like to the case of a common for a man may prescribe to have common in another mans land for this is but a reception of the profits with the mouthes of his cattle but in our case it is all one as to prescribe to have the land it self and I may not prescribe to have land it self for I may not say that I and my ancestors had used to have such land for such a prescription is void to which Hobert chief Iustice and all the Court agreed as to that point and then to prove that this is all one as to prescribe to have the land it self he said that if a man lets the profits and the herbage of land for years this is a lease of the land it self as was lately adjudged in this Court which was also granted by the Court also he said that this appears by the 27. of H. 8. 12. that a man shall have a praecipe quod reddat of pasturage or herbage but not of common and a formedon lyes of pasturage 4. E. 4. 2. the Regist fo 177. Ejectione firme lyes of pasturage and so he concluded that upon the matter he prescribed to have the land it self but Hobert chief Iustice and all the Court to the contrary that the prescription is good for that may have a good beginning by grant for a man may lawfully grant the pasturage and the feeding of his land when that is not sowed and by consequence if that may be good by grant it may be good by prescription and judgement was commanded to be entered for the Defendant See prescription 51. and 52. In trespass the Defendant pleaded in barre that such a one was seised of land in the right of his wife and that his wife died seised and that he was heire to her entered and gave Colour to the Plantiff the Plantiff replied that the husband and wife were joyntly seised and that the wife died after whose death the husband was seised by Survivor-shipp absque hoc that the wife died seised and Warberton and Hutton being only present the traverse is not good that the wife did not die seised but it ought to be that she did not die sole seised In trespass for the taking of goods in a place in yorkshire and the Defendant justified as servant to the Bishop of Durham and he shewed that the Bishop of Durham had a Faire and that time beyond memory he and his predecessors had used to seise the cattle that were sold if he who bought them refused to pay toll and if the thing taken was not redeemed within such a time he might sell the same And he justified in a place in Durham absque hoc that he was guilty in Yorkshire and by Warberton and Hutton this is a good traverse to the place for it is local If a Capias issued here to have the body of such a one at Westminster such a day and the Sheriff bring the body or return the writ before the day this is good by Iustice Warberton Tutter against Fryer TUtter against Fryer a rent charge was granted for years with a nomine poenae a clause of distress if that was not paid at the day and the rent was behinde the years incurred and it was moved by Athowe that though the years are incurred that he may distrain for the nomine poenae but the Court was of a contrary opinion for that depends upon the rent and the distress is gone as to both of them Duncombe c. against the Bishop of Winchester c. DUncombe and others against the Bishop of Winchester and others Defendants in a Qu Imp. and the case was that Sir Richard Weston was seised of the said Church in fee in grosse and was convicted of recusancy and a Commission issued to certain Commissioners to seise two parts of his lands and goods and they seised this advowson inter alia into the hands of the King and the King granted the advowson to the Plantiff and the Church became void and whether the King or the university of Oxford shall have that was now the question and it was appointed to be argued the next Term. Potter against Turner IN the Kings Bench Pasch 19 Iac. the case between Potter and Turner was as I conceived to this effect A. was indebted to B. in 20. l. and C. was indebted to A. in 30. l. and A. in satisfaction of the debt which he owed to B. assigned the debt of 30. l. which C. owed to him and made a letter of attorney to sue in his name A. and B. acquainted C. with this agreement and C. promised to B. in consideration that he will forbear till such a day that he will pay him the money and upon this promise he brought the action against C. and he pleadded non assumpsit and it was found for the Plantiff And it moved in arrest of Iudgement that the consideration was not sufficient according to Banes case Coke 9. If executors who had not assets promise to pay a debt of the Testator this shall not binde them because they who made the promise were not chargeable but on the other side it was said by Whitwick of our house that this was a good consideration for the assignement of that debt was lawful and no maintenance at all as appears by 15. H. 7. 6. and a recovery by B. against C. is a good plea in barre in an action brought by A. against C. but Dodderidge Houghton and Chamberlin only present to the contrary for B. here had only an authority to sue and this is at all times Countermandable by A. As if I deliver goods to my servant to deliver over to I. S. and I. S. promise my servant that in consideration that he will deliver them to him he will give him so much money this is no consideration except that they are delivered accordingly for this is only an authority to deliver goods which is alwayes countermandable by me And Iudgement was entered for the Defendant vide 4. E. 4. 14. Ewer and Vaughan IT was said by Dodderidge and A. in the argument of the case between Ewer and Vaughan that it had been adjudged by all the Iustices in one Trewmans case that no writ of error lyes of a judgement given in the Stanneryes in Cornwal A Prohibition to the Admiralty MAny poor Marriners sued one Iones the Master of a ship for wages in the Admiral Court and judgement was given against Iones and now he prayed to have a prohibition and he suggested that the contract was made at London in England and so the suit was not maintainable in the Admiral Court but the prohibition was denyed because he had not sued his prohibition in due time viz. before a judgement given in the Admiral Court which in point of discretion they disallowed and also these are poor Marriners and may not be delayed of their wages so long and besides they may all joyn in a Libel in the Admiral Court but
answered that if it is meerly Collateral then it shall not go to the successor of the Bishop but to his executors as if the lessee had covenanted or obliged himself to pay this Herriot to the successor he may not have benefit of this obligation but the executor of the Bishop who was lessor shall have that and so he said that the argument made by Hendon is against him for if it be meerly Collateral then this shall not go to the successor and though the lessee of the Mannor may not have it the Plantiff shall not have a Trover and Conversion as he said before but he held this good by way of reservation for modus conventio vincunt legem and as to that which hath been said that the Herriot is to be paid upon the death of a stranger and not upon the death of the lessee himself to this he answered that this is nothing for the payment shall be out of the beasts of the lessee and not out of the beasts of a stranger and so he concluded and prayed judgement for the Defendant Rives case SAlmon avowed for a rent charge and he shewed that Sir Robert Rives had a rent charge granted to him and he further shewed a discent of that to the son and heir of Sir Robert and shewed that the rent was behinde unpaid to him viz. to his son and heir and he avowed as Bailiff to the son and exception was taken to the avowry because it is not expresly alleadged in whose time the rent was due whether in the time of the father or in the time of the son for if it is behinde in the time of the father the son may not distrain for that but it was resolved that the avowry was very good for in asmuch that he had shewed that the rent was not paid to the son this implied the rent was due to the son and not to the father An Executor brought a Scire Facias upon a judgement given for the Testator in debt by him and the Defendant would have pleaded the death of the Testator between the verdict and the judgement per Curiam he was not suffered for he may not plead this in a Scire Facias but the Defendant is put to his writ of error In Trespass for beasts taken in London and the Defendant justified to taking as a distress upon a lease of land in Kent and the Plantiff replied that the Defendant sold the beasts in London and so not a good plea to bring the Trial out of Kent and to have that tried in London which note Batterseys case AN action upon the case was brought against one Hordecre upon an assumpsit and he declared that the Defendant had arrested one Battersey by vertue of a Commission of Rebellion out of the Cinque ports and that the Plantiff keeping a Common Inne the Defendant brought the said Battersey to his Inne and requested the Plantiff to keep him a day and a night and promised in consideration there upon that he would save him harmless and he shewed that he kept the prisoner accordingly and that the said Battersey brought an action of false imprisonment against him and recovered against him upon which the action accrewed and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement because he had not shewed that the said Battersey was lawfully arrested and imprisoned and then if a man will without cause arrest a man and promise in this case no action will lie for it is no consideration because that the imprisonment is unlawful but Hobert chief Iustice Hutton and Winch contrary for be the imprisonment lawful or not lawful he might not take notice of that as if I request another man to enter into another mans ground and in my name to drive out the beasts and impound them and promise to save him harmless this is a good assumpsit and yet the act is Tortious but by Hutton where the act appears in it self to be unlawful there it is otherwise as if I request you to beat another and promise to save you harmless this assumpsit is not good for the act appears in it self to be unlawful but otherwise it is as in our case when the act stands indifferent but Hobert said it may be there is a difference between a publick officer and a private man for if the Sheriff arrest a man unlawfully and promise as before this is a good assumpsit but perchance otherwise of a private man as here but in the principal case the Defendant had pleaded non assumpsit and this implies a Lawful imprisonment for otherwise the Defendant might have given the unlawful imprisonment in evidence and judgement was commanded to be entered for the Plantiff Claworthy against Mitchel CLaworthy against Mitchel in a replevin the Defendant avowed for a rent and shewed that his father was seised and let for years rendring rent and he died and that the reversion descended to him and for rent behinde he avowed in barre of which avowry the Plantiff said that the father devised the reversion to another and the other maintained his avowry and traversed the devise and it was found that the devise was only of two parties and not of the third part for in very truth the land was holden by Knights service and all this was found by special verdict and for whom the jury had found was the question and it was argued by Hendon that this verdict is found for the avowant and he vouched 32. H. 8. Brook issue 8. in a precipe quod reddat if the issue be whether A. and B. infeoffed the Tenant and it is found that A. infeoffed him but not that A. and B. infeoffed him the issue is found against the Tenant see 14. E. 4. and Dyer 260. in debt upon a lease for years of divers parcels of land and upon non demisit pleaded it is found quod demisit all except one parcel this is found for the Plantiff and â—rin 15. Iac. Rot. 2022. Allen against Soper in a replevin for a horse and avowed for damage fesant and the Defendant claimed Common for his beasts Levant and Couchant upon his land and some in this case were found Levant and Couchant and others not and it was found against the Plantiff and he said in this case when the Defendant had alleadged a devise of all the land and upon this issue is joyned and it is found that part is devised and not all this is found against the Plantiff because the issue is joyned upon a particular and a special point whether all was devised or no and yet he agreed that upon a general issue as in trespass in 20. acres of land and the Defendant is found guilty but only in one yet the Plantiff shall have judgement but not where the issue is joyned upon a particular point as here but admitting that the Plantiff shall have judgement yet the avowant shall have return
