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
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
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
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
said That he promised to find meat drink and apparel for the Plaintiff and his Wife for 3 years absque hoc that he promised to find meat and drink for two servants and Pasture for two Geldings The Plaintiff Replicando said That the Defendant did promise to find c. for 3 years next following Vpon which they were at Issue and found for the Plaintiff It was moved in Arrest of Iudgment That here is no Issue joyned For the Plaintiff hath declared upon a promise to find c. for 3 years when the Plaintiff will that require The Defendant hath pleaded a promise to find apparel meat and drink for the Plaintiff and his Wife for 3 years absque hoc that he promised for two servants and two Geldings and now the Plaintiff Replicando saith That the Defendant assumed for 3 years next following so here is another Assumpsit in the Replication than that whereof the Plaintiff declared and so the Plaintiff hath not joyned Issue upon the Assumpsit traversed by the Defendant and so there is no Issue joyned for the Defendant denyeth the Assumpsit whereof the Plaintiff hath declared And the Plaintiff in his Replication hath affirmed another Assumpsit than that whereof he hath declared and that is not helped by the Statute of Jeofails For it is not a mis-joyning of Issue but a not joyning of Issues and that was holden by the Court to be a material Exception And the Lord Dyer conceived That here is a Departure for the Plaintiff in his Replication hath alledged another promise than that whereof he declared Another Exception was Because that the Plaintiff had not averred in facto that he had married the Daughter of the Defendant but by an Argument Implicative Licet but that Exception was disallowed For that the word Licet is not a bare Implicative but it is an express Averment And so it was said Plow 127. it had been ruled before See 2 Mar. Plow Com. 127 128. Buckley and Thomas Case C. Hill. 19 Eliz. In the Common Pleas. A Lease for years was upon Condition Dyer 45. 1 Roll. 214. 1 Len. 3. That the Lessee should not grant over the Land at Will or otherwise He devised the same to his Executors who accepted the same only as Executors and not as Devisees And yet it was the Opinion of the Iustices That the Condition was broken Because he had done as much as lay in him to have devised the Land. 2 Roll. 684. 1 Roll. 24. 9 Co. 94. Stiles Rep. 304 305 405. Hutton Rep. 27. Clayton Rep 85. 1 Len. 113. 1 Cro. 126. Owen 94. See 31 H. 8. 45. CI. Hodgson and Maynards Case Hill. 19 Eliz. In the Kings Bench. NOte It was said by the Iustices in this Case That if an Executor promiseth to pay a Debt when he hath not Assets no Action upon the Case lyeth against him upon such promise but contrary if he hath Assets And so it was holden That if the Heir hath nothing by descent an Action upon the Case will not lie against him upon such a promise made CII Mich. 20 Eliz. In the Kings Bench. Co. 3. Inst 1. Stat. 5. Eliz. 2 Len. 12. AN Action upon the Statute of 5 Eliz. of Perjury was brought by three and they declared That the Defendant being examined upon his Oath before Commissioners If a Surrender was made at such a Court of such a Mannor of a Copyhold to the use of A. and B. Two of the Defendants swore That no such Surrender was made c. Exception was taken to the Declaration because that the certainty of the Copyhold did not appear upon the Declaration For the Statute is That in that case the party grieved shall have remedy so as it ought to appear in what thing he is grieved Quod fuit concessum per totam Curiam Another Exception was taken because that the Action in such case is given to the party grieved And it appeareth upon the Declaration That the surrender in the Negative deposing of which the perjury is assigned was made to the use of two of the Plaintiffs only and then the third person is not a party grieved For he claims nothing by the surrender and therefore and because the two parties grieved have joyned with the third person not grieved It was the Opinion of Wray and Southcote Iustices That the Writ should abate CIII Mich. 20 Eliz. In the Common Pleas. 1 Len. 263. NOte It was said by Dyer and Manwood Iustices If one be condemned in an Action upon the Case or Trespass upon Nihil dicit or Demurrer c. And a Writ issueth to enquire of the Damages and before the Retorn of the Writ the Defendant dyeth The Writ shall not abate for that For the Awarding of the said Writ is a Iudgment And Manwood said In a Writ of Accompt the Defendant is awarded to Accompt And the Defendant doth Accompt and is found in arrearages and dieth The Writ shall not abate but Iudgment shall be given That the Plaintiff shall recover and the Executor shall be charged with the Arrearages and yet Accompt doth not lie against them CIV Mich. 20 Eliz. In the Common Pleas. 2 Len. 52. 2 Len. 282. Post 92. IN an Action upon Escape the Plaintiff is Nonsuit It was holden by the Iustices That the Defendant in that case shall not have Costs by the Statute of 23 H. 8. Note The words in the Statute upon any Action upon the Statute for any offence or wrong personal supposed to be done immediately to the Plaintiff Notwithstanding this Action is Quodam modo an Action within the Statute scil by equity of the Statute of Westm 2. which give expresly against the Warden of the Fleet Yet properly it is not an Action upon the Statute for that in the Declaration in such Action no mention is made of the Statute Which see the Book of Entries 169 171. And also here there is not supposed any immediate personal Offence or Wrong to the Plaintiff and an Action upon the Case it is not For then the Writ ought to make mention of the Escape which it doth not here And yet at the Common Law before the Statute of Westm 2. An Action upon the Case lay upon an Escape And so by the opinion of Dyer Manwood Mounson Iustices Costs are not given in this case and Manwood said That upon Nonsuit in an Action upon the Statute of 8 H. 6. The Defendant shall not have Costs 1 Len. 282. For that the same is not a Personal Wrong For the Writ is Disseisivit which is a real tort CV Mich. 20 Eliz. In the Common Pleas. IN Debt upon an Obligation to perform certain Covenants in a pair of Indentures The Plaintiff assigned the breach in one of the Covenants scil That the Defendant should do all reparations of such a House demised to him And that he had not repaired but suffered the same to decay To which the Defendant said That the
confirms it is a void Confirmation And 7 E. 6. Br. Grants 154. A Man possessed of a Lease for 40 years grants so many of the said years which shall be to come at the time of his death it is a void Grant for the incertainty Afterwards Shuttleworth moved another point viz. The Plaintiff hath declared of a Trespass done 1 Januarii 23 Eliz. The Defendant shews in Evidence a Lease for years to him made 14 Januarii the same year which is 13 days after the Trespass whereof the Plaintiff hath declared and it shall not be intended that the Plaintiff had another Title than that which he hath alledged and forasmuch as he hath not disclosed in himself any Title Tempore transgressionis the Plaintiff should punish him in respect of his first possession without any other Title And although it may be Objected That where the Defendant hath given in Evidence That Williamson leased to the Defendant that is not sufficient and the words subsequent 14 Januarii are void as a nugation and matter of surplusage Truly the Law is contrary for rather those words ante Transgressionem shall be void because too general and shall give way to the subsequent words after the videlicet because they are special and certain As the Case late adjudged The Archbishop of Canterbury leased three parcels of Land rendring Rent of 8 l. per annum viz. for one parcel 5 l. for another 50 s. and for the third 40 which amounts to 9 l. 10 s. It was adjudged That the videlicet and the words subsequent concerning the special reservation