Error but is without remedy Hawtree and Anger 's Case 194. Debt against A. B. and E. the daughter of C. Coheirs in Gavelkind upon an Obligation of their Father A. and B. were Outlawed and had their pardon E. the daughter of C. who was dead was waive The Plaintiff declared against A. and B. simul cum E. who was waive The Defendants pleaded that E. now one of the Heirs in Gavelkind was within age It was Resolved that the Heir of an Heir should be chargeable with an Obligation simul cum the immediate Heirs and that such Heir should have his age and if he was within age the parol should demur for them all Mich. 7. Eliz. Swann and Searles Case 195. Covenant against A. and B. Executors of I. D. I. D. was Tenant for life the remainder to A. I. D. by Indenture demised the Land to the Plaintiff for years rendering rent by the word dimisit Concessit I. D. dyed A. who was in the remainder entred and avoided the Terme and thereupon the Plaintiff the Lessee for years brought the Action against the Executors of I. D. and it was adjudged that the Action did not lye Mich. 7. Eliz. Worleyes Case 196. An Enfant was bound in a Statute of 600 l. and afterwards was taken in Execution upon it and at full age he brought an Audita Querela to avoid the Execution The Case was argued by the Judges and at length Resolved That the Audita Querela should abate For it was Resolved that if any Enfant acknowledge a Statute or Recognizance or Levyeth a Fine of his Land he shall not reverse it by Error or otherwayes when he is of full age it being matter of Record but if he will avoid it it must be during his Minority 197. One came to an Inn and brought goods with him The Inkeeper said to him There are many resort to this House and I do not know their behaviour therefore here take the Key of such a Chamber and put your goods there for I will not take Charge of them and afterwards the goods were stolen It was the opinion of Wrey Justice that an Action did lye against the Inkeeper for he is by the Law chargeable with all things which come into his Inn and by Law he cannot discharge himself by such words as are in this Case Price and Jones Case 198. Error by A. and B. against I. S. of a Judgment in an Assise of Novel Disseisin given by the Justices of Assise at Monmouth It was demurred unto and Adjudged here in C. B. That a Writ of Error here upon that Judgement did not lye Stakely and Thynns Case 199. In Debt the Plantiff and Defendant both appeared by their Attorneys and day was given to the parties in statu quo tune till 8. Hill at which time the Defendant made defaust Holden the Plantiff should not have Judgment because Dies Datus is as strong as an Imparlance Lucas and Cottons Case 200. Words viz. George Lucas is a false Knave and worthy to stand upon the Pillory The Defendant Justified because the Plantiff swore his debt falsely to be true upon an Attachment according to the Custome of the City of London which by the Court was holden to be a good justification wherefore adjudged against the Plantiff Slisield and Sibills Case 201. Debt by Husband and Wife upon a Lease for years the Defendants said that they had not any thing in the Land at the time of the Lease as to part It was found that they had and did demyse and as to other parts that they did not demyse It was holden the Plantiffs could not have Judgement for any party Arden and Mischells Case 202. Replevin The Defendant avowed as Bayliff to the Countesse of Rutland for Rent The Defendant said that the Abbot of C. 29 H. 8. was feised and made a Lease to I. S. for 60. years rendering Rent viz. 22 s. and expressed the same by such figures viz. 22 s. and that after the making and delivery of the Indenture the Plantiff caused the said 22 s. to be rased into the forme of 5. and after the said 5. caused to be adjoyned the Letter m by which the Indenture was void It was the opinion of the Justices that by such rasure the deed was void Bâ—lfield and Rouse Case 203. Dower The Defendant pleads as to part in abatement that he was not Tenant and as to the Rest he pleads a gift in Fee to the Husband by which he claimed the Land as Brother to the Husband and also pleads a Will by which he was entitled to other parts both which the Plaintiff did Detain Upon Non Detinet it was found for the Plaintiff and she had Judgment for damages from the death of the Husband Watson and Bishop of Cant. Case 104. In a Quare Impedit the Defendants at the Distresse made default and Judgment was given for the Plaintiff against all the Defendants to recover damages because they were supposed all disturbers by their default but the Plaintiff was compelled to make Title Bullock and Bardetts Case 205. The Case was the Bishop of Salesbury in temps R. 2. made a Feoffment in Fee of a Messuage and 3. Roodes of Land in Erbonfield parcel of the Mannor of S. nec non of 17. Acers of Wood in a great Wood containing a 1000. Acres to Bullock and his Heirs and after 5. discents the Land came to the Plaintiff who 6. of the Queen entred into the great Wood and made election of the 17. Acres in a place called Saltors Hill parcel of the said great Wood and distinguished them by Metes and Bounds The Question was if the 17. Acres passed to G. Bullock and whether the election of them by R. Bullock his Heirs in the 5th discent was good or not It was the opinion of the Justices that nothing thereof was vested in G. Bullock the Ancestor and the Election to have the 17. Acers was not given to the Plantiff the Heir for that nothing was in the Ancestors which might discend to him and as a purchasor he could not take for that nothing was given to him Pasc 10 Eliz. The Lord Dacres Case 206. The Lord Dacres and others agreed to enter into a Park and hunt there and to kill those who should resist them They entred and I. S came to one of them and asked one of them what he had to do there and the other killed him the Lord being a quater of a myle distant from the place and knew not of it It was adjuged Murder in him and all his Companions Sir Rich. Mansfields Case 207. Difference being betwixt Sir Rich. and one Herbert for Wreck of the Sea they appointed a Duell Herbert with his Servants came to Sir Richards house to fight with him a Friend to them both perswaded with them to take up the matter One of the Servants of Sir Richard cast a Stone at Herbert and his Servants and perchance therewith killed their Friend It
Covenant he devised to each of the Daughters 10. l. to be paid at their several ages of 21. years One of the daughters sued his Executors in the Spiritual Court for her Legacy and upon suggestion by the party that he is bound to pay her 10. l. at her age of 21. years a Prohibition was granted and the intent of the Devise was that he should not be twice charged 369. One sued an Administrator for debt upon pleinement administr The Jury found Assetts for part to the value and Judgment for that part for the Plaintiff and that for the residue the Defendant eat siae die and now he brought a Scire fac surmising Assetts to the value of the Residue It was the opinion of the Court that it did not lie 370. Debt upon Obligation with condition if the Obligor pay to the Obligee 10. l. or four Kine such a day at the then Election of the Obligee the Obligation to be void It was the opinion of the Court that the Obligor is to tender both at the day appointed by reason of the words at the then Election which word then shall have relation to the day appointed 371. A Lease was made to three Habendum to them for 99. years viz. to the first for 99. years if he should so long live and if he died to the Second pro residuo termino anaorum tunc ventur if he should so long live and if he died within the Term then to the third pro residuo termino annorum ad tunc ventur It was the opinion of the Justices that it could not enure by way of Remainder because there was not any Estate in esse during the particular Estate Yet they conceived the Estate of the second was good because it did enure as a new Grant Qu. 372. In a false Imprisonment against a Mayor he justified because he being a Magistrate the Plantiff said he was a Fool It was the opinion of the Justices that if he called him Fool in the place and exercise of his Offic◠that the Imprisonment was lawfull otherwise not Vdeson and the Mayor of Nottinghams Case 373. Vdeson was in the custody of the Mayor upon the Statute of 23. H. 8. and he would not let him at liberty upon Sureties wherefore he sued by Bill here and and Declared against the Mayor in Custodia Marischalli and recovered by Verdict It was the opinion of the Justices that by the Statute of 18. Eliz. none should sue for any penalty upon a penal Law but by original Writ or Information and so it was said it was adjudged in the Bayliffs of Bosworths Case Griffiths Case 374. It was was Resolved by the Justices That Error lyeth in the Kings Bench upon a Judgment given in an Ejectione firmae in Wales given before the Justices there 375. A Draper having a Servant to sell Clothes in his shop the Servant took the clothes and converted them to his own use It was adjudged that Trespasse vi armis lyeth only against the Servant because he had the possession as Servant and it was Resolved That in all cases where the Servant hath not a speciall nor general property Trespasses lyeth 376. One made a Lease for years the Lessee devised the Term to his wife for so many years as she should live and after to his Son the Wife purchased the Inheritance and sold the same again and covenanted that it was discharged of all Incumbrances and died The Son claimed the Term it was adjudged the possibility to the Son was a forfeiture of the Covenant and Bond of the Wife Sir Thomas Gorges Case 377. The Queen seised of a Mannor to which an Advowson was appendant and granted the Mannor una cum advocatione Ecclesiae the Church being then void Adjudged the Avoidance did not pass but the Queen should present pro hac vice 378. A man who was bound in a Recognizance for the good Behavior was indicted that he called one Pealer Lier Druakard and said I will make thee a poor Kirton and also Quare clausam fregit averia cepit injustè detinet It was Resolved by the Justices in B. R. That these were not words which threaten a battery of his Body without which the Recognizance is not forfeited 379. Debt brought in the City of Oxon The Defendant pleaded that he was one of the Barons of the Cinque Ports within the County of Kent and pleaded to the Jurisdiction of the Court upon which the Plaintiff demurred Qu. If a good Plea It was not Resolved Hayward and Bettesworths Case 380. Replevin the Defendant avowed for Rent the Case was The Father was seised in Fee and let the Land to the Plaintiff for years rendring Rent and afterwards he infeoffed a Stranger and executed livery upon parcel of the Land in a Close called D. the Lessee nor any of his Cattel being there but being in the house It was adjudged that nothing passed by the Livery but that the reversion of the whole descended and therefore it was adjudged for the Avowant Pigott Palmers and Grangers Case 381. The Case was A. was seised of Land which he intended to sell to the Father for 160. l. of which 140. l. was paid by G. in consideration of the Marriage of Pigott with the daughter of Granger and that the Land shall be conveyed for the Joynture of the daughter and the Heirs Males of their Bodies they intermaried and had Issue the Plaintiff Pigot died the wife took Husband Palmer the Defendant and they accepted a Fine of a Stranger with a render to the Stranger for 100. years rendering the ancient rent the wife died It was resolved that the taking of the Conveyance with the render for 100. years made the Estate of the wife void by the Statute of 11. H. 7. Zouth and Bamfields Case 382. In a Formedon in the Discender brought of the Moiety of a Mannor The Defendant pleaded in Bar that the Grandfather of the Demandant levied a Fine sur Conusance de droit c. with Proclamation of the moiety of the said Mannor by which Fine it was granted and rendered to the Grandfather and his Heirs whose estate the Tenant in the Formedon had The Defendant replyed that at the time of the Fine levyed and after the Demandant was seised of the Land in his Demesne as of Fee It was Resolved That the Defendant being Heir in tail against such Fine levyed by his Ancestor whose Heir he is was estopped to aver his seisin and continuance thereof as a stranger at the time of the Fine levyed Nor to add Quod partes finis nihil habuerunt Against which it was objected 1. That by the Statute of Donis It is provided Quod finis ipso jure sit nullus 2. That the Statute of 27. E. 1. of Fines doth not extend to Heirs in tail but to Heirs in Fee and that the Issues in tail are not bound by Fines which enure by way of Estoppel 3. That the Statute of Fines
long live a Widdow And so note there is a difference between a Limitation and conditional words Harris and Vandergies Case 503. Resolved in this case that an Administrator shall have Trespass de bonis asportatis in vita of the Inteste by the enquiry of the Statute of 4. E. 3. Dudley and Knights Case 504. In Debt The Issue was if the Plaintiff habuit gavisus fuit possidebat the Office of Bedelry of the Court of Conscience of the Bishop of London it was found occupavit Officium praedictum It was said that occupavit did not amount to Gavisus fuit vel habuit but the Court held it good enough Lassels and Lassells Case 505. Action upon the case by the Father against the Son for those words spoken by him of his Father viz. My Brother hath stollen a Black Mare and you were privy to it and sent her away to the Fens to my Brothers House Adjudged the words were slanderous being spoken of a Justice of Peace Jenkingson and Wrays Case 506. Words viz. John Jenkingson meaning the Plaintiff deserveth to have his Ears naild to the Pillory Adjudged the words are actionable being spoken of an Attorney Bale and Rodes Case 507. Words viz. There is a Villain now broken into my Mothers house to rob my Mother and is in the house innuendo the Plaintiff The Court doubted if the innuendo did reduce the words to be spoken of the Plaintiff Barbers Case 508. Words viz. The Plaintiff hath bin in prison for stealing M. Pigotts horse Qu. If the Action lieth because he doth say that he had stole the Horse Atkinsons Case 509. After a Recovery of Detinue the Defendant upon the Distring as pleaded that after the Judgment he had delivered the Goods to the Plaintiff Adjudged no Plea without being returned by the Sheriff or without a Deed shewing it Pen and Glovers Case 510. Lessee for years of a Mannor covenanted that he nor his Assigns would mâ—lest vex or put out any Tenant from his Tenancy upon payment of forfeiture A breach was assigned that the Lessee entred upon the possession of A. a Tenance of the Mannor and beat and wounded and troubled the said A. for his Tenement It was adjudged no breach without an Ouster or disturbing him of the profits of it Carith and Reades Case 511. A Lease was made of certain Fenny Grounds in the County of Cambridge the Lessee covenanted to drein certain other Lands in the said County not in the Lease and in Covenant brought he pleaded that the Lessor had entred upon the Land let Adjudged no Plea because the Covenant was collateral and not for doing any thing inherent to the Land ler. Besey and Hungerfords Case 512. The Venire fac was returned the first day of the Term and the Roll gave day before the Term and Issue was joyned and tried upon it The Court said the Roll is the Warrant for the Writ The Court held the Writ issued without Warrant and the same was not aided by the Statute of 18 Eliz. for that that Statute aids only Discontinuance Miscontinuance and Misconveying of parties Ap Richard and Penrys Case 513. In a Quod ei Desorceat in Wales in the Nature of a Writ of right Issue was joyned and tried upon the meer Right The Demandant upon Non-suit was barred by Judgment and a new Quod ei desorceat brought and the first Judgment pleaded in Bar It was adjudged a good Bar and Judgment final given It was the opinion of the Justices in Error brought and assigned that final Judgment should not be given upon the Demurrer That this Judgment was good and the Judgment was affirmed Gawen and Ludlows Case 514. Note It was Resolved in this case That if in a Replevin the Defendant claims property the Plaintiff may have a Writ de proprietate probanda althought it be two or three years after because by the claime of the property the first Suit is determined Wilford and Mashams Case 515. A constitution in London is That an Apothecary who sells unwholsome Drugs should forfeit a certain pain The Defendant sold unwholsome Drugs in London for which the Chamberlain of London brought Debt in London for the pain Adjudged maintainable there by their By-laws and Customs Wild and Copemans Case 516. Words viz. Thou art a forsworn man for thou wert forsworn in the Leet Adjudged the words actionable because a Leet is a Court of Record Borough and Taylors Case 517. The Queen made a Lease rendring Rent with condition if the Rent was behind by the space of 40. days that the Lease should cease the Rent was payable at the receipt of the Exchequer afterwards the Queen granted the Reversion It was adjudged that in this case the Grantee ought to demand the Rent upon the Lands and not at the Receipt of the Exchequer for that the Grant had altered the place of payment Belchamber and Savages Case 518. Debt was recovered against the Defendant by another who sued Execution and the Plaintiff was Sheriff and had the Defendant in Execution and he escaped and the Sheriff paid the condemnation and brought an Action against the Defendant who pleaded that the Goaler licensed him to escape Adjudged no Plea Beckford and Parncotts Case 519. A man seised of Lands in A. had Issue four Daughters viz. A. B. C. and D. and devised all his Lands in A. to A. and B. his two Daughters and made them his Executors Afterwards he purchased other Lands in A. a Stranger was desirous to purchase those Lands which he had new purchased and he said That the Land should go with the residue of his Lands to his Executors Afterwards the Testator made a Codicill and caused it to be annexed to his Will but in the Codicill no mention was made of this Land and if the new purchased Land should pass by the Will without a new publication of this Land was the Question Resolved the Land newly purchased should not pass for notwithstanding that the reading of the Will and making a new Codicil may amount to a new publication yet it doth not manifest the intent of the Devisor that more shall pass then that which he intended at the first and the reading of the Will and making a new Codicill may not be termed a new publication without an express publication for the Land newly purchased therefore the Land shall not pass by it Ascue and Hollingsbrooks Case 520. The case was A. acknowledged a Statute Merchant at Lincoln before the Mayor there to which Statute there wanted the Seal appointed by the Statute of Acton Burnell wherefore the Conusee brought Debt upon it in Co. B. and had Judgment Error was brought and the Judgment was reversed because it was not an Obligation for it shall not be taken to be an Obligation without express proof of the delivery of it as an Obligation 2. Because three were bound jointly in it and the Action was brought against one of them only and so the Writ did