prayed judgement in the case for the Defendant Finis M. 20. Jac. The Bishop of Glocester against Wood before NOw the case between the Bishop of Glocester and Wood was adjudged Hobert and Winch being only present and first it was resolved by them that when the Bishop let parcel as 20. acres for life and after he lets the Mannor it self to another rendring rent in this case the rent issues out of the intire Mannor for if in debt for the rent the lessor do declare upon a demise of the Mannor omitting the reversion of this parcel the declaration is evill and upon non dimisit pleaded it shall be found against him Secondly this they held that the Herriot reserved shall go with the reversion and if this do not go with the reversion to the lessee of the Mannor yet the Plantiff shall not have the Herriot and then though the Defendant had not good title to the Herriot yet if the property of the Herriot do not appertain to the Plantiff he shall not have a trover and conversion for the Defendant had the first possession and judgement was commanded to be entred for the Defendant if no other cause was shewed before next thursday Hill 20. Jac. C. P. Bulloigne against William Gervase Administrator BUlloigne brought an action of debt upon an obligation of 12. l. against William Gervase Administrator to I. S. and the Defendant pleaded that the intestate died outlawed and that the outlawrie alwayes continued in force and upon this the Plantiff did demur generally and it was argued by Attoe for the Plantiff for the plea is not good for this is a plea only by way of argument that he shall not be charged for this debt because he had not assets and in this case this outlawrie ought to be given in evidence upon nothing in his hands being pleaded and it ought not to be pleaded in barre for by possibility the outlawrie may be reversed and then the Administrator shall be charged if he had any goods and he vouched a case in this Court Trin. 27. Eliz. Rot. 2954. Worley against Bradwel and Dame Manners his wife Administratrix to Sir Thomas Manners and the feme pleaded outlawrie in the intestate and the Plantiff demurred generally and it was adjudged to be no plea and note that the record was brought into the Court and read accordingly Hitcham Serjeant to the contrary the record in Manners case was not well pleaded for the Defendant only shewed that a Capias ad satisfaciendum issued against the Testator and did not shew any recovery or judgement against him and that was the reason of the judgement in that case and the Plantiff here ought to have demurred specially as the case of 27. of Eliz. for otherwise he shall not have advantage of this plea and the plea is only evil for the manner for it is apparant that by the outlawrie of the Testator all his goods are forfeit and this is the reason of the book of 16. E. 4. 4. it is a good plea in an action of debt to plead an outlawrie in the Plantiff and to demand judgement of the action and not judgement of the writ for the debt is forfeit to the King by the outlawrie Hobert Hutton and Winch the president shewed by Attoe is not answered for though the pleading of the outlawrie is without shewing of a recovery and judgement yet the outlawrie is good till it is reversed and Hutton said that in some cases an Executor or Administrator had goods though the Testator died outlawed as if the Testator let for life rendring rent and the rent is behinde and after the Testator is outlawed and dies this shall not be forfeit but his Executors shall have the rent and if a man make a feofment upon condition that the feoffor pay 100. l. to the feoffee and his heirs or Executors and the feoffee is outlawed and the feoffor pay the money to his Executors as he may well the Executors and not the King shall have that also if the Testator is outlawed and he devise his land to his Executors to be sold these moneys shall not be forfeit and they shall agree that the plea was not good notwithstanding the general demurrer for he who will barre another by an argumentative plea his plea ought to be infallible to all intents and purposes and so it is not here for the Executors and the Administrators may be charged by the having of goods though the Testator was outlawed and for that the plea of the Defendant is not good in substance and the general demurrer is good by Hobert and by him if we suffer this plea then the Defendant will keep the goods and not reverse the outlawrie nor yet satisfie the King also if he had not goods the Defendant may plead plene Administravit or nothing in his hands and give this outlawrie in evidence See 8. E. 4. 6. 3. H. 6. 32. 39. H. 6. 37. by the opinion of Prisot and also see the case in E. 4. 5. a case to this purpose and also note well that it was said concerning the case of Manners that a writ of error was brought of that afterwards and that the case remains till this day undetermined Buckley against Simonds Ent. 18. Jac. Rot. 2120. NOw at this day the case of Buckley and Simonds was argued by Iustice Hutton and by Winch and the case was briefly this Anne Buckley Administrator to Andrew Buckley her Husband was Plantiff in a quare Imp. against John Simonds John Prior and Robert Pierce Alias Price for disturbing her to present to the Church of D. and shewed that Andrew Buckley Grandfather of the Husband of the Plantiff was seised of the said advowson in gross and presented one I. S. and he died after whose death the advowson discended to Richard Buckley and that the Church became void and that one Richard Williams usurped upon the said Richard Buckley then being within age and that Richard Buckley also died and by his death the said advowson discended to Andrew Buckley as brother and as heir to Richard and that the Church became void and before the presentment by Andrew and within 6. moneths Andrew died and that the Administration of the goods of Andrew were committed to the Plantiff and that she presented within 6. moneths and the Defendants disturbed her and the Defendants pleaded in barre and confessed the seisin of the Grandfather as is alledged in the declaration and they said that the said Andrew Buckley 14. Eliz. by his Indenture made between the said Andrew Buckley on the one part and John Preston of the other part by which the said Andrew Buckley by the same Indenture covenanted with Preston in consideration of a marriage to be had between John Buckley and Elizabeth Preston daughter of John Preston he covenanted with him and his heirs that immediately after he death of him and of his wife the said advowson inter alia shall be to the said John Buckley
it is that if the Lord had seisin of more then the very services in this case it may not be avoyded in avowry and no fall tenure shall be avoyded c. but when he joyns another falsity and that is in the quantity of land now the false quantity of the rent had made the tenure traversable and the judgement was commanded to be entred accordingly Trin. 19. Jac. Thomas Bull Executor c. against Fankester THomas Bull Executor of William Bull brought an action against Fankester and declared that the Defendant enfeoffed his Testator in certaine land and that he covenanted for him and his heirs that he was seised of a good estate in fee and he alleadged the breach upon which they were at issue and now Attoe moved in arrest of judgement first because the Plantiff sueing as Executor had not shewed the Will for it hath been adjudged here that if a man bring an action as executor and do not shew the Will that the Defendant may demurre upon that because it is matter of substance but Hobert said it is very good because the Defendant had admitted him to be responsible but it is true he might have demurred upon the declaration as we often times adjudged here secondly Attoe said that the covenant being made with the heire the executor shall not have an action of covenant for it is annexed to the land which was granted by Hobert and Winch being only present in the Court. Note that it was said at the barre and agreed by Hobert that if the debtor make the dettee his executor he may now retain in debt against him and safely plead plene administravit if he had no other goods and shall not be driven to his special plea and so it had been agreed often times in this Court Parson and Morlees case PArson and Morlees case it was said that the Lord Chancellour presented to a venefice which belonged to the King which was above the yearly value of 20. l. per annum and this was referred to Hobert chief Iustice and to Tanfield chief Barron to certifie whether this was meerly void it remained good till it was avoyded Harris against Wiseman HArris had procured a prohibition against Wiseman who had libelled in the spiritual Court against the Plantiff for a frat in the Church which did belong to his house and it was said by Hobert and Winch only present that a man or a Lord of a mannor who had any Isle or a seat in the Church c. and he is sued for that in the spiritual Court he shall have a prohibition but not every common parishioner for every common seat and upon the first motion at the barre in this case day was given over to the Defendant to shew cause wherefore that a prohibition shall not be granted and the Defendant not having notice of that after the day the Plantiff had a prohibition and now after the day he shewed a good cause and upon that a supersedeas was granted to stay the prohibition in that case Aylesworth against Harrison AYlesworth against Harrison in debt against an executor the question was whether he may plead plene Administravit and give in evidence a debt in which the Testator was indebted to him or whether he may plead the special matter that plea amounting but to the general issue and it was argued by Harris Serjeant the Defendant may plead the special matter and shall not be bound to the general issue to leave that to the lay people who may suppose such a retainer to be an administration and he vouched the 15. E. 4. 18. if a man illiterate seale a deed which is read to him in another manner c. and he delivers that as an escrow to be delivered over as his deed upon conditions performed and this is delivered over before the conditions performed he may in this case plead the special matter and conclude so not his deed or if he will he may plead the general issue of non est factum and so is 39. H. 6. in dower the Tenant said that before marriage the husband infeoffed him and that after the Tenant let to him at Will and that the husband continued possession during his life absque hoc that he was seised of such an estate of which she might have dower and exception was taken there because that this only amounts to the general issue and yet ruled to be good for the lay people may conceive such a continuance of possession during the life of the lessee to be such an estate of which the wife may have dower if this were put upon the general issue and in our case because he had liberty to plead specially or generally he prayed that the Defendant may be admitted to plead specially and that he may not be bound to the general issue Serjeant Hendon to the contrary if one plead a plea which amounts to the general issue see Layfields case Coo. 10. and though in Woodwards case commentaries there was such a plea pleaded yet this doth not prove the contrary for in the same case no exception was taken by the Plantiff and presidents do prove that the Defendants in this kind have been compelled to plead the general issue Hobert if no special matter may be alleadged to the contrary the Defendant shall be compelled to plead the general issue and this is good discretion in the Court to take away the perplexity of pleading because one plea is as good as the other to which Winch being only present agreed and it was ordered that the Defendant here plead accordingly In debt against the heire upon the obligation of his father and in the declaration the Plantiff omitted these words obligo me et hered es meos c. and after error brought the Plantiff prayed that this might be amended because it was the misprision of the Clark only Hobert and Winch said that this shall not be amended for it is a matter of substance but because the clark who made this misprision was a good clark day was given over c. Widdow Archers case IN debt against the Widdow of Archer being executrix of her husband and the Plantiff declared that neither the Testator in his life nor the executrix after his death had paid that omitting those words licet saepius requisitus c. and evil but this omission was amended Sir Edward Grubham against Sir Edward Cooke SIr Edward Grubham brought an audita querela against Sir Edward Cooke upon a recognizance of 4000. l. and this was acknowledged to the use of his Mother and shewed that the conusor had infeoffed him and another in the land and that the conusee had sued execution only against him and it was found for the Plantiff and it was so moved in arrest of judgement by Ashley Serjeant first because he had not shewed in this audita querela when the Statute was certified nor yet the Teste nor yet the return of the writ of extent
