolved if a Parson Libells for Tythes and a Prohibition is granted and after he libelleth for the Tythes of another year the first Suit not being determined an Attachment upon Prohibition lieth against him Hall and Vaughans Case 783. If the Jurors eat and drink at their own proper costs before Verdict after their departure from the Bar it is fineable only but it shall not make their Verdict void Adams and Albons Case 784. Resolved that if a Venire facies bears date the day it is retornable it is amendable by the Roll. Gregory and Blasâ—fields Case 785. An Action upon the Statute of 4. and 5. Philip and Mary for using the Trade of a Clothier not having bin bound an Apprentice for seven years was brought by Plaint in the Court of Ludlow and Judgment there The Judgment was reversed because first it ought to be by Original or Information and Secondly because it ought to be brought in the Courts of Record at Westminster and not in Borough Courts Varrel and Wilsons Case 786. Conspiracy The Defendant pleaded his goods were Feloniously Stollen and he found them in the possession of the Plaintiff for which he Indicted him and gave evidence against him and upon the Tryal the Plaintiff was acquitted and traversed the Conspiracy aliter vel alio modo It was adjudged a good Justification because the finding of the goods in his possession was a sufficient cause of Suspition Marrow and Tarpins Case 787. Debt against two Administrators for Rent behind after the death of the Intestate they pleaded that before the Rent behind one of the Administraters assigned all his Interest to I. S. of which the Plaintiff had notice and accepted of the Rent by the hands of the Assignee before the day in which the Rent in arrear was due It was Resolved that the privity of contract as to the Action of debt was determined by the act of the Lessee and therefore the action of Debt after the Assignment did not lie against the Administrator Smith and Johnsons Case 788. Error of a Judgment in Action upon Assumpsit in the Court of Reding The certificate was Plita c. ad Cur. Dominae Reginae Burgisui de Reding tenend per consuctudinem Libertat Major Burgensibus concess I without saying per consuetudinem ex antiquo usitot or alledging by what person the Liberties were granted and for this cause the Judgment was reversed Corbet and Corbets Case 789. A seised of Lands for real affection covenanted to stand seised to the use of himself for Life and after to the use of R. and the Heirs Males of his Body the Remainder to C. and the Heirs Males of his Body Provided if R. or any Heir Male of his Body shall intend or go about any act to cut off the Estate tail then it shall be lawful for him that is next to enter A. died R. suffered a common Recovery Resolved the Proviso was repugnant to the Estate tail and that the Cesser of the Estate tail as if the party had bin dead was impossible and the going about it such a secret thing that an Issue cannot be upon it Grar Marshal and Marshals Case 790. A. levyed a Fine of five yard Land to the use of himself for Life the Remainder to the use of his eldest Son who was the Plaintiffs husband and the Plaintiff and the Heirs of the Body of the Husband Proviso if the Husband died living A. his Father then G. the Plaintiff his wife should have yard Land and a half for her Life in possession without shewing which Land the Husband died
good against a Purchaser bna fide for valuable consideration Crowther and Fryers Case 800. The case was a Parson sued a Copyholder for Tythes arising upon his Copyhold he prayed a Prohibition and suggested that the Bishop of W. was Lord of the Mannor and that he and his Predecessors time out of mind c. for them their Farmors and Tenants had bin discharged of Tythes arising upon the Mannor and shewed he had bin a Copyholder of the Mannor and preseribed in his Lord. It was the opinion of the Justices in this case that although there is a Prescription upon a Prescription one in the Copyholder to make the estate good the other in the Bishop to make his discharge good yet a Prohibition lyeth for the Prescription in the Lord of Right of necessity and common Intendment proceeds the Prescription in the copyhold estate and the discharge of the Tythes in the Lord shall go to the benefit of the Copyholder Blake and Allens Case 801. B. was bounden 10 A. in an Obligation of an 100 l. for the true behaviour of his Son he being an Apprentice to A. A. after the sealing and delivery of the Bond razed out the word Libris and inserted the word Marcis It was the opinion of the Justices it was not a Forgery punishable because he made his own Bond void and it was not a prejudice to any but to himself 802. Two Executors made Partition of their Testators Specialties and then one of them did release to the Debtor an Obligation which did appertain to the part of the other the Debtor having notice of the Partition betwixt them the other sued in Chancery for Reliefe but the Chancery would not relieve him but if the Release was obtained by Covin for a less Sum then the Debt was there it was holden the Debtor should satisfie the Over-plus 803. It was agreed by the Justices that the Hundred is not chargable with the escape of the Felons nor to pay the Robbery if the Robbery be done in an House nor if it be a Robbery in the High-way in the Night 804. Note It was Resolved â—9 Feb. 43. Eliz. by the Justices upon the Arraigment of the Earl of Essex 1. That when the Queen sent the Lord Keeper and others of her Council to him commanding him to disperse the armed persons which he had in his house and to come to her and he refused so to do and kept the armed men in his house that that was Treason 2. That when he went with a Troop of Captains and others into the city of London and there prayed aid of the citizens to assist him in defence of his Life and to go with him to the Court so as he might be of power to remove his Enemies which attended upon the Queen that that was Treason 3. That the Fact in London was actual Rebellion although he did not intend hurt to the Queen 4. That the adherence of the Earl