Administratrix of W T. her Husband and that W. T. by his Bill such a day c. promised for him and his Executor to deliver to the Plaintiff 5000. Tyles before the Feast of All-Saints and to pay to the Plaintiff tantum quantum incrementuÌ„ and gaines which the Defendant should receive of the said Tyles for a year and averred the said W. T. received of the gaines 8 l. and that the Defendant in consideration the Plaintiff would suffer the Defendant to take and have the sole and only Administration of the goods of her Husband and give her day for the payment as well of the 8 l. as of the 5000. Tyles promised to pay the mony and deliver the Tyles upon request all which the Plaintiff did and yet the Defendant had not performed her promise Judgment upon Nihil dicit against the Defendant Error was brought it was adjudged that the consideration was insufficient because by the Law the Administration was to be counted to the Wife and it doth not appear that the Plaintiff had any Administration committed to him or that he exhibited any Caveat into the Spiritual Cour to hinder the Wife of the Administration and as to the giving day of payment that was not good because the Defendant was not his debtor nor chargeable in Law to pay him and for these causes the Judgment was reversed Hog and Blocks Case 898. Assumpsit The Defendant was indebted to the Plaintiff 10 l. and in consideration the Plaintiff would not sue him for the said 10 l. he promised to deliver to the Plaintiff 14. Quarters of Barley upon request Issue was joyned the Clerk of the Assizes returned the Postea and therein put John Puckering before a Serjeant which was omitted which was assigned for Error but the Court held it no Error and the Judgment was affirmed Levine Vanvive and Michael Vanvies Case 899. Debt upon Obligation to perform the award of A. and B. of for and upon all Actions and other Demands whatsoever had stirred depending having been between the parties till the date of the Obligation The Arbitrators awarded the Defendant should deliver to the Plaintiff before the last day of June next six Kentish cloaths which were battered by I. S. for the thred of the said Levine Issue was upon the deliver of the cloaths and found for the Plaintiff Error brought and assigned the arbitrament was of a thing out of the Submission It was adjudged it was within the Submission and the party was tied to the performance of it The Judgment was affirmed The Lord Mordant and Bridges Case 900. Action upon the case for these words viz. The Lord Mordant did know that Proud robbed Shotbolt and at such time as Proue should be arraignes therefore be willed Bridges to compound with Shotbolt for the same Robbery and told Bridges he would see him satisfied therefore if it cost him 100 l. It was found for the Plaintiff and damages a 1000 l. and the Lord Mordant had Execution by elegiâ— of the Lands of Bridges Bridges died the Administrator broughâ— Error in the Exchequer Chamber the Lord pleaded in abatement oâ— the Writ of Error his Execution by elegit and so the Administraton could not have Error Resolved the Writ of Error did lie for the Administrator because it might be the Land might be evicted and then the Plaintiff might resort to the Goods 2. It was assigned foâ— Error that words were not actionable in themselves for it waâ— said that one may compound for a Robbery knowing of it but noâ— for the Felony and the words are not to compound for the Felony Also it was said that it doth not appear in the Declaration that thâ— Lord was a Justice of Peace at the time of these words spoken tâ— Bridges although he was at the time that Bridges spake the words oâ— him in the Declaration upon the Writ of Error it doth not appeâ—â— if the words were actionable or not for it doth not appear in the boâ—â— that the Judgment in B. R. which was given for the Lord was affirmed or Reversed ideo quaere Callard and Callards Case 801. Ejectione firmae in B. R. The Case was E. C. seised of Lands in Fee in consideration of Marriage of Eustace his Son and Heir apparent being upon the Land spake these words to Eustace viz. Stand forth Eustace I do here reserving an Estate for my own and my Wives Life give unto thee and to thine Heirs for ever these my Lands and Barton of S. And afterwards he enfeoffed R. his younger Son in Fee with Warranty and died Eustace entred and demised to the Plaintiff It was there holden that the words did amount to a Feoffment and Livery being spoken upon the Land and the use to be to the Feoffor and his wife for their Lives and after to Eustace and his Heirs upon that Judgment Error was brought in the Exchequer Chamber and there the former Judgment was reversed for that the greater part of the Justices agreed that it was not any Feoffment executed because the intent was repugnant to Law to pass an Estate Eustace reserving any particular estate to himself and his wife and an use it could not be for the purpose was not to raise but use but by an Estate executed which took not effect and they all agreed if it was an use it could not rise upon natural affection without a Deed. The Judgment was reversed Westby Skinner and Catchers Case 902 A. was in Execution severally under the Sheriffs of London at the Suits of B. and C. the old Sheriffs delivered the body of A. by Indenture in which the Execution of B. was only mentioned and the other was omitted A. in the time of the new Sheriffs escaped It was adjudged in B. R. that the old Sheriffs should be charged in an Action for the Escape They brought Error in the Exchequer Chamber and the Judgment was affirmed because it was not found that the new Sheriffs were Sheriffs at the time of the delivery of A. to them and because they did not give notice to the new Sheriffs of all the Executions which were against A. Sacksord and Phillips Case 903. Assumpsit A. was endebted to the Plaintiff 460 l. the Defendant in consideration the Plaintiff would forbear to sue A. for the said Debt promised to the Plaintiff to pay it before Michaelmas next Upon non assumpsit it was found for the Plaintiff But in the postea the Verdict was not certified that the Plaintiff sustained damage by reason of the not performance of the promise for 460 l. for which the Plaintiff had judgment That was assigned for Error and also because the Declaration did not mention the forbearance of Suit at the Defendants request the Court ordered the postea to be amended and affirmed the Judgment Wiseman and Jennings Case 904. The case upon the matter in Law was this Tenant for Life the Remainder in tail the Remainder in Fee Tenant for Life suffered a common Recovery
the Justices that a Writ of Error was not maintainable in the Exchequer Chamber by the Statute of 27. Eliz. upon a Judgment in B. R. upon Rescous because it is not within the words of the Statute although it be a Trespass Giddy and Heales Case 915. Action upon the case in B. R. by Heale for these words he being a Counsellor at Law Whereas one said to Giddy that Heal had affirmed upon his credit that the Fee-simple of certain Lands was in the Patentees of the Queen The said Giddy said No friends Heales Warranty we well know a great number of his Country trusting to his Warranty have been undone It was adjudged in B. R. for the Plaintiff and 100 l. damages and Error being brought in Exchequer Chamber and assigned the Words were not actionable The Judgment was affirmed Marronor and Cottons Case 916. Judgment was given against Marroner in the B. R. for Cotton for these words spoken against Cotton a Justice of the Peace viz. He hath received mony of a Thief that was apprehended and brought before him for stealing of Sheep to let him escape and keep him from the Goal Error brought in Exchequer Chamber and assigned the words were not actionable but the Judgment in B. R. was affirmed Bâ—shop and Gins Case 917. Debt upon an Obligation in B. R. for performance of Covenants one was that he delivertd a Ship in London usque portum de Blackney and no time limited for it and the breach was assigned in it that he did not deliver the ship such a day and Judgment there for the Plaintiff Error brought and assigned that the Issue was ill joyned because he had time to deliver it during his Life that the Court said was but the misjoyning of the Issue which was remedied by the Statute of Jeofails after Verdict 2. Error that the Venire was of Blackney where it ought to be de Portu Blackney The Court held it no Error but good and the Judgment was affirmed Falsowe and Thornies Case 918. In Debt the Venire upon the Roll was retornable die Martis post 15. Trin. and the Writ in facto was returned die Jovis post 15. Trin. that was assigned for Error but non allocatur because but misawarding of Process which is aided by the Statute of Jeofails and the Judgment was affirmed Cundey and Edgecombs Case 919. In Debt the Venire was filed Trin. 35. Eliz. to try an Issue between Richard Cundey de Bodrygan querent Peter Edgecombe de Mount Edgecomb in Com. Devon Defendant The Writ was direct Vic' Cornubiae Hill 39 Eliz. The continuance upon the Roll was Juratores inter Richardum Cundey de Bodygran in Comitatu Cornubiae mercatorum queren Petrum Edgecombt de Mount Edgecomb in Com-Devon in placito debiti ponitur in respectu nisi Justitiarii ad Assisas in Comitatu praedict capiendas assignat prius venerint c. upon the Margent was written Cornubiae It was assigned for Error that the last County is Devon in the Addition of the Defendant for the habitation of the Defendant The Justices held it no Error because Cornubiae was in the Margent and where there are two Counties before Com. praedict shall extend to that which will affirm the Judgment although the other be the Prochine antecedent Wilcoks â—nd Hewsons Case 920. Debt upon a Bill of 30. l. The Defendant pleaded he delivered the Bill upon a Condition to the Plaintiff that if he did procuer a particular of certain Land that it should not be his Deed but if he did not procure the particular it should be his Deed The Plaintiff took Issue it was his Deed and so found by Verdict Error brought and assigned that the Defendants plea was insufficient and the Plaintiff ought to have demurred upon it and the Issue which he took was vain and void because the especial matter had confessed the Deed and so the Issue is taken upon a thing confessed the Judgment was affirmed because the Defendant cannot assign Error in his own Plea and although the Issue be joyned upon a thing confessed the same is but surplussage and it was in the Election of the Court to give Judgment either upon the Plea or the Verdict Joyner and Ognells Case 921. Debt upon a Bill of 100 l. by Humphrey Joyner Executor of George Skiner against the Defendant the Defendant pleaded per minas and after Issue joyned befor Nisi prius he confessed the Action in Court The confession was entred non potest dedicere quia ipse debuit praedict ' Georgio Skinner in vita sua praedict ' 100. l. modo forma poout and upon that the Judgment was Quod praedict Humfred Joyner recuperet versus praedict ' Georgium Ognel debittum suum praedict ' necnon quatuor libras pro damnis suis quae sustinuit tam occasione detentionis debiti praedict ' quam pro missis c. eidem Humfredo Skinner per curiam adjudicat upon this Judgment Error was brought and assigned that the confession of the Action is not according to the Declaration for the Declaration is in the debuit to the Testator and Detinet of the Executor as it ought to be but the Confession is in the Debuit only 2. Error the Judgment is Quod Humfrey Joyner recuperet debitum eidem Humfredo Skinner adjudicant whereas it ought to be eidem Humfredo Joyner adjudicat As to the first Error the Court said that after the Defendant hath relinquished the Bar the Declaration remains without defence for which cause the Court may well judge for the Plaintiff and for the second Error it was amended by the Court. Gomersall and Watkinsons Case 922. Eliz. Watkinson the Defendant brought Debt in B. R. against the Plaintiff Executor of William Gomersall and shewed that the Testator retained her in his Service 28 Eliz. taking 40 s. for one year for her Wages and so from year to year and that she had served the Testator five years who died her wages not paid The Defendant the Executor pleaded Nihil debet which was found against him and Judgment for the said Eliz. the Plaintiff Error was brought and assigned the Action did not lie against the Executor It was said by the Justices it appeareth prima facie upon the Declaration that the said Eliz. was compellable to serve by the Statute of 5 Eliz. and then when he voluntarily retains her in service being compellable to serve the Master cannot wage his Law in Debt for the wages and therefore the Action is maintainable against his Executors Stanton and Suliards Case 923. Note It was Resolved in this Case Whereas the Sheriff brought an Action upon the case against the Defendant in the Kings Bench upon Assumpsit to pay the Sheriffs Fee upon arresting the party in Execution which was 12 d. for every pound where the Execution did exceed a 100 l. and there Judgment was given for the Plaintiff that upon Error thereupon brought in the Exchequer the Judgment was reversed because an Action
it was Resolved that upon such Writ the Sheriff or his Officer might without any Offence by a Warrant arrest the person of the Countesse for he is not to dispute the authority of the Coâ—rt in awarding the proces but he is to execute the Writ to him directed But because the Defendants did arrest the Countesse upon a feined action of their own heads without Warrant They were fined and sentenced by the Court. Dag and Penkevells Case 1007. A bill was exhibited in the Star Chamber against the Defendant and divers others for several Offences The Defendant for that he inserted the name of a special Bailiff in a Warrant which was made by the Sheriff with blanks without privity or direction of the Sheriff Note in this Case it was holden that where there are several Defendants and one only is sentenced the other shall have Costs because not charged with the offence for which the sentence was but with other Offences of which they were acquitted 2. It was holden in this Case that a Defendant shall not have benefit of a general pardon at hearing of the Cause unlesse he prayes the same upon his answer put into Court Clerks Case 1008. Note in this Case being the Case of a Purveyor who was sentenced in the Star Chamber for several Offences in executing his Office of Purveyor It was said there were 7. properties incident to every Purveyor 1. He ought to be sufficient to answer the King and the party 2. He is to do his service in person and not by Deputy because it is an Office of Tâ—â—st 3. He is to be sworn in Chancery before he execute his Office for he ought to have authority under the great Seal with blank Labells to insert what he takes 5. His Authority is to continue but six moneths without renewing 6. He ought to take where is plenty and in Convenient time and no more then is sufficient 7. He is to take the things in kind and not money for them Lovice and Goddards Case 1009. The Case was A. the Grandfather had Issue two Sons T. and W. and by his Will devised to T. all his Mannors Lands c. within the Counties of D. and C. viz. to T. and the Heirs males of his body after his decease for 500. years Provided if T. or any Issue male of his body give grant c. the premises or any parcel thereof oâ—herwise then to Lease and demise the same for any term or number of years as may or shall be determinable upon the deaths of aâ—y 2. persons c. to be made in the Leases c. then all the premises for default of such Issues males of the said T to be begotten c. immediatly upon such alâ—â—nation gift grant c. shall remain and come to W. and to the Heirs males of his body c. The devisor dyed T. entred and made a Lease for 1000. years to I. S. who never entred T. dyed without Issue male I. being his Daughter and Heir W. dyed having Issue the Plaintiff who entred upon whom I. entred In this Case it was Resolved in C. B. that the devise to T. and the Heirs males was an estate Tail and the limitation for years void 2. Resolved that there ought to be a concurrence of death without Issue male and also of alienation before the rising of the Remainder 3. That the Remainder should never rise because the particular estate was destroyed by the alienation before the Remainder could commence 4. That the Lease for 1000. years made to I. S. was not an alientation within the Proviso upon which the estate might rise to W. when T. was dead without Issue male because that T. who made the Lease was but Tenant in Tail and then the Lease was determined upon his death It was the opinion of all the Justices in C. B. that the Judgment should be for the Defendant upon which Judgment the Plaintiff brought a Writ of Error in B R. and there by all the Justices upon the matter in Law the Judgment was reversed Mich 3. Jan. Cargenter and Collins Case 1010. In Debt for Rent the Case was A. had a Son and a Daughter and devised that his Son should have his Land at his age of 24. years and gave 40 l. to his Daughter to be paid at her age of 22. years and appointed that C. should be his Excecutor and should have the oversight and dealing of his Lands and goods till his Children should come to the ages aforesaid and dyed C. the Plaintiff made a Lease to the Defendant at Will rendering Rent at Mich. and our Lady-day the Daughter entred upon the Tenant at Will the Tenant attorned to her the Son dyed within the age of 24 years the Defendant did not pay the Rent for which C. brought Debt against him It was adjudged against the Plaintiff Resolved 1. The word Oversight and dealâ—ng with his Lands and goods did not give any Interest to C. the Excecutor but an authority only and that the estate discended to the Son 2. That by the death of the Son the Interest of the Executor was determined for it was noâ— the intent of the devisor to bar the Heir of the Son untill the Son should come to the age of 24 years if he lived 3. That the Tenury at Will was determined by the entry of the Daughter because she entred by Title i. e. as Heir to her Brother Lord Aburgavenny and Edwards Case 1011. An Excommengement was pleaded in Bar and the Certificate of the Bishop of Lâ—ndaph shewed of it but doth not mention by what Bishop the party was Excommenge wherefore it was adjudged void Rastoll and Drapers Case 1012. Debt upon an Obligation for payment of so much Flemish mony the Plaintiff declared for so much English money and it was holden good by the Court. Doyly and Drakes Case 1013. A man had two Closes adjoyning time out of mind and sold one of them who should make the Inclosure the Purchasor or the vendor the Court was divided in opinion Vide 21 Eliz. Diâ—r 372. Williams and Vaughans Case 1014 Scire facias by the Plaintiff against the Defendant who was bail in Debt for I. S. who did not render his body nor pay the Debt the Defendant demurred 1. Because no Capias was sued against the principal and also because the Principal was dead before the Scire facias brought but both points overruled because the Condition of the bail was broken before Whitâ—ock and Harâ—wells Case 1015. A. and B. Sisters Joynt Tenant A. Covenanted with a stranger that he should enjoy the moyety which she held with her Sister in Joynture for 60. years from the death of her Sister if she the said A. should so long live and demised to him the other moyety from her own death for 60. years if her Sister so long lived Adjudged the Lease was void for both moyeties â—he one because of her moyety after the death of her Companion and the other is
6ly That the Chapters are not of Capacity to take by Purchase or Guift without the Dean who is their Head 147. A man made his Will in this manner Item I give my Mannor of D. to my second Son Item I give my Mannor of S. to my said Son and to his Heirs It was resolved by the Justices that in the first he had but an Estate for life and the Item seems to be a new Guift to a greater Preferment in the second place for the amendment of the other 148. A man seized in Fee took a Wife and afterwards levyed a Fine of his Lands with Proclamation and 5. years passed in his life he dyed and after other 5. years passed Resolved That the Wife should be barred of her Dower because she did not claim it within the 5. years after the Title of Dower accrued 149. Assise against divers who pleaded Nul tort c. the Assise found that all the Defendants were Disseisors but that one of them did the Desseisin with force It was the opinion of the Justices That the Verdict was good for that the Force and Disseisin was two things for Force is not incident to every Disseisin for it should be enquired by the Assise if they or any of them had done the Disseisin with force and if Lessee for years be re-ousted with force and he in the Reversion bring an Assise and the Disseisin is found with force yet the Force is not punishable for the Force was to the Lessee for years 150. Nota. It was resolved by the Justices That if the Demandant do recover in an Assise he may enter and execute the Judgement without being put in seisin by the view of the Recognitors of the Assise but if he be disseised again he shall not have Re-disseisin but is put to his Writ of Post disseisin 151. Note It was agreed by the Justices That if Tenant in tayl discontinue and dyeth and an Ancestor Collateral in the life of the Tenant in tayle releaseth to the Discontinuee with warranty and dyeth and afterwards the Issue in tayle brings a Foâ—medon and is barred by the Collateral warranty if after that which was a Collateral warranty become a lineal warranty as it may yet he and his Heirs shall never have remedy against that Bar But if an Exchange be between Tenant in tayl and another and the Tenant in tayl dyeth and the Issue enter into the Lands taken in Exchange and afterwards brings a Formedon and is barred and dyeth yet his Issue may enter into the Lands exchanged or recover the same by Action notwithstanding the bar in the first Actâ—on for that is out a warranty in Law which is not so strong as a warranty in fact but he may disagree to the Exchange and enter or bring his Action at his Election 152. A man leaseth a Mannor to another with all the members and appurtenances To have and to hold all the members of the said Mannor to the Lessee for years It was holden It was a good Lease of the Mannor for years for the limitation of the word Member was void and so it was a good Lease of the Premisses without the Habendum Sutton and Robertsons Case 153. In Ravishment of Ward the Case was Lord and Tenant The Tenant enfeoffeth the Lord and another of the Tenancy and they reenfeoffed the Tenant It was resolved by all the Justices That the Seignory was extinct for by the Feoffment to them all the Seignory was suspended in their hands and then when they departed with the Lands discharged of the Seignory it was an Extinguishment of the Seignory and when the Lord joyned with his Companion in the Feoffment all passed by the Feoffment of any of them and if the Lord releaseth all his Right in one Acre of the Lands holden it is an Extingushment of the whole Seignory 154. A man by his Will deviseth his Lands to his Wife to imploy and dispose them upon herself and his Sons at her will and pleasure Resolved It was a good devise in fee to her but the Estate in her was conditional by reason of the words eâ intentione which makes a Condition in a Devise but not in a Feoffment Guift or Grant 155. A man recovered and sued forth a Capias ad satisfaciend to the Sheriff who arrested the Defendant and he after escaped and at the day the Sheriff did not return his Writ A Sicut alias issued to the Sheriff upon which the Sheriff arrested him again and the Defendant brought an Audita Querela Resolved the Writ did well lye for although the Parâ—y himself might have a false Imprisonment against the Sheriff because he had not returned his Writ and so was a Trespassor ab initio yet by the first taking in Execution the Arrest cannot be lost by the not returning of the Writ but having respect to the Party Plaintiff he is in Execution by the first taking presently And in this Case it was said That if a man be condemned in Debt or Trespass and be taken in Execution although he be chosen a Burgesse of Parliament he cannot have the Priviledge of Parliament to discharge him of the Execution Term. Pasc 6 Eliz. Broughton and Conwayes Case 156. Debt upon Obligation The Condition was whereas the Defendant had sold to the Plaintiff a Lease of the Mannor of S. that he should not do nor had done any act to disturb the Plaintiff of the possession of it but that the Plaintiff should hold enjoy it peaceably without the disturbance of the Defendant or any other and assigns a Breach That A. had brought a Writ of Dower against one B. of the said Mannor and had Judgment and Execution and so he was disturbed The Defendant said That the Recovery in the Dower was before the sale made to the Plaintiff Resolved The Plaintiff should be barred because the Defendant is not bound by the words of the Condition to warrant the peaceable possession to the Vendee but only for acts by himself done or to be done and here no act was done by him 157. It was holden by the Justices That in an Action brought upon the Statute De Malefactoribus in parcis That notwithstanding that the Queen pardons the offence yet by the Statutee the Party hath remedy for the Trespass done to him 158. A man made a Feoffment in Fee upon Condition that if the Feoffor paid certain Monyes to the Feoffee before such a day or to his Executors or Assignes then he might enter before the Day the Feoffee made the Feoffor his Executor and by his Will gave all his Goods and Chattels to his Wife and dyed Brown Justice held That by making the Feoffor Executour the Debt was released because the Executor could not pay the Debt to himself But the better opinion was that the Feoffee was to pay the Money being a thing Testamentary to the Wife as an Assignee of the Feoffee Quaere the Case was not resolved to whom the payment should