if they sue here they must bring their actions several for they may not joyn here in an action and therefore it is good discretion in the Court to deny the prohibition Pastons case it was said by Hobert that a Coppiholder may hedge and inclose but not where it was never inclosed before and agreed by him and Warberton that a Coppiholder may dig for Marle without any danger of forfeiture but he ought to lay the said Marle upon the same Coppihold land and not upon other land and this was upon the motion of Hendon Serjeant In a case which concerned the Lady Mollineux and Fulgam the case was in an Ejectione firme that the Iury found the defendant guilty of 10. acres and the judgement was entered of 20. acres and upon that the defendant brought a writ of error in B. R. and now the Plantiff prayed that this might be amended and Finch argued that this ought to be amended and he cited a case Pasch 8. Iac. Rot. 525. Iohn Chilley was Plantiff in debt and recovered and the judgement was that the aforesaid Henry Chilley should recover c. and upon that error was brought in the exchequer chamber and that was assigned for error and yet after Pasch the 9th Iac. this judgement was amended in the Kings Bench and Iohn inserted for Henry and diminution was alleadged and the first judgement was affirmed in the exchequer chamber and he cited a case M. 8. Iac. Rot. 1823. in C. B. dower was brought of 4. Gardens and judgement was given to recover in 3. and upon this error was brought and yet this judgement was afterwards amended and he cited a case Pasch 17. Iac. between Sherley and Underhil in a Qu. Impedit where it was amended after error brought and he vouched one Masons case 12. Iac. in an action upon the case against the husband and the wife for words which were spoke by the wife and judgement was given against them and that the wife capiatur where it should be husband and wife Capiantur and yet this was afterwards amended Hendon contrary after error is assigned it may not be amended in point of substance and the case of Chilley may be good Law for the misnaming only et praedictus Henricus where was no Henricus before could not have other signification or intendment then Iohn who was named before in the record Warberton and Hutton the misnameing Henry for Iohn is matter of substance cleerly and then Hendon said that now the judgement shall not be amended because the prayer of the Plantiff to have that amended came too late because it is after error brought and diminution alleadged and the record certified and then both the parties are concluded but if only a writ of error was brought and no diminution was alleadged that then the judgement may be amended and he said that he had not found in any book where any amendment was after diminution alleadged as here and he cited 22. E. 3. 46. in dower it was assigned for error that no warrant of Atturney was entered for the Defendant and ruled that this may not be assigned for error aâ—ter a scire facias sued see 4. E. 4. 32. but Hobert chief Iustice said that it shall be a brave case that our judgements shall be made good or bad at the pleasure of Clarks and we shall not be able to amend them to which Warberton also agreed And day was given over to speak to that again and after in the same Term this judgement was amended per Curiam Action of debt upon a bond and the Condition was to save the obligee harmless of a nomine poenae against Mary Moore and he pleaded that he had saved him harmless and per Curiam this is not good for if he will plead in the affirmative as here he ought to shew how he had saved harmeless but if he had pleaded in the Negative as he might well then non damnificatus is a good plea generally Harrington against Harrington in accompt HArrington brought an action of accompt against Harrington and declared of the receipt of moneys by the hands of a stranger and the Defendant pleaded in barre a gift of the same money afterwards by the Plantiff to him and it was argued by Towse that this was no plea in barre of an accompt but it is a good discharge before Auditoâ—s and he cited 28. H. 6. 7. Hendon to the contrary and said the opinion of Brian chief Iustice 21. E. 4. is that he may plead that in barre of accompt and Warberton Iustice being only present agreed for by the gift it is his own moneyes and herefore he may plead that in barre It was said by Warberton that if an Advowson is holden of the King and the Tenant alien without licence that the King may not seise that without office which was granted by Hobert and by Winch only present and in the same case by Warberton that a scire facias issuing against the Alienee will not intitle the King but ought to be an office found and it was also said in the same case by Serjeant Iones that the ordinary shall have 28. dayes to examine the ability of one who is presented by the canon Law and the same Canon Law is that the Patron shall not present another during the 28. dayes Goddard against Gilbert GOddard brought an action upon the case against Gilbert thou art a thief and hast stolen 20. load of my furzes and upon non culpabilis pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hitcham for where words may be taken in a double sense one actionable and another not actionable they shall all times be taken in the better sense and in our case to take furzes may be fellony and it may be not fellony for if they are growing they are not fellony and it shall be intended that they were growing rather then cut down and no man will presume that any will take 20. loads of furzes with a fellonius intent because the carriadge of them is visible to all the world for it shall not be intended that he carried those in the night and so he prayed that the Plantiff may be barred Attoe Serjeant contrary words which implies a double signification shall be taken in the worser sense which tends most to the disgrace of the party for they shall be supposed to be spoken in malice and so with a purpose to defame the party and he cited a case Trin. 2. Iac. B. R. Rot. 663. Kellam against Monest thou art a thief and hast stolen my corn and adjudge to be actionable Hobert Warberton and Winch contrary for words shall be taken in the better sense and not in a strained sense to punish the party which spake them as if one say to another I wonder you will eat or drink with him for he hath the pox now every one that heareth that will suppose that he means the french pox and yet in
owner had not any remedy and so here he doubted that when the Sheriff made execution whether he shall have any remedy or no and therefore it is good conscience to allow him to take a bond for that before he make execution for otherwise a great inconvenience may insue for perchance after the extent and before the liberate the parties may agree and then the Sheriff shall not have any thing for all his paines which he had taken in the extent which never was the intent of the Statute but it may be objected that in this case the Sheriff may have an action upon the case against the debtee or the conusee if he make such composition I answer yet this is a great hinderance and trouble to the Sheriff to prosecute the suite and it shall be very inconvenient to allow that the Sheriff shall be allowed no other remedy and then for the third point he argued that the Sheriff shall have 12. d. in the pound for the first 100. l. where the bond exceed 100. l. and 6. d. for that which exceeds for otherwise as the case is he shall have nothing at all for the first hundred pounds for the words of the Statute are if the same be above 100. l. then he shall have 6. d. so that 6. d. only shall be taken for that which is above 100. l. and nothing for the first hundred if this construction shall be made and he also remembred the objection made by Hendon and so concluded that judgement ought to be given for the Plantiff Hobert said cleerly the Sheriff may take a single bill for his fees and that is the ordinary course also he read the Statute of the 29. Eliz. that it shall be lawful to the Sheriff c. and said the words of the Statute made a contract in law for which an action of debt lyes for the Sheriff and he â—â—id to Serjeant Bawtry that the second point will be found to be against him and for the third point that the Sheriff shall have but 6. d. for all in the case the summe exceed 100. l. and so they thought judgement ought to be given for the Defendant and Iustice Winch said that the reason wherefore the summe of 12. d. in the pound is given if that not exceed 100. l. is because that it is as much labour to the Sheriff to execute 100. l. as it is for 500. l. Maps and Maps against Sir Isaac Sidley MApps and Mapps brought an action upon the case against Sir Isaac Sidley upon a promise and shewed that one named Holdish was indebted to the Testator of the Plantiffs in 12. d. upon a bond which became due and that the Defendant in consideration that the Plantiffs will forbear to prosecute a suit upon the same obligation he promised to pay that and the Plantiffs shewed that they had forborn him till such a day c. and upon non assumpsit pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Hitcham Serjeant of the King that this declaration is not good for this forbearance ought to be for ever and not a temporary forbearance only for the Defendant by his promise had made the debt his own as if the assumpsit promise had been to forbear to come to my house this ought to be a perpetual forbearance and here the assumpsion of the Defendant amounts to a release in law to the principal and yet he agreed if this had been generally that he had forborn and had not shewed he had forborn ill such a day the declaration had been good Hobert if the promise had been to forbear till such a day there he may sue the dettee if he do not pay it the day and it was adjourned Mich. 19. Jac. Mabies case MAbies case Hobert in Parson Mabies case if I let my rectory excepting my glebe the exception is void for no rectory may be without glebe and the same law of a mannor excepting the demeasnes but he may except parcel of the glebe and good but in pleading the lease of a rectory this shall be taken for the whole rectory and not for parcel Gratwick against Gratwick GRatwick brought a formedon in remainder against Gratwick and the Tenant pleaded that the day of the purchase of the writ and yet he the Plantiff is seised of the moity of the land in demand and it was argued by Serjeant Harvey that this is no good plea for he ought to shew of what estate he was seised and he may be seised by vertue of a Statute and he vouched the 39. E. 3. 