of Southampton to the Earl of Essex although he did not know of any other purpose then of a private Quarrel which the Earl of Essex had against certain of the Queens Sewants was also Treason in him 5. That all those who went with the Earl out of Essex-House into London whether that they knew his intent or not were Traitors although they departed by Proclamation but those who upon a suddam adhered to him in London and departed so soon as Proclamation was made they were within the Queens Grace of pardon by the Proclamation Holland Jackson and Ogdens Case 805. Error was brought to reverse a Recovery and a Scire facias issued against K and other Terre-Tenants depending which a Writ of Estrepment was awarded against the Terre-Tenants and Resolved it did well lye Dalton and Hamonds Case 806. It was Resolved by the Justices in this case that if the Lord demandeth an excessive Fine of his Copyholder and he refuseth to pay it it is no forfeiture otherwise where it is a reasonable Fine and the Court and Jury shall be Judges of the reasonableness of it But if a Fine be certain the Tenant is to bring it with him to Court and to pay it before admittance and if he be not ready to pay it it is a forfeiture Gambleton and Grassons Case 807. In Trover and Commission it was found for the Plaintiff It was moved in stay of Judgment that the Distringas with the Nisi prius bore the same date with the Venire facies It was the Resolution of the Court that it should be amended for it was aided by the Statute of 32. H. 8. Higgins and Spicers Case 808. A Venire facias was awarded to the Coroners ita quod B. who was one of the Coroners se non intromittat because he was the Servant of R. who was Sheriff It was said the same was no cause of Challenge but the Court conceived it was because confessed However it was but a misconverting of process which was aided by the Statute Hall and Jones Case 809. Action was brought upon the case for slanderous words in a Court of Pipowders The Stile of the Court was Curia pedis pulverizati ratione Mercati c. Secundum consuetudinem Civiiatis It was adjudged there for the Plaintiff and Error brought and Assigned that a Court of Pipowders doth not belong to a Market but to a Faire The Court held that by custome of a city or place it might be to a Market 2. Resolved that an Action upon the case for slanderous words did not lie in a Court of Pipowders and for that cause the Judgment was reversed The Countess of Warwick Attwood and Davies Case 810. Action upon the case against two the one pleaded to Issue the other demurred upon the Demurrer the Plaintiff had Judgment and a Writ of enquire of Damages against him alone and the Defendant relinquished the other Issue It was the opinion of the Court that he might relinquish against him and have Judgment and execution of the damages against the other only Sir Gervase Clifton and Chancellors Case 811. In Trover and Conversion of Jewels The Defendant pleaded that a Stranger was possessed of the Jewels and sold them to him in his shop in Bristol he being a Gold-Smith and because he did not say that the Sale was in pleno Mercatu nor aver'd it was his shop in which he used the Trade of a Gold-Smith It was adjudged for the Plaintiff and in this case it was agreed that the King cannot grant to one that his Shop shall be a Market overt to bind Strangers because it is against the Law Ludd and Wrights Case 812. In debt to perform an Accord the breach was assigned of a thing out of the Submission and issue being joyned the Plaintiff at the Nisi prius was Nonsuit Then the Judgment given upon the insufficient Pleas is not upon the Nonsuit It was holden the Defendant should have costs for the unjust vexation Gawen and Rants Case 813. In Replevin the case was
Plaintiff that the Action did not lye Vide this Case more at large in Cook 3. part of his Reports Cornwalls Case 869. Quo Warranto for claiming goods of Felonum de se The Defendant said that the Mannors of S. and L in the County of Gloucester were within the Principality of Wales before the Statute of 27 H. 8. and the Kings Writ did not run there and that his Grandfather seised of those Mannors as Lord Marcher used amongst others to have that Liberty of goods of Felons de se and that the Statute of 27 H. 8. which united Wales to England had a Proviso that the Lord Marchers should retain their Franchises to hold Courts to have Waifes and Estrays infangtheef outfangtheef and Felons goods and deduced the Mannors to himself and eo Warranto he claimed to have the good of Felons de se within his Mannors upon which it was demurred the Case is only argued bet not Resolved Ideo Quaere Darcy and Allens Case 870. The Queen by her Letters Patents granted to Darcy the Importation and sole making of playing Cards within the Realm of England for a certain Terme of years A Citizen and Freeman of the Company of Haberdashers in London Cards beings Merchantable Commodities brought Cards into England and sold them for which Darcy brought his Action of the Case and declared it was to his damage of 2000 l. upon which there was a demur in Law It was in this Case after long and Learned Arguments at length Resolved That the Letters Patents for the sole making of playing Cards within the Realm was void because it being a Mechanical Trade it was contrary to the Liberty and to the prejudice of the Subject 2. That the dispensation or sole License to have the Importation of Cards was a Monopoly and so void by the Law See Coo. 11. pt the Case of Monopolies Garrard and the Dean and Chapter of Rochesters Case 871. The Dean and Chapter by deed under their Common Seal granted to the King the Mannor of S. in exchange for other Lands the deed was made without a Letter of Attorney but they acknowledged it to be their deed in their Chapter house before I. S. Attorney of the Court of Augmentations who brought it into Court and it was there enrolled with a Memorandū that the enrolment was such a day which was a moneth before the date of the deed In this Case it was Resolved 1. That the acknowledgment of the deed in the Chapter house was sufficient without doing it by Attorney 2. That the Attorney of the Augmentation might take the acknowledgment of a Deed out of Court he being a Judge of the Court. 