be 159. Dower brought the Defendant pleaded that he had assigned to the Wife 20 acres of Corn out of the Land in recompence of her Dower and adjudged a good barr as well as of Rent or any other profit out of the Land 160. Three Coparceners Daughters the one of them and her Husband enter into the whole the other being supposed out of the Realm in the right of his Wife and afterwards the other two return and release to the Husband and Wife and their Heirs It was holden that the Release should enure only to the Wife and her Heirs because the same enures only by way of Extinguishment and the Baron is seised in the right of his Wife But admit the Husband and Wife both enter and are Disseisors then the Release shall enure to them both and then when the Wife survives the Husband she shall have the whole 161. It was held by the Justices upon the Statute of 31 H. 8. of Monasteries That if a Woman who hath a Widdows estate of Lands holden by Copy whereof the Inheritance was in the Abby That if the Abbot will make a Lease of the same in reversion it is no good Lease by that Statute but otherwise it is of a Lease at will by the Common-law 162. Note by the Justices If Issue be joyned if a Church be void by a Cession Deprivation or Resignation it shall be tryed by the Country because it is a thing mixt for the Avoydance is Temporal and the Deprivation is Spiritual But habilitie Bastardy ne unque accouple en loyal Matrimonie shall be tryed by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the VVrit shall be tryed by the Country 163. VVords spoken of an Attorney of the Common-Pleas viz. He is the falsest Knave in England and by Gods blood he will cut thy Throat Adjudged Actionable 164. A man devised his Land to his wife for life the Remainder to another for his life and after their deaths he devised that the same Lands should be sold by his Executors or the Executors of his Executors he dyed after the Wife and he in the Reversion dyed and during their lives one of the Executors dyed intestate It was the opinion of the Justices That the Executors of one Executor should not make the sale for they had authority joyntly and if one of them fail the other cannot execute the Testament and so it was said it was adjudged in Franklyn's Case where a man devised that I. S. and I. D. by advice of the Parson of D. should make sale of his Lands after his death and before the sale the Parson dyed the other two could not sell the Lands 165. Wast assigned in a Marsh for that the Lessee suffered a Sea wall adjoyning to the Marsh to be ruinous by which by the flowing of the Sea the Marsh was drowned The Court conceived That if it was a small breach in the Wall and the Lessee did not repair it but suffered it to continue it was waste bet if it was suddenly done by the violence of the water the Defendant might plead that matter in barr Sir Edward Bray and Andrews Case 166. Action for words viz. My Master was not content to take my Living from me but sent his Man Andrews to kill me Resolved the Declaration was not good for the incertainty for the words My Master comprehends a generality and doth not refer to any Person certain and therefore it cannot be intended the Defendant intended to tax the Plaintiff more then any other Person and it may be he had at that time many Masters and it ought to appear to the Court of what Person certain the Defendant intended the words 167. An Action upon the Statute of Apparel The Writ was Ad respondendum Dominae Reginae quam I. S. Resolved the Action was not well brought because the Queen and the Party cannot joyne in the Action but they ought to have several Actions viz. the Queen shall have an Action for her part and the Informer for the other part For although by the Premises of the Statute it is an entire duty yet the sequel of the Statute determines how the penalty shall be taken and it is as several forfeitures The Earl of Northumberlands Case 168. Resolved one cannot have a VVrit of Forfeiture of Marriage without a Tender made to the Heir contra of a Writ De Valoâ—e Maritagii 169. Upon an Exigent a Writ of Proclamation issued which was returned served but the Name of the Sheriff was not to the Writ Quaere if it be Error The Court would advise of it Felton and Capells Case 170. In a Formedon in the Discender the Tenant vouched to Warranty I. S. who entred into the Warranty and vouched I. D. It was the opinion of the Justices That is a good Counter plea that the vouchee nor any of his Ancestors had any thing after the guift so as he could enfeoff him who vouched him 171. In Debt upon an Indenture the Defendant pleaded that it was rased after the delivery by the Plaintiff But he cannot plead That it is not his deed and give in Evidence the rasure but he ought to plead the special matter 172. A Bishop made a Lease for years which was confirmed by the Dean and Chapter and after he let the same Land to another for 20. years and afterwards before any Confirmation of it he let the same Lands to a third person for 60. years and the last Lease was first Confirmed and after the Lease in Reversion was Confirmed also Resolved that that Lease was good and the Confirmation good notwithstanding the last Lease was first Confirmed for the Lease is not to have any Interest by the Confirmation but only to make it perdurable and effectual Squier and Reads Case 173. It was holden by the the Justices in this Case That it is a good Challenge in a Writ of Right to the 4. Knights that they are not gladiis cincti And a Challenge to them must be made upon their appearance for after they are once sworn they are not Challengeable Also the 4. Knights are to make the Pannell and they need not to put their Names to it at the Return of it as the Sheriff useth to do and they ought to return to be of the Grand Assise but 12. persons besides themselves 174. A man had Judgment to recover in trespasse and had Execution of the Reversion of a Lease for years and of the Rent It was the opinion of the Justices that the Rent and Reversion was presently in him and that he might avow for the Rent without alledging any attornment of the Lessee for years 175. Debt upon Obligation conditioned to pay mony to the Obligee and the Parishoners of D. at such a Feast payment to the Obligee and two of the Parishoners of the Parish is good and it is not requisite the payment be made to all the Parishoners 176. In an Assise of Novel desseisin the Assise
the Rent that the Lessor should not enter which being immediately sworn and the Records of the Outlawries against him produced the Justices dismissed the Lessee and that the Lessor should enter upon him Broughtons Case 269. Broughton a Justice of the Peace brought an Action upon the Case against the Bishop of Coventry and Lichfield because he wrote a Letter to the Earl of Leycester one of the Privy Council wherein he wrote That the Plaintiff was a Vermin in the Common wealth a false and corâ—upt man an Hypocrite in the Church of God a Dissembler He hath used many corrupt practises to work his VVill He procured my Register to be indicted of Extortion He willingly and wilfully hath boulstred out one Greenwood a Convict man of many offences and knowing him to be an Evil man maintaineth him against me without Law Conscience or Honesty Upon Not Guilty it was found for the Plaintiff and 300 l. Dammages It was objected the Action did not lye not being an overt Act but words written in a Letter Resolved the Act on did well lye being writ to a Stranger but otherwise if it had been written to the Party himself and it was also resolved That although but some of the words will bear Action yet the Dammages are well assessed because they are put in to increase the Dammages In this Case it was said if a slanderous Bill be exhibited in the Star Chamber against one the Action doth not lye because it is a Court of Justice and hath Jurisdiction to redress things but to exhibite a slanderous Bill into a Court waich hath not power to redress the thing is scandalous and an Action will lye for it Griffith and Clarks Case 170. A Writ of Disceit by the Lord of the Mannnor upon a Fine levyed of the Land within antient Demeasne The Defendants pleaded that the Lord of the Mannor in the time of E. 2. did release to one who was Tenant of the same Land de omnibus servitiis consuetudinibus salvis servitiis infrascriptis viz. pro una virgat terrae 2 s. rent suit of Court and Releife It was resolved The Custome of the Antient Demesne was extinct by the Release but the Rent Releife and suit of Court remained as parcel of the Seignory by the saving Ivors Keales Case 271. A. seised of Lands in Fee borrowed 20 l. of B. and they are agreed to assure Lands for it They went to the Land and A. there said to B. I am endebted to you 20 l. If I do not pay you at Michaelmas then I bargain and sell this Land to you and if I do pay you I am to have my Land again B. continued upon the Land a little space the Monyes was not paid at Michaelmas Adjudged the Land passed to B. upon a Condition subsequent for payment of the Mony by B. Mildmay and Standiskes Case 272. Action upon the Case for Slandering his Title In which the Defendant justified the Case was A. seised of Lands in fee had Issue 3. Daughters V. G. O. V. dyed without Issue The Father for love and affection and the better maintenance of G. and O. covenanted to stand seised to the use of himself for life the remainder to G. in tale of one Moyety the remainder to O. of the Moyety in Tail Provided it shall be Lawfull for the said A. for the payment of his Debts and Legacies and better preferment of his Servants and other good Considerations to devise the said Lands by his Last VVill and dispose of the same for lives or years and afterwards he devised the said Lands to F. and the said O. his wife for 1000. years and dyed wherefore the Defendant published the said Lands were assured for 1000 years upon which it was demurred It was said that the said V. might at any time determine any of the said uses and induce other Estates at his pleasure and the payment of his Debts and Legacyes with good considerations for the Leases But it was resolved for the Plaintiff because the Proviso was against the Law to enduce an Estate to a Stranger by way of Lease upon Covenant of Considerations to raise uses but such power might be good upon an Estate executed Or a Proviso good which did extend to determine the Estate but not to give another Estate to Lessees Veere and fâ—ofryes Case 273. It was Resolved That if the Metropolitan grant Administration where the Intestate had not bona notabilia indivers diocesses it is voidable only but not void But if a Bishop of a Diocesse grants Administration which belongs to the Metropolitan the same is void Russells Case â—74 Trover and Conversion of goods by the Executors of R. against Husband and Wife of the goods of the Testator which came to the hands of the Wife dum sola fuit The Defendant pleaded a Release of the Plaintiff after the death of the Testator and after the Trover and Conversion The Plaintiff said he was then within age It was adjudged that because there was no Consideration alledged for the Release it should not binde the Executor because it should be a Devastavit in him Twineos Case 275. Grandfather and Grandmother Tenants in special Tail before the Statute of 27 H. 8. the remainder to the right Heirs of the Grandfather The Father by deed enrolled Fine and Proclamation conveyed the Lands to the Queen and her Heirs and Successors in the life time of the Grandmother It was Resolved that by the Statute of 32 H. 8. by the Fine and Proclamation the Issue in Tail was Barred Vâ—ncent and Lees Case 276. It was adjudged in this Case That when a man devised that his Sons in Law should sell the Reversion of his Lands without naming their particular names and that some of them dyed That the Survivors could not sell the Land Sir Peter Carewes Case 277. It was Resolved in this Case That the Lord of a Mannor for life or a particular Tenant having interest in the Mannor might grant Copies in Reversion although they were not executed in the life of the grantor Moris and Franklyns Case 278. The Statute of 27 H. 8. which began 4. Feb. Anno 27. H. 8. and ended 14. April gave Monasteries of Petty value to the King The Abby of T. being of Petty value viz. 100 Marks per Ann. was mean between the 1. day and the last day Surrendred to the King It was holden the King should be in by the Statute and not by the Surrender Thorrowgood and Tarvors Case 279. In Trespasse The Defendent pleaded in bar the Release of the Plaintiff of all his right in the Land The truth was the Plaintiff was a man unlearned and the Release was read unto him only as a Release of the Arrerages of an Annuity It was the opinion of the Justices that he might plead Non est factum to it and it should nor bar him Dorrell and Thyns Case 280. Error was assigned in a Common Recovery That no Warrant of Attorny was
c. de Decimis eidem pertinent spectant Habendum dectum scnum cum pertinenciis The question was what estate the Lessee had in the Tythes at Will or for years It was the opinion of Manwood Chief Baron that he had an Estate in them for years and not at Will for where several things are in a Grant and after the Habendum comes to limit the Estate it is superfluous to recite the particular things in the Habendum and the Tythes being particularly recited shall therefore pass by the Habsndum which limits the Estate for years Crops Case 357 A man made a Lease for years reserving Rent at Mich. and the Annunciation and if it be behind by the space of a month to reenter The next day after Mich. the Lessor sent the Rent by his Servant to the house of the Lessor who tendered it to his person and he refused it and afterwards upon the last instant of the day it was demanded upon the Land It was adjudged a good tender and the Lessor could not enter Beverley and the Bishop of Canturburyes Case 348. A seised of an Advowson in gross presented K. who was Inducted the Advowson afterwards desdended to B. and C. Coparceners B married I. S. C. married T. B. and had Issue C. died T. B. the Plantiff being Tenant by the Curtesies the Church became void by the deprivation of K. and because they could not agree in the presentment the Clerk of B. the eldest Sister was received by the Bishop which was since dead so the Plantiff Tenant by the Curtesie presented and being disturbed brought the Writ The Incumbent being presented by the Queen pleaded thae K. being inducted accepted a second Benefice of the value of 8. l. and so the Church was void by the Statute of 21. H. 8. of Pluralities It was adjudged for the Plantiff for that the deprivation of K. and the Plurality of the Clerk of the eldest Sister since dead were not denied after the acceptance of the second Benefice Saunders Case 349. Information upon the Statute of 1. E. 6. for landing of goods at Ratcliff Custom not paid nor agreed for It was pleaded in a Bar A. was seized of the Mannor of S. in Sussex and had wreck of the Sea appertaining to his Mannor by Prescription and that the Mannor Contigue adjâ—câ—t mare altum and said the goods were wreck and cast upon the land of the Lord and that he seized them and so justified Qu. If a good Justification Morris and Wâ—â—bors Case 350. The Case in effect was this A man was divorced Causa â—rigiditatis and afterwards took another wife and had issue It was argued by the Civilians and also by the Justices if the Issue was Bastard or not It was adjudged that the Issue by the second wife was not a Bastard For that by the Divorce the Marriage was dissolved â— vinculo Matrimonii and each of them might marry again But admitt that the second marriage was voidable yet it stands good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue Term. Hill 29. Eliz. Fanshaws Case 351. In Ejâ—ctione firme the Case was shortly thus King Henry the Seventh erected and Founded an Hospital by the name of Mâ—ster and Chaplains of the Hospital of King Henry the Seventh de le Savoy And afterwards in the time of Queen Mary a lease was made of Lands parcel of the Hospital by the name of Master of the Hospital Henrici nuper Regis Angliae septimâ— vocat le Savoy and if it was a good Lease or not was the Question The Case was first argued in the Exchequer and there adjudged that the Lease was void by the Judgment of two Barons Afterwards a Writ of Error was brought in the Exchequer Chamber there the Case 3. Eliz. was argued again but it was not adjudged but afterwards the Case was compounded but the better opinion of the Justices there seemed to be that it was a good Lease and that the words De le Savoy vocat le Savoy were idem sensu Crosman and Reads Case 352. Debt against the Defendant Executrix of T. R. her former husband upon an Obligation of 200. l. The Defendant pleaded fully administred It was found she had Asserts to the value of 80. l. parcel of the 200. l. and that the said T. B. borrowed of F. R. her late Husband 60. l. and that the Defendant being Executrix to T. B. took the said F. R. to Husband who died the Court gave Judgment that the Plantiff should recover the 80. l. and for the residue in misericordia pro falso clamore so as the Court conceive the 60. l. was not Assetts in her hands Rous and Artois Case 353. A man was Tenant for another mans life of a Mannor Cestuy queuse died The Tenant continued possession of the Mannor and held Courts and made voluntary Grants by Copy It was adjudged he should not bind the Lord for he was but Tenant at Sufferance who had not any Interest and so he was a Disseisor of the Mannor Broke and Smiths Case 354. The Case was Lord and Tenant the Tenant levied a Fine to the King who afterwards gave the Land Tenendum of the King by Knights Service The Lord distreined the Patentee for the Rent and Services If the Seignory was revived was the Question It was conceived it was and that it was suspended only for the time in the King Qu. It was not resolved Knowles and Powels Case 355. The Queen seized in Fee made a Lease for years to one who was Out-lawed at the time of the Lease made and afterwards the person was Out-lawed again and before seizure came a generall Pardon of all goods and chattels forfeited In this Case Resolved First that a man Out-lawed was capable of a Lease from the Queen as a Farmer to the Queen and that the Pardon with restitution was sufficient to revive the Term forfeited Secondly That a man Outlawed and Pardoned had property in his goods Bonds Case 356. Bond erected a Pigeon-House upon certain Lands which he held in Lease for years the reversion in the Queen being parcel of her Mannor of F. in the County of S. It was the opinion of Manwood Chief Baron and Gent. That none could erect a Dove-house but the Lord of the Mannor or the Parson and said that in ancient time it was accounted a Common Nusance presentable in the Leet 357. Note by Manwood Chief Baron where it is ordained by the Statute that for doing misdoing or not doing of a thing the Offendor shall forfeit such a Sum not expressing to whom there the forfeiture shall be intended to be to the Queen unless the penalty be assessed for taking Goods Chattels or other things in which the Subject hath a Property and then he which hath the loss shall have the forfeiture Warrams Case 358. A Protection was granted to him by the Queen and it was Quod Praerogativa
in opinion if it was a good Lease Rosse and Mores Case 675. Assumpsit In consideration that the Plaintiff would relinquish a Suit which he had against a Stranger the Defendant promised to save the Defendant harmless from all actions concerning such a Lease It was adjudged no good Consideration because he may afterwards prosecute the Suit again when he pleaseth Bannister and Lillyes Case 676. Debt for Rent upon a Lease for years The Defendant said I. S. was seised and died and his Heir entred and the Plaintiff disseised him and made the Lease and the Son reentred before the Rent day The Plaintiff said I. S. was not seised nor died seized and that he did not disseise the Son The point was if the disseisin or discent was traversable adjudged the Disseisin Stoner and Gibsons Case 677. It was adjudged in this Case that the Lessee for years of a Copyholder might maintain Ejectione firmae Digby and Vernans Case 678. Resolved It is a good Plea in abatement of an Ejectione firme that the Plaintiff hath an other Ejectione firme depending of the same Land Waston and Ridges Case 679. It was Resolved in this Case That upon an Information exhibited in the Spiritual Court for laying of violent hands upon a Clerk and costs there given against the Defendant for which he was excommunicate for not paying them a Prohibition should issue forth because it was not at the Suit of the party and costs are not grantable there upon an Information Butler and Goodales Case 680. Upon an Information upon the Statute of 21 H. 8. of Non-Residence It was Resolved That the Parson ought to dwell upon the Parsonage house and not upon another house although it be within the Parish both for serving the Cure and maintaining of Hospitality v. Coo. 6. par the same case Odiham and Smiths Case 681. Error of a Judgment in C. B. for Trespas there for taking of an Ox the Plaintiff there assigned the Trespass generally in D. the Defendant justified the taking of the Ox damage Feasants the Plaintiff made a new Assignment upon which the Defendant justified for Heriot Service and the Judgment there passed against the Defendant because he could not varie from his former Justification but should be estopped by it It was the clear opinion of all the Justices that he might well varie in his Justification upon the new Assignment and therefore the Judgment was reversed Reyner and Parkers Case 682. An Apparator came to the Church of a Parson and said to him he is to pay Tenths to such an one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop certified that he refused to pay them according to the Statute of 26. H. 8. It was Resolved the demand was not according to that Statute and the Summons to pay them not according to the Statute for the demand ought to have been by one who hath authority to receive them which the Summoner had not and they held the demand not good although the Bishop certified it was duly made 683. One who exhibited an Information upon a penal Law died It was Resolved That notwithstanding the death of the Informer yet the Queens Attorney might repay and prosecute the Information for that neither death nor the Release of the Informing party could bar the Queen from the moiety Holliday and Lees Case 684. In a Prohibition It was Resolved that Tythes should not be paid of Beeches although above twenty years growth Cartwright and Dalesworths Case 685. Debt upon an Obligation taken by the Plaintiff Sheriff of the Detendant his Clerk upon condition to pay the Queens Silver into the Exchequer within 14. days after hereceived it The Defendant pleaded he Statute of 23 H. 8. c. 10. and averred it was taken colore Officii Upon demur it was adjudged for the Plaintiff for the Statute doth not intend such Obligations taken of them which are not to appear nor are in custody 686. It was holden by the Justices that if the Sheriff takes goods in Execution upon a Scire fac and hath the goods in his hands and a Supersedeas comes to him yet he shall not thereupon redeliver the goods but may proceed and sell them upon the Execution Armiger and Hollands Case 687. In case of a Prohibition It was Resolved that by the Common Law before the Statute of 21. H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Arch-Bishop had not Authority by the Statute of 25. H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute but yet the Statute as to those Dispensations which the Arch-Bishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal Mosley and Fossets Case 688. In Action upon the Case the Plaintiff declared that the Defendant took the Plaintiffs Gelding to pasture for 2 s. the Week and the Defendant was to keep it safe and redeliver it upon Request and that the Defendant kept it so negligently that it was taken away by persons unknown The Court was divided in opinion if the action lay without alledging a Request for delivery of it But it was agreed by them all that without a speciall Assumpsit the action did not lye against the Defendant Sharington and Minors Case 689. A man devised Lands in Tail with diverse Remainders over and with this Clause viz My minde is that if any of the said persons afore entailed to my said Lands or their Heirs do unlawfully vex disquiet or trouble any other of them for the same Or do Mortgage pledge or sell the same or any part thereof or his interest possibility or title therein or do hurt fully dismember or waste the same c. That then every such person and his and their Heirs shall forthwith be cleerly discharged excluded and dismissed as touching the said entail of mine and the conveyance by words forgoing of the entail of my said Lands to be of no force to him or them but the same immediatly to discend and come to the party next in Tail to him or them effectually as if such disordered person had never been minded of in thiâ— my Will B. having this Land by the forfeiture of the former estate she and her Husband levyed a Fine of it he in the next Remainder entred It was holden by the Justices that the estate of each of them in the Remainder was subject to the limitation to cease by alienation and that the next in the Remainder might enter Corbens Case 690. In Consideration of Marriage the Father agreed by word to stand seised of Land to the use of himself for