7. Hobert if he had said that he was seised in his demeasne as of fee or as of freehold this had been good and a seisin by force of a Statute is no seisin at all and Hutton said if Tenant plead entry in part pending the wriâ— he ought to say that he entered and expulsed the other for otherwise it is not good and I conceive that the Court inclined that in the principal case that the plea for the cause aforesaid being of a general seisin was not a good plea. Sir Edward Grubham against Sir Edward Cooke AT another day the case of Sir Edward Grubham and of Sir Edward Cooke was moved againe and it was objected by Ashley that the declaration in the audita querela is not good because he had not shewed the day of the Testee and of the return of the writ execution in certainty but only by process such a day out of the Chancery which is not good but he ought to plead all the record of the extent in special and he offered to shew a president of that and secondly he had not shewed the execution of the liberate by which the land was delivered and so there is no express allegation of a grievance Richardson the presidents in the old book of entries are according to our declaration and Hutton vouched the 9. H. 6. and 39. H. 6 and in an action of debt upon a judgement he needs not recite all the record but he may begin at the judgement and as to the second point they all agreed that the party may have an audita querela before an ouster and yet here the showing that it was delivered to the conuser by the liberate is a sufficient averment of the ouster for it may not be delivered without an ouster and ruled that the Plantiff shall have judgement if the Defendant do not shew other cause by such a day Vpon a Capias Vtlagatum the sheriff returned that the party which was arrested had a protection from Lord Stafford who was a Lord of the Parliamen and it was moved by Serjeant Hitcham that the return was not good for the protection of a Lord of the Parliament is not good in a Capias Utlagatum which concerned the King and by Winch Iustice only present in Court the return is cleerly naught and day was given over to the Sheriff to amend his
for the third part as in debt upon a lease for years and it is found that he had not cause to demand all the rent but that tâ—is ought to be apportioned yet he shall have judgement for the residue and so here Ashley Serjeant to the contrary the jury have found for the Plantiff for the avowant had avowed for all and he alleadged 26. Assise where in an assise the seisin and the diseisin was found and yet because there was no Tenant found of the Frank-tenement the Plantiff shall have judgement and as to that that had been said that the avowant shall have retorn for part he denied that for now it appeared by the special verdict that the avowant and the devisee are Tenants in Common and Tenants in Common ought to joyn in avowry and for that reason the avowant shall not have return for any part but he ought to replead Dyer 177. see the book Hobert said that without question in this case if the jury had given a general verdict this had been against the Plantiff for it was not devised if all was not devised according to the issue and then if it would have been against the Plantiff in this case of a general verdict the special verdict shall be construed to be of the same nature in law and it shall be adjudged by us against the Plantiff for generally where the general issue shall be against any of the parties there the special verdict shall be of the same degree and Winch and Hutton agreed and by Winch who pleads in the affirmative ought to prove all to be true as in the case of Soper which had been remembred by my brother Hendon and by Hutton every issue which is taken upon absque hoc ought to be precisely found and as to the second point he held that the avowant shall have return for part for here the jury haue found the third part of the reversion in him and by that there appears a sufficient certainty to the Court to make an apportionment then if the Court may make an apportionment the avowant shall have return for so much as is due to him but if the apportionment is to be made by the jury and not by the Court there the avowant shall not have return for the third part but if it was in debt for 40. l. and the jury finde 20. l. the Plantiff shall have judgement of that part to be apportioned by the jury and so in Trespass if part be found for the Plantiff he shall have judgement for the demand is by writ but in our case it is an avowry and it is a certain issue and for that reason the avowant shall not have return for the third part adjourned Hutton alledged 28. H. 8. 32. and at another day judgement was commanded to be entered for the avow an t Hobert and Winch being only present Note that if a man make a lease of several parcels of land in a Town and this is for the trial of a title in an ejectione firme he ought to enter into every part of those several and to leave a servant or other to keep the possession till he had entered into every parcel and then to deliver the lease of all and this is good Empson and Bathrust before THe case of Empson against Bathrust was moved again by Harris and he praied judgement for the Plantiff and it had been said that this obligation is void by the Statute of the 23 H. 6. but he held that this Statute did not extend to this obligation for it is only where a sheriff takes a bond of any person which is in his ward and yet he said he never found in any book the Sheriff might exact any fee of any person for he is an officer of the King but 21. H. 7. he may prescribe to have a bare fee but the Statute of 23. H. 6. appoints little fees in some cases Secondly he argued in this case that the Sheriff may take a bond for by 29. of Eliz. this is a due debt to the Sheriff and then if the Sheriff give the partie day till another day it is good reason he shall have a bond for that for his security Thirdly he held that the Sheriff may take this bond of the party after the extent and before the liberate by the Statute of the 29. Eliz. for otherwise perchance when the Sheriff had made the extent perchance the Conusee will not sue out the liberate and so the Sheriff shall be defeated of all his labour and travel taken in the extent and in the last place he said that in case the summe exceeded a 100. l. the Sheriff shall have 6. d. in the pound for that which exceeds and 12. d. for the first hundred pound but it was resolved by Hobert Winch and Hutton that judgement shall be given against the Plantiff and first they agreed this obligation not to be within 23. H. 6. for the partie was not in the ward of the Sheriff and so was resolved in Bewfages case Secondly it was agreed by the said 3. Iustices that the Sheriff may not take his salary appointed by the Statute till a compleat execution viz. till the liberate for the words of the Statute are in the negative and doth not establish the fees but only tolerates them and Hobert said if the Sheriff made an extent and before the liberate a new Sheriff is chosen then in this case the new Sheriff shall have the fees appointed by the Statute and not the antient Sheriff and by Hobert if the Conusee sue an extent and then refuse to sue the liberate to the intent to defraud the Sheriff of his fees the Sheriff shall have his remedy by his action upon the case and by Hutton if the Sheriff return upon the extent that he is ready to deliver that to the Conusee this is sufficient to intitle him to his action upon the case and thirdly it was holden by Hobert and by Winch that the Sheriff shall have but 6. d. in the pound for all if it exceed 100. l. for so was the intent of the Statute but Hutton said that the Common practise is otherwise and Hobert said that he did not value that for he knew well enough that the Sheriff will rather take more then less then their fees and though it had been said that if such a Construction shall be made then the Sheriff shall have as much for executing 100. l. as 200. l. to this he said the Sheriff ought to take this subject to this casually for it is the very words of the Statute and lastly it was resolved by Hobert and Winch that the obligation was void by the Common law and extortion and a taking by the Colour of his office see Dive and Manninghams case and Hobert said that every bond that is taken for any thing which is malum in se is void by the Common law and this extortion is malum in se and so void by
reason the factor may sell the goods without ready money and this is good reason for perchance the goods are of that nature that they will not keep without perishing by which clearly it appears that if I deliver goods to another to Merchandise and to sell he may sell them without ready money but if my factor or Bailiff will sell them to one which he knows wâ—ll prove a Bankrupt without ready money this is not good but secondly he held the custome as it is here alledged not to be good for then the partie shall have no remedy for his money except the factor will go into Spain and sue the Bill and the laws of Merchants are special laws for their benefit and not for their prejudice and this custome as it is alledged is too large but if he had alledged that such Bill taken by the factor shall be as good and effectual to the Mr. as if it had been taken in his own name this had been good besides the custome is not good for it is alledged to be that when the factor had delivered the Bill to the owner of the goods this shall be a discharge to him who was the factor and here is no time set within which this may be delivered and so for ought is shewed it may be delivered 10. years after which may be good and to that which had been said that the laws of Merchants are national laws he denied that for every Kingdome had its proper and peculiar laws and though this is the law of Spain and national to them yet this ought to be reasonable or else it shall not binde and judgement was commanded to be entered for the Plantiff Hobert and Winch being only present It was ruled that he who had land in a parish who did not inhabit there shall be chargable to the reparation of the Church but not to the buying of ornaments of the Church for that shall be levied of the goods of the parishioners and not of their lands by Sir Henry Yelverton and said to be so formerly adjudged In trespas the Defendant pleads that one such was possessed of a term for years and bring so possessed by his last will and Testament devised that to the Defendant and died after whose death the Defendant entered and was possessed by vertue of the devisee upon which plea the Plantiff demurred generally and Hutton thought this plea prima facie to be good though the Defendant had not expresly alledged that the devisee died possessed but his plea implies that for he had said that he entered by vertue of the devisee and was possessed and this only matter of form and not matter of substance and no cause of general demurrer which Winch also granted that this was also matter of form and not matter of substance Gage against Johnson for his fees GAge brought an action against Iohnson as his servant and Solicitor to the Defendant in a suit in the Kings Bench taking for every Term 3. s. 4 d. for his fees and for this he brought his action of debt and Serjeant Hitcham moved in arrest of judgement and he urged the case of Samuel Leech an Attourney of this Court in an action upon the case brought by him upon a promise to pay so much for the solliciting of a cause of the Defendant and the opinion was that the action will not lie for it is in nature of maintenance for a Solicitor may not lay out money for his Clyent and if an action upon the case will not lie then much less an action of debt and Hobert said that a