of the Rent was utterly void because contrary to the premisses which were certain viz. 8 l. and that the Fermor should pay but 8 l. according to the general reservation but in our case the words precedent are general i. e. ante Transgressionem and therefore the words subsequent which are special and certain shall be taken and the general words rejected As in Trespass the Defendant pleads That A. was seised of the Land where and held it of the Defendant and that the said A. 1 die Maii 6 Eliz. aliened the said Land in Mortmain for which he within a year after viz. 4 Maii Anno 7 Eliz. entred now the same is no bar for upon the evidence it appeareth that the Lord hath surceased his time and the words within the year shall not help him for they are too general and therefore at the subsequent words viz. c. Cook on the Defendants part took Exception For it appeareth here upon the Evidence of the Defendant which is confessed by the Demurrer of the Plaintiff That upon this matter the Plaintiff cannot punish the Defendant for this Trespass for he was not an immediate Trespassor to the Plaintiff for the Plaintiff hath declared upon a Trespass done 1 Januarii 23 Eliz. And it is given in Evidence on the part of the Defendant and confessed by the Plaintiff c. That 22 Eliz. Cordell Savell levied a Fine to Williamson by force of which the said Williamson entred and was seised and so seised 14 Januarii 23 Eliz. leased to the Defendant Now upon this matter the Plaintiff cannot have Trespass but the Defendant for Williamson was the immediate Trespassor to him for he entred 22 Eliz. And at length after deliberation had of the premisses by the Court The Court moved the Plaintiff to discontinue his suit and to bring de novo a new Action in which the matter in Law might come into Iudgment without any other Exception But the Plaintiff would not agree to it Wherefore it was said by Wray Chief Iustice with the consent of his Companions Begin again at your peril for we are all agreed That you cannot have Judgment upon this Action CXXVI Mich. 26 Eliz. In the Kings Bench. THe Case was A. made a Feoffment in Fee to the use of his younger Son in tail and after to the use of the Heirs of his body in posterum procreand and at the time of the Feoffment he had Issue two Sons and after the Feoffment had Issue a third Son The younger Son died without Issue Vpon a Motion at the Bar it was said by Wray Iustice That after the death without Issue of the second Son the Land should go to the third Son born after the Feoffment for this word in posterum is a forcible word to create a special Inheritance without that it had been a general tail CXXVII Smith and Smith's Case Mich. 26 Eliz. In the Kings Bench. LAmber Smith Executor of Tho. Smith brought an Action upon the Case against John Smith That whereas the Testator having divers Children Enfants and lying sick of a mortal sickness being careful to provide for his said Children Enfants The Defendant in Consideration the Testator would commit the Education of his Children and the disposition of his Goods after his death during the minority of his said Children for the Education of the said Children to him promised to the Testator to procure the assurance of certain Customary Lands to one of the Children of the said Testator And declared further That the Testator thereupon Constituted the Defendant Overseer of his Will and Ordained and appointed by his Will That his Goods should be in the disposition of the Defendant and that the Testator died and that by reason of that Will the Goods of the Testator to such a value came to the Defendants hands to his great profit and advantage And upon Non Assumpsit pleaded It was found for the Plaintiff And upon Exception to the Declaration in Arrest of Iudgment for want of sufficient Consideration It was said dy Wray Chief Iustice That here is not any benefit to the Defendant that should be a Consideration in Law to induce him to make this promise For the Consideration is no other but to have the disposition of the Goods of the Testator pro educatione Liberorum For all the disposition is for the profit of the Children and notwithstanding That such Overseers commonly make gain of such disposition yet the same is against the intendment of the Law which presumes every Man to be true and faithful if the contrary be not shewed and therefore the Law shall intend That the Defendant hath not made any private gain to himself but that he hath disposed of the Goods of the Testator to the use and benefit of his Children according to the Trust reposed in him Which Ayliffe Iustice granted Gawdy Iustice was of the contrary Opinion And afterwards by Award of the Court It was That the Plaintiff Nihil Capiat per Billam CXXVIII Amner and Luddington's Case Mich. 26 Eliz. Rot. 495. In the Kings Bench. A Writ of Error was brought in the Kings Bench by Amner against Luddington Mich. 26 Eliz. Rot. 495. 2 Len. 92. 8 Co. 96. And the Case was That one Weldon was seised and leased to one Peerepoint for 99 years who devised the same by his Will in this manner viz. I Bequeath to my Wife 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
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
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
all which he lost c. Wray The Bishop shall joyn for Conformity of Law and for privity of Record and the Plea of the Bishop is not so strong as a Disclaymer For in case of a Disclaimer the Iudgment is That the Plaintiff shall take nothing by his Writ but in the case of the Bishop here the Iudgment is Quod querens recuperet praesentationem suam versus dictum Episcopum ad Ecclesiam praedictam See 35 H. 6. 4. Fitz. Error 35. And afterwards in the principal Case the Writ of Error was awarded good CCXXIX Williams and Linford's Case Trin. 29 Eliz. In the Kings Bench. EDward Williams brought an Action upon the Case against Linford 2 Len. 111. for slanderous words concerning the Title of the Plaintiff's Lands viz. Williams is nothing worth and do you think that the Mannor of D. is his It is but a Compact betwixt his Brother Thomas and him And declared further That at the time of the speaking of these words there was a Communication with one J.S. to give the said J.S. the said Mannor of D. for his Mannor of R. and that by reason of the said slanderous words 1 Cro. 346.787 the said J.S. durst not proceed in the said intended exchange It was Objected That upon this matter an Action upon the Case did not lie because the slanderous words were not spoken to him who should be purchasor of the Lands but unto a stranger For in the Case betwixt Smith and Johnson Johnson was in speech with one to sell his Land to him and Smith said to him who should be the purchasor of them Will you buy Johnson's Land Why it is troubled with more Charges and Incumbrances then it is worth Wray There is not any difference be the words spoken to the parties or unto a stranger for in both Cases the Title of the Plaintiff is slandered so as he cannot make sale of it It was adjudged for the Plaintiff CCXXX Mich. 29 Eliz. In the Common Pleas. A Poor Woman brought an Action of Trespass for breaking of her Close and declared of a Continuance by 6 years And upon Nihil dicit had Iudgment to recover Vpon which a Writ of Enquiry of Damages issued forth and now came the Woman and shewed to the Court That the Iury had found too little Damages scil but 40 s. whereas the Land was worth 5 l. per annum and that the Trespass had been continued for 6 years and prayed that the said Writ might not be received and that the Court would award another Writ to have a better Enquiry of the Damages But the whole Court denyed it For so there might be infinite Enquiries But some time at the request of the Defendant when excessive Damages are found or any misdemeanour is alledged in the Plaintiff in procuring or using such a Writ of Enquiry of Damages We use to relieve the Defendant with a new Writ but never the Plaintiff because it is his own Act. And by Rhodes The late Countess of Darby brough a Writ of Dower and had Iudgment to recover and she surmised That her Husband died seised and prayed a Writ of Enquiry of Damages and had it And because too small Damages were found she would have suppressed the said Writ and procured another but she could not have it And at the last she was driven to bring in the said Writ Which she did accordingly CCXXXI Lawson and Hare's Case Mich. 29 Eliz. In the Common Pleas. 