he was not a person Qualified to take two benefices within the Statute of 21 H. 8. of Pluralities It was agreed that a Countesse a Widdow had power to retain two Chaplains who might purchase Dispensation for plurality But when she had once retained two she could not retain a third Chaplin who might purchase Dispensation within the Statute and therefore in the principal Case the Retainer of Priory being the third Chaplain was not good nor his dispensation good and so the Queen for want of Presentation of the Patron and Ordinary had good title to present Oldbery and Grogonds Case 729. Debt upon an Obligation for payment of certain money at a day certain The Defendant pleaded that the same was agreed to be paid for the Resignation of a Parson of his Benefices to the intent another might be presented unto it and so upon a Symoniacal agreement The Court held it no plea for that an averment shall not be that it was to be paid for other cause then the Obligation expresseth Agor and Candishes Case 730. An information was brought in the Exchequer by an Informer tam pro Domina Regina quam prose ipso upon the Statute of 8 E. 4. cap. 2. of Retainers and Judgment was there given the Informer to have one Moyety of the forfeiture and the Queen the other Moyety Error was brought upon the Judgment and assigned for Error that the Statute limits the party to sue in the Kings Kings Bench and divers other Courts but speaks not of the Exchequer It was the opinnion of the Justices that for that cause the Judgment was erroneous as to the Informer only Then it was moved that the Judgment might be and stand good for the whole forfeiture to the Queen for it was said that a Judgment might be reversed in part and stand for the other part and divers Presidents vouched to that purpose But the Court was of opinion because the first Judgment gave but a Moyery to the Queen this Court had not power to give more nor encrease it but only had power to affirme the Judgement Boddy and Hargraves Case 731. Debt upon a Lease for years was brought against the Administrator in the Debet detinet It was adjudged well brought because the Rent was encreased in the time of the Administrator himself But it was said That in all Cases where the Executor or Administrator brings an Action for a duty Testamentary it ought to be only in the Detinâ—t because the duty demanded ought to be Assets Layton and Garnonces Case 732. A man recovered Debt in Co. B. and had Judgment and he took forth Processe and the party was taken upon a Capias utlagatum within the year after the Judgment upon Processe continued without any discontinuance against him It was adjudged in this Case that he should be in Execution at the suit of the party without prayer because the processe was continued Parker and Sir Ed. cleeves Case 733. The Case was A. seised of three acres of equall value conveyed by act executed two of them for the Joynture of his Wife and the third he conveyed by act executed to the use of such persons and of such estates as he should declare by his last Will afterwards he devised the Land to one under whom the Plaintiff claimed In this Case it was amongst other poynts Resolved that he could not devise the Land because he had Conveyed two parts before by act executed in his life time Sydnam and Courtneys Case 734. Sir George Sydnam possessed of divers Leases for years gave them to his Daughter who was the Wife of C and to the Heirs of her body and if she dyed withot Issue that they should remain to such person of Combe Sydnam which Combe Sydnam he devised to his Cosen and his Heirs males in default of the Issue of the body of his daughter There was a Clause in the Will that his daughter should not alter the Leases but that they should remain according to the Will and made his Daughter his Executrix and dyed C. caused the Daughter to enter upon the Leases as Executrix and so waive the Legacy and afterwards the Daughter dyed without Issue Then C. caused an Administration to be taken of the goods of Sir George Sydenham which was at the Costs of C. and then to convey over the Leases to C. The Heir of Sir Geoâ—ge complained in Chancery and the Leases decreed unto him for the two fraudes which were used by C. in the Obliging of the Leases because the Daughter had them upon special trust and although it was said in this Case that the entail of the Leases was not good yet because there was a trust in the Daughter and expressed in the Will It was said the parties were compellable to execute the Trust and the Lord Chancellour resembled it to the Case where an Assignment was made of a Lease upon an expresse Trust to one and the Heirs of his body and afterwards to another and the Heirs of his body and the Assignes were Compelled to execute the Trust and to suffer the Issues in Tail to take the profits of the Lands The Countesse of Waâ—wicks Case 735. The Case was A. seised in Fee enfeoffed I. S. who dyed without Issue having Issue M. his Sister and Heir of the whole blood and T. of the half blood their Father being long before attainted of Felony dyed seised M. entred and enfeoffed the Countesse The point was if the Corruption of the blood of the Father had disabled the Course of discent and Inheritance between the Brother and Sister Quaere not Resolved Sprakes Case 736. A Copyholder makes a Lease for years Resolved that the Lessee may maintain Ejectione firme though the Lease be not warranted by the Custom Fisher and Smiths Case 737. Note It was Resolved in this Case That if a man plead a Bargain and Sale in which no consideration of mony is expressed there it must be averred that it was for mony and the words for divers considerations will not imply mony but if the deed be for a Competent sum of mony though the certainty of the sum be not expressed it is good enough Worsloy and Charnocks Case 738. A Statute Merchant was by Mâ—ttimus removed out of the Chancery in C. B. an execution awarded there super tenorem Recordi Resolved 1. That Error lyes in B. R. although the Original be in the Chancery and the Execution in C. B. 2. Resolved that in that Case the Conusor cannot alledge for Error that the Statute wants one of the Seales that ought to be to it because he hath admitted the same in C. B. 739. Debt in B. R. upon Mutuatas for 50 l. the Defendant pleaded an Attachment in London and had found pledges and because the pledges were not put in at the day of the last default but at another day it was holden No plea and Judgment was for the Plaintiff Washington and Burgons Case 740. It was holden by the
by voucher of him in the Remainder in tail who vouched the common Vouchee and if he in the Remainder in Fee were bound by the Recovery because the Statute of 14. Eliz. is That Recoveries suffered by Tenants for Life shall be void against him in Remainder or Reversion and the Proviso doth not extend to bind more of them in the Remainder then those who assent of Record It was adjudged in B. R. that the Remainder in Fee was bound as well as if the Tenant in tail had bin the first Tenant to the Precipe and upon Error brought the Judgment in the Exchequer Chamber was affirmed But because the Defendant in the first Action had pleaded the Recovery by a Writ brought de tenementis praedictis which was not the use in common Recoveries but especial to have the Recovery of so many Messuages so many Acres of Land Meadow Pasture c. in certain and because it did not appear by the Record before them that the Writ did contain any certainty of the Messuages or Acres c. the Judgment was reversed Rotheram and Stibbings Case 905. Action upon the case against an Executor upon Assumpsit of the Testator to pay 100 l. in consideration of Marriage of his Daughter the payment to be made when he should be required upon non Assumpsit Judgment was had in B. R. for the Plaintiff Error brought in the Exchequer Chamber and the Judgment was reversed because the Action did not lie against the Executor Maynard and Bassets Case 906. Trover and Conversion de 3000. cords of Wood the case was A. granted to B. so much wood in Buxsted Wood as would make 4000. cords to be taken by the appointment of A. B. before any appointment assigned his Interest to M. the Plaintiff afterwards A. granted to the Defendant as much wood in the said Wood as should make 6000. cords at the choice of the Defendant then A. appointed B. a certain quantity to satisfie the first Bargain which B. cut down and the Defendant by colour of his Grant took and carried away the same whereupon the Plaintiff brought his Action and had Judgment in B. accordingly And Error brought and assigned because the Declaration is not de bonis propriis 2. Because he sais he was possessed de 3000. cordis ligni and the Defendant cordas praedicti ligni cepit without saying any particular quantity and 3d. because the Declaration is vi armis but all the Exceptions were disallowed by the Court and the Judgment was affirmed Palmâ—r and Sherwoods Case 907. A Trespass for carrying away goods The Judgment in B. R. was that the Plaintiff should recover his Damages for part and the Defendant capiatur and that the Plaintiff sit in misericordia pro residuo transgressionis which is said to be Error and that the Judgment ought to have bin Quaerens nibil capiat per billam pro residuo transgressionis Sed non allocatur but the Judgment was affirmed Chamberlain and Nichols Case 908. In debt upon a single Bill for payment of money at a day the Defendant pleaded payment without an acquittance Issue upon it Judgment for the Plaintiff in B. R. Error assigned because the Issue was joyned upon a matter not material nor pleadable viz. payment without an acquittance but because it was after Verdict and the Error assigned in the Plea which the Defendant himself had pleaded The Judgment was assirmed Only and Font Le Roys Case 909. Debt being against an Executor he pleaded there was another Executor who administred and was alive and concluded Judgment si Action whereas he ought to have pleaded to the abarement of the Bill The Plaintiff replyed Billa cassari non debet It was objected to be Error out holden good notwithstanding the Bar of the Defendant would have concluded the Plaintiff Smithwick and Binghams Case 910. Error brought upon a Judgment in B. R. in Ejectione firme because the Plaintiff entituled himself to a Term for years by an Administration taken of the Arch-Bishop of Canterbury and did not alledge that the Intestate had goods in diverse Diocesses but the same was disallowed because it did not appear to the Court whether he had or not but if it had appeared to them they conceived the Administration taken had been void if the Inrestate had not goods in divers Diocesses Partridge and Turks Case 911. The case was A. seised of two Messuages in the Parish of St. Brides London demised them to the Parson and Churchwardens of St. Brides ad distribuend ' annuatim 5 s. of the profits to the poor of the Parish in honorem duplicationem omnium illorum annorum quibus Dominus noster Jesus Christus vixerat in terra and gave 20 s. to maintain a Priest and dyed and the Parson and Churchwardens were seised and the Jury found the Act of 1 E. 6. and that the King was seised ut Lex postulat and granted the same to I. S. in Fee who devised it to the Plaintiff for Life and that the Parson and Churchwardens reentred and were seised ut Lex postulat and so demised them to the Defendant The Question was whether Partridge the Plaintiff was in by disseisin or not It was adjudged in B. R. he was not in by disseisin Error was brought and it was adjudged that the gift of A. was good and the giving of 5 s. inter pauperes was no Superstitious use and where part is given to a good use and part to a Superstitious use the King shall have but that Rent which is given to the Superstitious use and the Land shall go to the Devisee 2. It was said the entry of Partridge was no Disseisin because no actual expulsion of the Parson and Churchwardens were found but the Court held that because it is found that Partridge when he made the Lease was seised prout lex postulat his Seisin shall be intended lawful and not by disseisin and it cannot be lawful because the Devise was good to the Parson and Churchwardens and therefore it was by disseisin and afterwards the Judgment was reversed Bucknel and Heys Case 912. Error brought upon a Recovery in Battery in B. R. and assigned that there was no Bail there and upon a Certiorari the Chief Justice certified Bail I. H. without addition and with a Blanck for the place of his Habitation The Judgment there was reversed because no bail for the party who was sued and so he was never in the custody of the Marshal nor could be sued there Turges and Beachers Case 913. In Assumpsit in B. R. the Declaration was That the Defendant was indebted to the Intestate 30 l. for the residue of 100 Quarters of Wheat sold to him by the Intestate The Defendant promised the Plaintiff being Administrator to pay it when he should be required Found for the Plaintiff there the Judgment was reversed because in the case Debt lay and not Action upon the case Ody and Yates Case 914. Note It was holden by all
upon the case did not lie in such Case Bowes and Powletts Case 924. In the Kings Bench the case was A. and B. were Indebted to the Queen by Recognizance 500 l. C. and D. were indebted in 200 l. to F. by Obligation F. was indebted to A. 200 l. F. at the request of A. assigned the Debt of 200 l. due from C. and D. to the Queen by Deed enrolled in part of satisfaction of the 500 l. due to the Queen by A. B. A. afterwards for his discharge of the 200 l. against the Queen prosecuted Suit in the Exchequer against C. for the levying of the 200 l. of the goods and Chattels of C. C. in consideration that A. would forbear to prosecute any Process against the said C. till Hill Term following promised to pay A. 200 l. and 20 l. to buy him a Gelding and in an Action upon the case brought for it in B. R. upon non Assumpsit It was found for the Plaintiff there and Damages and Judgment Error was brought in the Exchequer and the Judgment upon the body of the Declaration was reversed because the consideration was not lawfull nor sufficient for the surceasing of a Suit was no discharge of the Debt nor was it lawfull to have recompence for the forbearing or surceasing of a Debt which was due to the Queen Hinson and Burridges Case 925. Action upon Assumpsit in B. R. In consideration the Plaintiff would sell and deliver to I. S. the Defendants Factor at the request of the Defendant 200 Hog-labms to the use of the Defendant he promised he would pay so much mony to the Plaintiff as should be agreed betwixt the Plaintiff and I. S. and alledged he delivered them to I. S. and I. S. and the Plaintiff agreed for 40 l. price to be paid at certain dayes since past and the Defendant had not paid the mony It was found for the Plaintiff and Judgment Errour brought and assigned 1. That the Contract was the Contract of the Defendant himself and Debt did lye not Assumpsit Resolved the sale was to I. S. and the use is but a Confidence which gave not property to the Defendant so that Debt did not lye against him but Assumpsit 2. Error no place is alledged where the Plaintiff and I. S. agreed of the price and day of payment which is traversable The Court held it good enough because the Defendant pleaded Non Assumpsit and a verdict was given But the Court said it had been a good cause of Demurrer Palmer and Humfreys Case 926. Ejectione firme de una pecia terrae vocat M. furlong una pecia terrae vocat Ashbrokee uno Gardino vocat Minching-Garden quae omnes singulae parcellae terrae jacent in W. It was assigned for Error that Pecia terrae is uncertain and so the Declaration not good And 2. Because no place certain is alledged in which the Garden is and for these Causes the Judgment was reversed Matthew and Matthewes Case 927. Assumpsit in B. R. whereas the Testator was endebted to the Plaintiff 35 l. The Defendant being his Excecutor in consideration the Plaintiff would give him day promised to pay the money Found there for the Plaintiff and Judgment upon Error brought the Judgment Reversed Because the consideration was not sufficient because the Defendant was not by Law bound to pay the money after the death of the Testator and giving day to pay that which he was not bound to pay was no sufficient Consideration Edmunds and Bufkins Case 928. Debt in B. R. and declared the Dean and Chapter of W. demised the Rectory to A. for 60. years which by mean Conveyance came to F. who demised it to C. for 20. years rendring Rent C. demised it by his will to D. 10. of the last years and afterwards dyed possessed D. entred and granted his Interest to Edmunds F. demised the residue of the Terme to S. his Wife and Executrix S. married Bufkin they brought Debt and had Judgment Error was brought and assigned that C. the first Lessee of F. demised 10. of the last years to D. and it was alledged that the demisor made not any Executor or that the devisee did enter by the assent of the Excecutor nor that he was possessed by virtue of the demise but generall that he entred after the death of the devise and for these Causes the Judgment was reversed Paramour and Pains Case 929. Action upon the Case in B. R. and declared in Consideration the Plaintiff had sold to the Defendant 14. Cowes for 34 l. and 4. Oxon for 16 l. the Defendant promised to pay cum requisitus esset Found for the Plaintiff the Judgment was reversed because the Consideration was not sufficient but Debt lay upon the Contract and not Assumpsit Plaine and Bagshawes Case 930. Debt in B. R. against B. Executor of I. S. and demanded 47 l. 8 s. 8 d. monetae Flandriae attingent ' to 40 l. 12 s. 6 d. English money The Defendant pleaded fully Administred the Jury found Assets and Judgment there that recuperet debitum suum praedict ' damna sua praedict ' Errour brought and assigned for that the Jurours did not inquire of the value of Flanders money and for that cause the Judgment was reversed for although the Plaintiff did affirme the Flanders money did attain to 40 l. 12 s. 6 yet it is no Warrant to the Court to adjudge it so unlesse found by the Jury Stafford and Powlers Case 931. Error was brought of a Judgment in an action upon the Case in B. R. for words the words were viz. One W. Web being arrested as accessary for stealing his own goods Mr. Stafford knowing thereof discharged the said Web by an agreement of 3 l. to which Mr. Stafford was party whereof 30 s. was to be paid to Mr. Stafford and was paid to his man by his appointment Error brought It was said the words were not actionable but the Justices held them actionable and the Judgment was affirmed Bordolf and Perry and his Wives Case 932. Debt in B. R. upon an Obligation made by the Wife dum sola fuit the Defendant pleaded Non est factum found for the Plaintiff The Judgment was that the Husband be in misericordia and the Wife Capiatur And it Reversed because it ought be Capiantur against both Penraddock and Erringtons Case 933. Assault and Battery in B. R. against two Defendants and declared of Assault Battery tantas minas de vita sua imposuer ' quod non audebat ire circa negotia They pleaded Deson Assault demesne It was assigned for Error that the Assault of one cannot be the Assault of the other and they ought to have pleaded several pleas the Court held it no Error for that the Assault might be joynt 2. Error because nothing is said to the Minas yet the Judgment was affirmed because Minas is but to enforce the damages and not the substance of the Declaration Wilcocks and Greenes Case 934.