Councellor may take fees of his Clyent but he may not lay out or expend money for him and the same law of an Attourney for if he did disburse money for him he doubted much what remedy he should have and he further said a servant may follow business for his Mr. and may take money for his labour for if I retain my servant generally he is not bound to follow my suits at law except at his pleasure for that is an extraordinary service and for that if I will say to my servant that if he will follow my business at Westminster I will give him so much for his pains my servant in this case is not without his remedy but if his service is coupled with Soliciting to take money for his pains his opinion was that no action will lie to which the other justices also agreed and they arose Wright against Black before NOw the case of Wright and of Black was moved again and the case was that Wright had brought an action upon the case against Black and Black for that the Defendants intending to make away his good name and to cause him to lose his goods did maliciously and without cause at Norwich in the County of Norfolk prefer a Bill of indictment at the Sessions of peace containing that the Plantiff stole two bundles of fetches and also did cause and entice one I. S. to give in evidence that the indictment was good and true by reason of which he was bound to Answer that at the next Assiles and there he was accquitted and whether the action was maintainable was the question and Attoe argued that the action is maintainable though it is not shewed that the Bill of indictment was found and he vouched a case which was Hill 10. Iac. B. R. Rot. 921. between Whorewood and Cordery and his wife Defendants which case and judgement was after affirmed in the Exchequer Chamber upon a writ of error and the case was that the Plantiff declared that the Defendants intending to take away his good name did charge him to have ravished Dorothie Coxe and maliciously exhibited a Bill of indictment containing that the Plantiff did felloniously ravish the said Dorothie their daughter and did give this in evidence to the Grand jury who found Ignoramus and yet it was adjudged that an action lies and he cited a case the 19. Iac. in B. R. Deney against Ridgy where was only an indictment preferred concerning the stealing of a horse and no more and yet an action lies Hobert chief Iustice said that if seemed to him that it is actionable for this is as great a scandal to give this in evidence to the Grand jury as to publish this upon an Alebench and as the course of Iustice ought not to be stopped so neither ought the good name of man in things which concern his life be taken away without good cause and I have heard that judgement was given another Term for the Plantiff but quere better of that Hoes case HOes seised of land in fee he devised that to his wife for life the remainder of one parcel of that to Thomas his eldest son the remainder of the other parcel to his youngest son in fee and this devised was with proviso that the feme shall pay his legacies and also his will was that in case his wife died before the payment of his debts and legacies
covenantor shall have an estate for life and so the law makes in that case fractions of estates as the case of the Lord Seymor Dyer 96. seems to accord with this and besides those two books he said he could not finde any book which will warrant that and for that reason he held those two books to be no law for if I Covenant that my son shall have my land after my death this will not raise an estate to me by implication for life and an estate to my son and so by such means to change my estate in fee for an estate for life without more words for the word covenant in his proper and native signification is only obligatorie and yet it had been alwayes conceived sufficient to raise an use to him who is not partie to that as if I covenant with a stranger that I will stand seised of my land to the use of my son this will raise an use to my son and yet neither my son nor the covenantee may have an action of covenant but an use will very well arise to my son as if a man bargain and sell his land in consideration of 100. l. paid by I. S. though in this case the consideration ariseth from a stronger yet that will pass the use to the bargainee and in case of covenant it is not this word covenant only which creats the use but it is rather the agreement of the parties which is testified by the covenant for if sufficient agreement appears there will not need this word covenant as if I will agree and declare to stand seised to the use of my son by which it appears that the word covenant is onely declarative of the intentions of the parties and then in the principal case the covenant is not that the son shall have the land but that the land shall come remain and be to him and those words are incertain as 21. H. 7. redert come or discent and for that reason it is all one with the law of the same case and then void to raise any use for the incertainly and then when Andrew Buckley covenants that his son shall have his lands and no words to inforce his intention and for that reason the intention shall be lyable to an action of covenant and not to change his estate which he had in fee for an estate for life by this covenant but if he had expresly covenanted that in consideration of marriage of his son that he would hold his land for life and after this should be to his son this will change the estate which was in fee for an estate for life but in our case the covenant being general and left to the indifferent construction of the law the word covenant shall be taken in his proper and native signification and this is obligatorie and so he concluded that this covenant being at the first to grant a rent and was executory and the last part of that is executory for assurance and the limitation of the estate to the son being intangled between these two Covenants this shall be of the same nature and by consequence the covenant is obligatorie only and will raise no use to the son and so he concluded that judgement shall be given for the Plantiff and it was commanded to be entered accordingly Sparrow against Sowgate IN debt by Sparrow against Sowgate who declared that the Defendant became Bail for one Richard Sowgate in Banco Regis against whom the Plantiff had brought a Bill of debt of 77. l. and now the Defendant bound himself in a Recognizance of 77. l. upon which the action is now brought that in case judgement should be given against the said Richard Sowgate that he shall satisfie the said judgement or render his bodie to prison for in this case no part was impossible for after the judgement the principal may render himself in B. R. to the Marshal for the redemption of his suretie and that is the Common course there as he said but he agreed the case to be otherwise if a scire facias issue out of the Kings Bench against the Bail for there the death of the principal is a good plea for a scire facias doth not lie there till default is assigned in the principal in his not comming upon the capias ad satisfaciendum which may not be when he is dead Note that but yet before any capias it is clear he may have an action of debt Sir Robert Hitcham Serjeant of the King to the contrary and he alledged this to be the constant course in the Kings Bench that the Bail is never chargable till there is default assigned in the principal upon the recorn of the Capias ad satisfaciendum which may not be here for the principal is dead and he agreed the case of the other side that when a man is to do two things though the one is become impossible yet he ought to perform the other but when it is in the election of one to make either the one or the other then it is otherwise see Dyer 262. and so he concluded for the Defendant Hobert chief Iustice said that it is inconvenient that the Plantiff shall be forced to sue his Capias ad satisfaciendum against the partie before he have execution against the Bail for perchance he will sue a fieri facias or an elegit against him and that the Corps of the partie will not satisfie him and Browlow Prothonotary said that it had been adjudged in this Court that such plea is not good Winch the course of the Kings Bench is that default shall be assigned upon the retorn of the principal before the Bail shall be charged and though the Plantiff refuse to take his bodie after he had made his election to take his fieri facias or elegit he shall never more resort to the Bail which was granted by Hobert and Hutton as to that last point and it was holden by all the Court that if the principal render his bodie though the Plantiff refuse to take that yet that is a discharge of the Bail and also it was agreed by Hutton Hobert and by Winch that if the course of the Kings Bench be such that the Bail shall not be forfeit till there is a default assigned in the principal the same course also shall be followed here and per Curiam if the course of the Kings Bench be such that such Capias is necessary to be awarded that then a convenient time shall be allowed for the principal to render his bodie gratis and if the principal do die before such time the Bail is discharged but it was said by Winch if he die before convenient time and the Capias is awarded that such death shall not discharge the Bail note that Iones Iustice said that he thought in this case that it is necessary that the principal render himself gratis for when he is let to Bail the law supposeth him to be alwayes in custodie
after verdict and no exception taken by the Defendant yet we as Iudges of the case may take notice of that ex officio and give judgement against the Plantiff and the 3. Iustices agreed that here is a condition by which the reversion is vested in them but it is in the Plantiff till performance of that which not being performed by them within the time limitted the Plantiff ought to have the rent and though the Will is that it shall be with the advise of the overseers and no advise is found yet that is at the peril of the Executors who ought to give notice of that to the overseers being to their advantage and for that see 21. H. 6. 67. 46. E. 3. 5. 18. E. 3. 27. 11. H. 4. 13. which cases were cited by Serjeant Harris at the barre and they agreed that the overseers shall not have the reversion for though it was devised to them yet that was upon the refusal of the Executors and no refusal is found but only a non performance of the condition and also the devise is tied to them upon condition to do that within 6. moneths which ought to be performed in convenient time at the least though it be in case of a Will and so they concluded that the Plantiff had right as to the matter in Law but that judgement shall be given against him upon the matter supra and it was resolved that this was not aided by any Statute of Ieofailes for this is a mistrial but another point was moved whether the Plantiff shall pay costs within the Statute of the 23. H. 8 or 4. Iac. the words of the Statute are if the Plantiff be nonsuite or verdict given against him upon a lawful trial but here it was resolved that he should not pay costs for no verdict is found against the Plantiff but rather for him and judgement is given against him because he mistook his action and in Bishops case Coo. 5. judgement was given against the Plantiff upon a material variance in the verdict and no costs was given and it is not only out of the letter of the Statute but also out of the intent for it may not be imagined that the Plantiff had stirrd an unlawful suite when the matter which he declares is found for him and that Statute is not taken by equity as Hutton said for it hath been agreed here that if Executors are nonsuite or judgement given against them upon a verdict they shall not pay costs within the Statute of the 23. H. 8. or 4. Iac. and so is the constant practise for the Statute speaks of any contract or specialty made with the Plantiff or between the Plantiff and Defendant and the Executor brings an action upon the contract of another