2 Len. 74. IN a Replevin by Lawson against Hare of the Temple who Avowed because he himself was seised of a Hundred And that he himself and all those whose Estate he hath in the said Hundred have used to hold a Leet within the said Hundred at such a place every year And that at every time such Leet should be holden The Inhabitants within the said Precinct have used to pay to the Lord of the Leet 16 d. for the Leet-Fee and that they have used to distrain for the same And shewed That at a Leet there holden 5 July 26 Eliz. c. The Plaintiff replyed absque hoc that they used to distrain And it was found for the Defendant And it was moved in arrest of Iudgment Because the Defendant in making his Title to the Leet by Prescription Conveys the Hundred to him by a Que Estate without shewing a Deed of it See 11 H. 4. 242. Quod fuit concessum per Anderson Windham Periam and Rhodes contrary But if the Hundred it self had been in Question then the Exception had been material but here the Defendant intitles himself to a thing by reason of the Hundred and then it is sufficient for him to say That he is seised of the Hundred be it by right or by wrong Admit That by this not shewing the Avowry be vitious and defective It is to be considered if it be not helped by the Statute of Jeofail's 1 Cro. 217.245 18 Eliz. And therefore it is to be considered If an Avowry be within the meaning of the said Statute Anderson Although that the Avowant be quasi an Actor to have a Retorn of the Cattel if the Distress be adjudged lawful yet in truth he is Defendant and not Plaintiff And if the Defendant will justifie the taking and not avow he is meerly Defendant And although that he avow to have a Retorn yet he cannot be said Plaintiff no more than the Tenant who voucheth over another to recover in value may be said Plaintiff And therefore an Avowry cannot be said a Count or Declaration but a Answer to the Count or Declaration Windham and Periam conceived That an Avowry is within the Statute For it comprehends title And an Answer to an Avowry is said a Bar to an Avowry and an Avowry is in the place of a Declaration Admitting That an Avowry is within the Statute If the not shewing of the Deed be such a defect which may be helped by the Statute Anderson conceived That it was But the Plaintiff might have demurred upon the Avowry for not shewing of the Deed and have had iudgment But when he hath traversed the Prescription as to the point of the distress and the same is found against him Now it shall be intended that the Avowant hath a Deed although he hath not shewed it Windham The Title of the Avowant to the Hundred is the Foundation and ground of the Suit for if the Avowant hath not a Deed to make him a sufficient title to the Hundred he cannot have the Leet and if no Leet then no Leet-Fee and then the Avowant hath no cause to distrain Another Exception was taken to the Avowry because the Avowant hath not shewed any Seisin of the Leet-Fee And by Periam Such a seisin ought to be shewed in some person certain For although it needs not always to lay a Seisin in shewing by whose hands the seisin was had for the Inhabitants are charged and no person certain yet the seisin ought to be
sue in what Court he will in any of the Kings Courts of Record And in this Case the Queen is quodam modo a party For she is to have the moyety And so this cause is not meerly betwixt party and party c. CCLXXXV Willoughby's Case Trin. 30 Eliz. In the Kings Bench. 2 Len. 117. WIlliam Willoughby and two other were Endicted That where the Parson of the Church of D. and all his predecessors have used to have Common in such a place The said Defendants Willoughby and others had enclosed the same and that enclosure was upon their own Land. It was moved That upon this matter they ought not to have been endicted but the party grieved was put to his Action As where a presentment is made of a Disseisin See 27 Ass 20. And it was the Case of one Marden 29 Eliz. upon the stopping of a High-Way upon his own Land and if it were upon other Land it were not material for it is but an Impeachment to take Common which cannot be Vi et armis c. Also this Endictment is Recorded and Certified as found before Iustices of Assize and Gaol-Delivery and they cannot take such presentment And although the Iustices of Assize and Gaol-Delivery were in rei veritate also Iustices of Peace yet the Endictment being recorded and certified to be taken before them in quality of Iustices of Peace shall not help it for the Court shall not respect any Authority but that which appears upon the Record And for these Causes the parties were discharged CCLXXXVI Gates and Hollywell's Case Pasch 30 Eliz. In the Kings Bench. A Man having Issue two Sons devised That his eldest Son with his Executors should take the profits of the Lands until his younger Son should come to the age of 22 years and then the younger Son should have the Lands to him and his Heirs of his body It was the clear Opinion of all the Iustices That the eldest Son should have a Feesimple in the Lands until the younger Son came to the said age of 22 years CCLXXXVII Cony and Beveridge's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 146. IN Debt upon an Obligation the Case was That the Plaintiff Leased to the Defendant certain Lands in the County of Cambridge rendring rent And afterwards the Defendant became bounden to the Plaintiff in an Obligation for the payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton To which the Defendant pleaded payment of the Rent without shewing the place of payment and upon that they were at Issue And it was found by Nisi prius in the County of Northampton for the Plaintiff It was moved in Arrest of Iudgment That the Issue is mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge and there the Issue ought to be tryed See 44 E. 3. 42. And it was the Opinion of Anderson Chief Iustice That no Iudgment should be given for the Plaintiff for the Cause aforesaid But Rhodes and Windam Iustices were of a contrary Opinion For it doth not appear That the Issue is mis-tryed because that no place of payment is pleaded and it may be for any thing that is shewed That the Rent was not paid in the County of Northampton CCLXXXVIII The Blacksmith's Case Mich. 30 Eliz. In the Common Pleas. A Blacksmith of South Mimmes in the County of Middlesex took an Obligation of another Blacksmith of the same Town upon Condition that he should not exercise the Trade or Art of a Blacksmith within the same Town nor within a certain precinct of the same And upon that Obligation the Obligee brought an Action of Debt in the Common Pleas depending which Suit the Obligor complained to the Iustices of Peace of the County against the Obligee upon which the matter being found against him by Examination the Iustices committed the Obligee to Prison and now upon the whole matter Puckering Serjeant prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex and hat it And Fleetwood Recorder of London being at the Bar the Court openly admonished him of that matter For by the Law Iustices of Peace have not Conusans of such Offences nor can entermeddle with them for their power is limited by the Commission and the Statutes And the Recorder relyed much upon the Opinion of Hull in 2 H. 5. 5. But it was said by the Court Although that this Court be a high Court to punish such Offences appearing before them of Record yet it doth not follow That the Iustices of Peace may also do so But as to the Obligation it self the Court was clear of Opinion That the same was void and against the Law. CCLXXXIX Russell and Broker's Case Mich. 30 Eliz. In the Common Pleas. 