3. That the enrolment of the deed before the date of it was not void as to make the deed void because it was only the Misprision of the Clark which shall not make the deed void Prine and Allingtons Case 872. A Capias ad satisfaciend ' was 2. July delivered in Holborne to the Sheriff of C. he the same day made his Warrant to his Bailiffs but afterwards the same day there came a Supersedeas to the Sheriff the Bailiffs not having notice of it took the party in Execution who escaped and they retook him upon which false Imprisonment was brought It was adjudged the Action did lye for the retaking of him was not Lawfull because the Authority of the Sheriff was determined by the Supersedas Yet the Court held the Bailiffs were excused in this Case and no action of Debt upon the escape did lye because they had no notice of the Supersedas Webster and Allens Case 873. A Copyholder where the custome was to demise for three Lives demised to one for life the Remainder to such a one as he should marry and the first Son of his body Resolved that both the Remainders were void but the estate for his own life good Penny and Cores Case 874. Debt upon Obligation for payment of 8 l. the Defendant pleaded payment of 5 l. before the day and acceptance of it in satisfaction of the 8 l. It was adjudged a good plea. The Queen and Bishop of Peterboroughs Case 875. A Baronesse which was a Widdow retained two Chaplains they purchased Dispensation the Baronesse was married before they accepted double Benefices It was adjudged they might after take two Benefices because the marriage was no discharge of their Service but if the Baronesse dye before they accept the Benefices they cannot afterwards take two Benefices within the Statute of 21 H. 8. Ward and Lakins Case 876. In a Replevin the Plaintiff declared of the taking of two Heifors apud W. tali die and did not say in quodam loco vocato c. and for that cause the Declaration was held to be insufficient Scarles Case 177. Debt against an Excecutor by Original he pleaded a Recovery in the Court of I. and that ultra he had not goods the Recovery was after the Teste of the Original but the Defendant avered that he had not notice of the Original It was holden by the Court a good plea but if a man be sued upon an Obligation and he will pay another debt after without suit if he have notice of the first suit Devastavit in an Execuror Gregory and Harrisons Case 878. Resolved Ejectione firme doth not lye of a Copyhold if the Plaintiff doth not declare the Custome Lease and Ejectment 879. A Woman recovered Dower in the Common pleas and had a Writ to the Sheriff to put her in possession of the same The Sheriff returned the Writ that he delivered her 84. Acres and that she had entred into 24. Acres parcel thereof and accepted of the same Resolved it was a good bar to her although it was a lesse quantity then the 3. part of the Land mentioned in the Record Aoliffe and Archdales Case 780. Resolved in this Case If a man be bounden to pay money for the Meat Drink and Apparel of an Infant and pay it and take a Bond of the Infant to repay the money such a Bond is void and the Infant shall avoid it for Nonage Broke and Smiths Case 881. It was adjudged in this Case that where a man by a Deed was to discharge Lands from all Incumbrances and before the sealing and delivery of the Deed there is Memorandum endorsed that it should not extend to such an Incumbrance It was Resolved the Endorsement is an explanation of the Deed and made parcell of it and a suit upon an Obligation to discharge Incumbrances shall not extend to the Incumbrances mentioned upon the endorsement of the Deed. Yate and Goths Case 882. A. was indebted to B. who dyed Intestate his Wife took Letters of Administration and brought debt and had Judgment and after dyed Intestate It was adjudged that an Administrator de bonis none of the first Intestate could not sue forth Execution upon the Judgment but is put to a new action of debt Swelman and Cuts Case 883. A Lease was made for years upon
the Tenant in Dower shall not avoid it Hall and Fettiplaces Case 993. A man prescribed to make the first crop of the Hay in little Cocks that is no good prescription to discharge the Tythe of After-mouth but other it is of a Prescription to make it into great Cocks or to carry it into the Parsons Barn the same is a good Prescription Forster and Browns Case 994. Lessee for years devised his Term to his Wife for life the Remainder to A. for life if I. S. within two years after her death be not bound in 100 l. to pay 5 l. per an to the said A. for her life and if he do become bound he devised the Term to the said I. S. and the Heirs males of his body and if he dyed without Issue he devised the Remainders A. dyed within a Moneth I. S. never entred bond but dyed having Issue male and the Issue dyed during the Continuance of the Term It was in this Case holden 1. That it was a good Remainder 2. That the Remainder limited to I. S. upon this condition precedent was good and should take effect although he never entred Bond for he had time to do it within two years and then when A. dyed within the two years the Condition was discharged by the Act of God and so the Remainder was good Banks and Brownâ—s Case 995. Copyholder for life surrendred to the Lord of the Mannor in Tail the Reversion in the Crown the Tenant in Tail made a Lease for three lives the Lease to begin from the day of the Date and the old Rent was Reserved and more It was Resolved by the Justices that it was a good Lease within the Statute of 32 Hen. 8 if Livery was made after the day of the date Combes Case 996. It was Resolved by the Justices in this Case 1. That the omitting of a thing or Legacy out of a Will which is appointed to be inserted in it is not Forgery But if a man directs one who writes his Will to limit Land to one for life the Remainder to another in Fee and he leaves out the estate for life so