and in the principal case judgement was entered that the Defendant should go without day and that he shall not have costs against the Plantiff Bret and Ward NOte upon evidence to a Iury between Bret and ward upon the dissolution of a Vicarage in the County of Warwick which was part of the Priory of Dantry where the Pope by his Bull gave to the Vicar minutas decimas et alteragum and it was certified by the Doctors that alteragum will pass to the Vicar Tithe wool c. and the usage was shewed in evidence and the Copie of the Popes Bull and the Court would not credit that without seeing the Bull it self and so the Plantiff was nonsuite and the Iury was discharged Bacon against Weston BAcon brought an action of debt upon an obligation against Weston as an Administrator to one Okes and he pleaded that the said Okes such a day and year in his life time acknowledged a judgement to him in the Kings Bench upon an indebitatus est of 1500. l. and died and that he retained so much of the goods to satisfie himself and that over that 1500. l. he had put 40. s. and it was moved that he ought to plead the general issue and give this matter in evidence as he may well but it is a mischief to the Plantiff to take issue upon that for then he ought to say that he had assets Hobert true he may give this in evidence or he may plead that the judgement was not satisfied or defezanced but we may not compel him to change his plea except he will assent Potter against Brown POtter brought an action upon the case against Brown for these words he innuendo the Plantiff as is arrant a thief as any is in England for he did break open the Trunck of the Plumbers standing in my Lord of Suffolks Hall with another mans tools and took out 20. l. and upon a general issue it was found for the Plantiff and damages given to twenty pound and Hendon Serjeant moved in arrest of judgement First because for want of an averment that there are Thiefs in England and it had been adjudged that if A. say of B. he is as arrant a Thief as any is in Warwick Goal yet B. ought to aver that there are Thieves in Warwick Goal but it was holden by the Court viz. by Hutton Winch and Iones that there needs not any such averment and the difference is when the words do relate to a particular place and when to an entire realm and the same law when it is tied to one kinde of fellony for it is very well known that there are Thieves in England and any in other realm and Hendon moved that the last words extenuate the former for the latter shew that he took that as a trespas for he did not say that he stole 20. l. out but took it out and so it shall be intended that he took it as a trespasser as to say B. is a Thief for he took money out of my Pocket implies a trespass and he is a thief for he took my horse this shall be supposed that he took him as a trespasser and Hutton said that till the time of Hen. 8. there was not any actions brought for words and to the end to settle peace he thought words not to be taken so largely and favorably in giving way to unruly tongues and to the unbridled humours of men but rather strictly to curb them for their evil language see after East 22. Jac. C. P. Easter Term in the 22. year of King James in the Common Pleas. VPon Wednesday being the 25th day of April and the first day of this Easter Term which was the first day which I came to Report and it was agreed by the Court the same day that if one come to the Bar to make his law in debt brought against him upon a simple contract that the Plantiff shall be demanded and if he will be nonsuit he may and then the Defendant shall not recover costs against him but as I have heard that this was to have been intended where the Plantiff was an executor or Administrator and not of any other Leonard Barley against Foster BEtween
Leonard Barley Plantiff and Foster Defendant it was agreed without scruple by Winch and Hutton Iustices only present in the Court that if a man infeoff another to the use of A. for life and after his death to the use of his daughter till B. pay her a 100. l. and then to other uses c. to the use of B. I. in this case the daughter had not any remedy for the 100. l. if B. will not pay that except he make a new promise and then upon that she shall have an action upon the case upon which if shee recover and have satisfaction the use will arise to B. but otherwise not though she have judgement to recover that and whether this same is discharged is triable by the record of the recovery John Theaker's case NOte that one Iohn Theaker was seised of certain lands and died in Ianuary last and his wife was married to one Duncombe within a week after and one Alphonsus Theaker entered into the land as Cozen and heir to Iohn Theaker deceased and the wife of Iohn Theaker who was dead gave out words that she was with child by her first husband and upon that Alphonsus Theaker had a writ de ventre inspiciendo directed to the Sheriff of London to inquire by 21. Knights and 12 women in the presence of the Knights whether she was with child or no and the Sheriff executed that and returned that they thought that she should be brought to bed within 20. weeks and upon that it was prayed that the Court would award according to Bracton that she may be taken into custody and that she may have divers women of fashion which may attend her daily till she is delivered that no deceit may be contrived against Alphonsus to deceive him but the Court would not agree to that though there was a president urged Hill 39. Eliz. Rot. 1200. Sir Percival Willoughby and the Lady Willoughby his brothers wife in this Court but the Court awarded that she should not be taken and detained from her husband but that a writ should issue to the Sheriff of Surrey whither the woman was now removed to return divers sufficient women which may resort to her daily till she is delivered which was done accordingly Fosters case FOster brought an action of debt of 300. l. against C. upon 2. obligations dated 20. December to pay him 150. l. c. and averred he had not paid that and did not say nor any part of that and Bing took exception to that in arrest of judgement because he had not averred that he had not paid any part of that and perchance he had paid part but not all but Hutton said that it is very good though this be upon several bonds and it any be paid it ought to come of the other part to shew that Woolsey was outlawed at the suit of Iones in an action of debt upon an obligation and the Capias ut legatum was taken out of the Court of the common pleas where he was outlawed in Trinity Term 21. Iac. and in December following Woolsey was warned to be at the Town of Shrewsbury to chuse Burgesses and before the day a binding process did issue out of the Marshes of Wales against Woolsey after Iones had delivered the Capias ut lagatum to the Sheriff to take Woolsey and the same morning that the election was Woolsey was taken upon the Capias ut lagatum but he was suffered to go and to give his voice in the election and then the Baileys of the Marches of Wales arrested him upon the process and because the Bailiffs of the Sheriff would not suffer the Bailiffs of the Marches to take him away from them there was gathered a great riotous companie on both sides but the Bailiffs of the Sheriff took him away and they and all them who took their parts were sued in the Marches for the withstanding their Bailiffs and upon this Harris moved for a Prohibition and the Court c. Winch and Iones said that if he is outlawed bona fide it shall be granted for the Bailiffs of the Sheriff had lawfully arrested him and it is lawful for them to keep him and for others to assist them and Winch said that if the persons which stood by had refused to help them this had been also sinable and it was said that the suffering him to go to the election was not any signe of a fraudulent arrest nay if the partie himself had consented to a fraudulent arrest upon a Capias ut lagatum this had not been punishable though they had known that there had been binding Process out against him because the arrest the detainer was lawful and agreed in the principal case that a Prohibition shall be granted and it was said that the other side are punishable because they did not aide the Sheriff for the officers of the other side were the cause of the Riot Sir Michael Wharton and Sir Edward Hide IT was agreed without scruple between Sir Michael Wharton and Sir Edward Hide that if a man in an avoury convey a good estate for years to two and one release to another that is not good without the shewing of a deed in that case Michael Bone and the Bishop of Norwich IT was agreed between Michael Bone and the Bishop of Norwich in trespas that by the lease of a Grange and all houses and buildings thereupon and belonging or let heretofore to one Edward Garrard that in this case if it may not be proved that the Tithes were not let to Garrard then they will not pass by this lease for it is not possible that Tithes shall pass as appurtenances to a grange because that they are of several natures except as Winch said that the Grange is the Gleab for if it is then the Rectory may pass by this name William Trist and Cawtrel at the suit of Heath WIlliam Trist and Cawtrel were bound in an obligation of 40. l. to one Heath who brought an action of debt upon that and recovered at the assizes and now it was moved in arrest of judgement that this was a mistrial for the venire facias was between Heath and Iohn Trist and the Sheriff returned that to be between Heath and William Trist and for this variance he shall not have judgement in the Case Hutton said in the case between Mankleton and Allen. MAnkleton and Allen that is a man had goods taken from him which taking he supposeth to be fellony but it is not and he complains to a Iustice of peace of that who commits the offender and bindes the other to prosecute and he accordingly preferred a Bill at the Sessions and the other is acquitted and the opinion of Hutton in this case was that this is not punishable by an action upon the case in the prosecuter for that shall never be maintained without apparant malice in the prosecutor Blunt and his wife against Hutchinson BLunt and his wife brought a quare Impedit
times at his pleasure to do this by his writtag indented under his hand subscribed in the presence of 3. witnesses to disanul them and also by the same writing to determine and set down other uses now if by indenture in the presence of three witnesses he do covenant with another to stand seised to other uses c. here though there is no express determination of the former uses according to the words yet the limitation of the new uses do implie a determination of the former uses and so the substance of the words observed though not the very litteral expression and so was it lately resolved in this Court between Kenet and Lee that where such covenants were with power of revocation in his life time sealed and delivered now if in this case this be done by Will sealed this is a sufficient revocation for the intent was satisfied and if in this case then by the same reason in our case but now let us come to this Statute and in this Statute there are matters of substance and matters of circumstance and the Statute of Acton Burnel saith that the debtor shall come before the Maior to acknowledge that now this is but a circumstance of the Statute for if the Maior come before him this is very good for the substance is that the Statute must be acknowledged before the Maior in proper person and not by Attorney and also the Statute saith that the recognizance be entred into the Roll with the hand of the Clark here the inrolment is the substance and not the writing and so the Statute de mercatoribus is that he ought to come before the chief Officer of the Citie c. and yet it hath been ruled here that if the Citie be governed by 2. chief officers he ought to come before them both for to this purpose they are but one nay the Statute is that he shall be a Merchant who shall acknowledge that and yet if he be not a Merchant he is within the compass of the Statute to be a Conusor but now to the point whether this is substance or circumstance and I am of opinion that though the day of payment is not expressed yet it is very well for a day may be in that and yet not be good as if it be at Michaelmas after I. S. shall come to Pauls now in this case because it may not appear to the Maior Iudicially when to award execution therefore it is not good but if this be to pay the first return of Michaelmas Term this is very good for there he may know immediately when to award execution and the same law if it be to pay before Michaelmas next or to pay presently as an obligation and so the Maior is bound to take notice that this is to be paid presently Another objection that it shall be frivolous that his bodie shall be taken so soon as it is acknowledged but I answer that this may be very well for this is for the securitie of the Merchant who is the Conusee and Merchants shall not be supposed to know when tendring may be in regard that they are supposed to be men of forreigne imploment and so upon the Statute of Bankrupts for the words of the Statute are to every creditor a portion is allotted to him by your construction the sale shall be void because it is not according to the words of the Statute but you see that this is ruled to be against you The third objection is explanatorie to the Statute of Acton Burnel and for that it ought to be precisely perused and not to varie from that but I answer to that that the Statute de mercatoribus it self had not been observed in every point and circumstance for the words of the Statute are that if the debtor do not pay at the day that then the debtee may come before the Maior and sue executtor and yet it was resolved Coo. 2. 