for Life the Remainder to his Son T. and L. his wife if they have Issue male and if it shall please God to send them Issue Male then it to be reserved and put out for the benefit of such Sons or one of them and died The wife entred as Legatee and died and after T. and L. had Issue Male. It was Resolved that the Issue Male should have the Term and was not restrained to any Term to be born in the Life of the wife and it is a good Devise to the Issue Male though the Term be not expresly devised to the Issue Male. Curtyes Case 1081. Assault and Battery by husband and wife against the Defendant a Constable and two others The Defendant justified that the wife was presented in the Leet to be a common Scold and he Steward made a Warrant to the Constable to punish her according to Law and the Defendants went to the Plaintiffs house to execute the Warrant and the wife assaulted the Constable wherefore he commanded the other Defendants to lay hands upon her which they molliter did It was holden by the Justices to be a good justification although they neither shew the day when the Leet was holden nor that the Plaintiffs house was within the Jurisdiction of the Leet nor shewed the Warrant of the Stewards for that these were all but Inducements to the Justification Herbert and Binghams Case 1082. Error to reverse a Fine because the Writ of Covenant bare teste after the Dedimus potestatem the Defendant pleaded the Land descended to him within age and prayed his age Iâ— was Resolved by the whole Court he should have his age because he was Terre-tenant otherwise he should not have his age in Error Harvyes Case 1083. In Dower Judgment was given by default Error assigned that the Tenant was within age Adjudged no Error for age is not grantable in savorem dotis 1084. A Justice of Peace recorded a Force but did not Fine or commit the Offenders It was adjudged that in such case the Record of the Force was void and the Offenders upan that Record cannot be afterwards Fined nor Imprisoned Moody and Garnons Case 1085. A man made a Lease for years of Land part Fee-simple and part in Lease for years rendring Rent and if it was behind 40. days it should be lawful to restrain and if there should not be sufficient then to reenter Resolved it was not any condition because restraint is not limited to any thing which should be restrained as in Land or chattel and it shall not be taken to distrain and also because no person is expressed who should reenter Caries and Franklyns Case 1086. A seised in Fee made a Feoffment to I. S. Habendum to him and the Heirs of his body to the use of him his Heirs and Assigns It was adjudged he was Tenant in tail because the use to him his Heirs and Assignes shall be intended such Heirs which he had limited before which are Heirs of his Body Buckham and Dendriges Case 1087. Debt upon Obligation The Defendant pleaded to the Jurisdiction that he was a Tinner and pleaded the Grant of King Edward the First that the Tinners of Cornwall should be sued for contracts rising within the Liberty of the Stanneries and not elsewhere and the contract upon which the Debt was brought did arise within the Liberties c. It was Resolved a good Plea but then he must show the Patent or Charter Barrey and Perins Case 1088. Debt upon Obligation The condition was if the Obligor stands to the Arbitrament of four men so as the same be made by four or three of them c. then the Obligation to be void the Arbitrament was made by three It was Resolved the Arbitrament was good for upon consideration of all parts of the Submission the intent appears that four or three might make the Arbitrament and Arbitraments shall be taken by Equity so as all parts may stand Mary Powel and Hermans Case 1089. A sentence was in the Ecclesiastical Court that upon a Contract the Defendant should Marry the Plantiff he did not do it for which cause he was Excommunicated The Defendant Appealed to the Delegaties which was remised to the first Court who sentenced him againe and there also he was excommunicated for not performance of the Sentence He Appealed to the Audience and then had absolution He was taken by a Capias Excom upon the first excommunication upon an Habeas Corpus It was Resolved that the absolution for the Latter had not purged the first Excommunication quia Ecclesia decepta fuit 2. That the Appeal did not suspend the Excommunication although it might suspend the Sentence Don Diego Serviente de Acune and Giffords Case 1090. The Plantiff Embassador for his Master the King of Spaine recovered in an Action upon the Case the Defendant brought Error and removed the Record and then upon the second Scire fac the Bail brought in the body of the Defendant Resolved 1. That the removing of the Record did not so stop the Court that they could not accept of the body of the Defendant in Execution 2. Resolved that the body might be accepted only upon the first Scire fac and not upon the second Roe and Ledshams Case 1091. In False imprisonment in the Stannary Court The Defendant said the imprisonment was at Totnes out of the Jurisdiction Issue being upon it the Viâ—ne was from Totnes and not de Corpore Comitatus and adjudged good upon Error brought Moyslyn and Pierces Case 1092. The Plantiff recovered 200l dammage against the Defendant in B. R. in Assault and Battery and had the body of the Defendant in Execution The Defendant brough Audita Querela in Chancery that the principal had paid the money and thereupon had upon Sureties found a supersedeas to the Sheriff commanding him to discharge the Plantiff out of Execution but the Sheriff did not obey it He brought Habeas Corpus in B. R. and had another Audita Querela and prayed he might be bayled but ' the court would not grant it without Affidavit of payment of the money Coke Chief Justice said upon a Judgement in another Court Audita Querela did not lie in Chancery Eliz. Wilmots Case 1093. She brought Trespasse by the name of a Widdow the Defendant said she was a Feme Covert viz. the Wife of I. Wilmot who was living at Lisborn in Pertugall The Plea was disallowed by the Court for impossibility of Tryall Simonds Case 1094. Trespase for Batterie and entring his Close in B. The defendant justified the entry because it was a Copyhold within the Mannor of W. in W. and to the Battery pleaded Not guilty upon which the Issue was joyned The visne was de B. de Manerie de W. in W. It was Objected it ought to have been of B. only where the Batterie was also de Manerio de W. in W. is double and uncertain But the Court held the visne good because the Custom might
when the Vendee had once cut down the Woods and Underwoods that he could not cut them again if Woods were standing and growing notwithstanding the words in the Grant viz. To Have c. for the life of the said A. Wilson and Wise Case 56. In Trespass for taking of his Cow The Defendant justified that he was seised and held of I. S. as of his Mannor of C. by Fealty rent suit of Court of I. S. And that within the said Mannor the Custom was That the Lord of the Mannor time out of mind c. after the death of every Tenant of any Messuage or Tenements of the said Mannor dying seised used to seise the best Beast of the Tenants found within the Mannor for an Heriot and if the Tenant had no Beast or if it were esloyned out of the Mannor before the Lord seized it Then the Lord had used to seise the best Beast Levant and Couchant upon the Messuage Lands and Tenements It was demurred upon the Custom and it was adjudged that the Custome was void and unreasonable and Judged for the Plaintiff 57. An Infant by his Prochin Amy brought a Scire facias to execute a Plea by Fine limited to his Grandmother The Defendant prayed that the Attainder might demur Resolved it should not But if the Defendant had pleaded the Deed of the Ancestour of the Infant in Barre there the Plea should have stayed 3 Eliz. Austin and Bakers Case 58. Attaint was brought into the Common Pleas upon the Statute of 23 E. 3. cap. 3. against the Executors of I. S. and the Terre Tenants and adjudged it was well brought although the Statute is that the Attaint shall be between the Parties of the first Judgement 59. A Subsidy is granted by Parliament That every one who expends in Land above 20 s. shall pay A man is assessed and before payment he dyes the Lands in the hands of the Heir shall be charged with it because it is a Duty upon Record and the Land chargeable with it 60. Judgement being against two upon an Avowry in Replevin They brought an Attaint depending which one of them dyed It was adjudged that the Writ should abate and it differs from the Case of Nonsuit for the Nonsuit is the Judgement of the Court that the Heir may proceed in Suit but when one is dead it is not so for then no act is done by the Court. 61. Note It was resolved That after a Verdict given it is no Plea for to say that the Jurors did eat and drink mean between the Court and their Verdict given but such Exception ought to be before the Verdict given 62. A Lease for years the Remainder for Life the Reversion in Fee Lessee for years committed Waste he in Remainder for Life dyed It was holden by the Justices That he in the Reversion in Fee should have an Action of Waste for waste done before the death of him in the Remainder because that the mean Remainder was the Cause that he could not have the Action at the first but when that Estate is ended the Action is maintenable because it was to the dis-inheritance of him in the Remainder in Fee 63. Tenant in Dower had power to cut down the Trees growing upon the Land and she covenanted with him in the Reversion that it should be lawfull for him every year to cut down 20. Trees and afterwards she cut down and destroyed all the Trees It was the opinion of the Justices That an Action of Covenant did lye against her and it was agreed by them That if a Covenant be that it shall be lawfull for the Covenantee to take the Trees and sell them or imploy them to his own use That in that Case the Covenantor cannot cut down the Trees because he hath given a propriety in the Trees to the Covenantee Mich 2 Eliz. 64. Trespass The Case was A man made a Lease for years of Lands a Stranger entred upon the Land let and cut down Trees growing and made them Tymber and carryed unto the Land where the Trespass is supposed and then gave the Timber to the Plaintiff and the Defendant entred into the Land and took the Timber It was the opinion of the Justices That in all Cases where a thing is taken wrongfully and altered in form If yet that which remains is the Principal part of the Substance the Notice of it is not lost and therefore if a man takes Trees and makes Boards of them The Owner may retake them quia major pars substantiae remanet and so in the principal Case But if an House had been made of the Timber there it had been otherwise 65. Father and Son made a Feofment in Fee with VVarranty the Father dyed The Feoffee impleaded brought a Warrantia Chartae against the Son unde Chartam Patris sui habet cujus haeres ipse est and in his Count shewed the Deed was made by them both It was the Opinion of the Justices the Count was agreeable to the VVrit and that the VVarranty against the Son was double the one of his Father the other of himself and that each of them warranted the whole so the Action well brought 66. Resolved by the Justices If Lessee for Life makes a Lease for years and afterwards purchaseth the Reversion and dyeth within the Term the Lease for years is determined But if one who hath nothing in the Lands makes a Lease for years and afterwards purchaseth the Lands and dyes if it be by Indenture his Heir is estopped to avoid the Lease 67. Two Copartners are one grants her Part and warrants that the Grantee shall have and hold it in common without partition It is a void Warranty because it is against Law 68. A Lease was made to Husband and VVife for years Provided that if the possession of the Lands came to the hands of any ther than the Husband and VVife and their Issues then upon tender of 100 l. it shall be lawful for the Lessor to reenter the Husband dyed the Wife took an other Husband the Lessor tendred the 1000 l. It was the greater opinion of the Justices That the Condition was not broken because that the second Husband was not possessed by vertue of the Lease but in the right of his Wife But the Court doubted of it It was adjourned 68. A Capias ad satisfaciend was awarded and an Extent and between the date of the Writ and before the Sheriff took the Inquisition the Defendant sold his Goods It was the Opinion of the Justices That the Sheriff might extend the Goods which were sold and it was said That if the Tenant in a Precipe allien after the date of the Writ and before the Retorn yet he continnes Tenant to the Action 69. Note it was holden by the Justices That if an Infant for Monies by Indentures bargain and sells Lands and afterwards levyes a Fine Sur Conusans de droit with Proclamations the Indenture is not void but voidable and
the Use passeth to the Bargainee and then the Fine being levyed upon it the Bargain is irrevocable if not by Error 70. Lord and Tenant by Knights service the Tenant dyes his Heir being a Daughter within age of 14. years the Lord seizeth the VVard and after at 13. years she marryeth without the assent of the Lord It was the opinion of Wray Justice That the Lord should not have the forfeiture of the Marriage without tender but otherwise of the value of the Marriage because that de mero jure pertinet ad Dominum 71. Lessee for years hath Execution by Elegit of the Moyety of the Rent and Reversion against his Lessor the Lease being upon Condition Resolved That it is a suspension of the whole Condition during the Extent and although but the moyety of the Rent was extended yet the entire Condition was suspended and cannot be proportioned being entire 72. A man was bound in a Bond to make a sufficient Lease to the Obliger before such a day the same to be made at the Costs of the Obliger In Debt upon the Bond it was a holden a good Plea That the Plaintiff did not tender the Costs to him and if then that he was ready c. The Lord Windsors Case 73. A Precipe was brought against him It was Edwardo Domino Windsor de London Militi and because the word Militi was after the name of Dignity the VVrit abated 74. Entry sur Disseisin was brought the Writ was of an Entry in duas partes in tribus partibus dividend unius Messuagii and not in duas partes unius Messagii in tribus partibus dividend and yet adjudged good Pasch 3. Eliz. 75. Debt upon Obligation conditioned if the Obligator pay all such sums which he was Obliged to pay by his several writings Obligatory that then c. The Defendent said That there were not any writings Obligatory by which he was to pay any sum Adjudged to be no plea because it is repugnant to the Condition and he is estopped to say against the Condition 76. Wast The Case was Lease for life Covenanted to repair the houses at his proper Costs during the Terme The groundsels of the houses were rotten and the Lessee cut down trees upon the Land to repair them Resolved he might do it and it was not Wast and his justification of it good notwithstanding the Covenant which shall not exclude him from that benefit which the Law gives him 77. Debt against an Executour of an Executor the Defendant pleaded That the Executor his Testator had fully Administred and so nothing in his hands It was found that he had Assetts upon which a Fieri fac issued to the Sheriff who returned he had nor any thing adjudged a void Return and the Sheriff was amerced for if he had not goods of the Testator he should be payed of his own goods because when he pleads the first Executor had fully administred he doth not deny but Assetts remained after the death of his Testator 78. A grant was made per nomen Messuagii sive tenement It was holden by Dyer that neither a Garden nor Land do passe by the Grant but nothing but the House and Carthage Weston said the Garden should passe with the Messuage with an Averment that they have been occupied together Quere The Earl of Worcesters Case 79. Debt was recovered against the Earl and the Plantiff had an Elegit in the County of M. The Sheriff returned he had no goods nor Cattels Land nor Tenements within his County It was holden that after the year he might have a scire facias and upon that that an Elegit And it was holden that the party might divide his Execution and have several Elegits into Several Counties and to that purpose diverse Presidents were shewed by Lenard one of the Prothonotories Lady Audleys Case 80. Detinue A Woman delivered Goods to rebayl and after took Husband who after his Intermarriage released all Actions to the Baylee Adjudged the Release was good for that by the Intermarriage the Property of the Goods was in the Husband 81. In Dower The Tenant vouched the Heir of the Husband within the same County and he appeared and entred into Warranty as he who had nothing by Discent Judgement shall be given presently and the Sheriff by a special Writ shall put the Woman in Possession of all the Lands of the Tenant and that to avoid Circuit of Action betwixt the Tenant and the Vouchee Then the Question was If the Heir had nothing by Discent but Lands in tayle if they should be assigned to the Woman for her Dower It was the greater opinion she should not have Dower of the Lands intailed because the Execution for the Wife against the Vouchee is given only for Avoidance of Circuit of Action betwixt the Tenant and the Vouchee and therefore it follows That she shall not have Execution of other Lands whereof the Tenant could not have Execution against the Vouchee and the Lands intayled cannot be rendred in value 82. A Lease was made to 3. Habendum to them and the Survivor of them modo forma sequente viz. to one for Life the Remainder to another for Life the Remainder to the 3d. for Life It was holden they are not joynt Lessees by this Lease but they take by way of Remainder but if the viz had been before the Habendum or no Habendum had been then they had taken a joynt Estate notwithstanding the Limitation by the viz. because the viz. is but a declaration of the precedent Text and shall not confound the same mala est expositio quae corrumpit textum Skernes Case 83. A. by Indenture let an House to I. S. for 40. years The Lessee by the same Deed covenanted with the Lessor that he would repair the House during the Term and that it should be lawfull for the Lessor his Heirs and Assigns after the 40. years past every year during the Term to come into the House to see if the Reparations were sufficient by the Lessee his Executors or Assigns and if it should be repaired upon the view of the Lessor that then the Lessee should hold the Lease during 40. years after the first years ended I. S. granted over his Term by these words Totum interesse terminum terminos quae tunc habuit intenementis illis It was resolved in this Case That the words in the Assignment did not extend but to the first Term and therefore the possibility of the future Term did not pass but that by the Assignment there was a separation between the first Term and the possibility and by consequence the possibility determined 2ly That the want of the word Assignes did not hinder the possibility for it was a thing inherent which passed without such word But yet they held That if there had been the word Assignes yet the Assigns could not have taken the possibility 84. Debt upon Obligation The Defendant said he was to pay 20 l. at a