2 Len. 209. IN Trespass for cutting down of 4 Oaks The Defendant pleaded That the place where c. And that he is seised of a Messuage in D. and that he and all those whose Estate he hath c. habere Consueverant rationabile estoverium suum for fuel ad Libitum suum Capiendum in boscis subboscis arboribus ibidem crescentibus and that in Quolibet tempore anni unless in Fawning time The Plaintiff by Replication said That the place where is in the Forrest of D. c. And that the Defendant and all those whose Estate c. habere Consueverunt rationabile estoverium suum de Boscis c. per Liberationem Forestarii aut ejus Deputati prout Boscus pati potuit non ad exigentiam petentis And upon that Replication the Defendant demurred in Law. And it was the clear Opinion of the Court That Iudgment should be given against the Plaintiff For if he would have ousted the Defendant of his Prescription by the Law of the Forrest he ought to have shewed the Law of the Forrest in such Case Lex forestae talis est For the Law of the Forrest is not the Common Law of the Land and we are not bounden to take notice of it but it ought to be pleaded Or else the Plaintiff ought to have traversed the Prescription of the Defendant For here are two Prescriptions one pleaded by the Defendant by way of Bar The other set forth by the Plaintiff in his Replication without any traverse of that which is set forth in the Bar which cannot be good But if the Plaintiff had shewed in his Replication Lex forestae talis est then the Prescription of the Defendant had been answered without any more for none can prescribe against a Statute Exception was taken to the Bar because the Defendant hath justified the cutting down of Oaks without alledging That there was not any Vnderwoods But that Exception was not allowed for he hath his Choice ad libitum suum Another Exception was taken
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
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
In the Common Pleas. 1 And. 27. THe Case was That the Bishop of Exeter leased certain Lands in the County of Devon for years rendring Rent payable in Exeter aforesaid with Clause of Re-entry and the Bishop of Exeter had a Palace in Exeter aforesaid It was the Opinion of the Iustices in this Case That the Rent ought to be demanded at the said Palace and not elsewhere And if that the Lessee come to the Common Gate of the said Palace and there tender the Rent it is a good tender without more be the Gate shut or open notwithstanding that the Bishop be within the Palace and that neither he nor any of his Servants be at the Gate for to receive it for the Lessee is not tyed to open the Gate of the Palace if it be shut nor to enter into the Palace if it be open X. Mich. 4 and 5 Phil. and Mary In the Common Pleas. COpyhold Land was surrendred to the use of the Wife for life the remainder to the use of the right Heirs of the Husband and Wife The Husband entred in the right of his Wife It was the Opinion of the Iustices in this Case That the remainder was executed for a Moyety presently in the Wife and the Husband of that was seised in the right his Wife and the Wife dying first that her Heir should have it 1 Roll. Lane and Pannel's Case But if the Husband had died first his Heir should have had one Moyety XI Joscelin and Sheltons Case Mich. 4 and 5 Phil. and Mary In the Common Pleas. More Rep. 13. IN an Action upon the Case the Plaintiff declared That the Defendant in Consideration that the Son of the Plaintiff would marry the Daughter of the Defendant assumed and promised to pay to him 400 Marks in 7 years next ensuing by such portions And upon Non Assumpsit pleaded It was found for the Plaintiff It was Obiected in Arrest of Iudgment That one of the said 7 years was not incurred at the time of the Action brought c. and that appeared upon the Declaration so as the Plaintiff had not cause of Action for the whole Mony promised And for that cause the Writ was abated by the Court by award although it was after Verdict See Br. Title Action upon the Case 108. XII 2 and 3 Phil. and Mary In the Common Pleas. IN an Assise against 4. they were at Issue upon Nul Tenant del Franktenement nosme en le brief And it was found by the Assise That two of them were Disseisors and two Tenants And after Verdict and before Iudgment one of those who were found Tenants died And that was moved in Arrest of Iudgment But it was not allowed of by the Court Because the parties had not day in Court to plead it But it was said That after Iudgment given a Writ of Error lieth In the Time of Queen Elizabeth XIII Canons Case 1 Eliz. In the Common Pleas. UPon an Evidence to a Iury in the Common-Pleas 1 Roll. 839. Vpon an Issue there this Deed was given in Evidence viz. Sciant praesentes futuri Quod Ego Richardus Canon filius haeres Richandi Canon Dedi Concessi hac praesenti carta mea Confirmavi Willielmo Compton Militi Omnia Terr Tenementa c. ad usum mei praed Richardi Joannae uxoris meae pro termino vitae absque impetitione Vasti ac etiam rectorum haered mei praefat Richardi assignatorum meorum post decessum mei praefat Richardi Joannae uxoris meae Et si contingat me praefat Richardum obire sine exitu de Corpore meo procreato Tunc Volo quod omnia dict Terr Tenementa remaneant Tho. fratri meo rectis haeredibus de Corpore suo procreatis haeredib assignat eorum And it was the Opinion of the Iustices That a good Estate tail was by that Deed limited to the said Richard in use after the death of his Wife XIV Holt and Ropers Case 2 Eliz. In the Common Pleas. IN a Replevin by Holt against Roper the Case was J. Abbot of W. Leased to T.M. Knight a Close of Land in B. for 44 years Post 242. 243. who thereof possessed was attainted of misprision of Treason and so forfeited to the King who seised the same The Abbot and his Covent surrendred 31 H. 8. the King Leased the same to Roper for 21 years and died King Ed. 6th in the fourth year of his Reign Leased the same to one Philips To have and to hold after the Term to T.M. ended for 21 years Roper surrendred to Queen Mary who Leased the same again to Roper for 30 years In this Case It was adjudged That the Lease made to Phillips was utterly void for that the King was deceived in his Grant For the Lease made to F.M. was long time before determined by extinguishment in the Person of the King who had it by forfeiture upon the Attainder of T.M. and the Statute of 1 E. 6. Cap. 8. shall not help that Lease notwithstanding the Non-recital or Mis-recital of Leases made before For here is not matter of recital but matter of Estate and Interest which is not well limited for the Commencement of it i. the Lease to Phillips For there is not any certainty of the Commencement of it For that Lease cannot begin after the Surrender of Roper for the words of the Limitation of the beginning of it cannot serve to such Construction XV. 2 Eliz. In the Common Pleas. A Term for years is devised to A. The Executors of the Devisor entred into the Land devised to the use of the Devisee It was the Opinion of the Court That the same was a sufficient possession to the Devisee XVI 3 Eliz. In the Common Pleas. TWo Coparceners were of a Reversion the one of them granted his Interest in it by Fine to another It was holden in that Case That the Conusee should have a Quid juris clamat for a Moyety of the said Reversion XVII Mich. 4 Eliz. In the Common Pleas. THe Lessor mortgaged his Reversion in Fee to the Lessee for years and at the day of Mortgage for payment of the Mony he paid the Mony It was holden in this Case That the Lease for years was not revived but utterly extinct XVIII Mich. 4 Eliz. In the Common Pleas. J.N. Cestuy que use in tail 14 H. 8. by Indenture between him on the one part and J.S. of the other part In Consideration of a Marriage between his Son and Heir apparent and Joan Daughter of the said J.S. to be had Covenanted with the said J.S. That neither he nor any of the Feoffees seised to his use have made or hereafter shall make any Estate Release Grant of Rent levy any Fine or do any other Incumbrance whatsoever of any of his Mannors Lands c. But that all the said Mannors c. shall immediately descend or remain to his said Son and the Heirs
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
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