48. that the executors of the Merchant may come and besides the words of the Statute are that the extent shall be of all his lands which were in the hands of the debtor at the time of the Statute acknowledged and yet if he who is the Conusor purchase lands afterwards yet they shall be liable to be extended by force of the same Statute though not made mention of and so it is out of the words of the same Statute and so I am of opinion that the Statute is good and that in this case no audita querela lies The argument of Justice Hutton HUtton contrary I am of opinion that this Statute is void and that the audita querela well lies in this case and all my argument shall be upon the Statute Acton Burnel for this is the fundamental Statute and I conceive that the intent of the law is to contain a certainty when the money shall be paid and the conclusion of the Statute de mercatoribus goes over and further then the Statute of Acton Burnel for this doth extend to all the subjects of the Kings Iews only excepted and there is a reservation that this shall not destroy the action of debt and also there is a reservation to the Iudges that they may take a recognizance as before and this Statute of Acton Burnel was made the 11th Edw. 1. and there are in that Statute several essential points Acton Burnel explained which of necessitie ought to be observed and first that this ought to be taken before an officer and yet two officers which are the chief officers may well do this for to this intent they are but one Secondly there ought to be a seal of they pâ—rtie Thirdly a day of the payment ought to be also expressed because the security is taken before an ignorant man Fourthly the seal of the King ought to be to that and fifthly this ought to be inrolled and it hath been also agreed to my hand that a conjectural day of payment is not good as at Mich. after the return of such a one from Rome or after the accomplishment of the age of 27. years for those shall never be dayes to give jurisdiction though they are good by way of contract and such a recognizance is good for any thing for which an action of debt will lie but if no action of debt will lie in this case then it is not good and so is also the Statute of 23. H. 8. cap. 6. for it doth not extend to such things but where an action of debt lies And the first part of the Statute is that the debt and the day of payment be entred in the roll that so it may appear whether the day be past nor no and that may not appear by the judgement of the law but upon the face of the Statute and there is also one clause in the Statute that if the debtor will say that his goods were delivered or sold for less then they were worth the partie had no remedy for when the Sheriff had
have Dower because the feme is dowable of them for this sufficeth to say that he had assets generally 7. Ed. 2. Dower 184. out of which I conclude that this voucher is not like to other vouchers but this is onely to secure the estate of the Purchasers and then as to the president I answer first it was found there that the vouchee had nothing and also it was never debated for a writ of error was brought of that and nothing done for this was referred to Arbitrement and so I pray that no writ of seisin may be awarded and the Court semed to be of opinion that the judgement may be conditional chiefly Hobert and Iones vehemently but now they said because that judgement is once given they are not to reverse their own judgements and to give another judgement and now it is as if he had no assets but yet that doth not aide an erroneous judgement given before and therefore if the Tenant will be relieved he ought to bring his writ of error but it was said that if this judgement was to be given again this was as it should be because that is all one now as if he had not assets and the judgement stood as it was Potter against Brown NOw the case of Potter and Brown was moved again and Hendon took two exceptions as before first for default of averment and secondly the words are not actionable for it was adjudged in Lanes case if one say of another that he is as arrant a Thief â—s any is in the Goal of Warwick this is not good without averment that there are Thieves in Warwick Goal and here it shall be so for the law doth not suppose that there are Thieves in England and besides here in this case the subsequent words do qualifie the other for the words under the for ought to be of such a thing as is Theft and that is not so in our case Serjeant Richardson to the contrary the last words do not qualifie but rather aggravate them for he gives a reason of his speach and this taking is to be understood with a fellonious intent for the first words do charge him to be a Thief and therefore the last words shall be intended that he took them with a fellonious intent for he did not only charge him in the general but in particular but the Court c. Hobert Hutton and Winch said that the Plantiff shall not have judgement because he failes of averment for he did not say expresly that he is a Thief but as arrant a Thief as any is in England and we are not to enquire after words except they are plain for if one say he was in Warwick Goal for stealing of a Horse adjudged not to be actionable and we may not presume that there are Thiefes in England and so judgement was arrested Adams against Ward INtra Trin. 21. Iac. Rot. 1845. note that it was said in an action upon the case between one Adams and Ward an Attorney that whereas one Hennings sued Adams in an action of debt and Adams retained Ward to be his Attorney and gave him warrant to plead the general issue and Ward suffered the judgement by nihil dicit that this was not any cause of an action except it was by Covin and for that if Adams had not laid in his declaration that this was by Covin he should not have recovered and at another day it was agreed that the Covin was not traversable by Plea but only in evidence at the Bar. Cook against Cook in Dower IN a writ of Dower between Cook and Cook they were at issue and at the day of nisi prius the Defendant pleaded that the demandant had entred and was seised and yet is seised since the last contrivance c. Octabis Sancti Hillarii ultimo quo die continetur usque ad hunc diem c. vicesimum diem Februariâ— which in verity was the day of the nisi prius and it was demurred upon this Plea for two causes the first was because he had not shewed that the Tenant was disseised for otherwise it shall not abate the action and to say that the demandant was seised was not sufficient for though this implies so much that the other was disseised yet here it ought to be expresly alledged but the Court spake nothing to this but Winch thought this to be very good according to Dyer 76. there the entrie is pleaded only and yet good but they resolved that the pleading of the continuance is not good for it is from one Term to another nisi prius justiciarii Venerint c. and he ought to have precisely shewed that but the question now was whether the demandant shall have judgement to have seisin or have apetite Cape only and Iustice Hutton said that it was adjudged in Sir Henry Browns case that if a man pleaded an insufficient Plea after the last continuance there the Plantiff shall have judgement as if the first issue had been tried for him and for this he cited the new book of entries fo 57â— and this may not be a judgement by default for they both appeared and therefore he shall have the same judgement as if the first issue had been tried for him and it was said in this case though the Defendant did demur generally yet this is very good The residue of Trinity Term in the 22. year of King James GOdsel an Attorney brought an action upon the case for words and he laid in his declaration that the Defendant spoke those words among other Master Godsel is a knave for he forged false deeds for which he was imprisoned at York and should have lost his ears and the jury found only these words Godsel is a forger of writings and deserves to lose his ears and Hendon moved in arrest of judgement that the words which are found are not the words in the declaration for the words were there that he forged deeds and it is only found to be writings and it was adjudged in this Court between Brown and Ellis that for saying an Attorney had forged writings no Action will lie for they are too general and besides it doth not at all appertain to him to make writings and so for Nowels Case he is Cooped up for forging of writings and it was adjudged not to be actionable and so to say he is a forger of writings by which he had cozned fatherless Children the words are not actionable because he did not say Deeds and upon this motion and reason the judgement in this case was arrested This case is Entred Hillarie the 21. Jac. Roll. 550. Sir George Trenchard against Peter Hoskins TRenchard brought an Action of Covenant against Peter Hoskins and declared upon an indenture bearing date the 19th of September 44. of Eliz. made between Iohn Hoskins father of the Defendant and the Defendant on the one part and the Plantiff on the other parte by which they bargained and sold certain lands to the