day and at the time of the delivery there was not any Day written in the Deed but a space for it and that after the Delivery the Plaintiff put in a Day and so Non est factum It was conceived the Plea had been better to have set forth the special matter per quod scriptum praedict perdidit effectum and Judgement if Action 85. Lands were given to Husband and VVife in tayle The Husband by Fine and Deed inrolled aliened the Land and dyed Resolved That the VVife might enter by the Statute of 32 H. 8. although the words are Of Tenements being the Inheritance or Freehold of the Wife And it was holden That by the Entry of the VVife the Inheritance of the Heir should thereby be recontinued 86. A man made a Feoffment to divers persons that they should infeoffe the Son of the Feoffor and his Wife in tail the remaynder to the right Heirs of the Feoffor who made the estate accordingly and the Son dyed It was Resolved the same was a Joynture within the Statute of 27 H. 3. cap. 10. for although she did not clayme it by the Ancestor himself but by his Feoffâ—rs yet because the Feoffes derive their Estate from the Ancestors of the Husband it is within the Statute But if he had bargained and sold the same upon trust to make the Joynture it had not been within the Statute 87. Resolved That an Action upon the Case doth not lye for calling one Adulterer because that is not punishable at the Common Law but in the Spiritual Court 88. Two Joynt tenants make partition by word and for equality of the partition one assignes to the other a Rent It is void if he hath not a Deed of it 89. In a Praecipe quod reddat at the Nisi Prius the Tenant made default and Petit Cap. returned at which day he in the Reversion prayed to be Received and was so received by the Rule of the Court notwithstanding he did not require it at the Nisi Prius 2. By the Equity of the Statute of West 2. he in the remainder shall be received upon the default of the Tenant for life although the words of the Statutes be ad quos spectat reversio 90. Resolved by the Justices That the Coroner super visum Corporis cannot enquire of an Accessary after the Murder 91. Two were joyntly and severally bound in an Obligation in Debt brought the Defendent said the Plantiff recovered against the other the same Debt and had Execution and adjudged a good plea notwithstanding it was not shewed by what proces he had Execution because the Execution is on Record and shall be tryed by the Record but if he paid the monies in pais to the Plantiff and not in Court It is not an Execution of the Judgement 92. A Recordare was to remove a Plaint in Curia nostra and the plaint was in Curia Mariae Resolved that for this variance the Record was not removed for it could not be the plaint whereof c. 93. It was said If the Defendant will plead to the Writ matter apparent within the Writ he must begin his plea with Petit Judicium of the Writ but if he plead matter de hors as Joyntenancy or Nontenure c. he shall make the conclusion in such manner only and not the beginning 94. Ejectione firme Of a Lease made by the Prebendary Ecclesiae Beatae Mariae whereof the foundation was Ecclesiae Beatae Mariae de Thornton and Thornton being omitted the Leaser to make it agree entertayned the words de Thornton It was the opinion of the Justices That non est factum is no proper plea because it was once his deed but he is to shew the special matter and demand Judgment of Action vide before 95. A Rent was granted to I. S. for life the remainder to I. D. in Fee I. S. dyed the Rent was behind he in the Remainder destraind and avowd for the Rent and good for the grant was good to him in the remainder which took effect with the particular estate and so adjudged 96. One made his Will in this manner I have made a Lease for 21. years to I. S. paying but 10 s. Rent adjudged a good Lease at Will and the word I have shall be taken in the present tence 97. Replevin The Defendant avowed for a Rent charge granted to him but did not alledge any seisin of it within the years according to the Statute of 32 H. 8. Cap. 2. and yet holden good for the Statute is to be intended where seisin ought to have been alledged before at the Common Law 98. Dower The Case was The Husband made his Will thereby devised all his Lands to his Wife the now demandment during her Widdowhood and dyed the Wife entred by force of the Will and after took Husband It was the opinion of the Justices that this estate devised being as great an Estate for her life and her acceptance of it she not being Compellable to Marry was in the nature of a Joynter to her and a good barre of her Dower 99. Note by the Justices If a man seised of a Rent charge be bounden in a Statute and Execution be sued upon it the Rent shall be extended in Execution and yet the Statute de Mercatoribus speaks only of the Goods and Lands of the debtour and doth not speak of Tenements or other things 100. I. S. Tenant in tail by Indenture upon Consideration of Marriage Covenants to stand seised to his own use for life and after his death to the use of his Son and heir apparant Resolved there is no change of the use but only during the life of the Tenant in tail 101. A man seised of Land in the right of his Wife makes a Lease for life the remainder in Fee and afterwards he and his Wife recovers the same Land in a Writ of Entry against the Tenant for life Dyer held the Wife should be remitted and no act shall be adjudged in the Wife for the bringing the Writ shall be adjudged the sole act of the Husband and not of the Wife Quaere if she shall not be estopped by the Record 102. Note by the Justices That a Writ of Curia Claudenda lyeth of a Close which lyeth in a Field aswell as where there are 2. Messuages Courts oâ— Gardens adjoyning But after Imparlance in this Writ the Defendant shall not have the view 103. In a Quid juris Clamat after Issue joyned upon Ne dona pass at the Nisi Prius the Jury gave a privy verdict the Court being risen for the Defendant and had License to eat and drink and at another day when the Court was sitting they returned and gave an open Verdict for the Plantiff Resolved That Judgement should be entred for the Plantiff for the last Verdict which is given openly in Court is the Verdict in fact and not the first and the eating and drinking of the Jurours before the second Verdict given doth not
make it void 104. Note by the Justices where in a Praecipe quod reddat brought against Tenant for life he makes default and he in the Reversion is received he shall hear the Count made by the Tenant and shall answer presently and cannot have an Imparlance 105. Resolved by the Justices That Tenants in Comon cannot joyn in Waste against their Lessee but it is otherwise of Copartners or Joynt Tenants 106. In Debt the Defendant pleaded to Issue and afterwards brought a Writ of Priviledge out of the Exchequer because he was a person Priviledged there The Court dissallowed of the Writ because by his pleading he had affirmed the Jurisdiction of the Court. Hawle and Kirkbyes Case 107. Covenant upon an Indenture dated 20 April 4. E. 6. The Defendant pleaded in Bar a Release made 3 Eliz. of all Actions Suits Debts Executions and Demands which ever before he had or may have ab origine Mundi to the day of the date of the Release adjudged no bar because it was before the Covenant broken 108. A man leaseth Lands for years and afterwards by Deed Indented bargains and sells the same Lands to the Lessee and his Heirs without any word of guift or grant in the deed That nothing passeth if the deed be not Enrolled for without Enrollment the Freehold doth not passe and it is not any Confirmation The Lord Sands and Brays Case 109. A scire facias by the Lord Sands against the Defendant to have Execution of Lands whereof the remainder was entailed to his Ancestors by Fine The Defendant said The Plaintiff was within age and prayed The parol might demur till his full age The opinion of the Court was That the parol should not demur and by award of the Court the Defendant was put to Answer 110. A man bargains and sells his Land by deed Enrolled The bargainee by the same deed Covenants That if the bargainor or his Heirs pay to the bargainee or his Heirs 20 l. such a day that then the bargainee and his Heirs and all other seised should be presently seised to the use of the bargainor and his Heirs before the day the bargainor tenders the mony to the bargainee and he refuseth it Resolved that by the Tender the Covenant is not performed for the Covenant alters the use upon the payment and nothing rests in the bargainor till payment 111. It was Resolved by the Justices That if a man by deed Leaseth certain parcel of Lands and names them severally and afterwards the Lessor raseth the deed and puts one parcel out of the deed that the whole deed is void for the deed is entire in it self and cannot stand for part and be void for part But yet notwithstanding the Lease being of Lands the Lessee may plead it as a Lease parol Trinit 4. Eliz. 112. Tenant in tail the remainder in Fee Tenant in tail aliens and dyes without Issue he in the Remainder recovers in a Formedon brought being within age Adjudged he shall not be in Ward because a Right of remainder discended only to him and not a Remainder in possession 113. A man made a Lease for life and afterwards was bounden in a Recognizance and afterwards he granted the Reversion to another and the Tenant for life attorned and dyed the grantee entred and the Recognizee sued Execution against the grantee If the Execution was well sued upon the grantee Quaere the Justices were divided in opinion 114. Debt upon Obligation The Defendant pleaded that the plantiff by deed Indented betwixt them Covenanted and granted that if the Defendant paid him certain monies at a day certain the Obligation should be void and that at the day he tendred the money and he refused it The Court held the plea good without saying uncore prist 115. Debt upon Obligation the Condition was if the Defendant paid to the Plaintiff or his assignes 20 l. at such a day and place that then c. The Defendant said that the Plaintiff appointed one A. to receive the mony of him at the day and place and that he tendred the same accordingly to the said A. which he refused Resolved the plea was good without alledging payment in fact 116. A. made a Feoffment in Fee rendering rent with Clause of distresse and afterwards bound himself in a Statute and the day being incurred Execution was sued by the Conusee and the Sheriff returned the Conusor dead and that he had extended the Rent The Heir of the Conusor within age brought an Audita Querelâ— and adjudged it did well lye because there was an Exception in the Writ of Extent that if the Lands are discended to any Enfant that the Sheriff should surcease to extend 117. Debt against Executors at the Pluries Distring as they appeared and pleaded that they had fully Administred the goods of the Testators before any Notice given them of the Suit The Plaintiff said That upon the Original the Sheriff had returned them Summoned It was the opinion of the Court it was no Estoppel against them for it may be they were never Summoned notwithstanding the return of the Sheriff The Archbishop of Yoâ—ks Case 118. An action brought by him upon the Statute dâ— scandalis Magnatum against I. S. because he put in a slanderous Bill against him before the President of the Council of the North surmising that he was a Covetous and Malitious Bishop Resolved the words were not sufficient to maintain that Action 119. A. seised of a Mannor holden by Knights service devised 2. parts there of to 2. strangers severally and all the Residue he devised to his Heir in Tail the remainder over to another in Fee It was the opinion of the Justices that when he had devised 2. parts he had done all which he could by the Statute and the devise of the resiâ—ne was void but the devise shall enure to the Heir of a third part of the 2. parts that the devise which takes effect at the death of the devâ—sor may take effect and that especialle by reason of the Remainder and so the Heir shall have a third part of the 2. parts vide 3 H. 6. accordingly 120. A. made a Feoffment in Fee to the use of another in Tail the Remainder to the right Heirs of Tenant in Tail in Fee Cestuy que use in Tail before the Statute of 27 H. 8. made a Feoffment in Fee the Feoffee dyed It was the opinion of the Justices That when the Feoffee dyed during the life of Cestuy que use in Tail the first Feoffees could not enter for the discent was when they had no title of Entry for by the Feoffment the Feoffee had title during the life of Cestuy que use in Tail wherefore during his life they could not enter nor make claim But they agreed that the Heir of Cestuy que use in Tail had not any remainder but by the Entry of the Feoffees 121. A man made a gâ—ft entail upon Condition that if the Donee or his issue
aliened that the Donor might enter the Donee aliened and afterwards dyed without Issue If the Donor might enter or was put to his Formidon in Reverter Quaere for the Justices were divided in opinion and it was not Resolved 122. The reversion of a Lease for years was granted one moyety to one man and another moyety to another The Lessee committed Wast and then the Lease determined They brought actions of Wast in the Tenant It was the better opinion that they might well joyn in the action because they are not now to recover in the realty which is the Land Wasted but only damages but if the Term had continued it had been otherwise because then the Land was to be recovered 123. An Indenture of Bargain and Sale was Enrolled the last day of the 6. Moneths not accounting the day of the date of the Indenture for part of the 6. Moneths It was Resolved that the Enâ—olment was good for the day of the date shall not be accounted part of the 6. Months limitted by the Statute for the date and the day of the date is all one for the date is all the day And it was said It was not like the Statute of 32 H. 8. of Leases where it is said A Lease made by Tenant in Tail shall be good for 21. years after the making of the Lease for the making may be at one hour of the day and is prefect by the delivery at that time and therefore the Lease shall begin presently And in this Case it was agreed for Law That if a man by Deed Indented Bargaines and Sells his Lands unto another and before the enrollment of the deed he Bargains and Sells to another and the last Deed is first Enrolled and after the first Indenture is Enrolled within the 6. Moneths the first Indenture is the best and shall be preferred before the latter although it was first Enrolled 124. By a Statute made 3. Ma. Cap. 4. Authority was given to Cardinal Poole to dispose order imploy and convert the Benefices appropriate to the increase and augmentation of the Living of the Incumbent He made a Lease for years of a Parsonage appropriate It was holden the Lease was void for he had authority but to the Intents specified in the Statute and he had not the Fee simple given him by any words of the Statute Quaere in whom the Free simple was if in the Queen or it was in Abeyance not Resolved 125. A Fine was Levyed in the time of King John by which the Conusor granted to the Conusee in Tail a Mannor rendring to him a pair of guilt Spurs for all services salvo sorinseco servitio Domino Regi The Mannor was holden of the Lord Stafford The Justices held it was but a Tenure in Socage for the words salvo sorinseco servitio were void to all purposes but to reserve such services by which he himself held of his Lord next paramount him and not such services which any of the Lords paramount him held over by Knights service 126. It was holden by the Justices If a man find sureties for the Peace before Justices of the Peace in the County yet if the same party come in B. R. and there make Oath that he was afraid he shall be hurt by the said party he may have surety of the Peace there against the party and a Supersedeas to the justices to discharge the bond taken before them for the Peace and behaviour 127. Note for a Rule by the Court That in every case where the Defendent once confesseth a Deed and after would avoid it by matter which makes the Deed defeisible and not void That in such Case he shall not plead Non est factum to it but show the special matter and conclude Judgment of action as if Debt be upon an Obligation against one who was within age He shall not plead Non est factum to it but shew the special matter that he was within age 128. A Lease was made to the Husband and Wife and to a 3d. person to have and hold to the Husband for 80 years if he should so long live and if he dye within the Terme the remainder of the said Term to the Wife and to the 3d. person if he should live so long It was Resolved a good Habendum and that all the Interest was in the Husband and nothing in the others till after his death But it was holden if a Lease be made to 3. of 3. acres Habendum one acre to one for 20. years of another to another for 40. years and of the 3. to the 3d. person for 60. years the limitation is void for he cannot by the Habendum divide the estate in such manner which was joynt before Gascon and Whatleys Case 129. A man seised of Lands in Fee is bound in a Recognizance and afterwards enfeoffes the Recognizee of parcel of the Lands yet the Recognizor is chargeable for the Residue of the Lands to the Executor of the Recognizee and for his body and goods but if the Recognizor dye hâ—s Heirs shall not be charged 130. Cessavit The Tenant said That the demandant nor his Ancestors were never seised of the services within 40. years It was holden by the Justices to be no plea because this Writ is not within the Statute of 31 H. 8. cap. 2. of Limitation and also because the seisin of the services is not materiall nor traversable in a Cessavit Mich. 5. Eliz. 131. Lessee for years Covenants for him and his assignes that he will not lop nor top the Trees during the Terme he dyes Intestate his Adminstrators lopâ— the Trees he is chargeable to the Covenant because he hath the Terme to the use of the Testator The Words in the Lease were Provided It shall not be Lawfull to the Lessee to top the Trees If these words are a Condition or a Restraint only no penalty ensuing upon it Quaere It was not Resolved 132. The Queen by Letters Patents ex câ—rta scientia mero motâ— granted to I. S. the Mannor of D. which she had by the Attainder of Sir Thomas Wyat and in truth she was seised of the Mannor by discent Resolved That the grant was void because the Queen was deceived in her grant Quaere if the same be not helped by the Statute of misrecitalls for when the substance of the thing granted appears certain the Statute helps all other defects but when the certainty of the thing granted doth not appear then perhaps it is not helped by the Statute 133. A Fine was Levyed by Husband and Wife and the Conusee rendred back the same Lands to the Husband and Wife and to the Heirs of the Wife and an Indenture was by which it was recited that the Remainder should be to the use of the Husband and Wife and to the Heirs of the Husband The Justices conceived there is not any use implyed upon a Fine no more than upon a Feoffment wherefore they conceived that the
passed against the Plantiff who thereupon brought an Attaint and alledged that the Jurors to the Attaint had not the view of the Tenements in demand It was the opinion of the Court that after the Verdict given it cannot be alledged that the Jurours had not the View and Judgement was given without the View 177. In Dower the Defendant pleaded That the Husband of the demandant did not dye seised so that she could not have damages and because there were Woods upon the Lands she prayed a Writ of Estrepment Quaere if it doth Lie It was not Resolved Griffiths Case 178. Lessee for years suffered the Banks of the River of Trent which ran by the Lands let to be unrepaired so as the Water brake the Banks and drowned the Lands Adjudged That River was not so violent but that the Lessee by his Industry might repair the Banks and to make the water run in its Current and therefore adjudged it was Wast 179. Debt was against Executors upon an Obligation which was that if the Testator or his Executors at Mich. every year during the life of the Obligee delivered to the Obligee a Load of Dung that then the Defendants pleaded that they and their Testator had performed not shewing how which was found against them It was adjudged that for this false plea of the Executors Judgment should be against them de bonis propriis 180. One was named in the Original in Debt A. B. of C. in the County of Denbigh He appeared upon the Cepi Corpus and said that he was dwelling at D. at the time of the Action brought It was holden it was No plea that he was not dwelling at C. at the time of the Action brought unlesse he say Ne unque puis 181. Lands in London which by the Custom were deviseable came to the King by Escheat who granted them over to I. S. to hold by Knights service It was holden That notwithstanding the Statute the devise of the whole Land was good as it was by the Custome which is not taken away by the Statute 182. The King by his Letters Patents gave authority to his Surveyour to make Leases of certain Lands for life reserving the antient Rent He by Indenture between the King of the one part and I. S. of the other part Quod Dominus Rex dimisit c. and the Surveyour put his own Seal to the Deed. It was adjudged a void Lease for he ought not to have put his Seal to it but the Seal of the King and it cannot be the Lease of the King without his Seal 183. Grandfather Father and Sonne The Grandfather is Tenant for life the Remainder to the Son in tayl the Remainder to the right Heirs of the Grandfather The Grandfather suffers a Recovery and levyes a Fine with Proclamation to I. S. and after the Statute of 27 H. 8. is made and the Grandfather enfeoffeth the Sonne of the Land and dyeth Resolved that the entry of the Father upon the Son was lawful and he shall not be estopped by the warranty of the Grandfather for that the Warranty was gone by the reprisal of the estate and it was holden That although the 5. years were past in the life of the Grandfather yet when the Grandfather dyes the Father shall have other 5. years to make his Entry or clayme and that by the Statute of 4 H. 7. 184. Lessee for years rendering Rent upon Condition if the Rent be behind the Lessor to Reenter a Recovery in Debt is had against the Lessor and the Reversion and Rent extended by Elegit and given in Execution It is a good Execution and the Condition suspended so as if the Rent be behinde the Lessor cannot enter into the other moety 185. Two Tenants in Common of a Wood one Leaseth his part for years who cuts Trees and commits Wast he shall be punished for the moety of the Wast and the Lessor Recover the moety of the Land Wasted 186. The Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free Chapel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majesties Free Chapel of of the Castle of Windsor in the County of Berks. Resolved the Lease was good for although the King in the Act of Parliament call it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Newdigates Case 187. Lessee for life and he in the Reversion joyned in a Lease for years Lessee for life dyed the Lessee committed Wast Resolved that during the life of the Lessee for life it was her Lease and the Confirmation of him in the Reversion But when the Tenant for life dyed then it was the Lease of him in the Reversion and that he should have an Action of Wast ex divisione propria 188. A man hath 3. daughters and Covenants with I. S. that he shall have the disposition in marriage of one of them the Election is in the Father of which of the daughters the other shall have the Mariage and he is not to deliver the daughter till request but upon request he is to deliver the daughter to I. S. otherwise he cannot have the effect of the Covenant 189. In a Writ of False Judgment the Sheriff returned Quod accept is secum 4. legalibus Militibus de Com. suo accessint c. Et recordum illud habeo c. coram c. sub sigillo meo sigillis praedict Militum It was adjudged to be no good return nor the Record removed but it ought to be sub sigillis ex his qui Recordo illo intersuerant and not of the 4. Knights 190. It was holden by the Justices that if upon the Exigent the Defendant hath a supersedeas but doth not deliver the same before the 5th County so as he is returned Outlawed yet because the Supersedeas was upon Record the Justices held the Outlawry to be void 191. A Writ of Wast was Quod secit vastationem in the Land and assigned the Wast in cutting down of Trees It was holden that was not good but if he had assigned the Wast in digging of Clay or such other things it had been otherwise for that is Wast in the Land 192. A man devised his Lands to his eldest Son in Tail the remainder to his youngest Son in Tail the remainder to his Daughter in Tail and if they all dyed without Issue that then the Land should be sold by his Executors the eldest entred and dyed without Issue the younger Son entred and suffered a Comon-Recovery and after dyed without Issue and the daughter also dyed without Issue Resolved That the Executors could not now sell the Land 193. Note If an Enfant levy a Fine and take back an Estate for life or in Tail by render he shall not avoid after the Fine by