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
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
Second Deliverance is Non-suit and a Writ awarded to enquire of the damages and returned And the Defendant had a Writ de Retorno habendo upon which the Sheriff returned Quae averia elongata upon which a Withernam is awarded By which all the other Cattel of the Plaintiffs were delivered to the Defendant And after a years time the Plaintiff came into Court and paid the damages and Costs recovered against him And the Opinion of the Court was That he should have a special Writ to the Sheriff reciting the whole matter to restore the Plaintiff his Goods taken in Withernam without any allowance for the keeping in the mean time For it is intended that their labour or other profits by them doth countervail such charge 1 Len. 220. And Brooker Prothonotary said That he had a President to that purpose of 12 Eliz. CCCXXIV Dalton and Selby's Case Mich. 32 Eliz. In the Kings Bench. UPon an Attachment removed out of London a Procedendo was prayed And the Case was That one Brooks was endebted to Dalton and Selby was endebted as much unto Brooks Dalton attached the Debt in the hands of Selby and the Debt of Brooks was not yet due And it was said That that Debt not being yet due was not Attachable by the Custom For Dalton could not affirm a Plaint of Debt against Brooks before that the Debt was due But if the principal Debt had been due Dalton might have attached the said Debt that Selby owed to the said Brooks although that Debt was not due And such was the Opinion of the whole Court. See 21 E. 4. 67. 22 E. 4. 30 31. 22 H. 6. 47. CCCXXV Mead and Bigott's Case Mich. 32 33 Eliz. In the Kings Bench. IN an Action upon the Case by Mead against Bigott the Plaintiff declared That W. Arnold had levied a Plaint of Debt in the Court of the Mannor of Stepney against Stokes And whereas the said Arnold had procured a Warrant directed to the Plaintiff being Bailiff of the Mannor and Minister of the said Court to attach the said Stokes by his Goods to answer to the said Arnold at such a Court c. And whereas by vertue of the said Warrant the Plaintiff had attached the said Stokes by two Quarters of Wheat being the Goods of the said Stokes to answer the said Arnold in the said Plaint And whereas the Plaintiff had delivered the said Wheat to Jane Wife of the said Arnold to keep until the next Court The Defendant in Consideration thereof promised to save the Plaintiff harmless concerning the said Corn. And it was holden That here is not any Consideration For it is against Law for such an Officer in such a Case to deliver a thing attached ut supra to the Plaintiff or to his Wife Also the Consideration was a thing executed before the promise Also a Man cannot be attached by Corn. And afterwards Iudgment was given against the Plaintiff CCCXXVI Broughton and Prince's Case Mich. 32 33 Eliz. In the Exchquer BRoughton an Apprentice of the Inner-Temple 1 Cro. 728. Tryal per pays 175 Owen Rep. 128 227. being Farmor to the Queen exhibited a Bill in the Exchequer Quo minus c. against Prince a Practicer of the Law in the Marches of Wales for maintaining one J.S. in a Suit against the Statute of Maintenance To which the Defendant pleaded That he was Consiliarius in lege eruditus c. and so justified And now it was moved by Atkinson on the part of the Defendant That by the Statute of 18 Eliz. Cap. 5. That no Informer shall sue any person upon any Penal Statute but by way of Information or Original Action and not otherwise And here the suit is by Bill which cannot be warranted by the Statute And he conceived That this suit is brought upon the Statute of 1 R. 2. cap. 4. upon which Statute no prosecution shall be in the name of the subject only but it may be in the name of the King only See the Book of Entries 393. Where the suit is tam pro Domino Rege quam pro seipso And there by the King only and there by the party only And as to the Statute of 32 H. 8. cap. 9. suit upon the same ought to be tam pro Domina Regina quam pro seipso Which see in the Book of Entries 395. Also by the Statute of 31 Eliz. cap. 5. The suit brought ought to begin within one year after the offence committed And in our Case the offence upon which the suit is conceived was committed 3 years before the Information brought and it cannot be added because that the Plaintiff is the party grieved For every Statute made against Maintenance is Popular Broughton said We have Replied to the Defendant That he is a Lay Man et non in Lege Eruditus and prayed that the same might be enquired of by the Country And the Defendant Prince likewise and so Issue is joyned And because you have such Objections they shall be saved to you to move in Arrest of Iudgment Atkinson I may offer them as well now to the Iury as well as in Arrest of Iudgment And afterwards it was moved That the Defendant might demur upon the Replication if he would and if not the Issue should be tryed And if then it pass against the Defendant that then he shew the matter in Arrest of Iudgment for no Exception shall be allowed for staying of the Enquest if it be not an apparant fault and not only a doubt At another day the matter was moved and then it seemed to the Barons That the Plaintiff here being Pars gravata was not restrained to any year after the offence committed but that restraint did extend only to Common Informers The Defendant pleaded That he was admitted in Societatem interioris Templi and there remained a Student for so many years And that he was homo eruditus in Lege and a Counsellor and took his Fee c. The Plaintiff by Replication said of his own wrong without that that the Defendant is homo Conciliarius in lege eruditus hoc petit quod c. ut supra And Atkinson took Exception to the Traverse and Conclusion of it Et hoc petit quod inquiratur per Patriam for that cannot be tryed by the Country but by the Iudges For here is a Question of the Learning of the Defendant and that is to be tryed and his sufficiency in this Learning is to be discerned by those who are skilful in the Laws of the Land For if a matter in Law is to be tryed by the Iudges a multo fortiori the Learning of the Law is to be tryed by them for that is more difficult to be judged As where the Ordinary refuseth a Clerk for insufficiency in learning upon which they are at Issue the same shall not be tryed by the Country but by the Bishop Which see Articuli Cleri cap. 13. de Idonietate praesentata
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
the Plaintiff That the Grant was before the Lease It was holden by the Court That this Release was meerly void for here was not any Interest to be released but a power to present and an Authority annexed to the person And afterwards by the Award of the Court the Writ was abated See 11 Eliz. Dyer 253. CCCXLI Woodward and Bagg's Case Hill. 32 Eliz. In the Kings Bench. WOodward Libelled in the Spiritual Court against Bagg and Nelson for Tythes of certain Lands called Christen Hill. Roll. 63. 2 Len. 29. 3 Cro. 188. Owen Rep. 103. The Defendant sued a Prohibition and surmised That one Pretiman was seised of the said Land and in Consideration of 5 l. by him paid to the said Parson It was agreed betwixt them That the said Pretiman and his Assigns should be discharged of Tythes of the Land during his life and afterwards the said Pretiman leased the same to the Defendants upon which a Prohibition was granted And it was holden That the party need not to make proof thereof within 6 Months for it is not within the Statute because a Composition with the same Parson But now a Consultation was granted because the Agreement is shewed but no Deed of it which cannot be any discharge But if it had been for a time scil unica vice it had been good but for life not Also it is not an express grant of the Tythes but only a Covenant and Agreement that he shall be discharged upon which he may have an Action of Covenant but not a Prohibition It was said on the other side That although without Deed Tythes cannot pass in point of Interest yet by way of discharge they might Cook It was holden betwixt Pendleton and Green That upon such words of Covenant and Agreement the party should hold the Land discharged of Tythes which was denyed For if the Grantee of a Rent Charge will grant it to the Tenant of the Land the same without Deed is not good And there was very lately a Case between Westbede and Pepper Where it was agreed betwixt the Parson and one of his Parish That for 20 s. Rent by the year the Parishioner should be discharged of Tythes for 20 years if he so long lived And it was holden That no Prohibition should lie upon it a fortiori where the Estate is for life Gawdy In the Case of grant of Tythes for life a Deed is requisite but here it is noâ— but a Contract for Mony c. See 21 H 6. 