Lease of my House during her life and after her death I will it go amongst my Children unpreferred Peerepoint died his Wife entred and was possessed virtute legationis praedictae And took to Husband one Fulsehurst against whom Beswick recovered in an Action of Debt 140 l. Vpon which Recovery issued a Scire facias and upon that a Vendit ' Exponas upon which the Sheriff sold the Term so Devised to one Reynolds Fulsehurst died his Executor brought Error and reversed the Iudgment given against the Testator at the Suit of Beswick the Wife re-entred sold the Term and died Alice a Daughter of Peerepoint unpreferred entred And upon this matter found by Special Verdict in the Common Pleas The Entry of Alice was adjudged lawful Vpon which Iudgment Error was brought in the Kings Bench And it was argued upon the words of the Devise because here the Lease is not Devised but all his Interest in the thing Devised And it is not like to the Case between Welden and Elkington 20 Eliz. Plow Com. 519. where the Case was that Davies being Lessee for years Devised That his Wife should have and occupy his Land demised for so many years as she should live Nor unto the Case betwixt Paramour and Yardley 21 Eliz. Plow Com. 539. For there the Lessee Devised That his Wife should have the Occupation and Profits of the Lands until the full age of his Son For in those Cases the Land it self is quodam modo devised But in our Case all the Estate is Devised i. e. the Lease it self And also in those two Devises a certain person is named in the Will who should take the residue of the Term which should expire after the death of the Wife but in the Case at Bar no person in certain is appointed c. but the Devise as to that is conceived in general words Children unpreferred Ergo neither any Possibility nor any Remainder is in any person certain therefore all the whole Term is intirely in the Wife and then she may well dispose the whole But the whole Court was to the contrary and that in this Case the Possibility should rise well enough upon the death of the Wife to the Daughter Alice unpreferred Another Point was moved If the said Term being sold in the possession of the Wife of the Devisor by force of the Execution aforesaid If now the Iudgment being reversed the sale of the Term should be also avoided for now the party is to be restored to all that which he had lost And by Cook it was argued That notwithstanding the reversal of the Iudgment the sale should stand For the Iudgment for the Plaintiff in a Writ of Error is That he shall be restored to all that which he lost ratione Judicii praedict and the Iudgment was That the Plaintiff should recover 140 l. and therefore by the Iudgment in the Writ of Error he shall be restored to so much but the mean Act scil the Sale of the Lease shall stand and shall not be defeated and avoided As 7. H. 6. 42. A Statute Staple is bailed in Owel Mayn the Conusee brings Debt against the Bailee and hath Iudgment to recover the Statute and upon that Suit he had Execution and the Bailee brought a Writ of Error to reverse the Iudgment in Detinue yet the Execution shall stand and an Audita Querela doth not lie for the Conusor And see 13 E. 3. Fitz. tit Bar. 253. Accomptant found in arrearages committed to the Goal escaped and reversed the Iudgment given against him in the Accompt Ex parte talis yet an Action upon the Escape did lie And as to that Point the whole Court was of the same Opinion with Cook But that Point did not come in Iudgment For by the sale nothing passed but the Interest in praesenti which was in the Wife of the Devisor but the Possibility to the Children unpreferred was not touched by it And afterwards the Iudgment was affirmed CXXIX Bunny and Bunny's Case Hill. 26 Eliz. In the Common Pleas. IN an Action of Covenant between Bunny and Bunny the Plaintiff declared That the Defendant had Covenanted to find unto the Plaintiff Meat and Drink at the House of the Defendant The Defendant pleaded That he was always ready to find the Plaintiff Meat and Drink if he had come to his House to have taken it Et de hoc ponit se super Patriam And it was found for the Plaintiff And in this Case the Court awarded That the parties should replead For in all Cases where the Defendant pleads matter of excuse not contained in the Declaration as here he shall say Et hoc paratus est verificare in the perclose of his Plea But if the Defendant had pleaded That he had given the Plaintiff according to the Covenant Meat and Drink then the Conclusion of his Plea had been good Et de hoc ponit se super Patriam c. CXXX Hill. 26 Eliz. In the Kings Bench. IN an Action upon the Case supposing certain Goods to have come to the hands of the Defendant and that he had wasted them and shewed in what manner The Defendant pleaded Not guilty And it was found by Verdict That the Goods c. came to the Defendants hands and that he had wasted them but in another manner than the Plaintiff had declared It was the Opinion of the whole Court That upon this Verdict the Plaintiff should not have Iudgment As in an Action of Trespass the Plaintiff declared That the Defendant had distrained his Horse and travelled riding upon him And the Iury found That the Defendant did distrain the Horse and killed him In that case it was holden The Plaintiff should not have Iudgment So in an Action upon the Case the Plaintiff declares upon a Promise upon one Consideration and the Iury find the Promise but that it was upon another Consideration in such case the Plaintiff shall not have Iudgment Adjudged for the Defendant CXXXI Merry and Lewes's Case Pasch 26 Eliz. In the Common Pleas. MErry brought an Action upon the Case against William Lewes 2 Len. 53. Executor of David Lewes late Master of St. Katherines juxta London And Declared That the said David in Consideration That whereas Quaedam pars Domus fratrum sororum Sanctae Katherinae fuit vitiosa in decasu the said Merry ad requisitionem dicti Davidis repararet eandem promised to pay the said Merry all such monies as the said Merry expenderet in such Reparations And declared further That eandem partem Domus praedict reparavit c. And upon Non Assumpsit It was found for the Plaintiff It was Objected in Arrest of Iudgment That the Declaration is too general Quaedam pars Domus For the Plaintiff ought to have shewed especially what part of the House in certainty as the Hall Chamber or other Rooms But the Exception was disallowed Another Objection was Because he set forth in the Declaration That the
That that matter could not be assigned for Error for it is not within the Record and we cannot reverse our own Iudgment but only for matter of Process See for that Fitzh Na. Br. 21. f. CXXXIX Partridge and Pooles Case Pasch 26 Eliz. In the Kings Bench. TRespass of Battery was brought by Partridge against Poole 2 Len. 79. 1 Cro. 842. and supposed the Battery at D. in the County of Middlesex The Defendant justified by reason of an Assault at S. in the County of Gloucester absque hoc that he beat the Plaintiff at D. in the County of Middlesex Vpon which traverse the Plaintiff did demur in Law. It was argued by Popham the Queens Attorny General That the traverse of the County is good And he put the Case of 21 H. 6. 8 9. In Trespass of Battery at D. in the County of York the Defendant justified by an Assault at London in such a place in such a Parish c. absque hoc that he was guilty de aliqua transgressione in Comitatu Eborum Vpon which issued a Venire facias into Yorkshire and as the Book is This traverse as to the County was taken with great deliberation See also 22 E. 4. 39. And this traverse de jure ought to be allowed For the Iury in Middlesex are not bound to find the Assault in the County of Gloucester See 2 Mar. Br. Jurours 50. In Actions upon transitory matters although they be layed in Forreign Counties yet the Iurors if they will may thereof give their Verdict but they are not bound to do it Egerton Sollicitor General to the contrary And he put a difference where the justification is local and where transitory As in False Imprisonment the Defendant justifies as Sheriff the taking of the Plaintiff by force of a Capias directed to him at D. within his County of G. Where the Plaintiff declareth of an Imprisonment in another County there the traverse of the County is good for the Defendant cannot take the Plaintiff by force of the said Process in any other County than where he is Sheriff and so the Iustification is local 11 H. 4. 157. But in our Case the matter of the Iustification is meerly transitory And at last after many Motions It was adjudged for the Plaintiff Gawdy Iustice being of a contrary Opinion And by Wray Chief Iustice clearly The Iurors upon pain of Attaint are to take notice of such a transitory thing done in another County See 2 Mar. Br. Attaint 104. 9 H. 6. 63. CXL Gerrard's Case Pasch 26 Eliz. In the Common Pleas. 2 Len. 168. 4 Len. 7. GErrard Master of the Rolls presented Chatterton Bishop of Chester to the Church of Bangor to which Church also one Chambers presented his Clerk by which several Presentments the same Church became Litigious The Archbishop of York being Ordinary of the place awarded Jure Patronatus c. depending which the Archbishop admitted the said Bishop upon which the said Chambers Libelled in the Spiritual Court against the said Bishop For that the said Archbishop praedicto Episcopo plus aequo fidens admisit dictum Episcopum pendente the Jure Patronatus in which Case by the Law of the Church the Admittance is void For pendente Lite nihil movetur And now came the said Bishop and upon this matter prayed a Prohibition and he had it because that the right of the Patronage came in debate After which came the said Chambers and prayed a Consultation because he medled not with the right of Patronage but only with the wrongful admittance To whom it was said by the Court That the awarding of the Jure Patronatus is not a thing of necessity but at the Will of the Ordinary and for his better Instruction But if he will at his peril take notice of the right of the Patronage he may receive which of them he will without a Jure Patronatus awarded And it may be in this Case That after the Jure Patronatus awarded and before any Verdict given upon it the Archbishop was satisfied of the right of the now Plaintiff in the Prohibition to the Patronage and thereupon admitted the Clerk And by the clear Opinion of the Court the Consultation was denyed CXLI Rampston and Bowmer's Case Trin. 26 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That whereas the Plaintiff occupied a Brew-House And whereas one Gilbert Bowmer was the Beer-Clark of it and had the government and disposition of the Beer brewed there by reason whereof he became indebted to the Plaintiff in such a sum For which the Plaintiff procured the said Gilbert to be Arrested and put into the Prison of the Marshalsey And whereas the said Gilbert in dicta prisona existente the Defendant tunc ibidem in Consideration that the said Plaintiff would let the said Gilbert out of Prison Promised That if the said Gilbert should not accompt with the Plaintiff and pay him all the Arrearages which upon such Accompt should be found before such a day That then the Defendant would pay it Vpon which the said Gilbert was dismissed ad largum And further declared That no Accompt had been made by Gilbert or any other satisfaction And upon Non Assumsipt the Iury found That the said Gilbert so endebted to the Plaintiff was arrested at the Suit of the Plaintiff and that after the Defendant came unto the Baily of the Marshal who arrested the said Gilbert and took upon him to the said Baily That the said Gilbert should be at the next Court holden for the said Marshalsey by force and reason of which promise the Baily suffered the said Gilbert to go at large to his House c. and that after and before such Court the Defendant promised the Plaintiff modo forma as the Plaintiff had surmised in his Declaration And upon that Verdict the Plaintiff could not have Iudgment For here the Consideration layed in the Declaration is not found by the Verdict For Gilbert was discharged of the Imprisonment before the promise of the Defendant to the Plaintiff And the Declaration is That in Consideration quod dictus Gilbertus ad largum dimitteretur c. And Iudgment was given Quod Querens Nihil Capiat per Billam CXLII Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Mannor by plaint in the nature of a Writ of Right It was moved in the Common Pleas If a Precept might be made and awarded out of that Court for to execute the said Recovery and to put him in possession who recovered with the Posse Manerii as in such Cases at the Common Law with the Posse Comitatus But it was clearly Resolved It could not be done For force in such cases is not justifiable but by Command out of the Kings Courts CXLIII Iplett and Williams's Case Mich. 26 Eliz. In the Common Pleas. I Plett brought an Action upon the Case against
C. 64. The manner of swearing the Jurors C. 162. Upon Issue upon the meer Right the Tenant must first give evidence C. 162. In a Writ of Right Sur Disclaimer it is a good Bar that the Lord since accepted the Rent from the Tenant C. 272. Duresse A good Bar in an Action of Account A. 13. It may be pleaded without a Traverse C. 239. What is what is not Duresse 239. Dutchy A Case thereof and of Grants made under that Seal B. 151 152 162 163 164. E. Ejectione Firme LIes of Title in London A. 19. Lies not de Tenemento A. 118. Where it lies not but upon an actual ouster A. 212. If the Plaintiff hath no Title nor the Defendant any the Plaintiff shall not recover A. 215. Et bona catalla cepit A. 312. Lies not of Copyhold upon the Lords Lease but of the Copyholders Lease A. 328. Where one pleads and the other demurs and the dem is adjudged for the Plaintiff the Plaintiff cannot relinquish the Issue and take Judgment as in Trespass B. 199. De uno Cubiculo better than de una Camera C. 210. De Romea C. 210. De Messuagio sive Tenemento is not good C. 228. The Plaintiff may relinquish his Damages where part of the Action fails and take Judgment for the other C. 228. Ejectione Custodie For a Lord of the Heir of his Copyholder A. 328. Election Of an Acre in a great Field sold to a Corporation how they must make Election A. 30. To whom given where the condition is in the disjunctive A. 70. Devise of an Acre in a Field the Devisee must make his election in his life A. 254. Grant of a Mannor except B. Arce where is two of that name the Grantor hath the election A. 268. Award in the disjunctive and one part is void yet the other must be performed A. 305. Where one hath election to claim an Estate by two manner of Conveyances by one Deed C. 16 17 128. Covenant to stand seised of Lands in S. of the yearly value of 40 l. who hath the election C. 27. Cannot be transferred over to the prejudice of another C. 154. Elegit Vide Extent and Execution If after Elegit retorned that the Lands are already in Extent the Plaintiff may have a Capias A. 176. If it be executed but not retorned Quid operatur A. 280. B. 12 13 49 50. Granted against an Executor upon Devastavit retorned B. 188. Lessee for years may pay his Rent to the Plaintiff before Suit C. 113. Embleament If Conusee of a Statute or Recognizance or the Conusor shall have the Corn sowed B. 54. Entry Estraying of Beasts sua sponte no Entry A. 110. What Act is an Entry what not A. 209 210. Entry of him who claims by Devise or Condition broken where not taken away by a descent A. 191 209 210. Semble cont B. 147. An Heir may bring an Action for Nusance without Entry A. 273. Husband Leases the Land of his Wife Tenant in Tail and dies the Feme must enter before she make Leases A. 122. In what case Cestuy que Use is put to his Entry A. 258. By death of Tenant in Tail without Issue the Freehold vests in him in Remainder without Entry A. 268. Where Trespass is maintainable without Entry A. 302. B. 47 97 98 137. Where the Entry of him in Remainder upon forfeiture of Tenant for life is lawful B. 61 62 63. The Patentee of the King must enter where there is an Intruder B. 147 148. The Lessee levies a Fine to the use of himself and his Heirs if he may re-enter without Attornment C. 103. Disseisee must re-enter before he can licence one to put in Cattle C. 144. He in Remainder after the death of Cestuy que vie may bring Trespass without Entry G. 152 153. By entry of a Stranger upon the Kings Farmer he who enters hath gained the Term of the Farmer C. 206. He who hath an under Lease in Reversion of part of the Term from a Lessee of a greater Term cannot enter to defeat the former Estate but the Lessee may C. 269. Two Tenants may plead several Tenancy in this Action B. 8. What is demandable in a Writ of Entry A. 169. Entry sur disseisin in London C. 148. Error Upon a Bill of Intrusion in the Exchequer A. 9. B. 194. By Journies accompts in a real Action against an Heir upon the death of his Ancestor Quaere A. 22. Judgment for the Defendant reversed and Judgment given pro quer ' A. 33. Of an Assise A. 55 255. Where it lies of a Judgment in Ireland A. 55. C. 159. Lies not in the Common Bench A. 55 159. Nor upon the first Judgment in Trespass or Account A. 193 194 309. B. â—68 What Heir shall have it to reverse a Recovery A. 261. 291. Of a Quid juris clamat A. 290. Upon a Judgment in a Writ of Disceit A. 293. Who must joyn or sever in Error in the realty A. 293 294 317. It is Error in a Judgment in an Inferior Court if no Plaint be A. 302. To reverse a Fine for Infancy and reversed in part A. 317. By an Executor to reverse an Uâ—lary in Felony against their Testator A. 326. Where by reversal of one Record another is annulled A. 325 326. A second Writ of Error in nature of Diminution to remove part of a Record B. 2 3. De recordo quod coram vobis residet B. 2 3. C. 107. The principal shall have no Writ of Error upon the Judgment against the Bail B. 4. In fact viz. the death or infancy of one of the Defendants after Verdict upon a Judgment in the Kings Bench B. 54. C. 96. Upon a Judgment in the Exchequer by whom allowed B. 59. Lies of a Judgment in London Sessions upon an Indictmenr B. 107. If Error lies against the Queen unless the party petition for the Writ B. 194. Upon a Judgment in a Scire facias in the Chancery of Chester B. 194. There must be two Writs to reverse two Fines B. 211. If in such case the one Fine may be pleaded to the one Writ and the other Fine to the other Writ B. 211. If upon a Writ of Error of Fine the Plaintiff is non-suit a Stranger may have a Writ de recordo quod coram vobis residet C. 107. Commission to three Judges to examine a Judgment which was given in London and reversed in the Hustings there in Assise of Fresh-force C. 169. If the Bishop who pleads that he hath nothing but as Ordinary must joyn in the Writ of Error upon a Quare Impedit C. 176. He who disclaims shall not have Error C. 176. Escape Lyeth against the Sheriff although the Execution might be avoided by Audita Quereia or Error A. 3. B. 93 86. In what case a Vill shall be amerced for the escape of a Felon A. 107 C. 207. The Sheriff lets one escape whom he took by Cap. Utla when he had a Capias
of the said Lands A. brought an Action of Covenant The Defendant pleaded That before the day of payment the Plaintiff put the said B. out of his Farm It was moved by Godfrey That the same is no plea For this is a Collateral sum and not for Rent issuing out of the Land Also the Defendant is a stranger to the Contract for the Farm. But the Opinion of the whole Court was clear to the contrary For the Defendant hath Covenanted That the Lessee shall pay for the said Farm and Occupation 40 l. so as it is as a Conditional Covenant and here is Quid pro quo and here the Consideration upon which the Covenant is conceived scil the Farm and the Occupation of it is taken away by the Act of the Plaintiff himself and therefore the plea is good and the Action will not lie CCVII. The Archbishop of York and Morton's Case Pasch 29 Eliz. In the Common Pleas. THe Archbishop of York recovered in an Assise of Novel Disseisio against one Morton before the Iustices of Assise 1 Len. 55. upon which Iudgment Morton brought a Writ of Error retornable before the Iustices of the Common Pleas And after many Motions at the Bar it was adjudged That a Writ of Error upon such Iudgment doth not lie in the said Court. Which see 8 Eliz. Dyer 250. See also N. B. 22. e. That upon Erroneous Iudgment given in the King Bench in Ireland Error shall be in the Kings Bench in England 15 E. 3. Error 72. And Fenner who was of Counsel with the Archbishop demanded of the Court How and in what manner the Record shall be sent back to the Iustices of Assise so as the said Archbishop might have Execution To which the Court answered That the surest way is to have a Certiorari out of the Chancery into the Common Pleas directed to the Iudges there and then out of the Chancery by a Mittimus to the Iustices of Assise But Fenner made a doubt to take such Course for such remanding Then Anderson Chief Iustice said Sue Execution out of the said Record for in as much as the Record came before us by Writ of Error it shall also be removed and sent back by Writ And so it was done CCVIII The Queen and Hurleston's Case Hill. 29 Eliz. In the Kings Bench. 2 Len. 194. THe Queen brought a Scire facias against Hurleston to Repeal a Patent made to him of the Constableship of Chester and Iudgment was given for the Queen And now Hurleston brought a Writ of Error against the Queen in the Kings Bench. And it was moved by Gawdy Serjeant That the Writ did not lie for the manner for that he ought first to have sued to the Queen by Petition See 22 E. 3. 3. 23 E. 3. Fitz. Error 9. If the King recover by an Erronious Iudgment a Writ of Error cannot be granted upon such a Recovery sine gratia Regis speciali And he said That in Chester they have Courts of Common Pleas Kings Bench Exchequer and Chancery And that if Iudgment Erronious be given in the Chancery at Westminster It cannot be reversed but by Parliament and so it is of an Erronious Iudgment given in the Chancery at Chester Also he said They have a Custom in London That within one month they may reverse their own Iudgment See 23 Eliz. Dyer 376. Erronious Iudgment given in the 5 Ports cannot be reversed in the King Bench but it is reversable in the Court of the Guardian of the 5 Ports Clench Here both the parties claim by the Queen therefore there needeth no Petition for valeat quantum valere poterit it is no prejudice to the Queen Cook There needs no Petition here for the Attorny General hath subscribed our Writ of Error Egerton Sollicitor General It was the Case of Eliz. Mordant who was to reverse a Fine levied during her Nonage and the proceedings were stayed because she had not sued to the Qeen by Petition See the Case of 24 E. 3. 35. the Case of William de Ingularby who sued to reverse a Iudgment given against him in a Writ of Conspiracy in the Eyre of Derby and there it was said by Thorp Iustice That he must first sue to the King by Petition Wray An Outlawry may be reversed by bringing a Writ of Error without suing Petition to the King. CCIX. Beckwith's Case Hill. 29 Eliz. In the Common Pleas. 5 Co. 19. ROger Beckwich by Indenture Tripartite between him of the first part William Vavasour Frances Slingsby and Elizabeth Sister of Roger of the second part George Harvey and Frances Wife of the said George the said Frances being another of the Sisters of the said Roger of the third part Covenant with the aforesaid William Vavasour and Frances Vavasour his Daughter and with the aforesaid George and Frances cum quolibet qualibet eorum That the said Roger at the sealing and delivery of the said Indenture was lawfully and solely seised of the Rectory of Aldingfleet in the County of York discharged of all Incumbrances Francis Vavasour took to Wife Frances Slingsby And Note That by the same Indenture Roger Beckwith Conveyed the said Rectory to the said Francis Vavasour Francis Slingsby and Frances his Wife brought an Action of Covenant against the said Roger Beckwith and assigned the Breach in this That the said Roger was not seised of the said Rectory And Note That the Plaintiff declared of an Indenture bearing date at the Castle of York And upon the breach of the Covenant they were at Issue which was found for the Plaintiff and damages assessed and Iudgment given for the Plaintiff And Note That the Venire facias was de Vicineto Castri de York And upon that Iudgment a Writ of Error was brought in the Exchequer upon the new Statute and Error was assigned because all the Covenanters ought to have joyned in the Action of Covenant notwithstanding those words cum quolibet cum qualibet which words do not make the Covenant to be several And for that cause the Iudgment was Reversed Another Error was assigned because the Issue is not well and duly tryed For the Issue is upon the seisin of the Rectory of Aldingfleet in which case the Venire facias ought to have been de Vicineto de Aldingfleet And of that Opinion was Manwood and Anderson Iustices CCX Young and Ashburnsham's Case Hill. 29 Eliz. In the Common Pleas. IN an Action of Debt brought by the Administrators of Young against Ashburnham The Defendant pleaded Nihil debet And the Enquest was taken by default And upon the Evidence given for the Plaintiff the Case appeared to be this That the said Young was an Innholder in a great Town in the County of Sussex where the Sessions used to be holden And that the Defendant was a Gentleman of Quality in the Country there And he in going to the Sessions used to lodge in the house of the said Young and there took his lodging