several Writs issued to Certifie one to the Custos Brevium the other to the Chief Justices They both Certified there was not any Warrant of Attorney The Plaintiff alledged Diminution upon a new Writ of Error brought Resolved That he could not alledge Diminution not have a new Writ of Error after the two former Certificats in the first Writ Ive and Tracies Case 281. A man seised of Socage Land and of Lands holden in Capite by Act executed in his life Conveyed the Capite Lands for the Advancement of his Wife Issues and payment of his debts Adjudged he could not after devise the Socage Land Bonncys Case 282. King E 6. seised of the Mannors of R. and B. in the right of his Dutchy of Lanc. made a Lease thereof to B. for years rendering several Rents upon Condition that if the Rent be behind 40. dayes after the Rents payable to reenter It was found by Office that the Rent was behinde after the 40. dayes and by another Office that the Rent was tendered the Last instant of the 40. dayes and that the Queens Officers of the Dutchy accept of the Arrerages and of the Rent at other dayes and Feasts and made accquittances thereof to the Lessee and had accompted for the same in the Dutchy and after that the Queen to defeat the Lease brought the Intrusion The poynts of the Case were 1. If the Queen was bound to demand the Rent 2. If the Tender was sufficient and sufficiently found by the Office 3. If the acceptance of the Rent accrued after the Office should conclude the Queen of the Condition The 4. If the Acquittances of the Officers should conclude the Queen 1. It was Resolved that the Queen ought to have made a Demand of the Rent before Reentry 2. That the Tender found shall be intended a tender made upon the Land which was a sufficient destruction of the Reentry 3. That the acceptance of the Rent at a new day after the Rent found behinde should conclude the Queen and that the Act of her Officer should be the Act of the Queen her self so as she could not enter for the Condition broken and so it was adjudged against the Queen Hunt and Gateleys Case 283. In a Replevin the Case was this Tenant in Tail the remainder over in Tail the remainder over in Fee Tenant in Tail in remainder granted a Rent charge and afterwards Tenant in Tail in possession suffered a Common-Recovery and dyed without Issue The Question was If the Recoverers should hold the Land charged with the Rent It was Resolved that the Recoverers nor any which came in under their estate should be subject to the charge of him in the Remainder because the Recoverers are not of an Estate which they gained under the estate of Tenant in Tail in possession whose estate is not subject to any Charge of him in the Remainder 2. Resolved That no Lease nor Rent nor estate made by him in the Remainder should charge the possession of the Recoverers Brand and Glasses Case 284. Action upon the Case against an Inkeeper of London for goods of the Plaintiff stolen out of his Inn The Defendant pleaded an agreement betwixt them that the Inkeeper should not be charged with any goods brought by the guest but with such only as he should deliver to the Inkeeper himself or to his Wife and that the Plaintiff did not deliver the goods stolen neither to him nor his Wife It was Resolved by the Court it was a good bar of the Action and this Case was put and vouched to be adjudged 7 Eliz. A Clothier came to an Inn with a Wayne of Wool to Lodge at his entry the Inkeeper said to him That if he would that he should take the Charge of his Wayne that he should draw the same into an Inner Court otherwise he would not answer for it The Clothier did not do it and the Wool was stolen The Clothier brought his Action upon the Case against the Inkeeper and upon shewing the special matter the Inkeeper was discharged 185. The Case was Lessee for life Covenanted for himself his Executors and Administrators to build a new Wall during the Terme and after he assigned over his estate It was Resolved that in this Case upon the Statute of 21. H. 8. that the Grantee of the Reversion or the Grantor might have an Action of Covenant against the Assignees for by the acceptance of the possession he had made himself subject to all Covenants concerning the Land and the building of a Wall was a Covenant inherent to the Land with which the Assignee should be Charged though there wanted the word Assignees in the Deed. Mich. 26. 27. Eliz. The Case of Saffron Walden 286. King Henry 8. seised of the Mannor of Saffron Walden parcell of his Dutchy of Lanc. Anno 6. of his Raign granted to the Guild of Walden 2. Mills a Market and the Clarkship of the Market in Fee Farme rendering 10 l. per Ann. and after 31. of his Raign granted the Mannor Rent and Fee Farme to the Lord Audley in Fee 1 E. 6. by the Statute of Chauntries the Guild was dissolved by which the Mills and Markets came again to the King with a alvo of the Rent to the Lord Audley Afterwards the said King E. 6. Anno 3. of his Raign granted the two Mills Market and Clarkship of the Market and also a Fair yearly to be holden there to the Town of Walden in Fee Farme reddendo inde annuatim to the King and his Successors vel tali Capitali Domino vel Dominis feodi illius ad qâ—em vel quos de nostro pertinet vel pertinebit the sum of 10 l. per Ann. upon which Reservation they were charged with 10 l. per Ann. in the Exchequer and upon a scire facias they pleaded in discharge of the said Rent that they had payed 10 l. per Ann. to the Heirs of the Lord Audley The points debated were two 1. That when the King had granted the 2. Mills and Market to the Guild reserving Rent if the said Rent were parcel of the Mannor of Walden as the Mills were or was a Rent in grosse for if it was parcel of the Mannor then it was parcel of the possessions of the Dutchy if it was not parcel then it was a thing given to the King in Capite 2. If by the Reddend in the Patent of E. 6. the Town of Walden was charged to pay 10 l. to the Lord Audley and other 10 l. to the King This Case is very long and Learnedly argued by Walmesby for the Town of Walden and by Popham for the King And it was Resolved by the Justices That the Corporation of Walden should pay both the Rents Vide the Book at Large for the Reasons Sir William Herberts Case 287. Sir Matthew Herbert acknowledged a Recognizance to the King of 3000 l. and afterwards he made several Feoffments and Allienations of divers of his Lands the residue discended to
Lawfull before he had a discharge of this Office or perfect notice of a new Sherff Johnson and Smiths Case 318. Action upon the Case for slandring of his Title and declared That he was seised of Lands by discent from hâ—s Father and was agreed with I. S. for a sale of the same Lands and I. S. went to the Defendant being an Attorney and prayed his advice for the making the Assurance and that the Defendant said to I. S. that he had heard that the Father of the Plaintiff had granted a Rent Charge out of the Lands in Fee by reason of which words I. S. refused to buy the Lands and all other persons for fear of the said Incumbrance to his damage c. The Defendant said he was an Attorney at Law and I. S. came to him for Counsell in secret he said the words spoken in the Declaration It was strongly urged that although he was an Attorney that would not excuse him because an Attorney is allowed to give Counsell and the utterance of the words in private did not excuse being spoken to the buyer himself But it was Resolved the Action did not lye and adjudged against the Plantiff Dawbney and Goores Case 319. In Disceit D. G. and G. were Joynt Merchants they made F. and S. their Factors in Barbary G. and G. conspired with S. to demand allowance of 1000 l. which was allowed them upon accompt by which D. was damnified for that the money was not due and the truth was S. only made the Account The poynt was if one Factor might make an Account for both and if the two Merchants might take an Account for them all three It was said that they all ought to joyn in Account but one solely might Assigne Auditours to take the Account on the other side it was said there was no Joynture in Merchandize and that one Merchant shall have an Account against his Companion Quaere the Case was not Resolved Hill and Morses Case 320. It was Resolved in this Case That a Copyhold without a special Custome could not be entailed 321. An Enfant acknowledge a Fine before the Cheif Justice but the Conusee would not have the Fine ingrâ—ssed till his full age The Enfant came now with the Note of the Conusance and prayed a Wriâ— of Error and examination of his age which the Justice agreed unto and that an Entry be made thereof and by that save to him his advantage 322. A man sold his Land and Covenanted to save the Vendee harmlesse upon request It was said if the Land be extended by force of a Statute before the request the Covenant is not broken for that now the Covenant is become impossible by the negligence of the Covenantee himself but if he had made request before the extent there the Covenant should be broken for default of saving harmelesse Foreman and Bobâ—ams Case 323. Repâ—evin The Defendant avowed for a Rent charge of 3 s. 4 d. â—issâ—ing out of the place where c. which was one parcell of the Mannor of W. of whâ—ch Mannor I. S. was seised in Fee and 33 H. 6. made a Feoffment of the said Close rendering Rent with distresse and dyed seâ—sed and it discended to his Son who bargained and sold the Mannor with all Lands Rents Reversions services and herediraments which are parcell or had been deemed reputed or taken as part parcell or member of the Mannor and the Defendant as Bayliff of the Heir of the Bargainee made Conusans for the Rent and whether the Rent did passe as parcell of the Mannor was the Question by the bargain and sale It was said it did nâ—t passe by the word parcell but it passed by the words reputed parcell if it were so reputed parcell at the time of the grant Quaere the Case is not Resolved in this Book but vide Pasch 26 Eliz. in B. R. Leon. 1. part 13. there the Judgment was given against the Avowant Justice Windhâ—ms Case 324. A Lease was made reciting that whereas he had made a Lease of one Close to the Lessee for â—0 years rendring 8 s. Rent and another Lease of another Close to the same Lessee for 40 years now he demised to the same Lessee both the said Closes for 40. year from and after the determination of the several demises It was a question if the last Lease was good because there is not any certain time of the begining of it Resolved the Lease was good and the Law shall make an Interpretation of the demise reddendâ— singula singulis how the Terme shall begin Vide Cook 5. part the same Case Dolman and Vavasors Case 325. A. seised in Fee of Lands 15 Eliz. suffered a Common Recovery to B. which Recovery was executed by Habere facias seisinam After the Recovery had it was declared by Indenture between the parties that the Recovery should be to the use of the said A for life without impeachment of Waste the remainder to the first begotten Child of his body and the Heirs male of such first begotten Child and so to his 9. Issues and for want of such Issue to V. the Tenant or Defendant and the Heirs male of his body and if these Indentures were sufficient to declare the uses of the Recovery was the Question It was Resolved that these Subsequent Indentures were sufficient to declare the uses of the said Recovery for so was the Intent of the parties as appeareth by the Indentures and it was adjudged that the declaration by the subsequent Indentures should stand good because there was not any other declaration of any other use Scroggs and Lady Greshams Case 326. Debt upon an Obligation against the Defendant Executrix of Sir Thomas Gresham The Defendant pleaded several Obligations made by the Testator to the Queen amounting to 8000 l. solvendum eidem Doâ—inae Reginae quando requisitus â—uisset ultra quam non habet upon which the Plaintiff demurred because the Obligation not being upon Record but taken in paâ—s was not good for that the Queen could not take but by matter of Record and also the solvendum is not to the Queen and Successors and the Queen is not to have the preferment of payment of her debts unlesse they be debts upon Record But yet in such Case if the Queen first sue she shall be preferred although she hath Judgement after another who sueth The Lord Pagetts Case 327. The Case was the Lord Pageâ—t seised of divers Mannors by deed Indented Covenanted with I. S. and others that in consideration of discharge of his Funerals payments of his Debts and Legacies and advancement of his Son and others of his blood to stand seised of the said Mannors to the use of the said I. S. and others for the Life of the Lord Pagett and after to the use of C. P. and other for 24. years and after the expiration of the said Term of 24. years to the use of William Pagett his Son in tail Afterwards the Lord Pagett
extends to Fines ritè Levatis and that a Fine is not ritè Levatus when partes finis nihil habuerunt To all which it was Answered and Resolved That the Issue in tail is not excepted in those Statutes and therefore is bound by the very Letter of the Acts 2. Although the Issue in tail was not bound by any Fine by his Ancestors untill 4. H. 7. yet in such Case he was ousted to add Quod partes finis nihil habuerunt being privy as Heir to him who levyed the Fine first 3. That a Fine may be said ritè Levatus although partes finis nihil habuerunt and it may be ritè Levatus although it be a Fine meerly by Conclusion Elmer and Goales Case 383. In Ejectione firmae the Case was The Abbot of West was seised and let the Lands for 60. years to a Stranger the Abby was dissolved and King Henry 8. united it to the Bishoprick of London The Bishop 12. Eliz made a Lease for three Lives the Lease for 60. being in being for 16. years which Lease was confirmed by the Dean and Chapter the Lease for 60. years expired the Lessees for three Lives entred and were seised untill the Bishop entred upon them and made the Lease upon which the Action was brought The point was if the Lease for three Lives were good It was Resolved it was good and stood good because the Statute of â— Eliz. which made Bishops Leases was not pleaded and the Statute being a private Act of Parliament the Judges were not to take nâ—tice of it if it were not pleaded Butler and Babers Case 384. The Case was A. seised of the Mannor of Toby in Fee and A. and his wife seised of the Mannor of Hinton to them and the Heirs of their bodies the Reversion to A. in Fee Toby amounting to the value of two parts and Hinton to the third part both holden in capite A. by his Will devised the Mannor of Toby to his Wife for life upon consideration that she should not take her former Joynture in Hinton with divers remainders over the Wife in pais disclaimed and waved her Estate in Hinton and agreed to the Mannor of Toby and entred upon it and if the Devise was good for the whole Mannor of Toby or for two parts only was the Question It was Resolved in this Case by the greater part of the Justices upon argument in the Exchequer Chamber that the waving of the Joynture by the Wife made an immediate discent by Relation to the Heir and that the Devisor was not such a person having Lands as could dispose of it according to the Statute and in this Case it was agreed by the Justices That if one deviseth Land in which he hath nothing and afterwards he purchaseth the lands that the same is not a good Devise within the Statute of Wills because he is not a person having c. Priscot and Chamberlains Case 385. In a Replevin the Case was Tenant for Life the Remainder in Tail jâ—yned in a Lease for years afterwards he in the Remainder in the life of Tenant for life suffered a Common Recovery the Recoverers sued execution upon the Lessee for years and afterwards enfeoffed Lincoln Colledge in Oxon to whom the Son and Heir of the Tenant in Tail in the life of his Father released with Warranty the Lessee for years reentred the Tenant for Life and he in the Remainder in Tail both died the Son of the Tenant in Tail had issue who by his Bayliff distreined the Chattel of the Lessse for years as damage Feasants upon the Land and he brought a Replevin The point was if by the common Recovery oâ— the Release of the Issue in tail with Warranty the tail was barred It was agreed by all the Justices that the Issue in tail was not barâ—d by the Recovery nor by the Warranty but whether he should avoid this Recovery in this Action being a possessarie Action or put to a rent Suit was the doubt whâ—ch was not resolved The Case was adjourned Hennage and Curtes Case 386. Trespass for breaking his Close in Hainton The Defendant justified that there was a Foot way leading through the said Close from Haâ—mon to the Foot-way of Horn-Castle for all persons travelling from Hainton to Horn-Castle they were at Issue upon the Prescription and because the Venire was de Hainton only whereas it ought to have bin from Hainton and Horn-Castle It was said that the Tryal was erroneous and the Judgment was reversed Bonnet Halsey and others 387. The Plaintiff was taken in Execution at the Defendants Suit by the Sheriff of B. and by an Habeas Corpus he was brought to Smithfield by the Goaler of B. and there at Eight of the Clock of night the Prisoner went into Southwark and there continued all night and the next morning he returned to Smithfield to his Keeper and there continued with him till the return of the Writ at which day he brought him to the Lord Chief Justices Chamber at Serjeants-Inn and he returned his Writ and the Chief Justice committed him to the Marshalsey It was judged it was no Escape in the Sheriff and adjudged upon an Audita Querela brought by the Plaintiff for the Defendants Wray Street and Coopers Case 388. The Prior of M. was seised of three Messuages in the Borough of Southwark and held them of the Bishop of Canterbury as of his Borough of Southwark The Priory came to King Henry 8. by surrender Afterwards the Bishop gave the Burgage to the King which Gift was confirmed by the Dean and Chapter The King anno 36. gave the said three Messuages and others to C. and D. Tenendum libero Burgagio by Fealty only and not in Capite and C. and D. gave the Messuages to W. and his Wife W. died his Wife survived King Edward 6. gave Totam Burgagiam de Southwark to the Mayor and Burgesses of London In the time of Queen Mary the Wife W. dyed by which the Messuages escheated Queen Mary gave them to one who gave them to A. who gave them to the Defendants The Mayor and Burgesses of London entred The Question was if the Tenure should be in Capite or in Burgage and if they passed to the Mayor and Burgesses by the Grant of Edw. 6. of Totam Burgagiam de Southwark It was adjudged against the Mayor and Burgesses of London because there could not be several Tenure foâ— these parcels Tenendum ut de Burgo and another Tenure for the Residue of the Lands in other places which could not be holden de Burgo and also because the Patent having two intents the besâ— shall be taken for the King Pasch 30. Eliz. The Queen and Bishop of Lincolns Case 389. Quare Imp. The Case was The Bish of Lincoln Patron and Ordinary collated to a Benefice in 8. Eliz. The Incumbent took another Benefice without Qualification by which the first was void The Successor Bishop 18. Eliz. presented one E. but non constat if