43. Wray If it had been for years it had been good enough but here is not any Contract but only a discharge for life which cannot be during his life without Deed. And afterwards the Record was read which was That Concordatum aggreatum fuit between the parties pro omnibus decimis during the time that the one should be Parson and the other Occupier of the said Land That in Consideration of 5 l. the said Pretiman and his Assigns should hold the said Land discharged of Tythes Wray The same is no Contract but a Promise for he doth not grant any Tythes Afterwards a Consultation was awarded CCCXLII Sanderson and Ekins's Case Mich. 32 Eliz. In the Common Pleas. IN Debt upon a Loan by Sanderson against Ekins who waged his Law and at the day being ready to wage his Law the Court examined him And upon examination it appeared That the Plaintiff and Defendant were reciprocally endebted the one to the other And upon Conference betwixt them before the Action brought there was an Accord betwixt them That the Plaintiff should give to the Defendant such a sum which he had done and that the one should go quit against the other And it was the clear Opinion of the whole Court That upon the matter the Defendant could not wage his Law for a Debt cannot be extinguished by word CCCXLIII The Dean and Chapter of Windsors Case Mich. 32 Eliz. In the Exchequer IN this Case It was moved If he who hath a Rectory impropriate 1 Len. 146. and by the Statute of 26 H. 8. is to pay an Annual Rent for the same in the name of a Tenth and thereby is discharged of all First-fruits and Tenths shall have the Priviledge of the Exchequer for he is to pay the same sum yearly And it was the Opinion of the Barons That he should not For so every one who is to pay any Tenths or First-fruits should draw other who have sued him into the Exchequer And so all Controversies concerning Tythes and Parsonages should be drawn thither which should be a great prejudice to the Spiritual Courts But Egerton Solicitor vouched a Case viz. Coniers's Case The King gave a Parsonage to a Priory in Frankalmoign and the Tythes thereof being withdrawn The Prior impleaded him who withdrew the Tythes in the Exchequer And it was holden That the Prior should have the Priviledge for the King is endangered to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Kings Tenant in Chief or he who pays First-fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Priviledge here CCCXLIV Sledd's Case Mich. 32 Eliz. In the Kings Bench. SLedd of Great Melton in the County of Oxon 2 Len. 146. was assessed to 7 s. for a Fifteenth And upon refual to pay the same the Collector distrained the Beasts of Sledd and sold them Thereupon Sledd brought Trespass against him the in the Kings Bench. And the Collector exhibited a Bill against Sledd Who shewed by his Counsel That the Statute of 29 Eliz. which enacted this Fifteenth Provides That the said Fifteenth shall be levied of the moveable Goods Chattels and other things usual to such Fifteenths and Tenths to be Contributory and chargeable And shewed further That his Beasts distrained fuerunt tempore districtionis upon the Glebe-Land of a Parsonage presentative which he had in Lease which Glebe-Land is not chargeable usually to Fifteenths granted by the Temporalty nor the Cattel upon it It was the Opinion of the Iustices That although the Parson himself shall pay Tenths to the King yet the Lay-Farmor shall pay Fifteenths and his Cattel are distrainable for the same upon the Glebe-Lands of the Parsonage And therefore it was awarded That the Distress and the Sale were lawful CCCXLV. Sir Walter Water's Case Pasch 32 Eliz. In the Exchequer IT was moved in this Case 2 Len. 77. 4 Len. 44. That if one hath a Iudgment in Debt and upon the same within the year sueth forth a Capias ad satisfaciendum although that he doth not prosecute it by the space of 2 or 3 years yet when he pleaseth he may proceed upon it and shall not be put to a Scire facias And of that Opinion was Philips Manwood I grant That if one hath sued forth a Writ of Execution and the same be continued by Vicecomes non misit Breve for 2 or 3 years yet the Plaintiff may proceed upon
Eliz. Leon. 166. Lib. 1. was this Term adjudged upon the Devise That the Survivour shall be each others Heir It was holden That all the surviving Brothers are Ioynt-Tenants and although this word Survivour be in the singular number yet in sense upon the whole matter it shall be taken and construed as for the plural number Survivour shall be each others Heir i. e each Survivour i.e. every Survivour i.e. All the Survivours and then in this case The Plaintiff and the Defendant being Ioynt-Tenants cannot maintain an Action of Trespass one against the other CCCLIII Mich. 32 Eliz. In the Common Pleas. BY the Statute of 32 H. 8. cap. 37. The Executors of a Grantee of a Rent-Charge may distrain for the Arrearages of the said Rent in the life of the Testator so long as the Land charged doth continue in the seisin or possession of the Tenant in Demesne who ought immediately to have paid the said Rent or in the seisin of any other person or persons claiming the said Lands only by and from the said Tenant by purchase gift or descent in like manner as the Testator might or ought to have done in his life-time It was now moved If A. grant a Rent-charge to B. the Rent is behind B. dieth A. enfeoffeth C. in Fee who divers years after enfeoffeth D. who divers years after enfeoffeth E. It was holden in this Case by Walmesley Periam and Windham Iustices That E. should be chargeable with the Arrearages to the Executors Anderson Chief Iustice held the contrary But they all agreed That the Lord by Escheat Tenant in Dower or by the Curtesie should not be chargeable for they did not claim by the Party only but also by the Law. CCCLIV. Leverett and Townsend's Case Trin. 32 Eliz. In the Kings Bench. IN an Action upon the Case for disturbing him of hs Common 3 Cro. 198. 2 Len. 184. The Plaintiff declared That he was seised in Fee of a Messuage and certain Lands And that he and all those whose Estate he hath have Common of Pasture in 16 Acres of Lands called D. from the time that the Corn is reaped until it be sowen again And also Common of Pasture in Land called R. omni tempore anni as appendant to the said Messuage and Land and that the Defendant had plowed the said Lands and so disturbed him of his Common It was moved in stay of Iudgment That it appeareth here that the Plaintiff was seised in Fee and so he ought to have an Assise and not an Action upon the Case But the Exception was disallowed by the Court. Vide inde Ante 13. 2 H. 4. 11. 8 Eliz. Dyer 250. 