as the Remainder takes present effect the same is Forgery 2. It a man writes a Will without direction and brings it to the Devisor who is non Compos mâ—nt is and he allowes of it the Will is void but it is not Forgery But if a man writs a Will with blanks and then the Devisor is not of perfect memory and the writer fâ—ills up the blanks though this be not Forgery yet it is a Misdemeanor punishable in the writer of it Stoâ—kwells Case 997. It was Resolved in the Star Chamber in this Case That a Purveyor or his Debuty cannot take any thing by way of purveyance without shewing of his Commission 2 That no Purveyor can take Wood or Trees growing upon the Land without agreement made with the owne of the Land 3. That no Purveyor can take any thing by Purveyance which is provided by the Owner for his own provision but of those who have the things to sell 4. That the King is to have the preemption of all things put to sale before others at reasonable Rate Bâ—llew and Brookes Case 998. The Plaintiff exhibited a Bill into the Star Chamber for the pulling up of 16 foot of hedging for putting of his Cattel to take Common there Both the Plaintiff and the Defendants were both Fined the Plaintiff for the Suit being to small a Ryot and the Defendants for the Act done Holloway and Pollards Case 999. A. bargained and sold Lands to B. and his Heirs for 500 l. upon Condition that if he paid 500 l. he should re-enter and be seised to the use of himself and his Heirs untill he should attempt to â—dien without the assent of the bargainee then to the use of the bargainee and his Heirs a Fine was Levyed to the uses the â—00 l. was paid A. aliened to I. S. and I. D. without the assent of the Bargainee Resolved that the use could not rise to the bargainee because the bargainor entring for the Condition broken was in of his old use and estate and the bargainor who came in by the use of the Fine could not â—tand seised to another use for then there should be an use upon an use which cannot be Springs Case 1000. In a Case of a Prohibition It was Resolved that a Parson cannot prescribe against the Composition made by the Vicar for things allowed to the Vicar upon Composition Heywards Case 1001. A. acknowledged a Statute and dyed Extent issued he was returned dead a new extent issued against his goods it was Returned that his Widdow Administratrix had sold them a new Extent Issued against her and her second Husband Andrews and Lord Cromwells Case 1002. In the Case of a Writ of Right it was Resolved That the demy mark may be tendred at the time of the appearance of the Jury 2. That the Tenant shall begin first to give evidence 3. That in this Action the Jury cannot finde a speciall verdict Reynolds Case 1003. Resolved by the Justices in the Case of a Prohibition That Tythes shall not be payd of the Lopping of Trees above the age of 20. years but Tythes shall be paid of Acorns Browne and Wottons Case 1004. In Trover and Conversion of Plate It was Resolved that it was was a good plea that the Plaintiff had brought Trover and Conversion against a stranger for the same plate and had Judgment But it is not so in Debt where a certain sum is demanded Richards Case 1005. He was sentenced in the Star Chamber for divers offences 1. That he took divers sums of mony from the Kings people affirming to them That the King had granted to him the penalty of penal Lawes for which he had Exhibited Informations whereas in truth he never had exhibited any Information and that he being a Deputy Purveyor had charged the people with so great sums of money for purveyance of Beans and Oates and to the purpose to take money for Composition which money he divided betwixt him and others and for divers the like Misdemeanors In this Case it was Resolved 1. That Purveyance was due to the King by Prerogative at the Common Law 2. Purveyors cannot take Trees growing nor transplant fruit Trees nor take without apprisement nor without shewing their Commission 3. That their deputies were under the same penalties as the Masters were and that the Masters should answer for the offences of their Deputies for all the wrong done to the subjects 4. That a Deputy could not make a Deputy 5. That the selling of things which the Purveyors took by way of Purveyance was Fellony The Countesse of Rutlands Case 1006. Information in the Star Chamber against divers Sâ—rjeants at Mace in London for arresting the body of the Countesse The case upon the matter appeared to be this A Capias was awarded against the Countesse out of Common Pleas In which Case
come in Question 2. because the adjunction de in W. the Town is not but to make a certainty of the Mannor for there may be two and Mannors in W. one within it and another wwithout it Harison and Haxeys Case 1095. The defendant was Bail for B. in an Action brought by I. S. against him who recovered and had Judgement B. brought Error pendant the suit I. S. dyed the Debt not paid his Administrator brought a Scire sac against the Bail who pleaded the release after the Error brought both to him and the principal B. of all Executions and Deeds It was adjudged a good barre because the duty and debt remained notwithstanding the Error brought May and the Sheriffs of Londons Case 1096. Action upon the Case against the defendant for suffering one whom they had arrested upon a Bill of Middlesex to escape The defendant said that the Prisoner was rescued from them and adjudged no Plea and so it was said it was adjudged Pasc 43. Eliz. in Walâ—o Lamberts Case which vide Cro. 3. part 867. White and Halls Case 1097. The Guardian recovered in Debt upon an Obligation made to an infant the Defendant payd the principal and costs and prayed the Guardian might acknowledg satisfacia Curia they can acknowledg satisfaction for so much as he returned and for so much they ordered him to acknowledge satisfaction and that no execution should issue for the rest 1098. A man devised Lands in London to his Son and heirs after the death of his Wife and if his Daughters overlived his Wife Son and his heirs they should have it for his life and after their