and have day to plead CCXX Dicksey and Spencer's Case Mich. 29 Eliz. In the Common Pleas. THe Case between Dicksey and Spencer see H. 29 Eliz. Notwithstanding the Opinion of the Court of Common Pleas The Mayor and Aldermen of London reversed the Iudgment given in an Assise of Freshforce Vpon which Dicksey sued a Commission directed to Anderson Manwood and Periam to examine the said Iudgment ad errorem corrigendum And the Case was often Argued The principal matter was That Lessee for years in an Action of Debt brought against him for the Rent reserved claimed Fee by bargain and sale of his Lessor the which bargain and sale the Plaintiff traversed And it was argued Because this bargain and sale was traversed there was not any forfeiture in the Case for upon that both parties are at large As in a Praecipe quod reddat The Tenant disclaims and the Demandant avers him Tenant he shall not enter for that Disclaimer But all the three Iustices were clear of Opinion That notwithstanding the Traverse it is a forfeiture for the very claim is a forfeiture which cannot be saved by matter subsequent See 9 H. 5. 14. If Tenant for life be impleaded in a Writ of Right and joyns the Mise upon the meer Right it is a forfeiture Another Error was assigned Because where it is found that both the Defendants Disseisiverunt the Plaintiff but Spencer only with force and the Iudgment in the Assise of Freshforce was that ambo Capiantur where no force is found in Clark one of them yet such a Iudgment is good enough For the Assise have found a Ioynt Disseisin and that Clark was present at the said Force and then he particeps Criminis And of that Opinion were all the 3 Iustices And it way Objected That forasmuch as Clark is Convicted of force upon the matter for both ought to be taken therefore the Damages ought to be trebled against both And the Court was in some doubt of that But clearly the Incrementum shall be trebled as well as the Damages taxed by the Assise And after many Arguments the said Iustices moved the parties to a friendly course to compound the matter For if we reverse the Iudgment given in the Hustings Then Spencer may have his Writ of Error upon the Iudgment in the Assise of Freshforce sic infinite And afterwards the parties put themselves to the Mediation and Order of the said 3 Iustices who at length made an end of the matter betwixt the said parties CCXXI The Lady Newman and Shyriff's Case Mich. 29 Eliz. In the Star-Chamber 4 Len. 25. THe Lady Newman Sister of James Wingfield lately deceased Exhibited a Bill of Complaint in the Star-Chamber against one Shyriff dwelling in Ireland and two others setting forth That the said Shyriff had forged a Deed purporting That the said James had by the same given to him all his goods and also that the said James had assigned to the said Shyriff a Lease for years of Lands in Ireland And also that the said Shyriff had procured the said two other Defendants to depose upon their Oath before the Town-Clerk of London That the said Deed was sealed and delivered by the said James as his Deed. It was moved by the Counsel of the Defendant's That these matters of Forgery are not within the Statute of 5 Eliz. nor also the Perjury or the procurement of it Whereupon the Lords of the Council referred the Consideration of the said Statute to both the Chief Iustices who the next Court-day declared their Opinions upon the said Matters 1. That the said Statute did not extend to forgery of a Deed conveying a gift of Chattels personals Which see by the Statute which as to that point extends but to Obligations Bills Obligatory Acquittance Release or other discharge And also a Deed of an Assignment of a Lease of Land in Ireland is not within the said Statute And also the said Iustices were of Opinion That this Perjury and the procurement of it is not punishable by the said Statute because the Oath was taken Coram non Judice For the Town-Clerk of London cannot minister an Oath in such case no more than a private person But because the Bill in the perclose and Conclusion of it was contrary to the Laws and Statutes of this Realm The said Chief Iustices were of Opinion That the said Court might punish those offences as misdemeanors at the Common Law but not according to the Statute And afterwards Shyriff paid for a Fine 3 l. and by Order of the Court was set in the Pillory CCXXII Middlemore's Case Mich. 29 Eliz. In the Kings Bench. MIddlemore brought an Action upon the Case for these words scil Middlemore is a Cosening Knave for he had me to Coventry and there cosened me of 40 s. And afterwards had Iudgment to recover And now the Defendant brought a Writ of Error in the Exchequer-Chamber and there the Opinion of the whole Court was That the said words were not actionable And the Case of one Egerton was remembred Thou art a Cosening Knave Coroner For thou hast Cosened me of my Land. The Plaintiff in that Case could not have Iudgment For he was not particularly charged in respect of his Office. And Note That in this Case of Error the Defendant pleaded an Outlawry in the Plaintiff and being barred in that he pleaded now an Excommengement in the Plaintiff and shewed the Letters of Excommunication Vpon which it appeared That the Plea was pleaded before the Outlawry was pleaded And it was Ruled by the whole Court That this Plea lieth not for the Defendant For he cannot have two Pleas to the person of the Plaintiff but where his second Plea is matter of later time since the first Plea And afterwards the said Iudgment was reversed CCXXIII. Barns Executor of the Bishop of Durham and Smith's Case Mich. 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of Durham 2 Len. 21. brought Debt for Arrearages of Rent reserved upon a Lease for years of certain Mines demised to Smith scil Mines called Argill and Mines called Greenbourn and it was against the Executors of Smith The Defendant pleaded as to parcel Non detinet and as to other parcel of the Arrears That in the Indenture of demise there is a Covenant Quod si contigerit that the said Lessee impeditus fuerit quominus Mineris praedict gaudere possit That then so much of Rent should be deducted amounting to the value of the Mines he could not enjoy c. And pleads in facto quod impeditus fuit quo minus gaudere potuit Mineris praedictis c. And it was found for the Plaintiff And it was moved by Cook in arrest of Iudgment That here is not any place shewed where these Mines were so as Non constat from what place the Visne shall come As if in an Action as here the Plaintiff Declares of a Lease made of Land called R. in
Land as it might be Leased And so it is where the Sheriff retorns Issues c. for the Corn there growing may be of the value of 40 l. where the Land is but of the value of 10 l. CCXXV. Weshborn and Mordant's Case Mich. 29 Eliz. In the Kings Bench. 2 Len. 103. 1 Cro. 191.199 1 Len. 247. IN an Action upon the Case the Plaintiff declared That whereas he was possessed of a piece of Land containing 2 Acres called Parsonage lying adjoyning to a certain River from the 20th of May 29 Eliz. usque diem impetrationis istius Brevis c. the Defendant had the said 20th day of May estopped the said River with certain Loads of Earth and so continued estopped until the 14th of February by reason of which his Land was drowned and so he had lost the profit of it for the said time It was moved in Arrest of Iudgment That upon the Declaration it doth not appear that there is any cause of Action for the Plaintiff hath made title to the Land drowned from the 20th day so as that day is excluded and the Nusance is laid to be done the said 20th day and if so then he cannot complain of any wrong the Nusance being laid to be before any possession of the Plaintiff To which it was answered That although the stopping was made before the possession yet the Continuance of it after is a new wrong for which an Action lieth As 5 H. 7. 4. It was presented That an Abbot had not cleansed his Ditch c. by reason of which the Highway is estopped The Successor shall be put to Answer to that Indictment by reason of the Continuance of it See that continuance of a Nusance is Quasi a new Nusance 14 15 Eliz. Dyer 320. And it may be that the Plaintiff was not damnified until a long time after the 20th of May scil after the Estopping and the words of the Writ here are satisfied and true Afterwards Iudgment was given for the Plaintiff CCXXVI The Queen and Scot's Case Mich. 29 Eliz. In the Common Pleas. THe Queen brought a Quare Impedit against the Bishop of London and Scot And the Case was 1 Len. 40. A. seised of an Advowson in gross holden of the Queen in Chief aliened the same by Fine without Licence of the King The Church became void The Conusee presented the Queen without Office found brought a Quare Impedit The Question was If the Queen without Office found should present It was agreed by the whole Court That if the alienation had been by Deed only there the Queen without Office should not have the presentment For upon such alienation by matter in fait without Licence no Scire facias shall issue without Office found of the alienation But upon Alienation without Licence by matter of Record a Scire facias lieth before Office. And in the last Case the Queen shall have the Issues from the time of the Scire facias retorned but in the first Case from the time of the Office found See Stam. Prerogat see 8 E 4. 4. It was then moved That if the Queen being entituled to present ut supra pardon the Conusee all alienations without Licence and Intrusions If the Estate of the Incumbent thereby be confirmed But the Court would not argue that Point CCXXVII Sir Thomas Holland and Bonis's Case Mich. 29 Eliz. In the Common Pleas. IN a Replevin 1 Len. 183. 2 Len. 12. Owen Rep. 138 139 the Defendant made Conusans as Baily to Tho. Lord Howard and shewed That the Prioress of the late dissolved Priory of Hallywell was seised of the Mannor of Priors in the County of Hertford and granted the same by words of Dedi concessi pro certa pecuniae summa to the Lord Audley Chancellor of England and his Heirs who died thereof seised and that the said Mannor inter alia descended to Mary Daughter and Heir of the said Tho. Lord Audley who died thereof seised by force of which the said Mannor descended to the said Tho. Lord Howard c. And shewed That the Conveyance by the Prioress bore date 4. Novemb. 29 H. 8. and then enrolled in the Chancery The Plaintiff in bar of the said Conusans shewed That after the making and inrolling of the said Conveyance the said Prioress Leased the Lands to Sir Hen. Parker for 99 years and conveyed the said Lands to himself and further shewed That the said Conveyance specified in the Conusans fuit primo deliberatum 4. November 31 H. 8. without that that the said Prioress the said 4. Novemb. 29 H. 8. dedit concessit the said Mannor to the said Lord Audley Vpon which it was demurred And it was the clear Opinion of the Court That the Averment de primo deliberatum against a Deed enrolled ought not to be received For by the same reason it might be averred Nunquam deliberatum and so upon the matter Non est factum It was further Objected That a Bargain and Sale by a Corporation is not good For a Corporation cannot be seised to another's use and the nature of such a Conveyance is to take effect by way of use in the bargain and afterwards the Statute draws the possession to the use But the Court utterly rejected the said Exception as dangerous for that such were the Conveyances of the greater part of the possessions of Monasteries And it was in this Case said by Shuttleworth Serjeant That although such a Corporation could not take an Estate to another's use yet they might charge their own possessions with an use to another CCXXVIII The Queen and the Bishop of Gloucester's Case Trin. 29 Eliz. In the Kings Bench. THe Queen recovered in a Quare Impedit against the Bishop of Gloucester and one S. in which Quare Impedit the Bishop pleaded as Ordinary scil Quod ipse nihil habet nec habere clamat in Ecclesia praedict neq in Advocatione ejusdem nisi Admissionem Institutionem c. And now the Bishop and S. the Incumbent brought a Writ of Error And If this Writ of Error brought joyntly by the Bishop and the Incumbent was well brought was the Question Some held That the Bishop had not cause to bring Error for that he had disclaimed in the Church and the Patronage of it For if in a Praecipe quod reddat the Tenant disclaims he shall never have a Writ of Error 16 E. 3. 7. Fitz. Error 78. And Note That in the Writ of Error at the Bar the perclose was Ad grave damnum Episcopi whereas the Bishop could not be grieved by the said Iudgment because he had nothing nor claimed any thing in the Church c. Wray The Writ of Error had been the better if those words ad grave damnum Episcopi had been left out for the Bishop hath lost nothing And it was Objected by some If the Iudgment in this Case be reversed the usual Iudgment cannot be given scil That the Bishop shall be restored to
returned the Court cannot mitigate the damages p. 150 A second Writ of enquiry of damages where not grantable p. 177 The Plaintiff in Replevin is Non-suit the Court may assess damages without a Writ of Enquiry p. 213 Debt Lachess in pleading it where turn to his prejudice p. 63 Against the Heir a general judgment shall be given in it against him by reason of his false Plea p. 70 Lyeth not by an Inn-keeper for Dyet and Lodging in the Inn where there is not a price agreed for it certain p. 161 Where must be in the Debet where in the Detinet and of what p. 206 260 Declaration In Trespass against the Defendant Simul cum J.S. Out-lawed ad Sectam Querentis not good p. 202 Where void for the incertainty of the thing demanded by it p. 228 Deeds Of Assignment made to the King out of Term upon a day in Term which is not dies juridicus if good p. 146 Demurrer Difference between drawing up of a Demurrer upon a Plea and upon a Challenge p. 222 Deprivation Where pleadable specially where generally p. 199 Devastavit Executor of an Enfant not charged with a Devastavit made by the Executor of the first Testator p. 241 Devises Construction of them p. 25 181 Words equally divided in it amount to a Tenancy in Common p. 19 Of Rent of Lands towards education of the Son how to be expounded p. 65 Made good by Averment p. 79 Where void by the Statute of 32 H. 8. p. 105 That his Sons in Law shall sell his Lands how to be construed p. 106 Of a possibility where not good nor shall go to Executors p. 195 Of a Messuage cum pertinentiis the Curtilage and Garden passeth p. 214 Distress Upon the Glebe-Lands for Tenths and First-Fruits and where the Lessee of the Cattel shall be distrained for the same p. 259 E. EJectione Firmae De uno Cubiculo good p. 210 Election Where not transferrable over p. 211 Where the Party hath election to take by Grant or Confirmation p. 127 Entry Of a Stranger upon the Farmer of the Kings Lessee for years he hath gained the Term p. 206 Error Matter not within the Record not to be assigned for Error p. 96 If it lieth to reverse a Judgment given for the King without a Petition first sued p. 155 Lieth to reverse a Judgmene in Covenant because all the Covenanters joyned not in the Action though the Covenant was in quolibet qualibet p. 161 Where lieth not in C. B. upon a recovery had before Justices of Assise p. 159 Eviction Where a Decree in Chancery shall not be said a lawful Eviction by which a Condition shall be broken p. 71 Evidence In a Writ of Right the Tenant shall begin to give Evidence because he is in the affirmative p. 162 Evidence given where shall conclude the Party but not the Jurors ad dicendam veritatem p. 209 Executors Where their Distress for the Arrearages of a Rent Charge is good by the Statute of 32 H. 8. of Rents p. 263 Where they might satisfie Debts due upon Judgments before Debts due upon Statutes or otherwise p. 271 Executions Sued forth upon a Statute to A. shall be served before a private Statute to B. though the Statute to B. be assigned to the King p. 239 240 By Capias ad Satisfaciendum sued out within the year though not prosecuted for two or three years after together yet the Party may proceed upon it without a Scire Facias p. 259 Debt is recovered by an Administrator durante minore aetate and Execution had and when the Executor comes of age how the Party shall be discharged p. 278 F. FEoffments Livery and Seisin made by Attorny where good to pass the Lands where not p. 37 Of a Mannor An Advowson Appendant shall pass but not the Services if there be no Attornment p. 193 To divers Persons to the use of his Will and afterwards wills the Feoffees shall stand seised till they have levied 100 l. good although in Feoffees at the time of the Devise p. 262 Fines levied Upon a Release not enure to an use p. 36 Where shall make a discontinuance where not p. 74 Where a Bar where not p. 74 Remainder is limited in tail to J. S. and the Heirs of his Body to begin after the death of the Tenant for life If a Fine be levied by him with Proclamation in the life of the Tenant for life shall bar the Issue p. 211 Where a Bar to a Woman in Dower because she pursued not her Claim within five years p. 221 Forfeiture What shall be a forfeiture within the Statute of 11 H. 7. Lessee for years in debt for rent claimed fee by bargain and sale of his Lessor which was traversed by the Lessor yet a forfeiture p. 169 Forprise Where needful to be mentioned where not p. 93 G. GRants of the King p. 10 Void because the King is deceived in them p. 5 119 Not to enure to a double intent p. 75 By the King of Bona Catalla felonum utlagatorum yet the King shall have the Goods of Felo de se p. 113 Where the Church is void by the grant of the King of the Mannor with the Advowson appendant the Advowson shall not pass p. 196 Of Fines pro licentia concordandi doth not extend to Post-Fines p. 234 How to be construed p. 242 to 253 Grants of common persons Where shall enure by way of confirmation Of all Goods and Chattels passeth a Lease for years Restrained and not to extend to things in future p. 29 Of the Office of Register by a Bishop where good where not p. 30 Of a Rent-charge out of his Lands after J. S. dies without issue of his body J.S. dies having issue which issue dies without issue if a good Grant p. 103 Where the mistaking and misrecital in them shall not make void their Grants p. 136 H. HAbeas Corpus Where granted for one committed to the Marshalsey by the Chamberlain of the Houshold one of the Privy Council p. 194 Heir Where he shall be adjudged in by descent notwithstanding a Devise to him p. 118 Of a Copyholder within age not bound to come to any Court during his Non-age to pray admittance or render a Fine p. 221 I. INdictments Upon the Statute of 8 H. 6. Quare Intravit in unum Tenementum not good for the incertainty but if a Tenementum with divers Acres good for the Acres p. 102 Certified and found to be taken before Justices of Assise and Goal-delivery where not good p. 216 Upon the Statute of 5 El. of Perjury question'd because it wanted the word voluntary p. 230 Against three persons for extortion that they colore officiorum suorum had malitiously extorted excessive Fees good though their offences were several p. 268 Informations Upon the Statute of 5 Eliz. cap. for cutting down of Trees being a penal Law how to be expounded p. 104 Of intrusion upon the Possession of the King
Middlesex may inquire by inquest of Office of the Customs in London C. 127. Inrollments If a Lease enrolled be lost the Jur. is not of any effect A. 329. Where a Deed may operate both by the Statute of Inrollment and of Uses C. 16. What is a good Plea against a Deed enrolled A. 183 184 B. 121. How the time is accompted for the six Months A. 183 184. If it be enrolled non refert if it were acknowledged C. 84. How a Corporation must acknowledge a Deed C. 84. Intendment Where two several quantities of Acres shall not be intended all one A. 44. Where the intent of a Man is traversable ib. 50. Where issuable B. 215. Where and how the Law construes the Intent of one who enters in Land A. 127. Where mentioning a Rent of 8 l. and after saying 8 l. Rent is intended the same Rent without the word praedict ' A. 173. How far the Law takes matters by Intendment in Wills Deeds c. A. 204 210 211. St. Martins and St. Michaels day what Feasts by Intendment A. 241. Where want of an Averment is aided by Intendment A. 281. C. 42 43. Where Baron and Feme are vouched it is intended to be in right of the Feme A. 291. If a Service be reserved according to the value of the Land it is intended the then present value B. 117. C. 114. Seisin in Fee is intended to continue until the contrary appear C. 42 43 96. Intrusion Bar therein by Grant of the King A. 9. Into the Rectory and receiving the Tithes A. 48. Disceit is no Bar therein for nullum tempus occurrit Regi B. 31 32. The Information is prout patet per recorda If the Defendant plead a Title If he need to traverse nul tiel record B. 30 31. If every continuance is a new Intrusion where the first Entry was lawful B. 206 207. Joynt-Tenants and Tenants in Common One Joynt-Tenant of the next avoidance to a Church Ecclesia vacante releases to his Companion nihil operatur A. 167. Cannot sue one the other in Trespass for their Lands A. 174. C. 228 229. Where two shall be Joynt-Tenants or Tenants in Common of an Estate tail A. 213 214. Two Joynt-Tenants are disleised by two to one of whom one Joynt-Tenant releaseth the other enters he is Tenant in Common to the Relessee A. 264. One Joynt-Tenant cannot grant to or enfeoff his Companion A. 283. If a Joynt-Tenant and a Tenant in Common may joyn in debt for Rent and make a general Count where one is to have a greater share B. 112. Devise to two to be equally divided if it be an Estate in Common or a Joynt B. 129. C. 9. If one Joynt-Tenant accept a Lease of the Land from his Companion he is estopt to claim by Survivor B. 159. Pleading of Joynt-Tenancy in abatement by Fine or Deed Stat. 34 E. 1. 8. B. 161 162. Joynder en Action Action Plea. Three Tenants in a Praecipe cannot vouch severally A. 116. Two Defendants justifie severally and the Plaintiff says joyntly de injuriis suis propr ' c. and good A. 124. Tenant for life and he in remainder in tail joyn in prescription A. 177. Where two Joynt-Tenants or Tenants in Common shall joyn in one Formedon A. 213 214. In what real Actions who shall joyn or sever A. 293 294 317. In a Writ of Error the like A. 293 294. Who shall joyn in a Writ of Error or in Conspiracy or Attaint A. 317. Three joyn in Action upon the Statute of Hue-and-Cry and adjudged good Quod est mirum A. 12. Covenant to two quolibet eorum both must joyn B. 47. C. 161. If one is obliged to account to three he may do it to any one B. 75 76. Debt upon a Judgment against three cannot be brought against one only B. 220. Two Infants Joynt-Tenants cannot joyn in a Dum fuit infra aetatem C. 255. Ioynture What alienation of a Feme of her Joynture is within the Statute 11 H. 7. 20. A. 261 262. Iourneys Accompts If Error lies for the Heir upon death of his Ancestor by Journeys Accounts Quaere A. 22. Issues joyn One joynt replication de injuriis suis propriis to two justifications adjudged good A. 124. Is called in the Civil Law Lis contestata A. 278. If an Advowson be appendant or in gross A. 323. How it shall be joyned upon pleading Ancient Demesne A. 333. Upon special Bastardy A. 335. Issue in an Inferior Court triable out of their Jurisdiction not triable in the Courts at Westm B. 37. Mis-joyn for that the Plaintiff in Covenant altered a word from the Covenant B. 116. In Replevin upon absque hoc that he took them as Bailiff B. 215. Iudgment Upon the Defendant rendring himself in discharge of his Bail A. 58. The Defendant pleads a frivolous Plea which is found for the Plaintiff Judgment shall be entred as by Nihil dicit Nullo habito respectu c. A. 68. In a Sur cui in vita for part of the Messuage demanded A. 152. In Ejectment Quod quer recuperet possessionem is as good as Termin A. 175. Quod Capiatur well enough although pardoned by Act of Oblivion A. 167 300. Shall not be for the Plaintiff if by the Record it appears the Plaintiff hath no cause of Action or that the Action is brought before the Debt due A. 186 187. B. 99 100. C. 86 87. Entred as of a day past where the Defendant dies while after Verdict the Court takes time to consult of the Law A. 187. In what cases the Judges may give Judgment by sight of an Almanack A. 242. Judgment for the Plaintiff in Trespass although the Defendant died before the Writ of Inquiry returned A. 236. In Forcible Entry for treble Costs and Damages A. 282. Nihil de fine qui a pardonatur not good because the Defendant does not plead the Pardon A. 300 301. In Trespass or Case may be arrested after the first Judgment A. 309. Arrest of Judgment shewed in writing in the Exchequer B. 40. Judgment final upon a Verdict in a Counter-plea in Aid B. 52. Where it shall be reversed in part or in all B. 177 178. Against the Heir where his Plea is found against him is general against all Lands C. 3. Iurisdiction The Spiritual Court hath Jurisdiction where right of Tithes comes in question between two Parsons A. 59. In what Cases the Spiritual Court may have Jurisdiction for Slanders B. 53. If the Court hath not Jurisdiction of the Action all is void but other faults make the proceedings only voidable B. 89. One cannot plead to the Jurisdiction of the Court after Imparlance C. 214 215. Iour in Court dies Iuridicus What things may be done upon day extrajudicial B. 206 207. Iustices and Iudges Whether Justice of Peace in a Vill may be by Prescription A. 106. In what Inferior Courts who are Judges A. 217 228 242 316. B. 34. If a Judge may take