11 R. 2. Tit. Action upon the Case 36. CCCLV. The Chamberlain of London's Case Mich. 33 Eliz. In the Kings Bench. THE Chamberlain of London brought an Action of Debt in the Mayors Court in Guild-hall 5 Co. grounded upon an Act of Common Council See C. 5 Part The matter was removed into the Kings Bench by Corpus cum causa Fleetwood Recorder of London prayed a Procedendo It was Objected That they of London could not make Ordinances to bind the Subjects as an Act of Parliament To which It was said by Fleetwood That the Custom of the City is That the Mayor and Aldermen and four persons chosen out of each Ward by the Communalty may make Ordinances which they call Acts of Common Council and they shall bind every Citizen and Free-man and all their Customs are confirmed by Act of Parliament and by Magna Charta which hath been confirmed 52 times and also by the Statute of 7 R. 2. For that King seised their Liberties and drove them to pay for the Redemption of them 100000 Marks and then the said King confirmed them unto them for ever and therefore this Ordinance being made according to our Custom ought not to be impeached As in Case of matters of the Forrest If one be punished for offending against an Ordinance made for the governing of the Affairs of the Forrest you cannot remove the matter before you So is the Law called Lex Idumaea concerning Rivers and Fishing in which are divers Ordinances That none shall kill Salmons at certain Seasons of the year and so of other Fishes If one be punished by force of such Law he shall not be relieved here for the Law of the Land hath always allowed such particular Customs And see F. B. If two Merchants put their Stocks together and so Traffick together and the one dieth The Survivor shall not have the whole Stock as the Common Law is but the Executor of him that dieth shall have an Accompt against the other and that is per Legem mercatoriam Cook to the same intent This Act of Common Council is good and according to the Law that is of Common Right There are divers Statutes made for the true making of Cloth and to take away the abuses and deceit in the making of it and this Act of Common Council is for the well executing of the said Statutes and I conceive there is a difference in making of Laws by a Corporation A Corporation may make an Act for the better executing of any Law established at the Common Law but new Laws they cannot make As those of a Town who have used to have Common in certain Lands they cannot make a By-Law That such a one in such a Town shall not have Common there but that none shall use his Common but at such a time such a By-Law made is good See 15 H. 7. 21 H. 7. 40. See 8 E. 2. tit Assise 413. A Town had Common of Turbary in a Marsh and divers of the Inhabitants of the Town had made Trenches in the said Marsh and some had not a full Foot of Land in the Town and such persons by their Trenches which they had made there used to carry Turffs out of the said Marsh by Boats and sell them unto the value of 20 Marks per annum to their great private profit and to the great grievance of the others For which cause It was provided by common assent of the Freeholders of the Lord of the said Town That all the Trenches in the said Marsh should be stopped so as from thenceforth no Turffs be carried in Boats by the Trenches And there it was holden That if the greater part of the Commoners assent the same shall bind the others who have not assented for ubi major pars ibi totum And then if such Towns may make Laws a fortiori The City of London Secondly This Law is good by Custom for they have used to make such Acts and Ordinances time out of mind c. and these Customs are confirmed by Act of Parliament and also they may appoint a penalty for to what purpose otherwise should they make an Act Oderunt peccare mali formidine poenae Also this Action is maintainable for an Amercement in a Court Baron an Action of Debt lieth Gawdy Iustice 44 E. 3. 19.
them Another Exception was Because it is not shewed What is their due Fee And that was conceived to be a good cause of Exception And if no Fee be due the same ought to appear in the Indictment And afterwards the Opinion of the Court was That they should be discharged CCCLXII Doughty and Prideaux's Case Hill. 33 Eliz. In the Common Pleas. Action upon the Case by Doughty against Prideaux 4 Len. 101 for these words Thou art a Wicked and perjured Fellow and art forsworn in the Court of Star-Chamber as appeareth by an Exemplification here under the Seal of this Court. The Defendant justified because of a Bill exhibited in the same Court by one Brooks against the now Plaintiff for conspiring with another to endict the said Brooks of certain Felonies And the Defendant now Plaintiff in his Answer to the said Bill denyed upon Oath the said Conspiracy And sentence was given in the said Court against the now Plaintiff ubi revera such a Conspiracy was The Plaintiff Replicando said That the said Brooks was Arraigned and Convicted upon the said Indictment and prayed his Clergy Whereupon it appeared because the said Brooks was not Legitimo modo acquietatus that the same could not be any Conspiracy in the now Plaintiff to procure the said Brooks to be Indicted Walmesley and Periam Iustices This Replication is not good For it may be that Brooks was acquitted and yet the Plaintiff did Conspire upon which a Writ of Conspiracy perhaps would not lie but an Action upon the Case without doubt For the Replication doth not prove That the Plaintiff did not Conspire but that the Plaintiff was not punishable for such Conspiracy c. CCCLXIII Pasch 33 Eliz. In the Common Pleas. THe Case was An Abbot leased Lands to three Men for 80 years and in the end of the said Lease was a Clause That if they died within the said Term that then the Lessor might enter The possessions of the Abby came unto the King who granted the Reversion to J.S. who made a new Lease thereof to J.D. for 21 years to begin after the expiration determination or surrender of the said former Lease The 3 Lessees died within the Term If J.D. might now enter before J.S. hath entred was the Question And it was the Opinion of all the Iustices That he could not For it is in the Election of J.S. if he will take advantage of the Condition and defeat the Lease but that ought to be by Entry and none can make such Entry but the Lessor himself or by his express direction c. CCCLXIV Bond and Bayle's Case Pasch 33 Eliz. In the Kings Bench. 1 Len. 328. 1 Roll. 926. BOnd brought a Scire facias against Bayle's Administrator of one T.B. upon a Recovery against the Intestate in an Action of Debt The Defendant pleaded before the said Iudgment given The Testator acknowledged a Statute-Staple to one B. and that the same was not paid in the life-time of the Intestate nor ever after and that they had not Goods of the Intestate in their hands above to pay the said Statute Vpon which it was Demurred in Law. Crook argued That the Bar was not good for here no execution upon the Statute is pleaded and then the Iudgment and the Statute being things of as high nature that of which Execution is first sued shall be first satisfied And if this Action had been brought upon the Obligation the Plea had not been good For although that Brian saith 21 E. 4. That Recognizances shall be paid by Executors before Obligations yet that is to be intended when a Scire facias is to be sued upon it otherwise not See 12 E. 3. Fitz. tit Execution 73. In a Scire facias upon a Iudgment in Debt given against the Testator Enquiry was What Goods the Executors had at the day of the Garnishment And he said It was moved 20 Eliz. by Anderson in this Court In Debt upon an Obligation against an Executor The Defendants pleaded That the Testator was endebted to one A. and that they had not more than to satisfie the same And it was holden no plea unless they had pleaded further That a Scire facias was sued forth upon the same But Wray said That was not Law And there is a difference when the Iudgment is given against the Testator himself and where against the Executors For where Iudgment is given against the Executors the Iudgment which was first given shall be first executed But if two Iudgments be given against the Testator he who first sueth Execution against the Executors shall he first satisfied because they are things of an equal nature and before suit it is in the Election of the Executor to pay which of them he pleaseth See 9 E. 4. 