deaths I. S. should have it paying 6. l. yearly to the Company of Merchant Taylors London to be bestowed in Charitable uses Resolved that the Wife hadan estate but for life by Implication 2 That the Son had Tail by Implication and not Fee-simple for as long as the Daughters lived the Son could not die without heirs collaterall 3. That the estate to I. S. after the death of the Daughters Was a Fee simple by reason of the annual payment of the money And in this case it was said that a Devise to A. and his successors was a Devise in Fee-simple Austin and Monks Case 1099. Scire fac Against the Bail upon the Statute 3. Jac. c. 8. the Defendant pleaded that after the Writ of Error allowed and before any default the principal rendred his Body in Execution adjudged a good barre for notwithstanding the Writ of Error may render his body and so excuse his Bail The Sheriffs of London and Michells Case 1100 Debt for 12. l. for their Fees upon the Statute of 28 Eliz. cap. 4. for doing Execution The Statute is they shall not receive ultra such a sum The Court said that implies that they may take so much as is not prohibited and although the Statue doth not give an Action for it yet because it is a duty an Action is given them by Law Linghill and Broughton Case 1101. Action upon the Case against an Administrator that the intestate was endebted to the Plantiff 100l and the Defendant his Administrator affirmed that if the Plantiff would forbear him per rationabile Temous he would pay him and alledged he forbore him 8. years Verdict for the Plantiff It was said in stay of Judgement the Declaration was not good because not shewed how the Testator was Indebted Resolved that he need not do because the promise of the Administrator is a sufficient acknowledgment of the debt 2. That the forbearance per rationabil Tempus uncertaine and adjudged the forbearance per paululum temporis was not good The Court said they might Judge of the reasonablenesse of the time not of the meaning of paululum temporis and 8. years is a reasonable time of forbearance it was adjudged for the Plantiff Babington and Lamberts Case 1102. Assumpsit In consideration the defendant had received 24l of divers persons for the Plantiffs use he promised to pay it such a day it was said the Declaration was not good because not expressed of what persons he received the money but it was adjudged good because a consideration executed and so not traversable Calimore and Jensons Case 1103. Assumpsit In consideration that the Defendant upon an Insimul Computaverunt the Defendant was found endebted to the Plaintiff judged a good Consideration Philpot and Ballards Case 1104. Resolved in this Case that if a Judgement be given against the Plaintiff and others in an inferior Court as a Hundred Court one of them onely if he be sole Tennant and hath the Damage may have a false judgment and restitution and it was holden that althoughthe Judgement was given upon a customary claim and not upon any matter at Common Law yet false Judgement did lye Eman and Mouldsworths Case 1105. A Prohibition was granted in C. B. because the Plantiff sued for defamation in the spiritual Court because the defendant had reported that he was incontinent It was said although the Plantiff alledged a general pardon yet this being a private Case the pardon did not discharge it Pease and Meades Case 1106. Condition of a Bond was that the Obligator should pay such a summe to such a person at such a place and day as the Obliger should name by his Last Will in Wiâ—ting he names none but makes the Plaintiff his Executor and dyed It was adjudged the Excecutor was not an assignee and so the Obligation by the Omission of the Obliger is discharged Yardly and Elices Case 1107. Woords spoken of an Atturney to his Clyent viz. Your Atturney is a bribing Knave and hath taken 20l. of you for a bribe to cozen me Adjudged the Action did lye for the words Fryer and Gildrings Case 1108. Two men were bound to a third person joyntly and severally the Obligee made the Wife of the Obligor his Excecutrix who Administred then the Husband of the Obligor made her his Executrix and dyed having assets to pay the debts then she dyed and the Plaintiff took Letters of Administration of the goods of the Obligee not Administred and brought debt against the Defendant being the surviving of the Obligor It was adjudged that the Action would not lie for the making of the Wife of one of the Obligors Executrix was a suspension of the Action and a personall Action once suspended by the Act of the party as it is here it shall be extinct for ever Quaere Norton and Syms Case 1109. Debt upon Obligation for performance of Covenants the Defendant being under-Sheriff to the Plaintiff Covenanted That he would not execute any Writ of Execution above 20l. nor any venire fac in severall Causes and also to acquit and save harmeless the Plantiff of all escapes of Prisoners taken in Execution and of all fines and amercements Resolved in this Case when there are in an Indentures Covenants in the Negative for not doing and in the Affimative for doing he is to plead specialy to the
estate Comyn and Brandlyns Case 1150. A Term for years upon an Elegit was apprized at 100l and delivered in Execution to that value A. scire fac brought to have restitution of the Term because the Plaintiff had levyed the 100l of the profits of the Lands Resolved he should not have restitution but if at the time of the Apprisement and before the delivery he had tendred the money either in Court or in paire he might have Audita Querela Girryes Case 1151. A sentence was given definitive in the spiritual Court in a suit there for Tythes pro triplici valore A Prohibition was prayed A speciall Prohibition was awarded That they should not proceed to the Execution of the Sentence as to the treble value because that Court is not to give the treble value but the double value onely Whitlock and Hardings Case 1152. A man devised his Lands for 99. years and after in the Will were these words viz. Item I give to A. my Daughter all my Lands of inheritance if the Law