For an amerciament for not appearing at a Leet C. 14. If the Plaintiff be nonsuit the Court may assess Damages without a Writ of Inquiry if the Avowry be for Rent C. 213. Reputation The signification of the word in Grants reputat fore parcel A. 15. Request When needful C. 73. In Assumpsit where it must be special A. 118 123 221 287. B. 22 215. C. 73 200 201. The like in Covenant A. 124 125 169. Promise to pay Mony at a certain day No request necessary A. 221. Is traversable in Covenant where the Covenant is to be performed upon Request B. 5. Want thereof where necessary not aided by Verdict B. 117. If a Joynt Request be good of several distinct Contracts C. 206. Resceit The Wife shall not be received if her right be not bound A. 86. Cont. B. 9. One in remainder received although he might falsifie the recovery A. 86. If Tenant for life do not pray to be received he in remainder may do it A. 262. By Executors where the Term was limited to the Testator for life remainder to his Executors for years B. 6. Stat. W. 2. c. 3. 13 R. 2. of Resceit B. 62. Stat. Glouc. of Resceit of Tenant for years B. 65. C. 169. In what cases the Tenant by Receit shall have day to plead or plead presently C. 168 169. Upon Resceit of one for a moiety the Plaintiff shall not have Judgment for a moiety C. 169. Where a Termor prays to be received if he must aver the Writ to be brought against the Tenant by fraud C. 168 169. Restitution Utlary in Felony against the Testator reversed by Error by the Executor and restitution de bonis A. 326. Upon a Forcible Entry he in Reversion shall be restored and then Lessee may enter A. 327. Goods sold by Fieri facias not to be restored if the Judgment be reversed B. 90. Of Goods stolen upon an Utlary in Appeal of Robbery B. 108. Retorn of Sheriffs Upon a Capias pro fine ret Cepi Corpus and upon the Cap. ad satisf ret non est invent and fined for contradictory A. 51. Upon a Writ of Hab. Corp. amended A. 145. Where an Averment shall be against it and for whom where not A. 183 184. Upon Elegit that there was a former Writ executed in the same case if good B. 12 13. What is a good retorn in a Writ of Replevin or retorno habendo B. 67. Upon a Fieri facias against Executors after Verdict upon plene administr the Sheriff cannot retorn nulla bona B. 67. Cont. C. 2. Cannot retorn tarde as to part B. 175. Retraxit Cannot be before a Declaration so as to make a perpetual Bar C. 19. S. Saver de default SIckness is no cause as the fall of a Flood or Imprisonment are C. 2. Scire Facias For the King against his Tenant in Capite for alienation without Licence A. 8. For the King against the Ter-Tenant of one Attainted A. 21. In London ad discutiendâ—m debitum A. 52. For the King to gain a Presentation for that the Patron is utlawed A. 63. For the Tenant by Elegit who was ousted by the King for a Debt against the Defendant to shew cause why the Plaintiff should not have the Land the King being satisfied A. 272. Upon reversal of a Fine or Recovery no restitution before a Scire facias against the Ter-Tenant A. 290. For the King against a Debtor in what case necessary B. 55 56. In what case it may issue out of another Court than where the Record is B. 67. Bail not chargeable by any Custom without a Scire facias B. 30 87. Payment no good Plea unless pleaded by Record B. 213. If an Execution were continued no Scire facias is necessary B. 77 78 87. C. 259. Sea. The Queens Interest therein extends to the midst thereof betwixt England and Spain C. 71. Seal The Kings Privy Seal and the force thereof A. 9. Second Deliverance After Withernam B. 174. C. 235 236. None after Verdict but after Nonsuit at the Nisi Prius it lies C. 49. Seisin What is a sufficient Seisin of Services A. 266. What Actions an Heir may have upon a Seisin in Law without entry A. 273. Servant What is a discharge of one retained pro consilio c. for life or otherwise A. 209. If an Action lies for retaining the Plaintiffs hired Servant A. 240. Services Vide Mannor Severance Lieth in Partition A. 55. And in a Writ of Error where A. 317. In case in the Kings Bench of an Executor B. 112. Sheriff His power in executing a Grand Cap. in Dower A. 92. May make a special Warrant and take an engagement to secure himself for Escapes A. 132. May execute a Fieri facias after the Defendants death A. 144. Where he justifies by an Execution he must plead that he retorned the Writ Secus of a Bailiff A. 144. Caveat how he discharge a Prisoner in a Court unless the cause be legal A. 145. Examined upon Oath about a retorn of an Extent B. 12 13. Must hold Plea in person upon a Justicies not the Under-Sheriff B. 34. Must execute Process without questioning the legality of them B. 84 85 93. Action against the Under-Sheriff for proceeding in an Hundred Court after an Habeas Corpus C. 99. Slander Did procure suborn and bring in false Witnesses adjudged actionable A. 101. Forsworn in the Court of Request adjudged actionable A. 127 128. Taken a false Oath in a Court Christian adjudged actionable A. 131 132. Thou art not the Queens Friend A. 336. Words spoken of a Peer or Bishop may bear Action though they will not if spoken of a common Subject A. 336. Corrupt Man spoken of a Judge or Attorny Ibid. Bankrupt will not bear Action unless the Plaintiff be a Tradesman Ibid. J. S. executes false Warrants spoken of a Bailiff Ibid. Liveth by Witchcraft and Sorcery B. 30. For calling one Witch B. 53. If it lies for calling one a Forsworn Man if no legal Oath was given B. 98. Of Title lies though the words were not spoken to any who was buying the Land B. 112. I will prove F. to be perjured actionable C. 151. You live by swearing and forswearing not actionable C. 163. Cousened me of 40 s. not actionable C. 171. Of Title what lies C. 177. Thou hast forged my Hand Thou art a Forger Thou didst forge a writing not actionable C. 231. He went about to kill me actionable Ibid. He forged my Lord of L's Hand to a Letter against the Bishop of L. for which he was committed not actionable Ibid. Statute-Staple Merchant c. If the Conusors Body be taken and let at large by the assent of the Conusee the Land is thereby discharged A. 230 231. If the Conusor sow the Land the Conusee shall reap B. 54. If Debt lies thereupon B. 112. The Body of a Lord is liable to Execution B. 173 174. Statutes Magna Charta cap. 35. When Leets are to be holden
willed that his Son should have all his Mannors and Lands and should pay his Debts and should give certain sums of Monies for the Marriage Portions of his Daughters And the Question which was moved to the Court was Whether the first part of his Will That is to say That Hurlock and the others should have his Lands c. were void or not by the later words of his Will Dyer Iustice said That the last words of the Will did well expound the meaning of the first words and that the Will should be performed as it might be And afterwards Harper said That upon this matter Hurlock and the others had had a Decree in the Court of Wards to have the whole Lands during the years and not two parts of the Lands only Dyer Iustice said That the Will of Sir Tho. Umpton which was made mean between the Statutes of 32 H. 8. and 34 H. 8. and which is excepted by the same Statute that it should not be construed in other form than according to the first Statute was Of all his Lands And upon a Demurrer argued It was adjudged That the Will was good of two parts although that by the Will it was not divided For where a Man hath a Warrant to do a thing and he doth it and more so as he exceeds his Warrant yet it is good for that part for which it is warranted and void for the rest As if a Man makes a Warrant of Attorny to make Livery and Seisin of the Mannor of Dale and he makes Livery of the Mannors of Dale and Sale it is good for the Mannor of Dale and void for the Mannor of Sale. The Case was in a Writ of Partition And afterwards the Record was removed by a Writ of Error supposing that this Court had Erred and the Iudgment was affirmed by three of the Iustices of the Kings Bench. But because there was a Discontinuance in the Record which was erronious for that the first Iudgment was reversed but not for any other cause And such was the meaning and intent of the Statute of 32 H. 8. before the making of the Statute of 34 H. 8. of Explanation of Wills. And therefore here in the principal Case it was holden That the Will was good for two parts both to the Wife and also to Hurlock and the others And it was holden That by the Intent of the Will that the Son was to pay such sums of Monies a Hurlock was to have paid so as the Will was not for the advantage of the Heir but to be construed according to the meaning of Philpot That if Hurlock could not have the Lands c. that then the Son should have them but with such charge as aforesaid and it was no Intent to subvert the first part of the Will if the same might stand with the Law. And so it was adjudged LVII Mich. 15 Eliz. In the Common Pleas. THe Case was this A Man makes a Lease for 30 years More Rep. 94 Post 55. Winch. Rep. 5. and bargains and sells the Woods in and upon the Premisses to the Lessee and that he might carry them off the Lands during the time of 30 years The Lessee cut down all the Woods and afterwards other Wood grew up from the Stocks and the Lessee cut them also within the Term and the Lessor brought an Action of Waste for cutting of the new Wood. And it was moved by Meade Hob. Rep. 132. Serjeant If the Action of Waste would lie or not Harper Iustice Is the Bargain de bosco subbosco growing in and upon the Premisses Meade No but all his Woods in and upon the Premisses Harper The Grant is in the present tense in praesenti so as he cannot have that which shall grow there after And if he would grant all his Woods which should grow in time to come the Grant should not be good because it is not of a thing in esse And if a Man will grant all his Wood growing upon Black-Acre and there be then no Wood he cannot have any thing although that afterwards Woods grow there and if his meaning had been That he should have the Wood which should there after grow he would have expressed the same in another form Mounson If a Man grants all his Hay growing upon his Land Hob. 132. shall he have that which is growing there after No truly And if he grant all the Wooll which is growing upon his Sheep shall he have more than that which groweth this year Meade No truly But if he had granted all the Wooll growing upon the Sheep for 20 years then the same is like to our case for he hath granted that he may carry the Wooll during the 30 years Harper The same is but a Liberty to fell the Trees which where growing at the time of the Sale and to carry them when he pleaseth and not to give other Trees or Wood which should there after grow LVIII Mich. 15 Eliz. In the Common Pleas. LOvelace Serjeant moved this Case to the Court That an Assise was brought of the Office of Registership in the County of Devon And he shewed How that the Bishop of Exeter granted the Office and shewed the name of the Bishop And that after William Alley Bishop there granted the same Office after the death of the first Grantee to the Plaintiff And further he shewed That the Bishop might grant the Office ad Idoneam personam And because he doth not say in his Plaint That the person to whom it was granted is idonea persona I conceive that the Plaint is not good for if there be no such person which can exercise the Office he shall not have it For that is a Condition which is annexed to the Office that he be a fit person who shall take it And the Prothonotaries of this place ought to have skill in that which appertaineth to their Office For if such an Office should be given to a Courtier who hath not skill in that which appertaineth to the Office nor knowledge how to execute he shall not have it Also he said That he hath not shewed that the first Bishop is dead or that he hath resigned or whether that he be deprived and therefore it shall be intended that he continueth unless the contrary be shewed And then the Grant made by Alley to the Plaintiff cannot be good And for these causes and for others he prayed to know the Opinion of the Court. Dyer Iustice The matter is not before us and wherefore should we give our Opinions to serve the fancy of every person and to resolve the doubts of every Court But if the matter laid come before by Adjournment for difficulty because the Iustices of Assise are of divers Opinions or that they doubted of any thing upon such difficulty and adjournment we use to shew our Opinions and to take some pains to search our Books to Resolve the doubts but when we have not any thing before us
former Lease determined And as to the Attornment it was given in Evidence That B. after the notice of the Grant to C. had speech with C. to have a new Lease from him because he had in his Term but 8 years to come but they could not agree upon the price And it was the Opinion of the Iustices That the same was an Attornment because he had admitted the said C. to have power to make to him a new Lease Also the said B. being in Company with one R. and seeing the said C. coming towards him said to the said R. See my Landlord meaning the said C. Bromley Sollicitor The same is no Attornment being spoken to a Stranger Barham contrary Because that C. was present And it was holden to be a good Attornment But if that Attornment was not before that the Bishop was translated to Winchester the Lease should be void And although the Confirmation of the Dean and Chapter was before the Attornment so as no Estate was vested in C. yet it was good enough For an assent of the Dean and Chapter is sufficient be it before or after as it was holden by Catline Southcote and Whiddon But Wray contrary XCI Norwich and Norwich's Case Trin. 18 Eliz. In the Kings Bench. HEnry Norwich was bound by Obligation to Symon Norwich upon Condition To stand to the Award of J.S. who awarded That the said Henry should pay to Symon 150 l. at such a day And that the said Henry should find 3 Sureties to be bounden with him to the said Symon for the payment of another sum of Mony to the said Symon In Debt upon this Obligation Henry pleaded As to the 150 l. payment and as to the other point That he was always ready to become bounden c. And as to the finding of Sureties he demanded Iudgment for that as to that the Arbitrament is void See 22 H. 6. 45. 17 E. 4. 5. 21 E. 4. 75. It was holden That in such a case of such Award to find Sureties the Defendant is not to find Sureties but is only to tender his Obligation And of that Opinion was the whole Court Because it was an Act to be done by a stranger to the Award But if the Award had been of an Act to be done to a stranger by him who was party to the Award then the Award had been good But if the stranger will not accept of the Monies awarded his Obligation is saved So if the Award be That one of the parties to the Award shall discontinue a Suit which he hath against another If the Court where the Action is depending will not suffer the discontinuance of it the Award is performed And in the principal Case It was ruled accordingly Note The same day another Case was in the same Court Between Dudley and Mallery The Condition was to perform an Award c. The Defendant pleaded performance of the Award The Plaintiff assigned the breach of the Award in this because the Award was That the Servant of Mallery should pay to the Servant of Dudley 5 l. which the Defendant had not paid It was the Opinion of the Court That the Bond was not forfeited for the Servants utriusque are strangers to the Submission But if the Award had been That Mallery should pay to the Servant of Dudley 5 l. it had been good for that Mallery is a party to the Submission c. XCII Rivers and Pudsey's Case Hill. 19 Eliz. In the Kings Bench. JOhn Rivers Alderman of London brought a Writ of Accompt against Pudsey who said That at the time c. and now he is the Plaintiffs Apprentice and demanded Iudgment c. And it was holden by Wray Iustice That it is no Plea for although an Apprentice cannot be charged by this Action for ordinary Receipts upon his Masters Trade yet upon collateral Receipts which do not concern the ordinary Trade of his Master he shall be charged as well as another See 8 E. 3. tit Acc. 94. And F.N.B. 119. XCIII Potkins Case Hill. 19 Eliz. In the Kings Bench. IN Debt upon an Obligation by Potkin The Defendant pleaded That he himself borrowed of one Watson a certain sum of Mony paying for the forbearance thereof excessive Vsury And that the Plaintiff was bound with the said Defendant to the said Watson for the payment thereof and that he himself by this Obligation upon which the Action is brought was bound to the said Plaintiff to save him harmless against the said Watson c. And because that this Bond was a Counter-Bond for the payment of Excessive Vsury c. And it was holden by Manwood That the same was a good Bar for here the Plaintiff when he was impleaded upon the principal Bond might have discharged himself upon this matter and therefore his Lachess shall turn to his prejudice and therefore the Issue was joyned upon the excessive Vsury XCIV Abrahall and Nurse's Case Hill. 19 Eliz. In the Common Pleas. JOhn Abrahall brought a Writ of Right-Close against John Nurse in the Court of George Earl of Shrewsbury and made protestation to prosecute that Writ in the form and nature of the Writ of the Lady the Queen of Assise of Novel disseisin at the Common-Law and made his Plaint accordingly And afterwards the Assise was taken who spake for the Plaintiff Whereupon Abrahall had Iudgment to recover After which Nurse brought a Writ of False Judgment and assigned Error in this That whereas the said Writ of Right-Close was directed to the Bailiffs of George Earl of Shrewsbury of his Mannor c. that the said Bailiffs should do full Right c. that it appeareth by the Record that the Plea was holden before the Suitors and not before the Bailiffs of George Earl of Shrewsbury For all the Precepts in the Plea aforesaid are Quod sint hic ad proximam Curiam coram Sectatoribus tenend An other Error was in this and false Iudgment was given therein because that the Roll is Praeceptum est Ministro Curiae praedict that he cause to come 12 Free and lawful Men c. videre illud tenementum c. nomina eorum imbreviare c. and the Minister of the Court retorned 12 Recognitors of the Assise aforesaid whereas by the Law of the Land 24 Recognitors in a Plea of Land ought to be retorned But notwithstanding that these Exceptions were taken Yet upon due consideration of the Court notwithstanding these Exceptions the Iudgment was affirmed See the Record Mich. 17 18 Eliz. Rot. 1301. XCV The Master and Scholars of Linckfords Case Hill. 15 Eliz. In the Common Pleas. IN an Ejectione firmae the Case was That the Master and Scholars of Linckford were seised of the Mannor of Haldesley in the Town of Laberhurst which Town extended into the County of Sussex and also in the County of Kent and they made a Lease to one Clifford of all their Lands in the Town of Laberhurst except the Mannor of Haldesley whereas in truth
him any other surety for his Debt he is contented so to do And John Stampe offered to the said P. the said B. and C. and he accepted the same and at the request of the said John Stampe granted his Interest to them 2 Feb. 22 Eliz. P. having notice of the Grant before made to the said G. Vpon which G. enformed against P. upon the Statute of 32 H. 8. It was holden in this Case by Periam and Meade Iustice That P. was not within the penalty of the Statute For P. granted his Interest to B. and C. at the suit and at the request of John Stampe who was the Mortgager for assurance of his Debt which he ought to them And therefore it shall not be intended that that Grant was made for any maintenance or for any unlawful cause against the Statute And also John Stampe who granted unto P. had possession and received the Issues and Profits of the said Lands for a whole year before the Grant notwithstanding that he was not in possession by a whole year next before the day of the date of the Grant. Godb. 450. As if a Man be in possession or hath received the Issues and Profits for a whole year and afterwards a stranger enters upon him and hath the possession for the space of a Quarter of a year or half a year yet he who was in possession by a year before may grant his Interest without danger of the Statute c. CXX Pasch 24 Eliz. In the Kings Bench. NOte Per totam Curiam 2 Len. 35. A man made his Will in this manner scil I Will and Bequeath my Land to A. And the name of the Devisor is not in the whole Will Yet the Devise is good enough by Averment of the name of the Devisor And for proof that the same is his Will If one lying in extremis having an intent to devise his Lands by Word makes such devise but doth not command the same to be put in writing but another without the knowledge or Commandment of the Devisor putteth it in writing in the life-time of the Devisor the same is a good Devise For it is sufficient if the Devise be reduced into writing during the life of the Devisor CXXI Pepy's Case Pasch 25 Eliz. In the Common Pleas. WAste was brought by F. and his Wife against Pepy and declared That the said Pepy was seised and enfeoffed certain persons to the use of himself for life and afterwards to the use of the Wife of the Plaintiff and her Heirs The Defendant pleaded That the said Feoffment was to the use of himself and his Heirs in Fee c. absque hoc that it was to the uses as in the Count Vpon which they were at Issue And it was found by Verdict That the said Feoffment was to the uses contained in the Count but further found That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste scil without Impeachment of Waste It was moved If upon that Verdict The Plaintiff should have Iudgment Anderson and Rhodes Iustices conceived That he should for that the matter in Issue is found for the Plaintiff and that is the Feoffment to uses contained in the Count and this impunity of Waste is a Forreign matter not within the Charge of the Iury and therefore the finding of the same is but matter of surplusage As if I plead a Feoffment of J. S. to which the other pleads That he did not enfeoff and the Iury find a Conditional Feoffment the Court shall not respect the finding of the Condition for it was not in Issue and no advantage shall be ever had of such a Liberty if it be not pleaded 30 H. 8. Dyer 41. In Dower the Tenant pleaded Ne unque seisi que Dower c. The Tenant pleaded That before the Coverture of the Demandant one A. was seised and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail who made a Feoffment A stranger took the Demandant to Wife took back an Estate in Fee and died seised having Issue inheritable Now although upon the truth of the matter she is nâ—t Dowable de jure yet forasmuch as the parties were at Issue upon a point certain no forrein nor strange matter not in Question betwixt the parties shall be respected in the point of Iudgment But if the Defendant had pleaded it in Bar he might have foreclosed the Demandant of her Dower See 38 Ass 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Tenant came one and shewed How that the Tenant who made default was but Tenant for life of the Lands in demand the Reversion in Fee to himself and prayed to be received The Demandant counterpleaded the Resceit Dicendo That the Tenant had Fee c. Vpon which Issue was taken And it was found That neither the Tenant nor he who prayed to be received had any thing in the Land. And in that Case The Court did not regard the matter which was superfluous in the Verdict For they were at Issue upon a point certain scil whether the Tenant was seised in Fee For it is confessed of the one side and of the other that he had an Estate for life and of that matter the Iury was not charged and they are not to enquire of that And so it is found against the Demandant by which the Resceit was granted See 7 H. 6. 20. The parties were at Issue upon a Dying seised which is found by Verdict but the Iury find further That the other party made continual Claim The said continual Claim shall not be respected in point of Iudgment because it was not pleaded in Avoidance of the Disceit c. Windham Iustice to the contrary because it appeareth to us upon the Verdict That the Plaintiff hath not cause of Action and therefore he shall not have Iudgment As in Detinue the Plaintiff declares upon a Baylment by his own hands The Defendant pleads Ne Detinue pas the Iury find the Detinue but upon Baylment by another hand In that case notwithstanding that the Detinue be found yet the Plaintiff shall not have Iudgment But Anderson Rhodes and Periam conceived That in the principal Case Iudgment should be given for the Plaintiff For in no case the party shall have advantage of that liberty of impunity of Waste if he doth not plead it And the Iurors are not to meddle with any matter which is not in issue and if they do It is but matter of surplusage and to no purpose and afterwards Iudgment was given for the Plaintiff See the Number Roll Pasch 25 Eliz. Rot. 602. CXXII Skipwith's Case Pasch 20 Eliz. In the Common Pleas. IN an Action of Trespass It was found by a special Verdict Godbolt 14 143. Co. of Copy-holds 94. That the Lands were Copy-hold Lands That the Custom of the Mannor was That Quaelibet Foemina Viro Co-operta poterit