pleads no award the Plantiff maintaines the award and the breach the Defendant rejoyned that before the time of the award they discharged the Arbitrators 75 Debt by a servant for wages in the debet and detinet and for 2 shirts in the detinet only good without shewing that it was according to the Statue and by several precipes in one writ 75 In Dower the Tenant pleads never seized to have Dower the husband having an estate but by disseizing which was avoided by entrie no Dower 77 In Debt two were bound for the appearance of annother and judgement against the debtor who upon the capias offers his body the Plantiff refuses the suerties are discharged but the Plantiff may take a Capias within the year but if he had come on the capias and had not Suerties and he refused him Quer. if he be not discharged 77 78 Dower of a reversion after a lease for years she shall have the rent and the Defendant pay no damages 80 Dower what judgement shall be given where the vouchee dieth whether absolute or conditional 81 88 Dower where the trial ought to be by witnesses and in what manner 82 Dower the Tenant pleads that the demandant had entred and disseized since the last continuance 90 Where the Demandant shall have judgement and where only a petit Cape 90 Dower against an Infant who pleads a devise to the demandant in satisfaction of Dower and entrie 100 E ERror lieth not for a judgement given in the Stanneries in Cornwal 8 If an Executor be nonsuit he shall pay no costs 10 Executor where he bringeth an action he ought to shew the Will otherwise if the issue be joyned 19 If the Debtor makes the Debtee Executor he may retain and plead fully administred 19 Execution what fees are due to the Sheriff where the debt exceeds 100. l. 21 22 Essoign in a Formedon after the Vouchee appeared 34 Escape against the Warden of the Fleet retaking upon fresh suit good after an action but not after issue joyned 35 Escheat where lands are given to a Monasterie and all the Monks die who shall have it the founders or the Lord of whom it is holden 38 Executor where he or a devisee shall have the Corn 51 If an Executor waste the goods of a Testator and dies intestate his Administrator shall be liable and by the Court 31 Ed. 3. Coo. 11. gives no remedy but against an immediate administrator 65 Estray whether the partie may fetter him or no 67 68 124 An Executor where compellable to plead a general issue and give the special matter in evidence 70 Executor may bring an action in the debet and detinet upon his own contract 80 Executor an action brought against him by Journeys accompts where good 82 Execution where the partie shall be discharged by supersedeas at the Courts discretion 100 101 Execution see purchase 112 F TEnant for life and he in remainder in tail Covenant to levie a fine Tenant for life dies if he in the remainder ought to do it 4 In a Formedon the Tenant pleads that at the day of the writ the Plantiff was seised of the moitie thereof not good 23 Fees where an action of the case lieth for them by a Sollicitor 53 54 G GEneral issue where it ought to be pleaded and where not 70 H HErriot whether it be due to the Lessee of part of the Mannor or to the lessee of the whole Mannor 46 47 57 I INformation for ingrossing a 100. Quarters of Corn and upon inquiry he is found guiltie of a 100. it is good for so much 5 In an idempnitate nominis the Plantiff prayed a superdeas to stay Execution Curia Advisari vult 6 Information for entertaining his apprentice without a Testimonial contrary to 5 Eliz. 25 Joynture the father makes a feofment to the use of himself for life the reversion to his son and his wife intail this is no Joynture though the father die in the life of the son so if it had been for years 33 Infant and Apprentice unto what Covenants lyable 63 64 Issue in a quare impedit is joyned the wife one of the Plantiffs dieth before the venire facias the writ doth not abate because it was a Chattle vested in her husband 73 Infant where he may declare uses upon a fine and what acts are by him void or voidable 104 Infant in a judgement against him where he shall be relieved by audita querela or error and whether against the Attorney who suffered it 114 K VVHere the King may seise without office and where not 9 Where an usurpation gaineth an advowson from the King 14 King where he hath title to present the incumbent being created a Bishop in Ireland and what act is a dispensation thereof and where a Commendam is well granted and the several kindes thereof 94 95 96 97 98 L A Lease of a rectorie excepting the Gleab void otherwise if parcel of the Gleab 23 A Lease for a year and so from year to year this is a Lease for 3. years and if the Lessee hold over Quer. what remedy for the rent 32 A Lease for years by him in remainder in tail if destroyed by a recoverie 41 42 43 In a lease to trie a title of several parcels he ought to enter into them all severally 50 M A Miss-trial is not aided by any Statute of Jeoffales 69 N NUsance by stopping the winde abated 3 Nusance for stopping a light abated 4 Notice to give bond where necessarie and where not 26 27 New Assignment if it be more large then the declaration it is good in Trespass but otherwise in an ejectione firme 65 Notice where ought to be taken and by whom 108 120 O ORdinary what power he hath to dispose after debts and legacies paid 11 An Obligation where good upon the Statute 23. H. 6. 20 21 50 51 P A Prescription to pay the Vicar a Buck in Summer and a Doa in Winter for a Park which becometh Disparked 144 Prescription to have land it self void 6 Prescription See Replevin A Prohibition to the Admiraltie lieth not after judgement given there 8 Protestation where good and where not 13 14 Prohibition where it lies to the Court of Audience for saying thou art a common and base Quean 14 15 Promise by a Lessee or a stranger to pay rent if an action he thereupon 15 A Presentation by the Lord Chancellor where it belongeth to the King is only voidable 19 Prohibition where it lies for a seat in the Church a difference between the Lord of the Mannor and another Person 19 A Protection from a Peer not good in a Capias utlagatum 24 A Prohibition where the parties agree in the modus but varie in the place of payment lieth not 33 A Prohibition awarded against one who sued in the Court of Audience Administrators for a Legacie as Executors 64 65 In a prohibition the Tenants of a Dean and Chapter alledge prescription for non-payment
of Tithes and good because they are a spiritual bodie 65 In a Prohibition upon a suit for a Legacie the Executor shewed he had not assets to pay the debts and the spiritual Court would not allow that allegation yet no Prohibition 78 Prohibition to the Marches of wales because a Legatee sued there for 500. l. good before a decree but not after 78 Prohibition see Court of equitie c. 79 Prohibition to the Marches of Wales for requiring an accompt of an Administrator 103 Proces against two Obligors by several precipes and thereupon several Executions whether the writs are well awarded 112 A parco fracto where it lies against the Lord of the Soil and where not except the Cattle come out 80 81 Prohibition to the delegates a pardon not allowed of there 125 Q IN a Quare impedit adjudged that nothing ought to be questioned after induction the spiritual Court there 63 R TEnant in tail sells to I. S. in fee who sells to the heir of Tenant in tail being of full age the father dies if the son be demitted 5 A replevin c. the Defendant saith that all those c. had used to have pasturage in c. when it was not sowed the Prescription is good 7 In a return of Rescous there needeth no addition 10 Replevin for rent issuing out of six acres the avowant must prove that the grantor was seised of 6. acres or more 15 Replevin in the Plantiff claimeth propertie without that the propertie was in the Defendant the Traverse not good yet judgement for the Plantiff because after verdict 26 In Return of an extent by the Sheriff surplusage hurteth not 27 Replevin the Defendant avowed for homage and shewed not how it was due if good 31 Replication although evil where the Plantiff shall have judgement if the Defendants plea be vitious 37 A Riotous quarrel about an arrest between the Sheriffs Bailiffs and the Bailiffs of the Marches of Wales 72 Release an avowrie not good without pleading it by deed 72 A Rent-charge granted and a Covenant if it happen to be behinde then the land to be alwayes open to distress whether this be a distinct covenant or not 74 87 Replevin for rent the Defendants say that the land was parcel of a Chaunterie which came to the King by the Statute wherein the right of others was saved the Plantiff replies that the land is out of the fee of the Defendant no good plea but he might have Traversed the Tenure that at the making of the Statute the land was not holden of him 77 A Record amended where the bargain and sale and deed of uses were by the right name but the writ of entrie was of another name 99 100 Rent granted in fee by Tenant for life and him in remainder in tail levied a fine a good grant 102 Rent-charge whether it be extinct by a fine of the land to the Ter-tenant and a release unto him 109 110 111 121 122 S SCire facias the Defendant pleads a feofment the Plantiff traverses and the jury found a feofment to other uses whether this shall be intended the same feofment which was pleaded 32 Scire facias by an Executor upon a judgement for the Testator the Defendant cannot plead the Testators death between the verdict and judgement but he must bring a writ of error 48 Simonie a grant of a next avoidance for monie the Parson being readie to die is Simonie 63 A Sheriff by force of a Capias utlagatum to inquire what lands c. cannot put the partie out of possession 78 Statute-Merchant if good in regard no day of payment is limited largely and learnedly argued by the Court 82 83 c. Servant taken away See Trespas T TIthes See Prescription Trespass the Defendant saith that I. S. was seised in right of his wife and that she died seised and that he as heir c. the Plantiff replied that she died not seised he ought to have said that she died not sole seised 7 Trespass in Yorkshire Justification in Durham without that that guiltie in Yorkshire good because it is local 7 A Traverse to a presentation where good and where not 13 14 Tenure where it is Traversable and where the seisin 18 Tithes not due of Cattle for the diarie 33. Trespass for Beasts taken in London Justification upon a lease of land in Kent Replied that the Defendant sold them in London no good plea to bring the trial out of Kent 48 Trespass for taking ones servant lieth not upon a private retainer otherwise if it were at the Sessions 51 Tithe giuen by the Pope to the Vicar and the Copie of the Bull only was shewed in evidence not good 70 Tithes cannot be appurtenant to a Grange except the Grange be the Gleab 72 73 Traverse where good and where not 113 U VEnire facias omitting part of the venue if good 34 Variance between the writ and Declaration where good 35 A feofment to the use of A. for life and after to the use of his daughter till B. pay her 100. l. here the daughter hath no remedie for this 100. l. without a promise 71 A Ventre inspiciendo awarded and returned but the Court would not agree that she should be detained from her second husband but attended by divers women till her deliverie 71 Variance between the venire facias and the Sheriffs return no judgement in that case 73 W IN Waste judgement by nihil dicit and upon an inquirie the jury found 8. s. damages what judgement shall be given 5 Wager of Law upon a Bill of Exchange 24 Writs a difference wherein there is an error in the original and where in the judicial writ that is amendable 73 Waste although for a time it is punishable yet after the action may revive 79 86 Writ against husband and wife as an Inheritrix the husband dies if the writ abate 102 Errata PAge 1. line 2. 27. for do read Doa p. 2. l. 4. r. lieu p. 4. l. 2. 22. r. 300. pa. 8. l. 36. r. Hendon and so throughout p. 12. in the Title r. Duncombe against the Vniversitie of Oxford p. 12. l. 14. r. 38. H. 8. cap. 39. p. 14. in the Title r. Sir George Savile against Thornton p. 15. l. 21. r. communication p. 16. l. 12. r. 7. Jac. cap. 5. p. 17. l. 47. r. Maines and l. 17. r. sic and also p. 17. 18. in the Margent r. Trin. p. 21 l. 51. r. 39. Eliz. p. 23. l. 9. r. till p. 26 l. 28 for writ r. Action and for Action r. writ p. 27. l. 12. for he r. they p. 28. l. 34. r. may not p. 29. in the Margent r. Easter p. 29. l. 33. for S. r. N. p. 33. l. ultim r. Moore p. 36. l. 43. r. Titterels p. 45. l. 20. r. demandable p. 50. l. 35. r. Bar p. 51. l. 22. r. a penalty p. 53. l. 16. r. may not p. 54. l. 44. r. Estate p. 57. l. 19. r. in our case p. 58. l 50 r. 16. E. 4. p. 68. l. 5. r. estray p. 71. l. 26. r. 12. Note in p. 72. l. 7. Wolseys case ought to have been printed by it self p. 77. l. 4. r. avoided p. 88. l. 4. r. Finch p. 90. l. 15. r. continuance p. 100. l. 21. for preservation r. perswasion and l. 34. for entire r. entrie p. 109. in the Margent for Trin. r. Mich. p. 112. l. 25. r. thought p. 114. l. 18. for interested r. interest