will permit It was adjudged that A. had a Fee-simple in the Lands although there wanted the word Heirs and the words shall go to the Lands and not to the estate in Construction and it cannot be intended an estate for life which is of no value after 99. years Sir Tho. Simonds Case 1153. The wife libelled against the Husband for Alimony because he beat her so as she could not live with him a Prohibition was prayed but denyed by the Court and it was holden in this Case that the Wife might have the peace against her Husband for unreasonable correction Guy and Sedgwicks Case 1154. A Prohibition was awarded to the Counsell of York because they held plea there by English Bill of a Debt due upon an Obligation which is against the Law and Liberty of the Subject and the King in such case loseth his fine The King and Bishop of Lincolne and Kings Case 1155. The King seised of an Advowson in the right of his Dutchy of Lanc. presented to it under the Great Seal and not under the Seal of the Dutchy And Resolved that the presentation was good for the presentation is but a fruit fallen from the tree and the King may present by word because a presentation is but a commendation of the Clark to the Ordinary Case of the Coheirs of Sir William Rider 1156. Resolved by the two Chief Justices and Chief Baron in the Court of Wards That if a man makes his Will in writing and saies then he will adde to it or alter it it is not his Will because not compleat nor published for his Will But if a man makes his Will and publisheth it and after it comes in his mind to adde to it or alter it and sayes he will so do but dyeth before any addition or alteration of it the first Will shall stand Walter the Dean and Chapter of Norwiches Case 1157. The Case was the Dean Chapter 37. H. 8. made a Lease for 50. years 8. Eliz they made a Lease to I. S. for 99. years to begin after the determination of the Lease for 50 years which expired 38. Eliz. In 42. Eliz. they made a Lease to the Plaintiff for 3. lives reserving rent and a Letter of Atturney to make Livery and Covenanted the Plaintiff should enjoy the Lands against the Lease made to I. S. and all claiming under him Livery was made by the Atturney after 3. Rent dayes encurred Resolved that the Lease was good and the Livery well executed by the Atturney who is not confined to any time to make it 2. Resolved that the Lease for 3. lives was not void by the Statute of 13. Eliz. because the Dean and Chapter who made the Lease for 3. lives were alive and in being and therefore they being evicted by a Judgment upon the Lease made to I. S. Covenant brought by the Plaintiff against the Defendant did well lie and Judgment was for the Plaintiff Adams and Curwins Case 1158. Lessee for years died Intestate the Lessor entred and made a Feoffment Administration was granted to I. S. who entred It was adjudged a good Attornment though at the time of the Feoffment there was no Administrator in esse Hill and Hills Case 1159. The Husband made a Lease for years rendring rent during his Life and the Life of his Wife It was adjudged a good Reservation and shall be during the Life of the Survivor of them 1160. Words spoken of a Jury-man sworn upon Life and Death viz. Thou art a Jury man amd hast been the overthrow of a 100. men by thy subtile and false means It was adjudged that the words were actionable Wilkins and Perrotts Case 1161. A Rent was granted to A. and his Heirs Habendum to him and his Heirs to the use of him and his Heirs during the Life of I. S. It was adjudged but an estate for Life discendable and not a Fee-simple Chaworth and Phillips Case 1162. It was Resolved in this case that if a Lease be made upon condition to be void if 10 l. be not paid at a certain day that the Grantee of the Reversion shall not enter for such a condition because it is collateral 2. If Lessee for Twenty years makes a Lease for Ten years upon condition and the Lessee for Twenty years surrenders to him in the Reversion he in the Reversion shall not take advantage of the condition because he is in of another Estate Watbrooke and Griffiths Case 1163. Action upon the case against an In-keeper he pleaded that it was the custom of the Realm that if a man put his horse to Livery to an Hostler and the horse staid there so long that his meat amounted to the value of the horse that he might call four of his Neighbors and value the horse and if they conceived the meat did amount to the value of the horse that he might detain the horse as his own It was adjudged against the Defendant because there is no such general custom within the Realm but only in London and Exeter Winscomb and Pulisons Case 1364. Quare Impedit The case was the Incumbent lying sick of a dangerous Disease and in apparent perill of death it was corruptly and by Symonie agreed betwixt the Patron and S. that for 90 l. the Patron should present S after the death of the Incumbent or should cause him to be presented the 90 l. was paid and for the Security of the Presentation the Patron granted the next Avoidance to I. S. a person nominated in trust for S. I. S. presented S. who was Instituted and Inducted The King presented the Defendant by reason of the Statute of 31 Eliz. which made the Presentation upon the Symonaical contract void It was adjudged that the Presentation of the King of the Defendant was good by the Statute and that the Grant of the next Avoydance was but in pursuance of the Symonaical agreement I. S. being nominated in trust for S. 2. It was holden in