and that was 31 years as if I make a Lease during the Term that J. S. hath in the Mannor of D. and J. S. hath 40 years in it now although that J S. surrendreth or forfeiteth it yet he shall hold over but he shall have it for 40 years for my Lease refers to the time and not to the estate In the like manner here G. cannot have the same Term which J. had nor for 31 years after the death of J. but so much of the said 31 years shall be cut off in the interrest of it as J. had enjoyed it and G. shall have as many years as J. hath left and G. shall perform so much of my Will as J. at his death within the Term aforesaid shall not have performed As if I Lease my Land to one until he hath levied 100 l. and if he dieth before that he hath levied it then J. S. shall have such Term for the levying of it the first Lessee levieth 50 l. and dieth J. S. may levy the residue but not the whole And although that the Iury saith that if the Term be extinct then they find for the Defendant although that it be extinct yet they are not to take Conusance what the Law is thereupon but that is the Office of the Iudges As 13 E. 3. the Iury found that the Son was born during the Elopement and so Bastard that Conclusion of the Verdict is not to the purpose but the Court ought to judge upon the premises of the Verdict If upon the birth during the Elopement the party be Bastard or not And afterwards Manwood with the assent of his Companions the Barons Commanded That Iudgment should be entred for the Plaintiff Which was done accordingly CLX The Bishop of Bristow's Case Trin. 26 Eliz. In the Exchequer NOte It was holden by Manwood Chief Baron in this Case That if a Lease be made for years rendring Rent 1 Cro. 398. More Rep. 891. with Clause of Distress And afterwards the Rent and Reversion are extended upon a Statute or seised into the Kings hands for Debt if the Lessee payeth the Rent according to the Extent the same is not in any danger of the Condition for that now the Lessee is compellable to pay it according to the Extent CLXI Hill. 26 Eliz. In the Exchequer THe Queen by her Letters Patents granted to J. S. catalla Utlagatorum Felonum de se within such a Precinct More Rep. 126 127. One who was endebted unto the Queen is felo de se within the Precinct It was the Opinion of all the Barons and so Ruled That notwithstanding the Grant by the said Letters Patents That the Queen should have the Goods for to satisfie her Debt CLXII Tuker and Norton's Case Pasch 26 Eliz. In the Kings Bench. THe Case was An Infant being in Execution upon a Condemnation in Debt brought a Writ of Error His Father and his Brother was his Bail It was the Opinion of the Iustices That they two only should enter into the Recognizance That the Enfant shall appear and that if the Iudgment be affirmed that they shall pay the Mony and not that they shall render the Body of the Enfant again to Prison for that when once he is discharged of the Execution he shall never be in Execution again CLXIII Marsh and Jones's Case Mich. 27 Eliz. In the Common Pleas. 2 Len. 117. IN a Replevin the Case upon the Evidence was That before the Statute of Quia emptores terrarum A Man made a Feoffment in Fee to hold of him by the services Solvend post quamlibet vacationem sive alienationem the value of the annual profits of the Lands c. It was holden by the Court That value shall be intended which at the time of the Feoffment was the value and not as it is now improved by success of time CLXIV Annesley and Johnsons's Case Mich. 27 Eliz. In the Common Pleas. IN an Ejectione Firme upon Evidence the Case was That Roger Wake was seised c. and before 27 H. 8. enfeoffed certain persons to his use c. and they being so seised to the use aforesaid The said Roger by his Will willed That his Feoffees and Executors should found a Chauntry in perpetuity and a Priest there to say Mass pro anim ' c. and that they procure a Licence to alien in Mortmain and also an Incorporation for such Chauntry Priory And that the said Lands should be conveyed to such a Priest c. And also that every such Priest should be School-Master there And that post dictam Cantariam sic fundatam stabilitam the said Priest should say Mass c. Roger Wake died The Feoffees and Executors did not procure any Corporation or Licence to alien in Mortmain nor make any estate to the Chauntry Priest But the appointing a Priest who said Mass according to the Will of the said Roger and was also a School-Master and took the profits of the said Lands as owner of them and died After which one Vere was appointed to be School-Master there but he was meerly a Lay-person and so continued until his death and took the profits of the Land And upon part of the Land he built a House and there dwelt and kept a School And after his death one Curtis was appointed by the Executors to teach there and he was a Lay-man and there taught many years and afterwards he took Orders and became a Priest and said Mass and other Divine Service and continued School-Master also And 26 H. 8. the same was presented for a Chauntry for First-Fruits and first-fruits were paid for it as appeared by a Particular which was shewed in Evidence And also 2 E. 6. it was presented for a Chauntry and the possessions of it seised into the Kings hands And it was much insisted upon That Vere being a meer Lay-man that the same was a forcible Interruption of the Reputation of the Chauntry But it was the Opinion of the whole Court to the contrary And that notwithstanding That no Corporation was obtained yet because that the Priest was appointed by colour of the Will and he said Mass according to the Will although Vere who succeeded him was a meer Lay-man and not a Priest yet afterwards when Curtis came being appointed but a School-Master being also a meer Lay-man yet afterwards when he took upon him Orders and demeaned himself as a Chauntry Priest there ratione institutionis by the Will of Wake which is confirmed by the Certificate and also by the Presentment The first Reputation is revived and the Law shall not construe That Curtis took the profits in the Quality of a School-Master but as a Priest for the Law hath respect to the Will of the said Wake which was the ground of all these proceedings and that although he did not say Mass within 5 years before the Statute of 1 E. 6. And Note That the Certificate of 26 H. 8. was That Rich. Curtis was
And it was found that the Land was Frank-Fee And the sole Question was If by the Reversal of the Fine by the Writ of Disceit without suing a Scire facias against the Ter-Tenant should bind him Atkinson It shall not bind the Lessee for years For a Fine may bind in part and in part not as bind one of the Conusees and not the other As. 7 H. 4. 11. a Fine levied of Lands part Ancient Demesne and part at the Common-Law and by a Writ of Disceit the Fine was reversed in part scil as to the Land in Ancient Demesne and stood in force for the Residue See 8 H. 4. 136. And there by the Award of the Court issued a Scire facias against the Ter-Tenant And the Iustices would not admit of the Fine without Certificate that the Land is Ancient Demesne notwithstanding that the Defendant had confessed it But as to those which were parties to the Fine the Fine was become void between the parties and he who had the Land before might enter See 8 E. 4. 6. And it would be a great inconvenience if no Scire facias or other Process should be awarded against the Ter-Tenant For he should be dispossessed and dis-enherited without privity or notice of it Whereas upon a Scire facias he might plead matter of discharge in bar of the Writ of Disceit Release c. which see Fitzh Na. Br. 98. and so although that the Fine be reversed yet he may retain the Land. And he resembled the same to the Case of 2 H. 4. 16 17. In a Contra formam Collationis against an Abbot A Scire facias shall issue forth against the Feoffee and by the same reason here in this Case And for the principal matter he conceived That the Fine should be awarded between the parties but not against the Lessee Kingsmill conceived That a Scire facias brought against the parties only was good enough For they were parties to the Disceit and not the Ter-Tenants c. it was Adâ—â—rned CLXXIII Trin. 27 Eliz. In the Kings Bench. ERror was brought upon a Iudgment in a Quid juris clamat It was assigned for Error That the Tenant appeared by Attorny which Act he ought not to do in his own proper person if it be not in case of necessity where in such case an Attorny may be received by the King 's Writ and plead matter in bar of the Attornment As if he claim Fee c. or other peremptory matter after which Plea pleaded he may make an Attorny 48 E. 3. 24. 7 H. 4. 69. 21 E. 3. 48. 1 H. 7. 27. Another Error was assigned Because it is not shewed in the Quid juris clamat what estate the Tenant hath Another matter was If the Grantee of the estate of Tenant in tail after possibility of Issue extinct should be driven to Attorn And conceived He should not Because the priviledge passeth with the Grant. See 43 E. 3. 1. Tenant in tail after possibility of Issue extinct Post 241. shall not be driven to Attorn 46 E. 3. 13. 27. therefore neither his Grantee Williams contrary As to the appearance of the Tenant by Attorny because the same is admitted by the Court and the Plaintiff the same is not Error Which see 1 H. 7. 27. by Brian and Conisby 32 H. 6. 22. acc And he conceived That the Grantee should be driven to Attorn For no other person can have the estate of the Tenant in tail after possibility of Issue extinct but the party himself therefore not the priviledge And although he himself be dispunishable of Waste yet his Grantee shall not have such priviledge As if Tenant in Dower or by the Curtesie grant over their estates the Heirs shall have an Action of Waste against the Grantees for Waste done by the Grantees But if the Heir granteth over the Reversion then Waste shall be brought against the Grantees See Fitzh Na. Br. 57. And if two Coparceners be and one taketh Husband and dieth the Husband being Tenant by the Courtesie A Writ of Partitione facienda lieth against him but if he granteth over his estate no Writ of Partition lyeth against the Grantee 27 H. 6. Statham Aid Tenant in tail after possibility c. shall not have Aid but his Grantee shall Clark conceived That the Grantee should not be driven to Attorn If the Tenant in tail grant all his estate the Grantee is dispunishable of Waste So if the Grantee grant it over his Grantee is also dispunishable It was Adjourned CLXXIV Trin. 27 Eliz. In the Kings Bench. Hob. Rep. 66. IN Action of Trespass against J.D. for breaking of his Close c. The Defendant pleaded That the Trespass whereof c. was done by the Defendant and one J.S. against which J.S. the Plaintiff at another time had brought an Action of Trespass and Recovered c. and had Execution of the Damages c. Plowden said It was a good Bar for that all is but one Trespass and satisfaction by one of the Trespassors is satisfaction for the other And if the Plaintiff had Released to the other Trespassors the Defendant if he had it in his hand might well plead it Wray conceived it a good Bar For it is but one Trespass and one wrong although in respect of the several persons of the Trespassors there are several Corporeal Acts. Atkinson conceived That the Bar was not good and it is not like the Case of Release for that taketh away the whole Trespass whosoever doth it And this Action may be sued joyntly or severally against the Trespassors and when the joynt suit is Released the several suit is Released Clench If an Action of Trespass be brought against two and they plead several Pleas and afterwards one of them is found guilty by a several Iury That Iury shall assess all the Damages and if the other be afterwards found guilty he shall be subject to the said Damages although he was not party to the said Iury and by the same Reason that he shall be charged with the same Damages by the same Reason he shall have advantage of the satisfaction of them made by his Companion See Br. Trespass 2. CLXXV Hitchcock and Thurland's Case Trin. 27 Eliz. In the Kings Bench. IN an Action upon the Statute brought for taking of Lands to Farm by a Spiritual person 21 H. 8. It was holden That if any such Lease be made at this day to any Spiritual person such a Lease is not void But such a Lease extends to such Leases made before the Feast of St. Michael mentioned in the said Act and not aliened before the said Feast c. And so it was said It was lately adjudged in one Underwood's Case CLXXVI Cutter and Dixwell's Case Trin. 27 Eliz. In the Kings Bench. AN Action upon the Case brought by Cutter against Dixwell for that the said Defendant had exhibited a Bill to the Iustices of Peace against the Plaintiff containing That the Plaintiff is an Enemy
for the variance is in a thing which is matter of surplusage and so much the rather because the said A. had not another House in D. c. CLXXXVI Lucas and Picroft's Case Pasch 28 Eliz. In the Common Pleas. THe Case was That an Assise of Novel Disseisin was brought in the County of Northampton of two Acres of Lands 2 Len. 41. and as to one Acre the Tenant pleaded a plea tryable in a Forreign County Vpon which the Assise was adjourned into the Common Pleas and from thence into the forreign County Where by Nisi prius It was found for the Plaintiff and now in the Common Pleas Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book 16 H. 7. 12. Where an Assise is adjourned into the Common Pleas for difficulty of the Verdict they there may give Iudgment But all the Court held the contrary For here is another Acre of which the Title is yet to be tryed before the Iustices of Assise before the tryal of which no Iudgment shall be given for the Acre of which the Title is found And the Assise is properly depending before the Iustices of Assise before whom the Plaintiff may discontinue his Assise And it is not like to the Cases of 6 E. 4. and 8 Ass 15. Where in an Assise a Release was pleaded dated in a forreign County which was denyed Wherefore the Assise was adjourned into the Common Pleas and there found by Enquest not the Deed of the Plaintiff's Now if the Plaintiff will release his Damages he shall have Iudgment of the Freehold presently But in our Case parcel of the Land put in View remains not tryed which the Plaintiff cannot release as he may his Damages 2 Len. 199. and therefore the Court remanded the Verdict to the Iustices of Assise CLXXXVII Hare and Mellers Case Mich. 28 Eliz. In the Common Pleas. Post 163. HUgh Hare of the Inner-Temple brought an Action upon the Case against Phillip Mellers and declared That the Defendant had exhibited unto the Queen a slanderous Bill against the Plaintiff charging the said Hugh to have recovered against the Defendant 400 l. by Forgery Perjury and Cosening And also that he had published the matter of the said Bill at Westm c. In this Case it was said by the Court That the exhibiting of the Bill to the Queen is not in it self any Cause of Action For the Queen is the Head and Fountain of Iustice and therefore it is lawful for all her Subjects to resort unto her ad faciendam Querimoniam But if a subject after the Bill once exhibited will divulge the matter therein comprehended to the disgrace and discredit of the person intended the same is good cause of Action And that was the Case of Sir John Conway who upon such matter recovered And as to the words themselves It was the Opinion of the Court That they are not actionable For it is not expresly shewed That the Plaintiff hath used perjury forgery c. And it may be that the Attorny or Sollicitor in the Cause hath used such indirect means not known to the Plaintiff And in such case it is true That the Plaintiff hath recovered by forgery c. and yet without reproach And by perjury he cannot recover for he cannot be sworn in his own Cause It was adjudged against the Plaintiff CLXXXVIII Moore and the Bishop of Norwich's Case Mich. 28 Eliz. In the Common Pleas. IN a Quare Impedit by Moor against the Bishop of Norwich c. It was found for the Plaintiff and thereupon issued forth a Writ to the Bishop which was not retorned Vpon which an Alias issued forth Vpon which the Bishop retorned That after Iudgment given in the Quare Impedit the same Incumbent against whom the Action was brought was Presented Instituted and Inducted into the same Church and so the Church is full c. And if that was a good retorn It was oftentimes debated Windham cited the Case L. 5 E. 4. 115 116. A Quare Impedit against Parson Patron and Ordinary and pendant the Writ the Parson resigned and the Ordinary gave notice of it to the Patron and afterwards by Lapse the Ordinary presented the same Incumbent who resigned And afterwards the Plaintiff in the Quare Impedit had Iudgment to recovers And it was holden Because the same Incumbent is now in by a new title scil by Lapse and the same person against whom the recovery was had and that appeared to the Court he should be removed See 9 Eliz. Dyer 260. and 21 Eliz. Dyer 364. And it was said by the Lord Anderson What person soever is presented and admitted after the Action brought unless it be that the title of the Patron be paramount the title of the Plaintiff upon such Recovery he shall be removed And so in the principal case It was adjudged That the Retorn of the Bishop was not good Wherefore he was fined 10 l. and a Sicut alias awarded upon pain of 100 l. CLXXXIX Parret and Doctor Matthews Case Mich. 28 Eliz. In the Kings Bench. A Praemunire was brought and prosecuted by the Queens Attorny General and Parret 1 Len. 292. against Doctor Matthews Dean of Christ-Church in Oxford and others for that they procured the said Parret to be sued in the City of Oxford before the Commissary there in an Action of Trespass by Libel according to the Ecclesiastical Law In which Suit Parret pleaded his Freehold and so to the Iurisdiction of the Court and yet they proceeded there and Parret was Condemned and Imprisoned And afterward the said Suit depending the Queens Attorny withdrew his Suit for the Queen It was now moved to the Court If notwithstanding that the party Informer might proceed in his suit there See 7 E. 4. 2. the King shall have Praemunire and the party grieved his Action See Br. Praemunire 13. for by Brook None can have Praemunire but the King. Cook There is a President in the Book of Entries 427. In a Praemunire the words are Ad respondendum tam Domino Regi quam R F. and that upon the Statute of 16 R. 2. And see ibid. 429. tam Domino Regi de Contemptu praedict quam dicto A.B. de Damnis But it was holden by the whole Court That if the Queens Attorny will not ulterius prosequi the party grieved cannot maintain that Suit For the principal matter in the Praemunire is the Conviction and the putting of the party out of the Kings protection and the damages are but accessary and then the Principal being Released the damages are gone And it was also holden That the Presidents in the Book of Entries are not to be regarded For there is not any Iudgment upon any of the pleadings there CXC Archeboll and Borrell's Case Mich. 28 Eliz. In the Kings Bench. ARcheboll brought an Action upon the Case against Borrell and declared That the Defendant had procured one L. to bring an Appeal of the death of J.S. against
no case where the party useth but the means of the Law by the Kings Writ without any Corruption or Covin of the party he shall be amerced only pro falso clamore and no Action lieth against him because he hath not used but the means of the Law. Which see 2 R. 3. 9. by all the Iustices But yet in an Appeal because it toucheth the life of a Man the Defendant shall have his damages against the Plaintiff but not in any other Action which is a vexation by suit if no Corporation or Covin be in the party who prosecutes such suit See such matter justifiable in Conspiracy 35 H. 6. 13 14. Afterwards the principal Case was adjourned CXCI. Parker and Howard's Case Pasch 28 Eliz. In the Kings Bench. 2 Len. 102. IN Debt upon an Obligation the Condition was That whereas the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty If the Defendant shall permit the Plaintiff to exercise the said Office and take the profits of it wholly to his own use during his life without let or interruption done by him That then c. The Defendant pleaded That the Custom of the Realm of England is That the Lord Admiral for the time being might grant the said Office and that such Grant should be good but for the life of the Grantor And further shewed 1 Len. 103. That the Lord Clynton Lord Admiral granted the said Office to the Plaintiff and the Defendant and died And that the Lord Howard was appointed Lord Admiral And that he 27 Eliz. granted the said Office to one Wade who put him out and interrupted him before which time the Defendant suffered the Plaintiff to enjoy the said Office and to take the profits of it Vpon which the Plaintiff demurred in Law. Cook argued for the Plaintiff That the Defendant's Plea was not good for he hath not entituled the Lord Admiral to grant the Office For he saith That the Custom of the Realm of England is which he hath pleaded in such manner as no Issue can be taken upon it for it is pleaded Quod usitatum est quod Admirals pro tempore existens Non potest Concedere Officium praedict nisi pro termino vitae suae and that cannot be for it cannot be tryed for the Venire facias cannot be Of the Realm of England Also if it be Through the whole Realm of England then the same is the Common Law and not Consuetudo Which see Br. Custom 39. And see 4 5 Mar. Dyer 152 153. An express case of this Office And there he prescribes in Consuetudine in Anglia c. And also that such Grant is good but during the life of the Admiral who granted it Also he doth not answer to any time of the Grant of the Admiral Howard For if he were lawfully put out by Wade yet the Defendant against his own Obligation cannot put us out or interrupt us As L. 5 E. 4. 115. In a Quare Impedit against an Abbot and the Incumbent who make default upon the distress upon which a Writ to the Bishop was awarded for the Plaintiff Vpon which the Bishop retorned That the Incumbent resigned of which the Bishop gave notice And afterwards Lapse encurred and the Bishop collated the said former Incumbent and then that Writ came to him Now although the Incumbent be in by a new title yet he is bound by the Iudgment So here although the Defendant had another title and the former title of the Plaintiff be determined yet against his own Deed and Obligation he shall not put out the Plaintiff And the Court was clear That the Iudgment should be given for the Plaintiff But afterwards the Cause was Compounded by the Order of the Lord Chancellor CXCII Mannings Case Mich. 28 Eliz. In the Kings Bench. NOte It was agreed by the Iustices in this Case That where an Enfant Executor sold the Goods of his Testator at less undervalue than they were worth And afterwards brought an Action of Detinue against the Vendee upon it in retardatione executionis Testamenti That this sale of the Enfant Executor was good and should bind him notwithstanding his Nonage CXCIII Mich. 28 Eliz. In the Common Pleas. THe Case was A Man made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest Son in tail and afterwards to the use of his right Heirs not having at the time of the Feoffment any Son Afterwards he suffered a Common Recovery had Issue a Son who died in the life of his Father having Issue a Son and afterwards he himself dieth It was holden in this Case That the Son and Heir of the Son should not avoid this Recovery by the Statute of 32 H. 8. For there was not any remainder in him at the time of the Recovery had but the remainder then was in abeyance for then the Son was not born And the words of the said Statute are That such Recovery shall be void against such person to whom the Reversion or Remainder shall then appertain i. e. at the time of the Recovery And it was said That if Lands be given to E. for life the Remainder to B. in tail the Remainder to C. in fee B. dieth his Wife with Child with a Son A Recovery is had against E. with the assent of C. and afterwards the Son is born he shall not be helped by this Statute for that the Remainder was not in esse at the time of the Recovery But it was holden in the principal Case That the Heir might avoid this Recovery by the Common Law For the Recompence could not extend to such a Remainder which was not in esse CXCIV The Countess of Sussex and Wroth's Case Hill. 28 Eliz. In the Common Pleas. IT was moved in this Case by Gawdy Serjeant If the Disseisee Licence J.S. to put his Cattle into the Land whereof he was disseised If it were a good Licence And If by the Execution of the said Licence the Freehold should be revested in the Disseisee so as if the Disseisor distrain the Cattel of J.S. for Damage-feasant and in a Replevin avow the Plaintiff may plead That the Freehold was in the Disseisee who so Licensed him Periam Iustice The Licence is void For at the time of the grant of it the Disseisee had but a Right before he had recontinued the Land by re-entry Windham If the Disseisee make a Lease for years of the Land whereof he is Disseised it is a void Lease Anderson If the Disseisee command one to enter into the Land and he doth accordingly the same is good The Case was adjourned CXCV. Payn 's Case Mich. 28 Eliz. In the Exchequer 2 Len. 205. A Writ of Error was brought by Payn Treasurer of the Records in the Kings-Bench in the Exchequer-Chamber upon a Iudgment given in the Court of the Exchequer for the Queen upon an Assignment of a