12. As if two Men have Tallies out of the Exchequer he who first offers his to the Officer shall be first satisfied for before that it is in the Election of the Officer which of them he will pay And a Iudgment is a higher Record than a Statute for the Statute is not a Record but Debitum recordatum recognitum And therefore 19 H. 6. If the Release enrolled be lost the Enrollment of it is not of any effect And Pasch 20 Eliz. Our very case was moved in the Court of Common Pleas In a Sire facias upon a Iudgment given against the Testator the Executor pleaded That the Testator had acknowledged a Statute before not satisfied ultra which c. And it was holden no Plea For a Statute is but a private and poquet-Record as they then called it And 32 Eliz. Between Coney and Barkham the same Plea was pleaded and holden to be no plea. Also if this Plea should be allowed great Mischief would follow for then no Debts should be satisfied by Executors For it might be that the Statute was made for performance of Covenants which Covenants peradventure shall never be broken And afterwards Iudgment was given for the Plaintiff CCCLXV Butler and Baker's Case Mich. 33 34 Eliz. In the Kings Bench. SEe the principal Case Reported in Cook 3 Part 25. Poph. 87. 1 And. 348. 3 Co. 25. The Argument of Egerton Solicitor General in the said Case under his own hand was as followeth viz. The disagreement by the Wife in pais is good by the Common Law. An Agreement may be by word Ergo a Disagreement If Husband and Wife Lease for years rendring Rent the Husband dieth the Wife accepteth of the Rent that Acceptance shall bind her 15 E. 4. 17. 3 H. 6. 48. 48 E. 3. 13. 16 E. 4. 8. 11 H. 7. 13. 9 H. 6. 44. 10 H. 6. 24. Tenant in tail makes a Lease for years not warranted by the Statute rendring Rent and dieth and afterwards the Issue accepteth the Rent the same shall bind him 21 H. 7. 38. 21 H. 6. 25. 14 H. 6. 26. 19 H. 6. 43. An Enfant Leaseth for years rendring Rent and at his full age accepts the
to prevent all acts and charges made mean by the Vendor yet it shall not relate to vest the Estate from the time of the delivery of the Deed For the Vendee cannot punish a Trespass Mean And if the Vendee hath a Wife and the Vendee dieth before Enrollment and afterwards the Deed is enrolled she shall not be endowed but here shall be some descent to take away an Entry yet the Heir shall have his age But in our Case it is otherwise for by the Waiver the Ioynture was waived ab initio And he cited Carrs Case 29 Eliz. in the Court of Wards The King granted the Mannor of C. to George Owen in Fee tenend in Socage and rendring 94 l. per annum And afterwards granted 54 l. parcel of the said Rent to the Earl of Huntington in Fee to be holden by Knight-service in Capite and afterwards purchased the said Rent in Fee And afterwards of the same Mannor enfeoffed William Carr who devised the same for the payment of his Debts And it was holden That the devise was good against the Heir And the King was not entituled to Livery or Primer Seisin And therefore the Defendant was dismissed But peradventure the Queen shall have benefit of the Act. See Cook 3 Part 30 31. Butler and Baker's Case The King gives Lands unto A. in Fee to hold by Knights-service during his life and afterwards to hold in Socage He may devise the whole For at the time when the devise took effect he was Tenant in Socage Lands holden in Knight-service are given to J.S. in tail scil to the Heirs Males of his Body the Remainder to the right Heirs of J.S. J.S. deviseth these Lands and afterwards dieth without Issue Male the same is good for two parts yet during his life he had not an Estate in Fee in possession The Father disseiseth his Son and Heir apparent of an Acre of Land holden in Chief by Knight-service in Capite and afterwards purchaseth a Mannor holden in Socage and deviseth the said Mannor and dieth his Heir within age the Devise is good for the whole and the King shall not have Wardship of any part and that in respect of the Remitter and yet it is within the words Having sole Estate in Fee of Lands holden and within the Saving Tenant in tail of an Acre of Land holden of the King in Chief by Knight-service seised of two Acres in Fee holden ut supra makes a Lease for three Lives of the Acre entailed reserving the accustomed Rent and afterwards deviseth the other two Acres in Fee and afterwards dieth seised of the Reversion and Rent The same is a good devise of all the two Acres And here is an immediate descent of the third part for the same is within the words In Possession Reversion or Remainder or any Rent or Service incident to any Reversion or any Remainder See the Statute of 34 H. 8. A Man seised of three Acres of equal value holden by Knight-service in Capite assureth one to his Wife for her Ioynture by Act executed and deviseth another to a stranger And the third to his Wife also The King in this case shall have the third part of every Acre But if the stranger waiveth the devise the King shall have the Acre to him devised and the Wife shall retain the other two Acres and it shall not go in advantage of the Heir So if he deviseth the said three Arces severally to three several persons to each of them one Acre and the one Waives the devise in one Acre The devise of the other two is good Or otherwise the King shall have the third part of every Acre c. CCCLXVII Mich. 35 Eliz. In the Common Pleas. 5 Co. 29. THe Case was An Enfant was made Executor And Admimistration was committed to another viz. A. durante minori aetate who brought an Action of Debt against the Debtor and recovered and had him in Execution and now the Executor came of full age It was moved What should be done in this Case and how the party should be discharged of the Execution for the authority of the Administrator is now determined and he cannot acknowledge satisfaction or make an acquittance Windham Although the authority of the Administrator be determined yet the Record and the Iudgment remain in force But peradventure you may have an Audita Querela But he conceived That an Administrator could not have such Action for that he is rather a Bailiff to the Enfant than an Administrator See Prince's Case 42 Eliz. Cook 5 Part 29. Which Rhodes concessit A. was bounden unto B. in an Obligation of 100 l. upon Condition to pay a lesser sum The Obligee made an Enfant his Executor and died Administration was committed durante minori aetate to C. to whom A. paid the Mony It was doubted If that payment was rightful or If the Mony ought to have been paid to both Windham Doth it appear within the Record That the Enfant was made Executor and that Administration was committed ut supra To which it was answered No. Then Windham said You may upon this matter have an Audita Querela In this Case It was said to be the Case of one Gore 33 Eliz. in the Exchequer in a Scire facias by an Assignee of a Bond against an Enfant Executor He pleaded That the Administration was committed to A. and his Wife during her minority And it was adjudged no Plea. CCCLXVIII Mich. 35 Eliz. In the Common Pleas. NOte It was the Opinion of all the Iustices Jones Rep. 243. That if Lessee for 20 years makes a Lease for 10 years that he may grant the Reversion without Deed but in such case if there be a Rent reserved there ought to be a Deed and also an Attornment if the Rent will be had And it was agreed by them all That if there be Lessee for years and the Lessor granteth the Land to the Lessee and a stranger that the Reversion shall pass without Livery or Attornment and that by the Acceptance of the Deed by him who ought to Attorn But whether he shall take joyntly or in Common or whether in a moyety or in the whole the Iustices were of divers Opinions Ideo Quaere for it was not Resolved FINIS A TABLE of the principal Matters contained in the Third Part of LEONARD'S Reports A. ABatement of Writ Page 2 4 77 92 Ex Officio Curiae p. 93 Accompt p. 38 61 63 Damages given in it p. 150 Damages given in it not expresly but the Court shall give Quoddam Incrementum p. 192 Brought by the Grantee of the King against an Executor where maintainable where not p. 197 Generally brought where good p. 230 Acquittance Must be shewed upon payment of Debts by Executors p. 3 Action upon the Case For stopping of a way p. 13 Against one for proceeding to Judgment and awarding of Execution in an inferiour Court after an Habeas Corpus awarded p. 99 Where lieth
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
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
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
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