this case that if S. had died and no other was instituted by the Patron but the Church remained void that the King might Present otherwise it had been if the Patron had presented a new Parson to the Church before the King presented Pym and Gorwins Case 1165. It was Resolved by the Justices in this case that one cannt prescribe for a Seat in the body of the Church for that the Seats there are disposable by the Parson and Churchwardens but for a Seat in an Isle of the Church a man may prescribe because it may be presumed that he or his Ancestors who had house and lands within the Parish had edified and built the said Isle and so it was said it was adjudged in the Lady Grays case Norris and the Hundred of Gawtrys Case 1166. Debt against the Hundred upon a Robbery 9. Octob. 13 Jac. the Teste of the original was 9 Octob. 14 Jac. It was said the Action was not brought within the year for there is but one ninth of October within the year It was the opinion of the Justices that in this case a Fraction of a day should be by devision of time in a day viz. the Robbery committed 9 Oct. 13. post meridiem is within the year of the bringing of the Writ 9 Octob. 14 Jac. in the morning Vide Ludford and Grettons Case Plowd Com. 491. Dawks and Hills Case 1167. Upon an Information upon the Statute of 5 E. 6. an Ingrosser of Chattel justified for a certain number of Chattel and sold upon two several Licenses without distinction how much upon the one and how much upon the other and upon a Demurrer it was adjudged for the Plaintiff Middleton and Lawtes Case 1168. Two Patrons pretended title to present the one presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after there he obtained Institution and Induction by the Arch-Bishop Afterwards the inferior Bishop instituted and inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction for that would determine the Incumbency which is tryable at the Common Law Stewkley and Butlers Case 1169. In Trespass the case was A. seised of the Mannor of D. made a Lease of the Scite and Demeans to the Defendant for three Lives except all Tymber-trees and covenanted that his Lessee should take all Woods Afterwards the Lessor bargained and sold to the Lessee all those the Trees Woods and Under-woods growing within the Mannor viz. within the Grounds called A. B. and C. Habendum una cum omnibus aliis arboribus within the Mannor which may conveniently be spared and the Bargainor covenanted that it should be lawful for the Barganee at all times within five years to enter and cut the Trees and Woods and convert them to their own uses In this case it was Resolved 1. That the Viz. was void for a Viz. may explaine or distribute a thing precedent but not restrain it 2. Resolved that the una cum aliis arboribus in the Habendum should make a new Grant of the other Trees 3. Resolved that the words which followed the una cum cest ' una cum omnibus arboribus within the Mannor which could be spared was void for the uncertainty and there is no means agreed betwixt the parties here to reduce the same to a certainty 4. Resolved that the Covenant of the Bargainor that it should be lawfull for the Bargainee to take the Trees and Woods within five years was not a Condition but a meer Covenant and the difference was taken where one sells all his Trees to be taken within 5 years after there the Vendee shall not take them after 5 years ended but if the time of taking of them be by way of Covenant there it shall not restraine the party to take them at all times as well after the five years as within the five years but the parties are to have their remedy by an Action of Covenant upon the disturbance Yet it was said by Hatton that if one grants his Corn growing and the Grantee doth not take it in convenient time so as the Grantor receive detriment thereby the Grantor shall have Action upon the case against him Hansons Case 1170. He was cast over the Bar because he gave direction in writing to an Under-Sheriff what persons he would have him return upon a Pannel for tryal of an Issue and named others who he would not have to be retorned Kingswell and Crawleys Case 1171. Replevin The Defendant avowed for Rent for that I. S. held of him by Fealty and Rent whose Estate the Plaintiff had The Plaintiff said I. S. enfeoffed I. N. who made a Lease to the Plaintiff for Life absque hoc that he had the estate of I. S. Resolved that the Traverse was void for after the Statute of 21 H. 8. the party is to avow upon the Land and then it is not material what Estate the Tenant had so he occupied the Land but before the said Statute it had bin a good Plea so as the Statute hath changed the Law for the Traverse in pleading although there is not any word of it in the Statute Andrews and the Bishop of Yorks Case 1172. It was Resolved that is a good Plea in an Assize of Darrien Presentment that the Plaintiff hath a Quare Impedit depending the same avoidance 1173. Words viz. He hath stollen my coâ—n out of my Barns Adjudged per curiam the words were actionable Hall and Wingfields Case 1173. The Defendant acknowledged a Recognizance before the Lord Hobart at Serjeants-Inn in Fleet-street London which Recognizance was enrolled in the Court of common Pleas The Plaintiff brought debt upon this Recognizance in the Common Pleas and layed his Action in London Whether it ought to be brought in Middlesex where the Record of the Judgment was or in London was the Question The Justices were divided in several opinions Winâ—h it ought to be in Middlesex where it is enrolled because the Debt is consummate Warberton it may be in any County where the party pleaseth Hutton it lieth where the Record is Hobert if no mention had bin made upon the Inrollment of the Recognizance before the Chief Justice at Serjeants Inn it ought to have bin brought in Middlesex but now it was in the Election of the Plaintiff to bring it either in London or Middlesex vide this case more at large Hob. Reports 195. where the case seems to be Resolved Lea and Pains Case 1175 Debt upon Obligation to stand to an Award The Plaintiffs in January submitted themselves to stand to the award of I. S. for all Quarrels Debates Questions stirred moved or depending I. S. in April made an Accord that the Defendant should pay to the Plaintiff should pay Twenty Nobles in