the 18th day Cook The Iudgment for the Queen upon an Information of Intrusion is Quod defendens de Intrusione transgressione Contemptu praedict convincatur c. And afterwards a Commission shall issue forth for to enquire of the Mean profits and there the Defendant may shew this matter in taking of the damages And if the Intrusion be at any time in the Information it is sufficient enough to have Iudgment upon it and in our Case the Continuance is laid 18 May. Egerton Sollicitor The Record warrants the Iudgment given upon it For possession laid in the Queen is sufficient to this Information And here Payn doth not answer the Queens title but traverseth the Intrusion And therefore he being found Intrudor by Verdict Iudgment ought to be given upon it For the Iury have found the Intrusion generally and specially 17 May. And that cannot be assigned for Error for it is part of the Verdict of which Error doth not lie but Attaint For if any Error was it was in the Iury and not in the Court. Which Manwood Concessit Tanfield As to the Case of Continuance of an Intrusion it is clear That every continuance ought to have a beginning for a thing which hath no beginning cannot be continued and here is not any beginning for the beginning which is laid in the Information is pretended to be 17 May and that cannot be causa qua supra Popham If an Information be brought of an Intrusion where in truth there is not any Record to prove it and the Iury find the Intrusion shall you have a Writ of Error upon it And every continuance of Intrusion is an Intrusion This Matter had been good Evidence to the Iury. Sed non habet locum hic c. CXCVI. Sir John Southwell's Case Hill. 28 Eliz. In the Exchequer SIr John Southwel of the County of Lanc. 7 July 2 Len. 132. 19 Eliz. made a Conveyance of all his Land to divers Feoffees and their Heirs upon Condition That they should find him and his Wife and so many persons in his House c. prefer his Daughters in Marriage pay his Debts c. And if there fell out at the years end upon Accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and Profits of his said Lands with Clause of Revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants Vpon which Statute the said Southwel was now Indicted And afterwards a Commission issued out of the Exchequer to the Sheriff of Lancast to enquire of the Lands of the saith Southwel And although against the said Conveyance it was given in Evidence That after that Conveyance the said Sir John Southwel had granted Trees out of the said Lands and had taken Fines and Incomes for Leases c. Yet the Iurors charged to enquire would not find That the said Sir John had any Lands c. And by special Commandment of the Queen it was referred out of the Exchequer to all the Iustices of England If the Lands of the said Sir John Southwel contained ut supra were subject to the said Statute and the penalties thereof And upon great deliberation had It was by them all Resolved and Agreed That notwithstanding that Conveyance the said Lands were lyable to the said Statute And as to the Iurors which against their Evidence given unto them for the Qeeen gav their Verdict ut supra process was awarded against them out of the said Court for to appear before the Lord Treasurer and the Barons of the Exchequer And for their said Contempt they were committed to the Fleet and each of them fined 20 l. CXCVII Hill. 28 Eliz. In the Common Pleas. IN a Writ of Entry Sur Disseisin The Tenant said That the House in demand is within the City of London and that the said City is antiqua Civitas And that King Hen. 3. Concessit civibus Civitatis praedict quod non implacitentur de Terris Tenementis suis c. extra muros Civitatis praedict And further said That he himself is Civis London c. and demanded Iudgment of the Writ Note in the pleading before the Tenant said illis rectum teneatur intra Civitatem praedictam secundum Consuetudinem Civitatis praedict And to this Plea Exception was taken because that the Tenant doth not shew before whom by their Custom they ought to be impleaded It was the Opinion of the whole Court That the Tenant ought to have shewed That the Citizens for their Lands ought to be impleaded in the Hustings c. And the general words in the plea scil Sed illis rectum teneatur intra Civitatem praedictam secundum Consuetudinem Civitatis praedict did not supply the defect aforesaid After It was awarded by the Court That the Tenant answer further c. CXCVIII. The Lord Anderson's Case Mich. 29 Eliz. In the Common Pleas. THe Lord Anderson Chief Iustice of the Common Pleas 1 Roll. 189. brought an Action of Trespass by Bill for breaking of his House in the City of Wor. against one A. Citizen of the said City Now came the Mayor and Communalty of the said City and shewed their Charter granted to them by King E. 6. and demanded Conusans of Pleas. And by the Award of the whole Court the Conusans shall not be granted because that the Priviledge of this Court whereof the Plaintiff is a principal Member is more antient than the Patent upon which the Conusans is demanded For the Iustices Clarks and Attornies of this Court ought to be here attending to do their Offices and Services as belongs unto them and shall not be impleaded or compelled to implead others elsewhere than in this Court. And this Priviledge was given to this Court upon the Original Erection of it And such was the Opinion of the whole Court. And as for the Conusans it was denyed CXCIX Cocket and Robston's Case Mich. 29 Eliz. In the Common Pleas. ARthur Cocket Thomas Andrews and A. his Wife 2 Len. 118. Post 192. 230. 1 Len. 219. 1 Len. 302. brought an Action of Accompt against Robston and Declared That one Mountford by the hands of Jo. Wase had delivered 100l to the Defendant pro relevamine of the said Arthur and Anne The Defendant pleaded Ne unque Receiver pur accompt render Vpon which they were at Issue And Iudgment was given That the Defendant should accompt Who before Auditors assigned alledged That he had expended the said 100l in the Education of the said Arthur and Anne by the space of 8 years after the delivery of the said 100l Vpon which they were at Issue And upon Evidence it was shewed on the Plaintiffs part That heretofore the said Arthur brought a Writ of Accompt against the said Robston as Guardian in Socage for the Land of the said Arthur discended And upon the
hic in Curia prolat is but form And afterwards the Iudgment was reversed for default of the said matter Magno sigillo Angliae sigillat And by Anderson Iustice Patents are good without Inrollment and that was adjudged in Hungate's Case CCXLI. Mich. 29 Eliz. In the Exchequer Chamber DEbt brought upon an Obligation Post 266. The Defendant pleaded payment apud Lockington in the Parish of Killmerston And the Venire facias was awarded de Lockington And that was assigned for Error in the Exchequer Chamber upon a Iudgment given in the Kings Bench That the Venire ought to be de Killmerston See 6 H. 7. 3. 11 H. 7. 23 24. 9 E. 4. 3. Trespass for Entry in the Mannor of D. in S. the Visne shall come de Vicineto de S. and not from the Mannor Contrary if it be for the entry into the Mannor of D. only for there it shall be de Vicineto Manerii Cook said There was a Case very late adjudged in the Kings Bench A Lease was pleaded to be made at Ramridge End in Luton and that he himself was of Opinion That the Venire ought to have been of Ramridge End and not of Luton But the Court Over-Ruled the same against him It was said in the principal Case That Lockington shall be intended a Town as this Case is For a Parish may contain many Towns. And afterwards the Iudgment was affirmed CCXLII. Mich. 29 Eliz. In the Common Pleas. IN Trespass for breaking his Close The Defendant pleaded That heretofore he himself brought an Ejectione Firmae against the now Plaintiff of the same Land in which the Trespass is supposed to be done and had Iudgment to recover c. and demanded Iudgment if against c. It was moved That the Bar was not good 1 Len. 313. because that the Defendant had not averred his title And the Recovery in one Action of Trespass is no Bar in another c. Quod Curia concessit But as to the matter the Court was clear That the Bar was good And by Periam Who ever pleaded it it was well pleaded For as by Recovery in an Assise the Freehold is bound so by Recovery in an Ejectione firmae the possession is bound And by Anderson A Recovery in one Ejectione Firmae is a Bar in another Especially as Periam said if the party relyeth upon the Estoppel And afterwards Iudgment was given That the Plaintiff should be barred CCXLIII Peter's Case Mich. 29 Eliz. In the Common Pleas. WIlliam Peters being Plaintiff in an Action of Debt in the Common Pleas came to London this Term to prosecute his Action And afterwards he was committed to the Marshalsey by the Lord Hunsdon Chamberlain of the Queens houshold and one of her Privy Council And now an Habeas Corpus issued out to the Keeper of the Marshalsey to have the body of the said Peters in Court And at the day the Keeper retorned the said Writ That the said Peters was committed to the said Prison by the said Lord and shewed the Warrant for it there to remain and to Answer before the Lords of her Majesties Council to such matters c. Causa vero detentionis mihi omnino incognita est The Court examined the said Peters upon his Oath If he came to London to prosecute his said Cause Who answered That he did And the Court also examined the said Keeper If he had acquainted the said Lord with the said Writ Who said That he had so done but he shewed him not any Cause Wherefore by the Award of the Court Peters was discharged of his Imprisonment CCXLIV Hill. 29 Eliz. In the Common Pleass SErjeant Fenner demanded the Opinion of the Court in this Case A. Devised Lands to his Wife for life 1 Co. 155. and afterwards to B. his Son and his Heirs when he should come to the age of 24 years and if his Wife died before his said Son should attain his said age of 24 years that then J.S. should have the said Land until the said age of the said Son A. died J.S. died the Wife died the Son being within the age of 24 years If the Executors of J.S. should have the Land after the death of J.S. until the said age of the Son was the Question Anderson and Periam conceived That he should not For this Interest limited to J.S. by the Will was but a possibility which was never vested in him and therefore could not by any means come to his Executor Rhodes and Windham doubted of it Fenner put the Case in 12 E. 2. Fitz. Condition 9. Where Land is mortgaged to J.S. upon payment of Mony to J.S. such a day or his Heirs and before the said day J.S. by his Will deviseth That if the Mortgagor pay the Mony that then A. B. should have them That this Devise of this possibility is good Quod omnes Justiciarii negaverunt And Windham put the Case between Weldon and Elkington Plow Com. 20 Eliz. 519. Where Lessee for years devised his Term to his Wife for so many years of the said Term as she should live And if she died within the Term that then his Son Francis should have the Residue of the Term not encurred Francis died Intestate the Wife died within the Term The Administrator of Francis had the residue of the Term and yet nothing was in Francis the Intestate but a Possibility A Lease was made to one Hayward his Wife and one of his Children Habendum to Hayward for 99 years if he should so long live and if he die within the said Term that then his said Wife should have the said Term for so many years which should be to come at the time of the death of her Husband And if she died also before the said Term That then the Child party to the Devise should have it for so many years of the said Term as should not be expired at the time of the death of the Wife And the Case of Cicill was vouched 8 Eliz. Dyer 253. A Lease was made to William Cicill pro termino 41 annorum si tam diu vixerit Et si obierit infra praedictum terminum extunc Uxor praedicti William Cicill habebit tenebit omnia singula praemissa pro residuo termini praed incompleto si tam diu vixerit Et si the said Eliz. obierit infra praedict terminum tunc William Cicill filius c. And it was holden by Catlyn and Dyer That these remainders were void For the Term is determinable upon the death of William Cicill the Father and the Residue of the said Term cannot remain And by Anderson The remainders of the Term limited ut supra are void For every remainder ought to be certain but here is no certainty for it may be that the first possessor of the Term may live longer or die sooner so as he in the remainder doth not know what thing he shall have And so also conceived Rhodes Iustice And he put the Case between
that the same is a good bar for ever CCLXXXI Ognell's Case Pasch 30 Eliz. In the Common Pleas. IN a Replevin against Ognel who avowed for Rent Clayton Rep. 91. the Plaintiff was Nonsuit the Question was Whether the Court might assess Damages without a Writ of Enquiry of Damages It was the Opinion That they might for they are not in respect of any local matter but they accrue to the Avowant for the delay in the non-payment of the Rent Contrary where Iudgment is given for the Plaintiff there the Court shall not assess the Damages for he ought to recover for the taking of his Cattel of which the Iudges cannot take notice and the Damages may be greater or less according to the value of the Cattel and the Circumstances of the taking and delaying of them CCLXXXII Hitchcock and Harvy's Case Mich. 30 31 Eliz. In the Kings Bench. HItchcock brought an Action of Trespass for breaking of his Close and spoyling of his Grass against Harvey and the Case was That A. was seised of the Land in which c. and granted to the Plaintiff proficuum of such a Mead called Tentry Mead post falcationem inde scil the Ear-grass And it was found by Verdict That Ear-grass is such Grass which is upon the Land after the mowing until the Feast of the Annunciation after It was moved If such a Grantee might have Trespass Quare Clausum fregit And it was the Opinion of the Court 1 Cro. 421. That he could not but for spoiling the Grass he might Clench Iustice If a Man be Outlawed in an Action personal The Queen hath the profits of the Land and lets the same to another He shall have an Action of Trespass Quare Clausum fregit Which Shute granted And afterwards because the Iury had given Damages entire as well for the breaking of the Close as for the spoyling of the Grass the Plaintiff could not recover the Damages CCLXXXIII Chard and Tuck's Case Hill. 30 Eliz. In the Kings Bench. 1 Cro. 41. 1 Cro. 15 16 114 170.130 Shep. Touch. 94. Bro. Tit. Judgment 83. IN an Ejectione firmae by Chard against Tuck It was found by special Verdict That A. was seised of a Messuage and of a Curtilage and of a Garden to the same belonging in Fee and that the Curtilage was on the back side of the said House and the Garden next beyond the said Curtilage the Garden being divided from the Curtilage by a Wall and a Door through the Wall into the Garden from the said Curtilage and no Way to either of them but through the House And it was further found That the said A. by his Will devised the said Messuage to B. The Question was If by that Devise the Curtilage and Garden did pass Vide inde Br. 23 H. 8. Feoffments 53. Where a Feoffment is made of such a Messuage cum pertinentiis they shall pass Curtilage is a member at the least an Appendix of a Messuage And by the clear Opinion of the whole Court in the Case at Bar It was Resolved That by this Devise the Curtilage and Garden did pass And it was said by Wray Chief Iustice It matters not Whether the Curtilage and Garden be before the House or behind it for in both Cases they shall pass CCLXXXIV Baxter's Case Mich. 30 Eliz. In the Exchequer AN Information in the Exchequer was exhibited against Baxter of Cambridge upon the Statute of 7 E. 6. Cap. 5. of Wines and the selling of them against the purview of the said Statute To which the Defendant pleaded That King Rich. the second in the 5th year of his Reign Granted unto the Chancellor and his Deputy and the Scholers of the Vniversity of Cambridge Custodiam assisae panis vini Cervisiae correctionem punitionem eorundum 4 Inst 229. And that the Queen that now is confirmed the said Grant in the third year of her Reign by her Letters Patents which were after confirmed by Act of Parliament 13 Eliz. And so pleaded to the Iurisdiction of the Court. Vpon which It was demurred in Law. Harris argued for the Queen and said That the Defendant could not plead that matter to the Iurisdiction of the Court at that time for it is now too late for that he hath oftentimes imparled and that generally In which case the Court having general and ordinary Iurisdiction and Authority to hold plea of such matters shall have Conusans of them notwithstanding the matter which hath been shewed and set forth On the other side It hath been said Quod Assisa venit de assidendo that is to have the Assise as well in respect of the price as of the measure Which although it be admitted yet the same shall not help them For they of Cambridge have not Assisam ipsam but only Custodiam assisae i.e. that the Assise set down by the Queen and her Councel be well kept And that no other price or measure be used in the uttering of Wines Popham The Queens Attorny to the same intent The Statute of 51 H. 1. Ordains That when Wheat is at such a price in the Market then every penny Loaf is to weigh so much and so when Barley is at such a price then so much Beer shall be sold for a penny And that was the general Assize limited by the said Statute In these Cases the Vniversity cannot appoint another Assize than that which is set down by the said Statute but to take care that the said Statute be well executed in such Assise See the Statute of 31 E. 1. of Wines scil That Wines shall be sold according to the Assize of the King i. e. 12 d. the Gallon And in that matter the Vniversity hath Custodiam only i.e. the survey of the Assize and the execution of it and authority to punish the Offences against the said Statutes as well in the price as in the measure according to the said Statutes and not otherwise c. And as to the Statute of 7 E. 6. Cap. 5. By which it is provided That the said Statute shall not be prejudicial to any of the Inhabitants of Oxford or Cambridge or unto the Chancellor or Scholers there to impair their Liberties c. The same ought to be intended that the Liberties and Franchises which the Vniversities had before by the Grant ut supra c. i. e. to punish such Offences against the Assise according to the old Statutes For the said Statute of 7 E. 6. Cap. 5. being in the Affirmative doth not take away the punishment appointed by any other Statute but doth continue the same And a further penalty is appointed propter ulteriorem poenam And as to that which hath been said That by the said Grant of Rich. the 2d 3 Cro. 52 62 they have granted to them Cognitionem omnium Actionum personalium inter partem partem That will not help the Vniversity in this Case For the Informer by the Statute hath Liberty to
to the Bar because he hath not shewed that at that time of the cutting it was not Fawning time Poph. 158. 2 Cro. 637 679. for at the Fawning time his prescription doth not extend to it and that was holden to be a material Exception but because that the Plaintiff had replyed and upon his Replication the Defendant had demurred the Court would not resort to the Bar but gave Iudgment upon the Replication and therefore Nihil Capiat per breve CCXC. Brocas's Case Mich. 30 Eliz. In the Kings Bench. BRocas Lord of a Mannor Covenanted with his Copyholder to assure to him and his Heirs the Freehold and Inheritance of his Copyhold And the said Copyholder in Consideration of the same performed Covenanted to pay such a sum It was the Opinion of the whole Court That the said Copyholder is not tyed to pay the said sum before the assurance made 1 Roll. 415. and the Covenant performed But if the words had been In Consideration of the said Covenant to be performed then he is bounden to pay the mony presently and to have his remedy over by Covenant CCXCI. Ireland and Higgius's Case Trin. 30 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared Owen Rep. 93. That he was possessed of a Greyhound ut de bonis suis propriis and that such a day he lost it and that it came to the hands of the Defendant by Trover and that the Defendant afterwards in Consideration thereof promised the Plaintiff to deliver the said Greyhound to the Plaintiff and shewed his request Ley The Action doth not lie For of those things which are ferae naturae the Plaintiff hath not any property but ratione fundi as of Deer c. And in Trespass for them he cannot say suos but only Quare claufum fregit lepores cepit without saying suos And to that purpose were cited 3 H. 6. 56. 18 E. 4. 14. 10 H. 7. 19. 22 H. 6. 12. 14 Eliz. Dyer 106. Sir John Spencer's Case And it was holden That the Action did not lie And if not for a Hawk much less for a Hound CCXCII Ognell and Trussell's Case Mich. 30 Eliz. In the Star-Chamber A Bill was Exhibited in the Star-Chamber by Ognell of London against one Trussell of Warwickshire setting forth such matter That whereas the said Trussell had for good Consideration sold and assured unto the said Ognell a Mannor Now to gratifie a great person who earnestly desired the said Mannor he for effecting thereof practised by fraudulent means to avoid the said assurance and practised by other persons to be Indicted of a Robbery supposed to be committed before the said Assurance and compounded with the Lord of the Fee that if he be attainted so that by such Attainder the said Mannor should escheat to the said Lord That he upon request should reassure to the said Trussell the said Mannor in Fee after Pardon obtained which was promised to him by the said great Parsonage Vpon which Indictment Trussell was Arraigned and Convicted upon Evidence which he himself procured to be falsly given against him And all that was to extort the Land which was lawfully sold before And upon the Bill Trussell demurred in Law because he is a person attainted of Felony and so dead in Law and therefore shall not be put to answer Hatton Lord Chancellor It is not reason that he be put to Answer for Nemo tenetur seipsum prodere And thereupon the Bill was referred to Anderson and Periam Iustices to Consider If the Defendant should be put to answer or not Who certified unto the Court That although the Defendant be attainted ut supra and so quodam modo dead in Law to all intents yet in Criminal Causes he shall answer Wherefore it was ordered That he answer accordingly CCXCIII Cardinal and Arnold's Case Mich. 30 Eliz. In the Common Pleas. CArdinal brought an Action upon the Case against Arnold and declared That the Dean and Chapter Ecclesiae Cathedralis Cantuar. per nomen Decani Capituli Ecclesiae Cathedral Metropolitan Christian Cantuar. Leased unto Seckford for years the Mannor of Hadley by force of which he was possessed And so possessed granted to the Plaintiff the Office of Stewardship of the said Mannor and the Defendant disturbed him The Defendant pleaded a Lease absque hoc that the said Seckford granted And it was found for the Plaintiff And it was moved in Arrest of Iudgment That that Lease being made in the manner aforesaid was void For the Declaration is That the Dean and Chapter Ecclesiae Cathedralis Cantuar where the Lease is made by the name ut supra Here are two several Names therefore two several Corporations therefore Decanus Capituli Ecclesiae Cathedralis Cantuariensis did not Lease But Decanus Capituli Ecclesiae Cathedralis Metrapolitan Christi did Lease CCXCIV. Anderson and Hayward's Case Pasch 30 Eliz. In the Kings Bench. A Copyholder of Inheritance of a Mannor in the hands of the King is ousted It was holden in such case That he hath not gained any Estate so as he may make a Lease for years upon which his Lessee may maintain an Ejectione firmae but he hath but a possession against all strangers And also in that Case It was holden That if a Copyholder dieth his Heir within age he is not bound to come at any Court during his Non-age to pray Admittance Or to tender his Fine Also that if the death of his Ancessor be not presented nor proclamation made he is not at any Mischief although he be of full age CCXCV. Brightman's Case Pasch 30 Eliz. In the Exchequer Chamber UPon a Writ of Error brought upon a Iudgment given in the King Bench The matter was A. Leased for 20 years to B. two Acres of Land rendring Rent with Condition of Re-entry who Leased one of the said Acres to C. for 10 years And afterwards granted the Reversion of the said Term in the said Acre to A. It was holden by the Iustices That the same was no present suspension of the said Condition because there was not any possession CCXCVI. Fitzhugh's Case Hill. 30 Eliz. In the Common Pleas. IN Dower against Fitzhugh who pleaded in bar a Fine with proclamations and 5 years passed after the death of the Husband of whose seisin she demanded Dower To which the Demandant said That within the 5 years after the death of her Husband she brought a Writ of Dower against the now Tenant and delivered the same to the Sheriff c. but did not shew that the Writ was Returned upon which the Tenant did demur in Law. It was holden by Periam Iustice That the Fine is not avoided by such manner of Claim For the words of the Statute are So that they pursue their Claim or Title by way of Action or lawful Entry within the 5 years but here the Demandant hath not pursued c. therefore she shall not be Retained by the said Statute
Commoner shall not use his Common before that the Lord hath put in his Cattel was holden to be a void Custom On the other side It was said That this Custom might have a lawful beginning and that it might be grounded upon the reason of the Common Law That a Remainder should not be without the assent of the particular Tenant and therefore that the Custom might be good And it was said That Wife should not have her Dower unless she claimed it within a year and a day that the same was adjudged to be a good Custom The Court delivered no Opinion in the Case but the Case was adjourned to another time CCCIV. Mich. 31 Eliz. In C. B. THE Case was a Man devised Socage Lands to his Brothers Son in tail to have the same at his age of 25 years and died having Issue a Daughter The Nephew after 21 years entred and levied a Fine and afterwards accomplished his age of twenty five years It was the Opinion of the whole Court That the Issue of the Devisee was barred by this Fine For the Heir in Tail and the Heir in Fee are all one by the Statute of 4 H. 7. And it was holden That this was not a Fine which doth enure by way of Estoppel but that it passeth the very right It was said to be the same Law If one who hath but a condition levyeth a Fine and afterward entreth for the condition broken c. CCCV Palmer and Smalbrook's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case The Plaintiff declared 1 Len. 132. Owen 97. 1 Cro. 178. That the Defendant had recovered a certain Debt against one A. and thereupon took forth a Capias against the said A. to Arrest his Body and delivered the said Capias to the Plaintiff being then Sheriff and prayed a Warrant for the serving of the Capias and that he would name to him one B. for a special Bayliff and promised the Plaintiff That if B. Arrested A. by force of the said Capias and suffered him to escape that he would not sue him for the said escape and further declared That he made a Warrant according to the said Capias and therein named and appointed the said B. his special Bailiff who Arrested A. accordingly and afterwards suffered him to escape and that the Defendant notwithstanding his Promise aforesaid sued the Plaintiff for the said escape and it was found for the Plaintiff And it was moved in stay of Iudgment That that Promise was against the Law to prevent the punishment inflicted by the Statute of 23 H. 8. upon the Sheriff and that it is meerly within the said Statute and so the Promise void Cook This is not any Bond or Promise taken of the Prisoner nor of any for him and therefore it is not within the Statute and it was Davies Case Wray A Promise is within the Statute as well as a Bond. But the Statute doth not extend but where the Bond or Promise is made by the Prisoner or by some for him And afterwards Iudgment was given for the Plaintiff CCCVI Wood and Payn 's Case Trin. 31 Eliz. In the Kings Bench. IN an Ejectione firmae for Entry into a Messuage sive Tenementum and 4 Acres of Lands to the same belonging Vpon not guilty pleaded it was found for the Plaintiff It was moved by Cowper Serjeant That the Declaration is uncertain Messuagium sive Tenementum quod fuit Concessum Cook We will release our damages Kemp Then your Costs are gone also Cowper You cannot have Iudgment of the 4 Acres For the Declaration is 4 Acres to the said Messuage or Tenement belonging and for the incertainty to which thing belonging But to that it was said That as to the 4 Acres it is certain enough For the words To the same belonging are meerly void And afterwards the Plaintiff released damages and had Iudgment CCCVII Bennington and Bennington's Case Trin. 31 Eliz. In the Kings Bench. BEnnington brought an Action of Trespass against Bennington for breaking of his Close c. The Defendant pleaded That long time before the Trespass supposed That it was the Freehold of one Joan Bennington and that he as her servant and by her Commandment entred upon which they were at Issue And it was found That for two parts of the Land where c. in three parts to be divided it was the Freehold of the Plaintiff and for the other part that it was the Freehold of the Defendant and by the clear Opinion of the whole Court The Plaintiff could not have Iudgment for now it appeareth That the Plaintiff and Defendant are Tenants in Common betwixt whom an Action of Trespass doth not lie and although this Tenancy in Common be not pleaded but found by Verdict yet it was the Opinion of the Court That it is all one CCCVIII Brereton and Auser's Case Hill. 31 Eliz. In the Kings Bench. JOhn Brereton of the Inner-Temple brought a Writ of Error against Auser to Reverse an Outlawry And the Case was That the said Auser had caused the said Brereton to be endicted upon the Statute of Magna Charta and divers other Statutes For that Whereas the said Auser had sued the said Brereton in a Bill of Debt in the Court of Request against the said Brereton and by the said Suit procured the said Brereton to be imprisoned Vpon which Endictment Brereton was Outlawed And Error was assigned in the Outlawry because whereas the Endictment was taken in Middlesex the Exigent upon it was in London whereas it ought to issue out of Middlesex but the proclamations issued in the County whereof he was named Nuper and that was peremptory for if he make default upon that Process he shall encur the danger of a Praemunirè And for that cause the Outlawry was reversed Also the party was discharged of the Endictment for this Suit in the Court of Requests as it appeareth upon the Endictment was before Iudgment in the Bill of Debt CCCIX Constable and Farrer's Case Hill. 31 Eliz. In the Kings Bench. IN an Action upon the Case upon an Assumpsit the Plaintiff declared That whereas the Defendant had brought an Action against him the Issue in which ought to be tried at the next Assises at N. the Defendant in Consideration that the now Plaintiff should confess the Action aforesaid at the Assises holden the 4th of August promised that he would stand to the Arbitrament of J.S. for the said matter And upon Non Assumpsit the Iury found That the Defendant made such a Promise the 5th of August but not the 4th of August Cook I conceive That upon this Verdict the Plaintiff shall have Iudgment for in truth the Assises began the 4th of August and the Consideration was That the now Plaintiff should confess the Action at the same Assises which although they continue divers days yet in Law all is but one day And all the Assises shall be said to be holden the 4th of August
so as of necessity we must lay the promise accordingly And it is a clear case That the Plaintiff in an Action upon the Case shall declare upon a Promise the first day of May And if it be found that it was made at another day yet the Plaintiff shall recover CCCX Hamper's Case Mich. 31 Eliz. In the Kings Bench. 2 Len. 211. 1 Cro. 147. HAmper was Endicted upon the Statute of 5 Eliz. of Perjury And in the body of the Endictment the Record was that he falso deceptive deposuit Whereas the Statute speaks Wilfully And although in the perclose of the Endictment the Conclusion is Et sic commisit voluntarium perjurium Yet the Opinion of the Court was That the same did not help the matter and for that cause the party was discharged For contra formam Statuti will not help the matter and yet it was moved and urged that contra formam Statuti did supply such defect And in this case It was holden by the Court That if a Witness deposeth falsly but the Iury do not give credit to his Oath but give their Verdict against his Oath although the party grieved cannot sue him for the Perjury yet at the Suit of the King he shall be punished CCCXI. Collet and Robston's Case Trin. 31 Eliz. In the Kings Bench. Ante 149.192 2 Len. 118. ARthur Collet and Thomas Andrews recovered against Robston in a Writ of Accompt Hill. 29 Eliz. And now Robston brought a Writ of Error and assigned for Error That whereas the said Writ of Accompt was brought against the Defendant as Receivor of monies to render Accompt quando ad hoc requisitus fuerit the said Writ ought to have been more special But the Writ in its generalty was holden good enough without any special matter And so it was adjudged in the Case of one Gomersell scil Quod reddat ei rationabilem Computum suum de tempore quo fuit Receptor Denariorum ipsius A. Another Error was assigned For that the Iury had assessed damages which ought not to be done in an Action of Accompt Which see 2 Ric. 2. Fitz. Accompt 45. and 2 H. 7. 13. But see the Book of Entries 22. In a Writ of Accompt against one as Receivor for to render Accompt damages were given by the Iury for the Plaintiff And in the Case of an Accompt against one as Bailiff damages shall be given For if my Bailiff by the imployment of my monies whereof he was Receivor might have procured profit and gain unto me but he neglects the same he shall be chargeable to me to answer the same And here in our Case damages shall be given ratione implacitationis And afterwards notwithstanding the Exceptions the Iudgment was affirmed CCCXII Yates's Case Trin. 31 Eliz. In the Kings Bench. YAtes and another brought a Writ of Error upon a Iudgment given in a Writ of Partition and assigned for Error 2 Len. 118. That the Partition was not sufficient For it is there set forth That the Plaintiffs insimul pro indiviso tenent cum defendente c. and doth not say what Estate See F.N.B. 61 62. Insimul et pro indiviso tenent de haereditate which was of A. matris of the Plaintiff and Defendant And yet see F. N. B. 62. A Writ of Partition betwixt strangers without naming de haereditate in the Writ 1 Cro. 759 760. And see also that Partitions of Lands in London without shewing of what Estate See Register 67. 6 Eliz. in Partitione facienda by Courtney against Polyweel no Estate shewed in the Writ 26 Eliz. Between the Lord Cheney and Bell. So between Finch and Tirrell And so between Fry and Drake 14 Eliz. And 4 5 Phil. Mary It was holden That it is not necessary in such Writ to shew the Estate But Tenants in Common ought to shew the same in their Declaration CCCXIII. Hill. 31 Eliz. In the King Bench. AN Action upon the Case was brought for these words scil Thou hast forged my hand It was holden by Gawdy and Wray Iustices That such words are not actionable because too general without shewing to what writing And by Wray these words scil Thou art a forger are not actionable because it is not to what thing he was a forger Godfery Between Warner and Cropwell scil She went about to kill me An Action lieth for them for if they were true she should be bounden to the good behaviour And by Gawdy for these words scil Thou hast forged a Writing They are not Actionable because they are incertain words Which Wray concessit But if the Declaration had been more certain as innuendo such a deed then it had been good enough Fuller A Case was betwixt Brook and Doughty scil He hath Counterfeited my Lord of Leicester's hand unto a Letter against the Bishop of London for the which he was committed to the Marshalsey for it And it was holden Not Actionable And afterwards in the principal Case Iudgment was Nihil Capiat per Billam CCCXIV Delabroche and Barney's Case Mich. 31 Eliz. In the Kings Bench. DElabroche was sued in the Admiral Court upon an Obligation supposed to be made and delivered in France and now he prayed a Prohibition It was holden by the whole Court That such a Bond might be sued here but being begun in the Court of Admiralty we cannot prohibit them for that perhaps the Witnesses of the Plaintiff are beyond Sea which may be examined there but not here CCCXV. Moulton's Case Mich. 31 Eliz. In the Kings Bench. THis Case was moved to the Court by Cook That one Robert Moulton Tenant in tail having Issue two Sons Robert and John died seised And that Robert his Son and Heir levied a Fine thereof and afterwards levied another Fine and died without Issue And John brought two several Writs of Error to reverse both Fines And the Tenant to the Writ of Error brought upon the first Fine pleaded the second Fine in bar of it And in her of a Writ of Error brought upon the second Fine he pleaded the first Fine The Court advised him to Reply That the Fine pleaded in bar was erronious See 7 H. 4. 107. Where a Man is to annul an Outlawry his person shall not be disabled by any other Outlawry CCCXVI. Babington and Babington's Case Mich. 31 Eliz. In the Kings Bench. IN Debt brought The Defendant pleaded an Attachment made in London after imparlance It was adjudged That it was not any plea. And Wray said That the same should be observed for a Rule in other Cases After that plea was disallowed The Defendant pleaded Variance betwixt the Obligation and the Declaration For the Obligation was Randal Bab. And the Declaration was ad respondend Randulpho B. alias Randal B. Cook said That Randulphus is Latine for Randal Owen Serjeant shewed divers Presidents where Randulphus was taken for Randal But the Court did not agree upon it Wray advised the Plaintiff for his more speed to
bring a new Writ But Gawdy said That the Writ brought was good enough CCCXVII Pike and Hassen's Case Mich. 31 Eliz. In the Kings Bench. AN Action upon the Statute of 32 H. 8. touching buying of Titles And the Bargain was laid in Norfolk but the Land c. was in Suffolk And the Issue was tryed in Norfolk and the value of the Land also And as to the 5 Acres they found the Defendant guilty and found also the value of them And for the Residue a Special Verdict was given and for the 5 Acres the Plaintiff had Iudgment presently And by the special Verdict it was found That the Defendant had occupied the Residue of the Land for two years before c. as Tenant at sufferance and afterwards sold the Inheritance Wray Chief Iustice Tenant at sufferance is in truth a Tort feasor by which his taking of the profits is not such as is intended by the Statute But yet he afterwards looking into the words of the Verdict which were That the Defendant tenuit the Lands for two years ex permissione of another thereupon it ought to be intended That he was Tenant at will. CCCXVIII Sparry and Warfield's Case Mich. 31 Eliz. In the Kings Bench. IN False Imprisonment against the Defendant and others they pleaded The Charter of Bridewell and that the Plaintiff was mali nominis famae and that certain Goods were stollen from J.S. and upon search the Plaintiff was found suspitiously c. And that thereupon they put him into Bridewell It was the Opinion of the Iustices That the Plea was not good CCCXIX. Bragg's Case Pasch 32 Eliz. Rot. 318. In the Kings Bench. IN an Action of Trespass by Strait against Bragg Quare Clausum fregit containing one Acre in C. in the County of H. and for the taking of a Horse The Defendant pleaded That long time before the Trespass The Dean and Chapter of Pauls were seised of the Mannor of C. in the said County in Fee in the right of their Church whereof the place where is parcel c. And so seised King E. 4th by his Letters Patents dated Anno 1 of his Reign granted to them all the Fines pro Licentia Concordandi of all their Homagers and Tenants resiants or not resiants within their Fee And shewed That for all that time they have used to have such Fines of their Tenants And shewed further That 29 Eliz. A Fine was levied in the Common Pleas between the Plaintiff and one A. of 11 Acres of Land whereof the place where the Trespass was done was parcel and the Post-Fine assessed to 15 s. And afterwards Scambler the forreign Opposer allowed to them the said 15 s. because the said Land was within their Fee and afterwards in the behalf of the said Dean and Chapter he demanded of the Plaintiff the said 15 s. who refused to pay it for which he by the Commandment and in the right of the Dean and Chapter entred and took the said Horse in the name of a Distress as Bailiff to the said Dean and Chapter for the said 15 s. and afterwards sold it c. upon which the Plaintiff did demur in Law And it was moved That here it is not averred That the Land whereof the Fine was levied was within their Fee but they say That Scambler allowed it because it was within their Fee. And that is not a sufficient averment quod curia concessit And also the opinion of the Court was Ante 56. 2 Len. 179. That the Dean and Chapter cannot distrain for this matter but they ought to sue for the same in the Exchequer as it appeareth 9 H. 6. 27. in the Duchess of Summersets Case Gawdy Iustice The Grant doth not extend to the Post-Fine for the Fine pro licentia Concordandi is the Kings Silver and not the Post-Fine Wray Iustice All passeth by it for it is about one and the same matter And they in Opinion to have given Iudgment for the Plaintiff Quaere of it CCCXX South and Marsh's Case Mich. 32 Eliz. In the Exchequer NOte It was holden by the Court That where Marsh was endebted unto South without any Obligation for it but only by a Note in writing signed with the Hand of Marsh scil By me W. Marsh but not sealed that such a debt might be assigned to the Queen although that before the Assignment against a Creditor he might have waged his Law for in as much as by these Notes and Bills the certainty of the debt appeareth and being true debts they may well be assigned See 21 H. 7. 9. An Obligation may be assigned to the Queel without Deed enrolled and where the Obligee is not endebted to the Queen But it cannot be assigned to a subject Noy 52. if not for a debt due by the Assignor to the Assignee for otherwise it is Maintenance And in this Case it was holden That where the King sues for a debt assigned to him the Obligor cannot plead Nihil debet for now by the Assignment it is become matter of Record CCCXXI. Trapp's Case Mich. 32 Eliz. In the Kings Bench. RObert Trapps 1 Eliz. seised of 15 Messuages in Clarkenwell in the Occupation of 15 several persons viz. A.B.C. c. and named them certain demised them to one Cox And afterwards conveyed the Inheritance of them to one Brian Trapps in Fee who afterwards demised to J.S. all those 15 Messuages in Clarken-well which Robert Trapps did demise inter alia to Cox by Indenture dated 1 Eliz. now in the Occupation of A.B.C. c. And one of the Occupiers names was left out in the recital And it was holden by the whole Court That notwithstanding the said Omission the said Messuage did pass for there was sufficient certainty before and the falsity came after the verity CCCXXII Brewin and Mansfield's Case Mich. 32 Eliz. In the Kings Bench. IN an Action upon the Case the Plaintiff declared That A. was endebted to him in 10 l. and made the Defendant his Executor and died And that the Defendant in Consideration that the Plaintiff would forbear the Defendant for a certain time promised to pay it at two several days and shewed which in certain And it was found for the Plaintiff It was moved in Arrest of Iudgment That it is not set down in the Declaration by what portions the 10 l. shall be paid Clench Iustice conceived That the Defendant had liberty to pay it in what portions he pleased Gawdy He ought to pay it by equal portions as a Rent reserved payable at two Feasts without saying by what portions it shall be paid And he said That if the plea for the cause aforesaid had been defective yet now after Verdict all is helped for it is but form And afterwards the Opinion of the whole Court was That the matter shewed was not good to stay Iudgment Wherefore the Plaintiff had Iudgment to recover CCCXXIII Mich. 32 Eliz. In the Common Pleas. THe Case was The Plaintiff in a
thereupon But then the Question was If the Tenants should be put to plead the same in discharge or that the same should be discharged without pleading because it appeareth upon Record That he who aliened was but Tenant in tail in Remainder For there was an Office found of that which was pleaded by another in another Cause The Opinion of the Court was Where such matter appeareth of Record as by Office Livery c. there the party needs not to plead such matter in discharge for the pleading of it is to no other purpose but to satisfie the Court by the Record that the matter is so as the party hath alledged and therefore the Barons gave Order That the Process against the Tenants of the Lord Dacres should be stayed CCCXXXVI George Ap-Rice's Case Trin. 32 Eliz. In the Exchequer IN the Case of one George Ap-Rice The matter was Ante 121. That Tenant in tail after possibility of issue extinct assigned over his Estate unto A. against whom he in the Reversion brought a Quid juris clamat and Iudgment was given that he should attorn and upon his refusal he was committed to Prison and divers Fines set upon him and estreated in the Exchequer It was moved That these Fines were imposed upon the party against Law. And the Opinion of the Court was That when Iudgment is given in a Quid juris clamat for the Plaintiff Distresse infinite shall be against the Defendant to bring him in to attorn and when he comes in if he refuse he shall be imprisoned until he attorn It was also holden by the Court That the Fines were not lawfully assessed and imposed upon him And it was said That it had been adjudged in a Court of Wales That the Assignee of Tenant in tail after possibility of issue should attorn upon which Iudgment a Writ of Error was brought in the Kings Bench and there upon good advise the said Iudgment was affirmed For although it be true That Tenant in tail after possibility shall not be compelled to attorn yet that is a priviledge which is annexed to his person and not to the Estate and by the assignment of the Estate the priviledge is destroyed CCCXXXVII Harris and Wing's Case Mich. 32 Eliz. In the Kings Bench. More Rep. 4. 5. IN the Case between Harris and Wing The first point was That the Lease made by Queen Mary was void 1. Because a former Lease of Record was not recited in the Letters Patents of it The reason wherefore such recital ought to be is not as hath been alledged by Cook Quia circa solium Regis subsistunt justitia veritas and then when there is a former Lease in Esse the King makes a Lease in possession the same cannot stand together so as there is not Justitia Veritas but the very reason thereof is so high that he cannot take c. but by matter of Record and if that he mistaken it makes all void and therefore In Petitions of Right Ante 5 6. and Monstrans de Droit If the King be not enformed of all the Titles all is void And therefore in the Case between Sir Moyle Finch and Throgmorton which now depends in the Exchequer which was this The Queen made a Lease for years rendring Rent with a Proviso That if the Rent be behind That the Estate shall cease the Rent is behind the King granted the same over to Sir Tho. H. It was first moved If the same Lease should cease without Office. And it was holden by Popham and many other grave and learned Men upon a Conference That the said Lease should cease without Office for the Contract which is upon Record is determined and ceased by which the Estate which was created by the said Contract shall also cease without Office. But yet the Lessee continued in possession notwithstanding that and took the Profits but thereof after office found he rendred recompence to the Queen And it was holden there upon the said Conference That the Queen in her Grant to Sir T.H. of the said Estate which was now ceased ought to recite that Lease For the Tenant is in possession and could not be punished for his occupation before Office. So in the Case of the Vicarage of Yatton 17 Eliz. Dyer 339. The presentment being devolved to the Queen by Lapse the Ordinary collated A. and afterwards the Queen presented B. who brought a Quare impedit depending which A. proved another Presentment of the Queen without mention or recital of the first Presentment and the same was holden void For in that the first Presentment is not recited nor the pleasure of the Queen to revoke it and therefore it was in disceit of the Queen So the Case 18 Eliz. Dyer 352. An Abbot leased for 60 years the Lessee made a Lease for 80 years the Reversion came to the King the 60 years expired the second Lesse surrendred to the King ea intentione that the King would re-grant the same to him for 20 years remaining The King reciting the Indenture and Surrender ex certa scientia granted for 20 years It was holden by the Court That the Grant was void because the King was misenformed c. It hath been Objected That here needs no recital for that the Lease to be recited is ended eo instante that the new Lease beginneth Sed distinguenda sunt tempora aliud est facere aliud perficere the first Lease is ended when the new is perfected and the Great Seal put to it The second reason wherefore the Lease shall be void is because otherwise the Grant of the Queen shall enure to two Intents 1. To make a Lease 2. To accept a Surrender and how can the Queen accept a Surrender of an Estate of which she hath not notice for She is not enformed of it by any Record without which She cannot take notice of any thing See 7 E. 4. 30 31. Baggotts Assise The King granted an Office to an Alien the same shall not enure to make him a Denizen for then it shall enure to two intents c. The words of the Grant of Queen Mary are Omnia tenementa nostra and If by that a Reversion shall pass was the Question Certainly In verbis ambiguis Intentio sumenda est Then here in our Case by this Patent is other Land which should pass and the Reversion is nostra but in property not possession Wherefore here Nostra shall be restrained to that which is in possession Where there are general words in Grant of the King they ought to be served but if they can be served they shall be taken in a common and general sense but the words shall not be stretched But if they cannot be served then they shall not be void but the King shall be rather prejudiced and always the Grant of the King either may be served or taken to a common intent 2 H. 3. 4. Quaelibet Concessio Domini Regis capi debet stricte contra Dominum