discharge of all Quarrels c. It was objected the Award was void because the Submission did not extend but to Quarrells depending at the time of the Submission which was in January and the Award is of all Quarrels c. which shall be intendable at the time of the Award It was adjudged for the Plaintiff for that it doth not appear that there were any new Quarrels risen between the Submission and the Award and if there were any such it ought to have been shewed on the Defendants part Heard and Baskervills Case 1176. Rplevin The Defendant avowed for Rent granted 12 E. 1 and shewed the discent to such an one whose Heir he is but did not shew how he was Heir It was the opinion of the Court that he is not to shew how Heir in the Writ but in the Declaration and the shewing how Heir is but matter of Form because not traversable but Heir or not Heir is only Issuable and therefore upon a general Demurret it is helped by the Statute of 27 Eliz. But not pleading of the Deed of the Rent shewed in Court or hic in curia profert is matter of substance not aided by the Statute Speak and Richards Case 1177. The Plaintiff sued Execution upon a Recognizance of 2000 l. acknowledged to him in Chancery by I. S. and others and upon two Nihils retorned upon two Scire fac in Middlesex a Levari issued to the Sheriff of S. the Defendant who retorned he had levyed 500 l. towards the satisfaction of the Plaintiff and that he had it ready to deliver to the Plaintiff and because upon this Return upon request of the Plaintiff he had not paid it him he brought Debt against the Sheriff The Defendant as to part of the 500 l. viz. 300 l. pleaded nihil debet to the 200 l. he pleaded payment and thewed an Acquittance the Plaintiff demurred Judgment was given for the Plaintiff for the 300 l. and for the 200 l. nihil capiat per breve because the Recept and the Acquittance is confessed by the Demurrer Davison and Barkers Case 1178. Information upon the Statute of 5 Eliz. for using the Trade of a Bakes within the city of Norwich not having been an Apprentice seven years It was said that no penalty did rise to the Informer for a penalty which did accrue within the city of N. by reason of this branch in the Statute viz. All Amercements Fines Issues and Forfeitures which arise within any City or Town corporate shall be levyed gained and received by such persons as shall be appointed thereunto by the Mayor c. to the use of the same Cities The Justices were divided in their opinions vide Croke 1. part 130. and Hob. Reports 183. where this Case seems to be Resolved Rynes and Mophams Case 1179. Action upon the case that he lent the Defendant his Mare at C. to plow the Defendants Land at P. and safely return her two days after and the Defendant overwrought her so that she died The Venire was of C. only where the Mare was delivered and not where she was labored and therefore the Judgment was reversed Harbin and Greers Case 1180. Action upon the case A custom was alledged That all the Inhabitants of certain Messuages holden of the Bishop of S. had used to grind their Corn which they used to spend in their houses or should sell at certain Mills called the Bishops Mill in S. and not elsewhere without the License of the Bishop It was adjudged the custom is void and unreasonable to grind all their Corn which they should sell Dembyn and Browns Case 1181. A Rent was jointly granted to husband and wife the husband died the wife took Administration of his Goods and as Administratrix brought Debt for the Arrearages incurred in the Life of her husband Adjudged the Arrearages were due to her in jure proprio and the naming of her Executrix of her Husband was Surplusage Wolley and Davenants Case 1182. A Scire fac against the Bail he pleaded that the Principal reddidit se Adjudged it shall be tried by the Record and not by the Country and if the party render himself at the Bar and the Attorney of the Plaintiff is not there to pray him to be committed he shall be committed ex officio by the Court. Roberts Case 1183. A man 25 H. 8. seised of an House and Lands made his Will in these words viz. I bequeath to L. my wife my house in P. with all the Lands thereunto belonging during her Life and after her decease I make A. B. C. and D. Feoffees in the said House and Lands to see the house kept in reparations and the rest of the profits of the same Rents after the discretion of the said Feoffees to be bestowed yearly upon the Reparation of the High-ways of W. and the Town The Devisor and his wife being both dead It was a Question the Will being made before the Statute of 32 H. 8. and the Land not in use whether it be an appointed Limitation or Assignment within the Statute of 43 Eliz. of Charitable uses It was Resolved that the said intended Devise was a Limitation or an appointment to a Charitable use to be relieved within the said Statute of 43 Eliz. Sir Tho. Middletons Case 1184. Sir Thomas Middlenon received 3000 l. from Queen Eliz. for the payment of the Soldiers which returned in the voyage made by Sir Francis Drake and Sir John Hawkings The Captains Mariners ane Soldiers made a voluntary constitution that every Mariner and Soldier should abate so much a month out of their pay to be imployed for the relief of the Mariners and Soldiers which were maimed or hurt in that Service of which abatement there was 300 l. in the hands of Sir Thomas Middleton It was Decreed upon a commission upon the Statute of 43 Eliz. that this 300 l. was a charitable use within the Statore and Sir Thomas was decreed to pay the money to the said use Rivers Case 1185. A Copyholder in Fee devised 14 Acres of his Copyhold Lands to his Son and his Heirs upon condition to employ the profits thereof for the Relief of the poor of S. for ever and died no surrender being made to the use of his Will either before or after I. S. purchased this Copyhold Land upon a Commission upon the Statute of 43 Eliz. this charitable Use was found and that the profits had not been employed accordingly It was decreed that the Purchasor having notice of the said charitable use should pay 12 years arrearages according to the value of the Land at 7 l. 10 s. per annum to be paid for ever by the Purchasor and his Heirs for the relief of the Poor and that he and his Heirs should hold and enjoy the Lands for ever Vochel and Dancastels Case 1186. In Debt for Rent upon a Lease for years the Defendant pleaded that the Lease was made to one H. and the Defendant and that H. his Companion 1