where shall be good where not p. 147 Of intrusion where there is no Record to prove it if the error lieth upon it p. 147 Issues joyned A not joyning in it is helped by the Statute of Jeofails not a mis-joyning in it p. 66 Upon a Plea which is tryed in a foreign County and found for the Plaintiff in what Court the Judgment shall be p. 137 Jure Patronatus Where the awarding of it is necessary where not p. 98 Jurors Where upon pain of Attaint they are to take notice of a transient thing done in another County p. 77 K. KING Not bound to take notice of a Condition made by a common person p. 126 Cannot take an interest in Land without matter of Record p. 155 L. LAchess In pleading where it shall turn to the prejudice of the Parties p. 63 Leases For certain years habendum to his Executors if good and what interest passeth and to whom it passeth p. 32 Power to make Leases not to extend to Leases to be made in reversion p. 132 Where Leases are void by the Statute of 31 H. 8. of Monasteries p. 164 Made by Dean and Chapter where void by the misrecital of their name of Corporation p. 220 Livery Of Lands in Ward not to be sued by parcels p. 25 M. MAintenance Where a Grant made shall be said to be for maintenance within the Statute of 32 H. 8. p. 79 Misnosmer Where shall not prejudice a Devise p. 19 N. NOnsuit If after a Demurrer p. 28 O. OBligation By what words good by what not p. 19 Where the word Quemlibet in an Obligation shall make it joynt and not several p. 206 Taken by one Blacksmith of another Blacksmith that he shall not exercise his Trade in such a Town void p. 207 To be good although not made after the usual form p. 223 May be assigned to the King without Deed enrolled p. 234 Office Trove Personal things are in the King without Office found p. 145 Where an Estate shall be setled in the King without Office found where not p. 186 187 188 Outlawry Where a Man is to annul an Outlawry his person shall not be disabled by another Outlawry p. 232 P. PArtition The Writ was Quare teneant Quatuor mille acras where it ought to be 4 Mille acrarum yet good p. 94 Where it is not necessary to shew and settle forth the Estate particularly in the Writ p. 231 Petition Where an Entry is not lawful upon the King without suing a Petition p. 15 Plenarty Returned by the Bishop where not good p. 138 Pleadings and Pleas Where not good for incertainty p. 8 A Conveyance cannot be pleaded unless it be sealed p. 94 Of Non Damnificatus generally where good p. 118 In a Writ of Right upon a Custom to hold a Court of the Plea must be shewed before whom the Plea is to be holden by the Customs p. 148 Of Letters Patents and not saying Sigillo Angliae sigillat not good p. 193 Of the general Issue in Wast viz. Null wast fait where dangerous p. 203 Of Outlawry in the Plaintiff after Imparlance in Trover and Conversion good p. 215 Praemunire Where the not prosecuting of it by the Attorny-General shall take away the suit of the Informer p. 139 Prescription Of every Inhabitant to have Common if good p. 202 Of what good and where and of what not p. 202 To have Estovers at liberty in cutting down Wood in a Forest unless in Fawning-time where good p. 218 Priviledge Of the Exchequer not granted to him who pays First-fruits and Tenths p. 258 Possibility Not allowed to the Kings servants in the Exchequer who is sued in B.R. p. 22 Not grantable or demiseable p. 157 Prohibition Not grantable upon a suggestion that Tythe had been paid to the Vicar c. and time out c. p. 203 Proviso Where a Condition where a Covenant where a Limitation p. 225 Q. QVo Warranto Of Liberty Plea in it what good what not p. 73 184 R. REcital The not recital of the names of the Occupiers of a Lease of Lands do not avoid the Demise thereof p. 235 Records A Deed acknowledged to the King and delivered to the Barons of the Exchequer is a Record though not mentioned p. 146 Of a Fine remaining with the Custos Brevium amended and made according to the Record made and remaining with the Chyrographers p. 183 Recusants Where Lands conveyed by a Recusant shall be subject to the Statute of 23 Eliz. concerning Recusants and the penalties thereof p. 148 Release To a Tenant at sufferance where not good p. 152 By the Feoffees of Cestuy que use to his Lessee for years how it shall enure p. 196 Receit By a Termor for years to save his Term Remitter p. 2 10 93 Rents Where upon a Fine levied of the Land the Rent passeth without Attornment p. 103 Payment of it upon an extent of it and of the reversion saves the danger of a Condition supposed to be broken p. 113 Where apportioned where not p. 125 126 Granted by Fine varyeth from the Indenture yet shall pass p. 136 Suspended yet grantable p. 154 Where it passeth by the name of a Mannor p 168 Reserved to be paid at two Feasts and not said by what portions the Lessee hath the liberty to pay it in what portions he pleaseth p 235 Repleader After Issue joyned where granted p. 90 Request Licet saepius requisitus good and where it must be special p. 73 206 S. SAle By an Enfant Executor of goods where binds him p. 144 Scire Facias Where it lyeth upon an Extent supposed to be satisfied p. 155 Where upon an Alienation of an Advowson without Licence by matter of Record not by matter of Fact p. 175 Statute Merchant and Staple Acknowledged when void by the death of the party p. 157 Surrender Of a Copyhold to uses p. 4 Cannot be of a Lease for years to begin at a day to come p. 95 Tenant for life remainder in Fee of a Copyhold he in the remainder may surrender in the life of the Tenant for life if there be no Custom to the contrary p. 259 T. TAil p. 87 Tender Of Rent how and where to be made p. 4 Tenancy In Common where must be pretended and not given in evidence p. 94 Traverse Where good where not p. 97 Trespass Quare clausum fregit not maintainable by him that hath but the Ear-grass after the first mowing p. 213 Tryal If Tythes lie in such a Parish or in such a Parish tryable at the Common Law p. 128 V. VAlue Of Lands what value shall be intended p. 114 Venire facias Where the place must be mentioned in it p. 171 172 Where from the place where from the Mannor p. 193 Upon every Original must contain the issue in it p. 269 Verdict Not good because too general p. 64 Not Good because it doth not extend to all the points of the Declaration p. 95 Given and found after a Supersedeas
an Under-Sheriff proceeding after an Habâ—as Horpus delivered C. 99. If one whose Goods are stole desire the Justice to examine one no Action lies unless he charge some one positively C. 100 101. Lies no for exhibiting an Indictment which purported that the Plaintiff was a Disquieter of the Neighbors C. 123. For prosecuting a slanderous Bill against the Plaintiff to the King that the Plaintiff had got 100 l. by Forgery C. 138. For procuring J. S. to sue an Appeal of Death against the Plaintiff C. 140 141. For maliciously indicting the Plaintiff of what offences it lies C. 140 141. If such Action lies if the Appeal were Erroneous C. 140 141. A. 279. Action upon the Case for Assumpsit See Consideration and Request Lies for Rent where the Action is changed from the Baron and Feme to the Baron only A. 43. Lyeth in consideration to forbear parum tempus A. 61. Where it lies not for a Rent A. 155 156. contra B. 107. To pay Mony at two or more days when the Action must be brought A. 319. B. 108 221. If in such Action the consideration be laid to be at the Defendants request the performance of the Consideration must be averred to be done at his request B. 53. C. 91. If it be a good Bar that the Plaintiff did discharge the Defendant B. 214 203 204 If it lies against Bailee of the Plaintiffs Bailee who receiveth Mony to buy Goods and bought them not C. 38. Where this Action or Account lies C. 38. If the Defendant may plead in Bar another promise and traverse part of that in the Count C. 67. A special Assumpsit must be precisely found and averred else the Plaintiff shall not have Judgment C. 99 205. By a Sheriff for that the Defendant promised not to sue him for an Escape upon a Special Warrant granted at the Plaintiffs denomination C. 227 228. Action Popular Is vested in the Informer and the King or his Attorny cannot enter a Nolle pro sequi as to the Informer A. 119. In what Cases it must be brought in the Parties Name only or for the King and Party C. 237. Action upon the Statute Of 32 H. 8. cap. 9. of buying pretended Titles its necessary to alledge that the Defendant knew the Vendor had not been in possession A. 167 208. If the Action be brought pro parte gravata the Statute of 31 Eliz. 5. does not limit him to any time C. 237. Addition Must come before the Alias Dictus else it doth not satisfie the Statute B. 183. School-Master and Scrivener both good B. 186. No utlary without an Addition according to the Statute B. 200. Administrator and Administration Durante minori aetate of three ceaseth by the full age of any one A. 74. Husband Administrator to his Wife A. 216. The Ordinary may commit administration to whom he will if he will incur the penalty of the Statute A. 240. How to alledge Administration granted by a Chancellor or Vicar-General A. 312. Granted by a Bishop where the Intestate had bona notabilia c. is ipso facto void B. 155. If impleading Admistration granted by the Metropolitan bona notabilia must be alledged B. 155. It is the safest to pay Mony upon a Mortgage to the Infant and not to the Administrator durante minore aetate C. 103. Are assigns in Law and a Duty is payable to them though they be not and named in the specialty C. 2 2. Administrator during the minority c. hath one in execution and then the Infant comes of age the Administrator cannot release the Defendant nor acknowledge satisfaction C. 278. Admiralty No remedy there for extortion done on the Land A. 107. If they proceed by the Civil Law where the Common Law can decide the matter a Prohibition lies B. 103. How the Admiral Grants his Offices B. 115. Suit there for a moyety of prize Goods taken by two Ships whereof one did but stand still while the other seised B. 182. If by a Libel there it appear they have not Jurisdiction a Premunire lies B. 183. Action may be sued there upon a Bond made in France and no Prohibition lies C. 232. Advowson In gross cannot be made appendant A. 26. By what words the Advowson of a Vicaridge may be granted A. 191. Whether it pass from the King by the words Bona Catalla A. 201 202. To what it may be appendant A. 207 208. How an Advowson appendant to a Mannor may be granted A. 208. B. 26. C. 17 18 193 196. How an Impropriation may be disappropriated B. 80. Age. At what age a Man and Woman may consent to Matrimony A. 54. The second Vouchee in a Cui in vita shall have his age though the first should not B. 138. Agreement and Disagreement see Acceptance What shall vest in any person before or after Agreement A. 130. B. 223. If the Lords agreement to avoid admittance makes it good A. 288 289. Where an Interest shall be devested by Agreement en pais where not B. 72 73. To what time Agreement to a Disseisin or Feoffment shall have relation B 223. If an Agreement en pais to an Estate be good to devest an Estate C. 271 272 273. Amendment Of a Christian Name in a Plea in Bar after demurrer A. 24. What shall be amended by the Statute of 27 El. cap. 5. A. 80 81. Shall be to affirm a Judgment or Verdict not e contra A. 134. Of a Sheriffs Retorn A. 145. None of the Christian Name of a Juror after Verdict A. 267. Of a Judgment which was Ideo videtur Justic quod quer recuptret B. 1 2. If the Proclamation of a Fine which were wrong with the Custos Brevium and right with the Chirographer C. 106 107 183. Amerciament see Fine Annuity The Judgment therein B. 52. If the Term for which that is granted expire this Action lies not B. 51 52. An Annuity pro Consilio impendendo cannot be granted nor forfeited by attainder B. 122. Appeal Damages recovered in Trespass is a good Bar to an Appeal A. 319. Lies not for the Heir where the Feme poysons her Husband for it is Treason A. 326. If the Defendant shall be arraigned at the Suit of the King if the Appellant die before Judgment or be non-suited B. 83. Where auterfoits acquit or convict is a good Bar B. 83 160. If it be a Bar the Indictment being erroneous B. 160. Where it must be brought if the party die in another County than where the stroke was C. 140 141. See the Statute 2 E. 6. cap. 24. and W. 2. cap. 12. Of Appeals Defendant pleads Ne unques accouple c. Et si trove ne soit Not Guilty C. 268. If an Appeal from a Sentence in the High Commission Court B. 176 177. Appearance The form of recording it to save the Ball bound A. 90. Appendant Appurtenant and Parcel If Tithes pass by Grant of a Rectory cum pertinentiis A. 281 282. Issue if an Advowson be
141. Upon a Statute Merchant for that it had but one half of the Seal good A. 228 229. Lies to discharge the Land if the Conusor taken by Capias be let at large by the Conusee his consent A. 230 231. B. 96. To avoid Execution upon a Recognizance for that the Debt is attached in London A. 297. Upon a voluntary Escape by the Sheriff it lies B. 119. By one Bail to be relieved for that the other Bail was taken by a Capias and discharged by the then Plaintiff C. 260. For one in Execution at the Suit of an Administrator durante minori aetate for that the Infant is come to Age C. 278. Averment A Demurrer need not to be averred A. 24. Inducement to an Action need not to be precisely averred A. 123 124. A consideration to make a Bargain and Sale may be averred though not mentioned in the Deed A. 170. Where against a Record return of a Sheriff Deed enrolled A. 183 184. None against a Bishops Certificate A. 205 206. Where necessary to aver the continuance of the particular Estate A. 139 255 66 281. B. 50 94 95. Where want of such Averment is aided by Intendment A. 281. C. 42 43. Devise to A. may be averred to be any one of that Name B. 35. Where he who pleads must aver all things to make good his Plea or the other party must shew it C. 40 to 43. Ancient Demesne For what Goods only they are priviledged from Toll A. 232. B. 191. Fine levied thereof avoidable by a Writ of Deceit A. 290. Pleading thereof A. 333. B. 190 191. Authority Shall be strictly pursued if not coupled with an Interest A. 74 285 286 288 289 bis Where Authority is reserved by Statute or Deed to make Leases If Leases in Reversion may be made C. 134. B. Bailiff SHeriffs Bailiffs shall not be prejudiced by the mis-return or not return of the Sheriff A. 144. What power a Bailiff of a Mannor hath B. 46. Bail. Discharged upon the Principal his Offer to render himself A. 58. No Scire facias lies against them until a perfect Judgment be against the Principal B. 1 2. Cannot be charged by any Custom without a Scire facias B. 29 30 87. If to a Scire facias against them they may plead Error in Fact in the first Judgment B. 101. A Lord shall find Bail ad solvendum debitum upon an Action removed out of London B. 173 174. Bail upon a Writ of Error is not to render the Body being then in Execution but to pay the Debt C. 113. Baron and Feme To what intent the Husband is the Femes Assignee A. 3. Where they shall joyn in Trespass A. 105. The Wife served with a Sub-poena the charges to be given to her Stat. 5 Eliz. cap. 9. A. 122 123. They are at Exigent no Supersedeas shall be received for the Baron without the Feme A. 138 139. The Baron cannot recover things in Action due to the Wife but must first take Administration A. 216. Leases made by the Baron of the Femes Land the Lease is void after their deaths A. 247. What Conveyance of the Wife of Lands given by the Baron is within the intent of the Statute 11 H. 7. A. 261 262. C. 78. They being Tenants in Tail joyntly the Baron suffers a Recovery this binds not the moiety of the Feme A. 270. If an Exchange by them of the Wives Land bind the Feme A. 285. Trover by the Feme and Conversion by the Baron and Feme Action must be against them both A. 312. Payment to the Feme is no good Bar A. 320. What act of the Baron is a breach of the Condition annexed to the Femes Estates B. 35 48. What value the Parapharnalia of a Viscounts Wife in Jewels is B. 166. Devise that she shall take the profits until the Son come of Age her second Husband surviving her shall not take the profits B. 221. C. 78. cont If an Interest be devised C. 9. Lands given to the use of the Wife for life remainder to the Heirs of Baron and Feme the Remainder is executed for a moiety C. 4. The Feme cannot give Licence to one to do a Trespass in the Husbands Land C. 267. By Agreement of the Baron to a Desseisin to the use of Baron and Feme the Free-hold vests in them both but the Feme is no Disseisor C. 272. Bargain and Sale. By Parol of Houses good and the manner thereof A. 18. There must be a Consideration for the doing thereof but it is not traversable A. 170. Of Trees Habend Succidend infra 20 annos If the Bargaince may cut them after 20 years A. 275. This Conveyance works by the Statute of Uses B. 122. C. 16. Of Trees during life of the Lessor the Lessee must cut all at one time in one Close and cannot leave off and begin again C. 7. Give grant agree confirm covenant all work by Bargain and Sale and by the Statute of Uses as well as the words Bargain and Sale C. 16. Bar. Where non damnificatus is a good Bar e contra A. 71 72. Must be good to a common intent and must be confest avoided or traversed or conclude the Defendant by Estoppel A. 77. By an Obligation in Bar of Assumpsit how to be pleaded A. 154. Non Dimisit and what advantage may be taken thereupon A. 192 206 207. To an Action brought by a Sheriff against a Prisoner for escaping Bar that since the escape the Plaintiff had acknowledged satisfaction A. 237. Non Concessit per liâ—eras paten A. 183. Plene Administr before notice where good A. 312. Ejectione Firme a good Bar in Trespass against the same party A. 313. C. 194. Judgment in Trespass a good Bar in Appeal A. 319. Good to common Intent A. 321. What is a good Bar for a time though it destroy not the Action for ever A. 331. Where Non concessit or that riens passa per le fait must be pleaded B. 13. If in Slander for calling one Forsworn it be a good Bar to say the Plaintiff did not depose B. 98. No good Bar to a Contract that a Stranger became bound for the Mony B. 110. To an Action quod Waren fregit no Bar to say it is the Defendants Free-hold for it may be so and that the Plaintiff hath Warren there too B. 202. If a good Bar in Assumpsit that the Plaintiff discharged the Defendant B. 203 204 214. The like in Covenant C. 69. A Stranger is bound that Lessee for years shall pay his Rent for his Farm It is a good Bar that the Lessor entred C. 159. Bastardy The manner of pleading and taking Issue therein A. 335. By pleading of the Bastardy specially how Bastard it shall be tryed per Pais C. 11. Or if the Bastard be not party to the Writ C. 11. Bishop Where he shall be tryed per Pares A. 5. What Lease shall bind the Successor A. 234 235. Is no Clerk
Debt against the Debtors Executor A. 320. They may have Error of an Utlary in Felony against their Testator A. 325. Good resolutions for their pleading of Statutes Judgments c. A. 328. 329. What Debts must be first paid 328 329. Are liable to account to the King. B. 34. The manner of prosecuting a Devastavit in a forein County against an Executor B. 67. If they plead plene administravit specially by paying Debts upon Bonds they must shew how the Bonds are discharged B. 155. What intermeddling with the deceaseds Estate makes one Executor of his own wrong B. 224. Conditional if he pay all Debts owing to the Testator to the other Executor C. 3. If Executors enter or claim generally it shall be taken to be as Executors and not in any other capacity C. 36. It is said that a promise cannot be good to bind an Executor if he hath not Assets C. 67. Sale of Goods by an Infant Executor is good and binds him C. 143. One Obligor makes the Surety his Executor who pays the Mony generally Quaere C. 197. How he must be sued who being Executor of his own wrong takes Administration C. 197 198. One Executor cannot give the Goods of the Testator to the other for nothing passes by such Gift C. 209. Release of one Executor binds both C. 209. Executor of Executor not chargeable with a Devastavit made by the first Testator C. 241. Exemption A Juror sworn at the Bar notwithstanding he produced his Charter A. 207. Ex gravi querela In London in what case A. 267. Ex parte talis In what case it lieth B. 93. Exposition of Words Dedi Concessi in a Deed A. 29. Where the word Or in a Deed shall be copulative e converso A. 74 244. Of the word eundem in a Grant A. 15. Divisus dividend in an original Writ A. 169. Of Adtunc A. 172. I agree to surrender my Lands spoken by Tenant at will A. 178. Of the word Tenement in Grants A. 188. Of the word Covenant in a Bill of Debt A. 208. Uterque in Indictments A. 241. Quousque A. 244. Suus A. 271. Right A. 271. Factum implies sealing and delivering A. 310. Exponere ad culturam gives no Estate in the Land A. 315. In portum ad portum all one A. 335. Covenant with two quo ibet eorum B 47. In manner aforesaid is a Devise B. 69. By the word Licet may be made a good allegation B. 108. C. 67. A mile is accounted in Law 1000 paces and every pace 5 foot B. 113. Assurance to what Conveyances it doth relâ—te B. 130. Selion of Land is uncertain B. 162. Puer if it relates to both Sexes B. 217 218. Firma C. 12 13. Whether the word Mille may be joyned to a Genitive or Accusative Case C. 94. Tenementum is of an incertain signification C. 102. Of the word until as a Lease until Michaelmas includes the Feast day C. 211 Curtillage quid C. 214. Where a word in the singular number includes the plural C. 262. Immediate C. 273 274. Term of years C. 112. Extent If it be well executed though not retorned A. 280. Executed though not retorned in what case it is a good Execution B. 12 13. Lessee for years may pay the Rent to the Extendor C. 113. Scire facias to remove the Conusee C. 155. If the Conusee can in any case be removed without a Scire facias C. 155 to 158. What kâ—nd of Interest is left in the Conusor during the Extent C. 156 157. If an Extent be avoided by a Prior Statute the puisne Conusee may enter when the other is satisfied C. 239. If a Debt be assigned to the King he shall have all the Conusors Land C. 240. By the Statute of Acton Burnel the Extendors are to take the Lands if they appraise too high and must pay the Debt statim But when that statim means vi C. 274. Extinguishment Of Rent by Entry what act amounts thereto A. 110. Estate for life extinct by a Fee coming to the same person A. 174. A Prescription of non decimand in a spiritual Person is not extinguished by the Lands coming to lay hands A. 248. If a Remainder depending upon an Estate for life escheat the Seigniory is extinct presently A. 255. Where an Action once suspended is extinguished A. 172 320 330 331. Of a Use A. 257 259. A Rent granted in Fee and that it shall be suspended during the nonage of every Heir A. 266. Executor of the Debtee takes to Wife the Debtor how adjudged A. 320. Where personal things once suspended shall be revived B. 84. Lessor mortgages his Reversion to the Lessee in Fee the Term is utterly extinct C. 6. Where a Warrant is suspended and may be revived C. 10 11. A Term for years comes to the Lessor as Executor and he dies the Term is revived C. 210 111. If Unity of possession in the King of Abbey Lands extinguish a Common C. 128. If Devisee of a Term remainder over purchase the Fee the Term is not merged C. 92 93. Condition of re-entry is not suspended by assigning part of the Land for part of the Term C. 221. By destroying a Reversion a Rent depending thereon is extinct C. 261. A Mesnalty extinct by the Lords purchasing the Tenancy C. 261. Extortion Against whom it lies and the several Statutes against it A. 295. C. 268. It must be set sorth in the Judgment whether any Fee or no Fee was due C. 268. F. Faux Imprisonment See Iustification FFaux Imprisonment lies if a Capias be made out of the Courts at Westminster to a County Palatine B. 89. Faux Iudgment Lies upon a Justicies not Error B. 34. Upon a Writ of Right Close prosecuted in nature of an Assise C. 63. Fee-simple Where it may be created without the word B. 27. C. 216. Devise that the elder Son shall take the Profits until the younger come of Age is a Fee conditional in the eldest C. 216. Feoffment Vide Vses Good by the words Bargain and Sell with Livery A. 25. Fine and Amerciament Upon alienation without Licence A. 8. B. 55 56. In what case a Vill shall be amerced for the escape of a Felon A. 107. C. 207. If a Pain upon a Presentment must be afferred A. 203 204 217 242. In what case a Steward may Fine in a Court-Leer A. 217 242. Grantee of Post-Fines if he may distrain for them and sell the distress A. 249 250. The manner of pleading in Trespass where the Defendant-justifies for such Fine A. 249 250. By what words such Fines pass A. 249 250. If a Defendant make several defaults in one Suit he shall be several times amerced B. 4 5. Fine set in a Court for a contempt in not retorning of Cattle in a Replevin B. 174. Debt lies for a Post-Fine by the Kings Grantee B. 179. cont C. 56 234. A Defendant may be several times amerced for several defaults in one Suit B.
shall vest the Estate by Livery and prevent the operation of Inrolment A. 6. C. 125. By Letter of Attorny cannot be made by parcels unless so limited A. 34. What is a good Livery what not A. 207. Where the particular Tenant and he in remainder joyn in a Livery how adjudged A. 262. How it must be made by Attorny of Land in several Counties or of a Mannor A. 306 307 308. Made to three where the Feoffment was to four is good in some cases B. 73. Feoffment by Tenant for life and before Livery made by Letter of Attorny the Feoffor purchaseth the Fee and then Livery is made the Fee passeth C. 73. But that shall not pass other Lands purchased by the Feoffor in the same Vill where the Feoffment was of all his Lands in D. C. 73. Livery ouster le main What Leases or Conveyances an Heir may do before Livery sued A. 157. London Scire facias there ad discutiendum debitum A. 52. Quo Warranto lies against the City if the Mayor use authority not agreeable to Law per Gawdy A 106 107. Upon a Recognizance taken before the Mayor by custom Debt lies not but in their own Courts A. 130 131. The custom that a Feme sole Merchant may sue without her Husband A. 130 131. The Statutes of 32 34 H. 8. of Wills how far they extend to Lands in L. A. 267. The Courts at Westminster take notice of their Customs A. 284. It had no Sheriffs in the 13th year of King Edw. the First Ibid. Debt lies in the Common Pleas upon a Recognizance there Ibid. Hustings may be holden every Week B. 14. Upon Indictment at the Sessions Error lies B. 107. The Custom there Quod concessit solvere debitum alterius B. 156. Custom that every Surety shall be chargeable pro rata B. 166 167. If an Action there by Custom be removed to Westm it shall be remanded B. 167. They ought not to be impleaded in real Actions but in their own Courts C. 147. Their Liberties seised and re-granted by King Richard the Second and re-granted for 10000 Marks C. 264. M. Maihem Cutting off any Finger is a Maihem A. 139. Maintenance See Stat. 32 H. 8. For desiring a Juror to appear and to do according to his Conscience done by a Stranger B. 134 135. Against a Counsellor at Law C. 237. Mannor Whether a Rent-Charge may be parcel of a Mannor A. 14. Extending into several Vills a Grant of the Mannor in one Vill how adjudged A. 26. Granted cum pertin another Mannor which holds of it passeth Ibid Where by Grant of part of the Services of Freeholders and Demesnes a Mannor will pass A. 26. B. 41 42. A Lease of a Mannor except all Casualties and Profits of Courts the Court is not excepted A. 118 119. How it may be dissolved and after become a Mannor again A. 204. A moiety thereof by what words conveyed A. 204. B. 42. Whether a Steward of a Mannor deputed by parol may take Surrenders extra curiam A. 228. If Lessee of a Mannor attorn to the Grantee of the Reversion the Mannor passes A. 265. B. 221 222. If the Tenants pay their Rent to a Disseisee they are discharged A. 265. The Service of a Tenant may be changed from one service to another A. 266. What will pass by Grant by name of a Mannor B. 41 42 43. By what name a Mannor may pass B. 47. A Mannor in two Vills is devised to the Heir and the Lands in the one Vill to A.B. he shall have that devised to him B. 190. Lease the Demesnes the Reversion passes not by grant of the Mannor without the Lessees Attornment B. 222. The Services pass not without Attornment C. 193. Market If a stoln Horse be sold by J. S. by the name of J.D. and so entred it alters no property A. 158. Mesne The form of the Count B. 86. If it be extinct by the Lords purchasing the Tenancy Monstrans de Droit Where it lies A. 195 B. 122. Or where only a Petition de Droâ—t B. 122. C. 15. Petition of Right for a Rent-Charge granted out of Lands which are since vested in the Crown C. 190 191. All the Estates must be truly set down else all is void after Judgment C. 242. Monstrans de Faits Upon pleading a Grant of a Reversion the Deed must be shewed A. 310. And upon pleading of an Estate in an Hundred B. 74. Mort vie If the Plaintiff die after Verdict within the time that the Court takes to consider of the Law the Court may if they will give Judgment as at the first day in Bank A. 187. If the Defendant die after the first Judgment in Trespass before the Writ of Inquiry retorned yet the Action does not abate A. 263. C. 68. If one of two Defendants in Assumpsit die before Judgment if Error B. 54. Murder To leave ones Child whereby it perishes by Famine A. 327. N. Name OF a Corporation ought to be strictly alledged as to the substance A. 134 162. C. 18 19. Joan and Jane all one Name A. 147. A Corporation makes a Lease by the same name in substance and sense but not in words yet good A. 159 160 161 162 163 215. B 97 165. C. 220. Garret King of Arms and the manner of his Creation A. 249. What are Names of Dignity and what of Office only Ibid. B. and Nether B. a Vill A. 272. Executor of Executor how named A. 275. If the word Heir be a good name of purchase A. 287 288. Where the names of the Heads of what Corporations must be shewed in pleading A. 307. The best way is to sue the Defendant as he is named in the Bond though his Name be otherwise A. 322. What is a Name of Dignity and must be put in the Writ what not B. 49 In pleading any matter done before Suiters of a Court-Baron if their Names must be shewed C. 8. Ne admittas Where it lieth A. 235. Negative pregnant Defendant pleads that he permitted J.S. to have ingress into all such Lands which lay fresh adjudged good A. 136. That J. G. did not disturb the Plaintiff but by due course of Law B 197. How to avoid the pleading of a Negative praeg by a Modo forma B 198. Nisi Prius If grantable per Proviso pro Def. upon an Information at the suit of the party B. 110. Nolle prosequi As to part before Verdict in a joynt Action if it discharge the whole B. 177. Nomine pene The Heir shall not have Debt for it reserved by his Ancestor B. 179. Nonsuit The Plaintiff may be Nonsuit after Demurrer A. 105. C. 28. No Nonsuit for part of a Writ or Bill B. 177. Non est factum Where the Defendant may plead it or the special matter A. 322. By this Plea the date of the Bond nor the sealing of it at another day than which the Plaintiff declares cannot prejudice the Plaintiff C. 100. Notice How
lies immediately upon a Recognizance in Chancery B. 84 to 89 220. If Debt lies upon it before or after Judgment upon the Scire facias B. 84 to 88 220. Debt brought upon a Recognizance but non constat where it was acknowledged C. 58. Record Of an Assise brought into the Common Bench by Error how to be remanded to the Judges of Assise for Error lies not in C. B. A. 55. Pleading of a Record in the same Court A. 63 65. Where and for whom Averment lieth against a Record A. 183 184. Removed by a vicious Writ of Error or before Judgment given the Record is still in the first Court B. 1 2. A Recordatur made per Car. of a Record mistaken B. 120. Recovery The form thereof where the Vouchee comes in by Attorny A. 86. Against an Infant per Gardianum A. 211. A Recovery by one Joynt-Tenant binds only his own moiety A. 270. The execution thereof necessary in some cases B. 48. By Estoppel B. 57. Recoveror is seised to the use of him who suffers it until other Uses are limited B. 63 64 66. See Stat. 21 H. 8. who may falsify a Recovery For what reasons Recoveries do dock remainders after an Estate tall B. 66. Recovery to the intent that the Recoverors shall make Estates if such Estates be not made in convenient time in whom the Freehold is B. 216 217 218. What issue is bound thereby per Stat. 32 H. 8. B. 224. Recouper If the Lessor covenant to repair the House and do not Lessee may do it and recouper out of his Rent A. 237. Recusant If Copyhold Lands were liable to seisure for Recusancy before the Stat. 35 Eliz. 2. A. 98 99. Within what time Action upon the Stat. 23 El. 1. must be brought A. 239. The Indictment needs not name the offender of a Parish but a Vill B. 167. Redisseisin Whether the Plaintiff may have it after Entry the Judgment therein A. 69. Relation Of a Participle of the present Tense without the word adtunc A. 61 172. Of an Attornment A. 265 266. B. 222. Of words in an Indictment B. 5. Of a Deed enrolled to vest Lands in the King B. 206 207. Of agreement to a Disseisin Feoffment c. B. 223. Release Where a Covenant in the same Deed shall release other part of the same Deed A. 117. C. 113. Of a chose en action nihil operatur A. 167. C. 256. If an Heir release to the Disseisor and after his Ancestor dies it does not bind the Heir B. 47 56 57. A promise may be released by Parol B. 76. See where a release to a Stranger may discharge a Bond C. 45. Release of Covenants before any broken discharges the Bond for performance C. 69. To what Tenant in possession it is available C. 152 153. One Grantee of a prochein avoidance cannot release to his Companion A. 167. C. 256. Relief The Heir of one Coparcener shall pay none because it is an intire thing C. 13. Remainder and Reversion In Fee after a Lease for life where not discontinued by a Fine levied by Tenant for life A. 40. Cannot vest in the right Heirs of one in the Feoffors life unless it begin first in the Feoffor A. 101 102. Where an Estate shall vest as a remainder where as a reversion A. 182. B. 33 34. A Reversion after an Estate for life passeth by Devise of all Lands and Tenements A. 180 181. When a Remainder limited upon an Estate which is void as a Gift to a Monk for life remainder over shall take effect A. 195 196 197. Lease for nine years determinable upon death of the Lessee and if he die within the Term the remainder of the Term to his Wife a void remainder A. 218. The difference between a remainder limited upon a contingency which may never happen and one that must and will happen A. 244. B. 82 83. Devise to J.S. haered to Uses in tail after the Estate tail spent The Devisor shall have the fee A. 254. If one of two Disseisees release to one of two Disseisors and the Tenant who released not do enter the Reversion is revested pro toto A. 264. If a remainder may be limited upon a Condition A. 283. Feoffment to J.S. primogenito filio suo If the Son be born after the Feoffment he shall take by remainder B 15. If the remainder of a Term for years be good B. 69. C. 110 111 197 199. Remainder executed by moieties upon a Gift to a Feme for life remainder to their Heirs C. 4. Grantee of a Reversion shall recover Damages only for breach of Covenant made since the Grant C. 51. What acts as Extents Grants c. do take a Reversion forth of him that had it C. 156. Remitter Where it shall be A. 6 7 37. C. 93 94. Tenant in tail creates a new intail upon condition which his issue breaks yet he is remitted after his Fathers death A. 91. Land given to Husband and Wife in tail before Marriage and the Baron aliens and takes back an Estate to him and his Wife for life both are remitted A. 115. C. 93 94. The Father enfeoffs the Heir who never agrees and dies the Heir is remitted B. 73. Father enfeoffs his younger Son who dies his Wife priviment enseint of a Son the elder Son enters he is remitted Quaere C. 2. If one may be remitted against a Warranty C. 10. Waived by the Wife who was Tenant in tail with her Husband her payment of Rent which was reserved upon a Devise C. 272. Rent What is a Rent what a sum in gross A. 137 138 269 333 334. C. 103. Rent reserved by a Lease for years becomes seck if it be granted over A. 315. Divers ways of suspending Rents and how they are revived 334. To what remainder or reversion it shall be incident B. 33 34. If a Rent may be divided to equal a devise of Soccage and Capite Lands B. 42 43. Shall follow the Reversion although reserved to Executors B. 214. Contrary to a sum reserved to Executors upon a Mortgage of Land C. 103. Rent payable at two Feasts is to be paid by equal portions C. 235. By destroying a Reversion a Rent which followed it is extinguished C. 261. Repleader None after Demurrer A. 79. After an unapt issue A. 90. Replevin and Avowry Avowry for Rent reserved upon a Feoffment in fee and for sult of Court A. 13. Bar by non Cepit and what is good evidence therein A. 42. By property in a Stranger Ibid. Where the Plaintiff or Avowant may vary from the number of the Cattle A. 43. Plaintiff cannot discontinue without leave of the Court A. 105. Avowry for Damage Feasant in Customary Lands leased to the Avowant A. 288. Avowry by the Stat. 21 H. 8. cap. 19. A. 301. Avowry for a Leet Fee B. 74. Bar to an Avowry made by a Bailiff that he took the Cattle de injuria c. and traverse that he took them as Baily B. 215.
shall be received or rejected A. 92. Upon a frivolous Plea and Issue Judgment shall be pro quer nullo habito respectu A. 68. The Verdict is good though the Jurors eat before they be agreed unless at the charge of the party for whom they gave their Verdict A. 132 133. C. 267. May find an Estoppel against the admittance of the parties A. 206. Venire facias de novo for the incertainty of a Verdict A. 210. B. 120. What matters uncertainly pleaded are ascertained by the Verdict and helped A. 236. Void by a Witnesses repeating his evidence out of Court A. 305. Void if it find the Defendant guilty of part and do not acquit him of the residue B. 22. C. 83. Verdict special upon issue upon a Traverse if good C. 48. If the Jury find the Issue for the Plaintiff and finds other matter not put in issue though it destroy the Plaintiffs Title yet he shall have Judgment A. 66 67 68. C. 80 81. Special Verdict which makes an illegal conclusion upon the Premisses is void for that part C. 112. By an Inquest of Office is no Verdict until Ingrossment C. 127. Where the conclusion of a Special Verdict is special all other matters but that are taken pro confesso C. 152 153. Visne See Trial. Upon issue whether there be a Vill called Magna or H. only tried by the Visne of H. magna A. 109. Where de Corpore Com. A. 109. B. 22. Usurious Contract pleaded in a Forein County the issue shall be tried where the Usury is alledged A. 149. Whether it may be of a Forest A. 169. Where it must be of two Vills or of one or more A. 301. B. 22 59. Levy per distr issint rien arrear that issue is triable by the Visne where the Lease was made B. 22. Where it shall be de Lincoln or de Vicineto de Ibid. De Suburbiis is good Ibid. Of what place Misnosmer shall be tried B. 23. Of what place Ne unquis Executor and Non-age shall be tried B. 23. Where it ought to be of a Mannor where of a Vill and the Mannor too B. 59. C. 193. Where it shall be of two Counties B. 102. If the seisin of a Rectory be in issue it is to be tried by a Visne of the Vill C. 161. A matter is alledged to be done at L. in the Parish of S. the Visne of L. only is good C. 193 266. Voucher Three Tenants to a Praecipe cannot vouch severally A. 116. Three Husbands and Wives vouched it is intended to be in right of the Wives A. 291. Trial of a Forein Voucher made in a County Palatine B. 37. Stat. W. 1. c. 39. That none shall vouch out of the Line yet the second Vouchee may so do for the Statute is taken strictly B. 149. Voucher in Formedon Counterpleaded for that the Vouchee had nothing c. C. 11. Vses An Use cannot be raised out of an Use A. 7. 148. The consideration of Mony to be paid is good though never paid A. 25. Raised by a Fine to the King A. 33. Use cannot be raised by a Covenant without a Consideration but may by a Fine A. 138. What is a good Consideration to raise a Use by Covenant what not A. 195 196 197 198. The definition of a Use A. 196. B. 15 16 17. Difference between a Use by Feoffment and by Covenant A. 197. A Use in remainder need not depend upon any other Estate per Gawdy A. 244. One may be Cestuy a que use by a Devise without any Consideration A. 254. Suspended may be devised A. 257 258. If good by Stat. 27 H. 8. for years B. 6. C. 21. Cannot be limited but to one in posse or in esse B. 14. Limited to J. S. and such Wife as he shall after Marry is a good Use B. 15. It may commence upon a Contingency B. 16. Cannot be limited to any but by a good name of purchase B. 18. A Corporation cannot be Feoffees to Uses B. 122. What shall be a sufficient Declaration to raise Use upon a former Feoffment B. 159 160. Feoffment to Use of his first Son before Issue Feoffor and Feoffee enfeoff one in see the Uses are destroyed B. 178. Feoffees before the Statute of 27 H. 8. and those since the difference of their Estates B. 178 179. Cestuy que use leaseth after the Stat. 1 R. 3. The Feoffee releases to the Lessee having notice of the Use the release is to the first Use Cont. of a release by the Feoffee to the Disseisor B. 211. Where notice of the former Use in such cases is material B. 178 211. C. 158 252. Use limited to the Feoffor and such Wife as he should after Marry B. 223. C. 253. Use to the eldest Son in tail remainder to the Heirs of the Feoffor he having then no Issue B. 224. Where a Use may be limited against the Rules of Common Law and yet good C. 21. If a Fine levied by a Stranger to Cestuy que use pur vy give the Conusee the Feesimple C. 37. Where a future Use may be destroyed by Feoffment of the Feoffor and Feoffee C. 252 253. Where Re-entry of the Feoffees may revive a Use suspended by Feoffment C. 252. Vsurious Contract The difference between a usurious Loan and an usurious Agreement A. 96. Divers differences about these Statutes argued but not adjudged A. 96 97. The taking the Mony makes not the offence but the corrupt agreement A. 208 209. Cont. C. 205. If a Stranger may plead in avoidance of a Conveyance for Usury A. 307. It must be alledged how much above the rate was agreed upon B. 39. A Counter-bond to save the Surety harmless if it be void if the first Bond were void B. 166. C. 63 Vtlary What is forfeited to the King by Utlary in personal Actions and when and how he must take benefit thereof A. 63 64. Pleaded in abatement Plaintiff replies Comorance in another Vill adjudged a good Replication A. 87. Lies not but where the Suit is by Writ A. 329. Bars not an Aud. Quer. if brought upon the same Record B. 175 176. Reversed for want of the parties addition in an Indictment B. 200. Good Bar in Trover Debt upon Bond but not upon a simple Contract C. 205. W. Wager of Law. BY Lessee for years made Tenant in a Writ of Dower A. 92. If it lies for an Amerciament in a Court-Leet or a Court Baron A. 203 204. In the discretion of the Court if they will permit the Defendant so to do B. 110. C. 212 258. The Plaintiff cannot be nonsuit if the Defendant wage Law the same Term C. 28. In what cases the Defendant shall be permitted to wage Law B. 110. C 212 258. Waif and Estray The property of the Goods waived remain in the Owner if he freshly pursue and convict the Felons B. 192 193. Waiver de Choses In what Courts the Defendant may waive a special Plea and plead the general Issue B. 32. Where a matter of Inducement material is waived by taking issue upon another matter B. 204 205. Wales The Incumbents there must understand the Welch Tongue A. 31. Ward Who shall be in Ward who not A. 253. B. 148 149 150. C. 25 54 154. If the Infant agree to the Marriage tendred No Valore Maritagii lies though the Gardian die before Marriage C. 52. Warranty Warranty and Assets descend no Plea in Formedon where the Heir claims by Devise A. 112 113. Determines with the Estate to which it is annexed A. 179. B. 57. What Entry and of whom shall destroy a Warranty B. 57 58. C. 10. In what Conveyances and to what Estates to be made C. 16. Wast In le tenuit the Plaintiff shall not recover locum vastatum A. 48. Lies not if the Trees be excepted A. 49. If Disseisor do Wast the Action lies against the Disseisee A. 264. How the View must be made of Wast in a Wood Sparsim A. 267. Against whom it is to be brought A. 291. In cutting 20 Oaks the Plaintiff shall recover if 5 only be proved A. 300. Upon an Estate limited to a Man for life remainder to a Feme for years who inter-marry both Estates are foreited by Wast done B. 7. If it lie where there is a Mean remainder B. 126. C. 60. The altering of a Meadow by Ditches or turning to other purposes if Wast B. 174. If the House be ruinous tempore dimissionis the Lessee may pull down and rebuild B. 189. Where the Writ must be laid of whose Lease the Lessee held where general B. 222. What destruction in a Park fishing c. is Wast B. 222. C. 53. Where plead nul Wast or specially C. 203. Withernam How Cattle taken by Withernam must be used A. 220. May be stayed by bringing the Damage in Court and submitting to a form pro contemptu B. 174. It seemeth that Beasts taken in Withernam may be laboured C. 235 236. Writ Of Privy Seal to summon a Subject Ad redeundum in legiantia c. A. 9. General Writ and Special Count where A. 226 227 231. Writ to the Bishop If a Title be found or confest in the King the Court ex Officio must make a Writ for the King A. 194. FINIS
Case 18 Eliz. Plow Com. 485 486. Where it is holden That upon Attainder of Treason by Act of Parliament the Lands were not in the King without Office in the life of the person attainted upon the words of the Act shall forfeit See Stamford 54 55. acc 3. He conceived That this Interest which came to the King by this Attainder was but a Chattel and then it is released by the Pardon And so he conceived If it be a Freehold For the words of the General Pardon are large and liberal Pardon and Release all manner of Treasons c. And all other things causes c. and here forfeitures are pardoned And also this word Things is a transcendent c. And although it be a general word yet by the direction of the General Pardon it ought to be beneficially expounded and extended as if all things had been especially set down Also the words are Pardon them and their Heirs therefore the same extends to Inheritances for any Offence not excepted for there is the word Heirs And the third branch doth concern only Chattels and that is by the word Grant where the former is by the words Release and Acquit See Br. Charter of Pardon 71. 33 H. 8. Tenant of the King dieth seised the Heir intrudes Office is found in that case by Pardons of all Intrusions the Offence is pardoned but not the Issues and Profits But by the Pardon aforesaid all is pardoned And here in our Case the Office is void For the Statute makes all Precepts Conditions void c. being awarded upon such Forfeitures See also in the second Branch Vexed and inquieted in Body Good Lands c. And see also amongst the Exceptions That persons standing endicted of wilful Murder and forfeiture of Goods Lands Tenements grown by any Offence committed by such person By which he conceived That if that Exception had not been the Land of such a person if he had been attainted upon such Indictment should be forfeited As to the Traverse he conceived That in as much as the Office is true our plea is a Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of persons and in the day of the Feoffment and every Circumstance in the Kings Case is to be traversed and our plea in substance doth confess and avoid the Office. Although the King here be entituled by double matter of Record i. e. the Attainder and the Office yet one of the said Records is discharged by another Record i. e. the Pardon and then there is but one Record remaining scil the Office and therefore our Traverse doth lie And he conceived That at the Common Law there was a Traverse as where it was found by Office That the Lessee of the King had done Waste or cessed for two years and there it is said That the Lessee and Tenant in an Action brought against them may traverse the Office Therefore traverse was at the Common Law where the King was entituled by single matter of Record So upon an Office finding an Alienation without Licence Traverse was by the Common Law. See Traverse in such Case in the Case of William de Herlington 43 Ass 28. See Br. Traverse 54. Petition is by the Common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in the Case of Goods was at the Common Law but Traverse for Lands found by Office by 34 E. 3. Cap. 14. therefore the remedy was by Petition See now Cook 4. Part the Sadler's Case 55 56. Traverse was at the Common Law concerning Freehold and Inheritance but that was in special Cases when by the Office the Land is not in the Kings hands nor the King by that is in possession but only by the Office and entituled to the Action and cannot make seisure without suit there in a Scire facias brought by the King in the nature of such an Action to which he is entituled the party may appear unto the Scire facias and traverse the Office by the Common-Law CCXXXVII Mich. 27 Eliz. In the Kings Bench. A Writ was awarded out of the Court of Admiralty against Sir Tho. Bacon and Sir Tho. Heydon to shew cause wherefore Whereas the Earl of Lincoln late High Admiral of England had granted to them by Patent to be Vice Admirals in the Counties of Norfolk and Suffolk the said Letters Patents ought not to be repealed and annulled And so the said Writ was in the nature of a Scire facias It was moved by Cook That although the Admiral had but an Estate for life yet the Patent did continue in force after his death As the Iustices here of the Common Pleas although they have their places but for life may grant Offices which shall be in force after their death And because the same matter is determinable at the Common Law he prayed a Prohibition For in the Admiralty they would judge according to the Civil Law The Court gave day to the other side to shew cause why the Prohibition should not be awarded CCXXXVIII Mich. 29 Eliz. In the Kings Bench. 1 Len. 302. Ante 150. Post 230. ACcompt was brought by Harris against Baker and damages were given by the Iury It was moved to the Court That damages ought not to be given by way of damages but the damages of the Plaintiff shall be considered of by way of Arrearges But see the Case Hill. 29 Eliz. in C. B. betwixt Collet and Andrews And yet 10 H. 6. 18. in Accompt the Plaintiff Counted to his damage but did not recover damages 2 H. 7. 13. 21 H. 6. 26. The Plaintiff shall not recover damages expresly but the Court shall given Quoddam incrementum to the Arrearages Cook said That it had been adjudged That the Plaintiff should recover Damages in an Accompt ratione Implicationis non Detentionis CCXXXIX Long 's Case Mich. 29 Eliz. In the Kings Bench. NOte It was holden in this Case If a Feoffment in Fee be made of a Mannor to which an Advowson is appendant and Livery is made in the Demesnes but no Attornment that in such case the Advowson shall pass but none of the Services CCXL Barns Case Mich. 29 Eliz. In the Common Pleas. BArns brought an Action of Trespass for taking of his sack of Corn The Defendants justified in the behalf of the Town of Lawson in the County of Cornwell because That King Phil. and Queen Mary granted to them of the said Town a Market to be holden within the said Town and that the Plaintiff came to the said Town with a sack of Corn and the Vendor would not pay Toll for which cause they took the said sack of Corn. And Iudgment was given for the Defendant Vpon which Error was brought and assigned for Error because that the Defendant pleads the Letters Patents with the date of the place year and day without saying Magno sigillo Angliae sigillat For it was holden that