Consideration of Blood Covenants with B. his brother to stand seised to the use of himself for life and after the use of B. in tail the remainder to the right Heirs of B. Provided that if A. by himself or by any other during his Natural life tender to B. a Gold ring to the intent to make void the said use that then the said uses should be void Afterwards A. 26 Eliz. is attainted of Treason and Outlawed for it and the King makes a Lease of the Lands to C. and D. for 40 years The attainder is confirmed by Act of Parliament and Enacted That the said Act shall not extend to make any Lease void made by the K. after the said Treason Also Enacted that all persons which claim an estate or interest in Land not enrolled since 18 Eliz. shall within 2. years after the Session of that Parliament shew and bring into the Court of Exchequer his or their Grant or assurance to be void The King reciting the Proviso and benefit thereof given him by Act of Parliament authorizeth E. to deliver the Gold ring to B. to the Intent to make void the uses he reads the Patent to B. and makes a tender to him which he refuseth to accept of E. certifies the same into the Exchequer This Case was very largely and Learnedly Argued by all the Serjeants and others at the â—arre which vide in the Book at Large afterwards it was argued by all the Barons in the Exchequer and there amongst other things it was Resolved by them That the Condition in the principal Case viz. the tender of the Gold ring was not annexed to â—he person of A. but that any one might make the tender and thaâ— it was given to the King by the Act of Parliament and when a Statute gives a Condition to the King the performance of it which is the substance and which is not inseparably annexed to the person is given to the King 2. That the Tender and Certificate of it was good without Office found 3. That presently by the tender the uses were determined and the Land vested in the King by force of the Act of Parliament The Earl of Northumberlands Case 434. A. 15 June 22 Eliz. bargained and sold the Mannor of D. to the Earl of Northumberland and his Heirs who because the Land was holden in Capite 3. Sept. the same year purchased a License of Alienation in Octob. the same year a Fine was Levyed for further assurance and in Novemb. the same year the Deed was enrolled The Queen seised the Lands for a Fine for Alienation without License It was adjudged the Queens hands should be removed from the Land because the bargainee was now in by the Fine and not by the bargaines and sale and also because the Licence did precede the Fine the Alienation was not made without License Yardley and Prestwood and others Case 435. In a Quare Impedit It was holden by the Justices in this Case That a double usurpation upon the Queen did put her out of possession of Advowson and put her to her Writ of Right of Advowson But the Law hath been taken since that time and so adjudged that a double usurpation did not put the Queen out of possession of her Advowson Vide 33 Eliz. Hassies Case Tr. 4. Jac. The King and Champians Case accordingly Isabell Mordants Case 436. An Enfant Levyed a Fine to the Queen The Queen granted the Lands to Bowes Treasurer of Barwick Error brought to reverse the Fine Bowes pleaded in Barre the Statute of 18 Eliz. It was Resolved that notwithstanding that Statute the Writ of Error did lye for that Statute did not extend to make grants good of such persons who could not make grants by the Common Law as Enfants persons of Non sane Memorie c. Sir Mayle Finch and Hen. Finches Case 437. The Mother of Sir Moyle Finch and the Defendant in her Widdowhood levyed a Fine to the use of her self for life and after her death to the use of her Executors for 5. years and after to Sir Moyle in Tail with divers remainders over and afterwards she maried I. S. and she with I. S. granted the Terme of 5. years to Sir Moyle and after that she and her Husband levyed a Fine to Sir Moyle and I. D. and after that the Wife with her Husbands assent made her Will and made the Defendant her sole Excecutor and dyed the Defendant entred It was agreed by the Justices 1. That the use limited to the Excecutors was good 2. That the Wife could not grant it in her life time 3. That it was extinguishable in the Wife by a Fine come ceo c. but not by a Release 4. That the Fine sur Conusans de droit c. had extinguished the Terme and the said Fine had made such a disturbance of the possession that the use being future at the instant of her death in the Excecutors could never rise 5. That a Feme Covert with the assent of her Husband might make a Will but not thereby to dispose of Legacies 6. It was adjudged for the Plaintiff because the Wife who had the estate for her life had levyed a fine sur Conusans de Droit c. 438. Action upon Indebitatus Assumpsit solvere It was Resolved the Plaintiff could not give in evidence matter of specialty to prove his debt but he might give in Evidence matter of Contract Fitzherberts Case 439. He was Arrested in Execution by the Sheriff of Derby the 3. day of Feb. at 7. of the Clock in the Morning and the same day at 10. of the Clock he was elected a Burgesse of Parliament for the Borrough of New Castle It was agreed in Parliament because he was arrested before he was chosen Burgesse he could not have the Priviledge of the House Hunger and Freys Case 440. A man had recovered in Debt and had Judgment and an Elegit and had an extent delivered him and Nihil as to goods Afterwards he suggested the Defendant had more Lands goods and chattells in the same County and had a New Elegit and upon that he had a Lease for years in Execution and no other Land was found It was adjudged that the sale of the Lease for years by the Sheriff and delivery in Execution was good Townsend and Walleys Case 441. A man had 6 l. Land in possession and Lands in Peversion upon an estate for life and by his Will he deviseth all his Lands to his Excecutors for 10. years to pay his Debts and perform his Will and after the 10. years ended that his Executors or one of them or the Executors of his Excecutors or any of them should sell his Lands and he made diverse Excecutors and gave 40 l. Legacies by his Will and dyed After the 10. years 2. of the Executors sold the Land 1. Resolved that the Land in reversion might be sold as well as the Land in possession 2. That the sale by the 2. Executors was
a good sale by the intent of the Will 3. Resolved that the devise that his Excecutors might sell was a good sale within the Statute of Wills though the words of the Statute are That a man having Lands holden in socage might devise two parts of it and that by the Equity of the Statute Yelverton and Yelvertons Case 442. A man seised of Lands Covenanted to stand seised thereof to the use of his eldest Son and also of all the other Land which he after should purchase he Covenanted that he and his Heirs would stand seised to the use of his eldest Son Afterwards he purchased Lands to him and his Heirs by bargain and sale Adjudged that the purchase could not be intended to other use then to him and his Heirs Sir Hugh Cholmeleys Case 443. The Case is very long but is this in effect viz. Tenant in Tail the remainder in Tail he in the Remainder bargained and sold his Remainder to A. for the life of the Tenant in Tail and after his death the remainder to the Queen in Fee Tenant in Tail in possession suffered a Common Recovery The Queen granted her remainder to Tenant in Tail and his Heirs Afterwards he in the remainder bargained and sold his remainder to B. the remainder to the Queen upon Condition another Recovery was had Tenant in Tail dyed without Issue It was Resolved in this Case that he in the Remainder and all Claiming under him were barred by the Recovery 2. That the Common Recovery did bar the Tenant in Tail and the estate of A. in the remainder although the Remainder was in the Queen 3. That the grant of the Queen to the Tenant in Tail and his Heirs was a good grant Corbett and Marshes Case 444. Error brought upon a Recovery in Dower because the Tenant was not summoned by 15. dayes nor Proclamation made thereof at the Church door Because the party had remedy against the Sheriff the Court would not allow of the Error Crispe and Fryers Case 445. Copyholder in Fee rendring Rent at Mich. and our Lady-day The Lord at the last instant of the day of payment demands the Rent upon the Land and the Copyholder is not there to pay it Qu. If it be a forfeiture the better opinion of the Justices was that it was a forfeiture Paramour and Verwolds Case 446. False Imprisonment the Defendant justified by a Recovery in Debt in Warda de F. London and a Writ of Execution in Sandwich in Kent absque hoc that he was culpable in London The Plaintiff said that he was culpable at London absque hoc that there is tale Recordum in Sandwich Adjudge the Yraverse upon the Traverse was good because the place is material Pannell and Fens Case 447. A man seised of Lands and possessed of a Term devised all his Lands and Tenements to his Executors untill they had paid all his Debts and Legacies and levied all charges which they should expend against I. S. or others in Execution of his Will and made two Executors and died the Executors entred generally into the Land and Term and one of them sold the Term to one man and the other sold it to another It was adjudged they took the Term as Executors and not as Devisees and yet they took the Freehold as Devisees and they said that the words of the Will as to the Term was no more then the Law gave and that they should have it as Executors Blackwell and Eyres case 448. Issue was joyned betwixt the Lessee of the Plaintiff and the Defendant in an Ejectione firme which was to be tryed at the Assizes The Defendant in consideration the Plaintiff and his Lessee should forbear to enforce their Title and give slender evidence against the Defendants promised to pay a certain Sum of money to the Plaintiff Vpon Non assumpsit it was found there were two Issues joyned in the Suit and the Defendants had not joyned but one of them had pleaded the general Issue and the other a special Plea It was adjudged for the Plaintiffs because the common Speech is the Parties have joyned issue Walker and Harris Case 449. It was adjudged in this Case That although Lessee for years assignes over his Term yet Debt lyeth against himself for the Rent by the Lessor or his year Moss and Packs Case 450. A Recoverie was had against the Executor of I. D. of debt and damages And Fire fac issued de bonis testatoris si si non damna de bonis propriis the Executor dyed the Sheriff did execution of the Goods of the Testator before the Return of the Writ and adjudged good Portman and Willis Case 451. It was adjudged in the Case that by a Devise of omnia bona a Lease for years did pass if there be not other circumstances to guide the intent of the Devilor 2. Resolved That if a Copyholder for life or years surrender to an use that the surrender is good and the use void as a surrender rendring Rent with Warranty shall be a good Surrender and the Rent and Warranty void Beswick and Combdens Case 452. Action upon the Case for not keeping a Bank by reason of which the River drowned his Land It appeared upon the evidence that it was levyed and kept before by one who enfeoffed the Defendant Yet it was adjudged that the Action did lye against the Feoffee for the continuance of it Fuller and Fullers Case 453. The Case was A man had four Sons and devised his Land to his youngest Son named R. and the Heirs Males of his Body with the Remainder successively to the other three and the Heirs Males of their Bodies the first Devise dyed in the life of his Father having Issue Male After which the Father said I will that my Will stand good to the Children of R. as if he had over lived me but the words were not put in writing The point was If the Children did take by the devise or by discent Quaere The Court was divided in opinion The Dean and Canons of St. Pauls and others Case 454. King Edward the Fourth by his Letters Patent granted to the Dean and Canons and their Successors that they should be discharged of Purveyance the Charter was confirmed by King Henry the Seventh and also by King Henry the Eight The Statute of 27. H. 8. was made That Purveyors assigned by the Kings Commission for provision for him his Queen and Children might provide all Victual Corn c. as well within Liberties as without any Grants or Allowances to the contrary Queen Mary granted that no Purveyance should be taken of the Dean and Canons and their Successors against their Wills notwithstanding the Statute of 27. H. 8. and Queen Elizabeth reciting all the Patents granted to the Dean and Canons doth confirm them It was Resolved That the Charter granted to them was good Wherefore that they should be discharged from all Composition for Provisions for the Queen Preston and Hinds Case 455. Error
Eliz. assigned the same to C. for 14. years rendring yearly three Bushels of Mesâ—yn and one Bushel of Wheat in name of a Rent every Saturday and if it fortune the weekly Rent to be unpaid or undelivered then the Lease to cease B. entred and C. possessed of the Reversion by Deed Poll granted the Reversion totum interesse sui to D. to whom B. attorned R. demanded the Rent Corn upon a Saturday which was not paid for which he entered It was Resolved 1. that the Rent reserved by the first Lessee upon demise of the Will for a less Rent was incident to the Reversion of the ancient Term and shall pass by the words of all his Estate and by totum interesse the Rent divided from the Reversion will pass and the Reversion by the words totum statum 2. That the Assignee de toto statu shall take advantage of the cesser of the Term in esse and make the demand of the Rent if the Grant de toto statu be by writing with attornment 3. That by the Statute of 32. H. 8. the Grantee of the Reversion shall have benefit of a Condition annexed to a lesser Term divised out of the first Term There was another point It the demand of the Rent was good or void which was not Resolved Coulter and Irelands Case 664. It was Resolved in this Case by all the Justices of England That an Executor of his own wrong could not pay himself a Debt or a Legacy Chambers and and Handbarges Case 665. In case of a Prohibition It was suggested that the Queen and all those whose Estates she had had used to pay to the Rector of D. 2 s. 4 d. yearly in full satisfaction of the Tythes of Land in C. Issue was upon the Prescription It appeared that the Abbot of K. was owner of the Land and Rectory which afterwards came to the Queen who was seised as the Abbot was Resolved that the Unity was not a perpetual discharge of the Tythes nor of the Recompence for them Brougton and Randals Case 666. A Tales was awarded upon the Return of a Distringas where none of the principal Pannel appeared yet holden it was good But a Tales is not grantable upon the Return of the Venire if none of the principal Pannel do appear Benton and Trotts Case 667. In case of a Prohibition It was Resolved in this Case that unity of the Estate and not in occupation of the Land and Rectory at the day of dissolution of the Abby was not a discharge of payment of Tythes by the Statute of 32. H. 8. But if the Abbot held the Land at the time of the dissolution in Fee and the Rectory also those Lands were always discharged but if the Lands were in Lease for years although but for a small Term of years the Lands should pay Tythes and so it was said it was adjudged in Knighth and Spencers case and in Green and Bufkyns case and vide to that purpose Coo. 11. par Pridle aâ—d Nappers case Verey Carew and Gibsons Case 668. A seised of Lands in Middlesex and in London acknowledged a Statute to Carew and afterwards conveyed the Land in Middlesex to one which came to the Plaintiff by purchase and the Land in London he conveyed to G. the Defendant and died The Administrator of Carew sued a Scire fac against the Conusor in Middlesex who was retorned mortuus upon which he had a Scire fac to the Terre-Tenants in Middlesex generally and Verey the Plaintiff was returned Terre-Tenant and made default upon which Judgment was given for execution and that a Moiety of the Land in Middlesex should be extended upon which he brought a Scire fac in the nature of an Audita Querela against the Administrator and Gibson Tenant of the Lands in London to shew cause wherefore the moiety of the Lands in London should not be extended It was the opinion of Popham Chief Justice that he might have a Writ wherefore the Lands restitui non debent but not an Audita Querela but the other Justices held that that was the most beneficial way for him who was grieved by the former extent but if he will not pray restitution of what is past but only a contribution for an equal extent to satisfie what did remaine they saw no cause but that he might have it for the foundation of the Writ is equal extent and it was said that the Book of 39 E. 3. 7. and 39 was that it was in Election of the Conusee to take his Audita Querela for restitution or for future contribution Wild and Coopmans Case 669. Words viz. Thou art a false forsworn man thou wast forsworn at the Leet of R. and didst procure others to be forsworn The Defendant justified because that the Plaintiff was one of the Jury and presented that to be a Nusance which was no Nusance Adjudged the Justification was not good and that the Action did lie for the words Parry and Woodwards Case 670. Debt upon a Bill which was Be it known that I do owe to Parry 14. l. to be paid at the Feasts of c. together with 6. l. which I owe him upon Bill and Recognizance subscribed under my hand The Plaintiff brought debt for 20 l. and adjudged against him because the Bill made him Debtor for no more then 14 l. Vaughans Case 671. Intrusion The Queen by her Letters Patent ex certa scientia gratia speciali mero motu granted to I. S. which were late parcel of the Priory of L. and came to the Crown by dissolution of the Premises or any part thereof or the issue or profits thereof were before the first of April 14. Eliz. concealed substrained or unjustly detained from her Father Brother Sister and so remained at the date of the Letters Patent untill they were revealed by the Patentee and it was found by a Commission in 8. Eliz. issued forth to enquire of the Reparations of the King granted and how much money would repaire it and that the Queen was allowed the value of the Stone and Lead expended in the Reparations This was adjudged to be no concealed Land and therefore the Patent void Michel and Longs Case 672. If a Battery be laid in D. in the County of N. with a Continuando in Middiesex and Issue be upon it the Venire shall be of both Counties Thompson and Gardiners Case 673. The Plaintiff had a 100 l. delivered to him to pay over to I. S. and the Defendant came to him and affirmed he was I. S. to whom he delivered the 100 l. and in truth he was not I. S. Adjudged that an Action of Deceit lay against him Shorhorne and Lewis Case 674. The Hospital of Donnington was incorporated by the name of Minister Dei pauperis domus de Donnington confratres ejusdem and they made a Lease by the name of Minister pauperis Domus Dei de Donnington elemosynarii confratres ejusdem The Justices were divided
Justices that if one be bounden to make such assurance of all his Land that another will devise and require if it be to be done at the Costs of the Devisor he may devise one Assurance of one part and another of another part of the Land but if be at the Costs of the other he can devise but a joynt assurance for the whole Land Gage and Topers Case 741. Resolved in this Case If the Writ of Covenant upon which a fine is levyed be returned before the date it is Error because it is an Original Writ and not amendable by any Statute Strougborough and Biggins Case 742. In Appeal by a Woman of the death of her Husband of Murther the Defendant is found guilty of Manslaughter It was holden that a general pardon could not pardon the burning of the hand because it is at the suit of the party Vide Co. 6. p. the Case Reported to be adjudged contrary 743. It was holden by the Justices that in a scire fac to have Execution of a Fine it is no plea that there are other Terre-Tenants not named in the Writ otherwise it is upon a scire fac to have Execution of a Recognizance Bennes and Edwards Case 744. The Patron of the Advowson granted the next Avoydance to B. and after granted an other next Avoydance to R. who first presented and the Bishop refused the B. presented and the Bishop refused his Clerk also R. brought duplex Querela against the Bishop before the Metropolitan against B. and upon default his Clark was Inducted by the Metropolitan but depending the duplex Querela B. recovered against the Bishops Ordinary in a Quare Impedit and his Clark was Instituted and inducted and he took the profits of the Gleab Lands which were sowed by the Clark of R. It was Resolved in this Case that the Clark of R. being in upon the Judgment in the duplex Querela the Clark who was in upon the Recovery in the Quare Impedit could not oust the Clark of R. without a scire facias first brought Foxley and Ansleys Case 745. The Bayliff of the Queens Mannor which had waifes and estrays appertenant took goods esloyned by a Felon and relinquished in the Mannor and seased them for the use of the Queen and in Trover brought against him prayed in aide of the Queen Resolved the Aide not grantable being an action transitory and not local James and Rudledges Case 746. Words viz. Hang him he is full of the Pox I marvel you will eate or drinke with him adjudged not Actionable for it may be the small Pox and not to defame the party but to Counsell his friend 747. The Sheriff sells a Terme upon a scire fac and afterwards the Judgment is reversed Resolved the party shall not be restored to the Terme but to the money for which it was fold Holford and Andrewes Case 748. Debt upon an Obligation the Condition was to pay a sum at a certain day The Defendant pleaded that in respect of a Trespas done by the Plaintiffs beasts upon the Defendants Lands the Plaintiff gave him a longer day of payment which is not yet come Resolved it was no plea for that an agreement by perol cannot dispense with the Obligation Scrogs and Stevensons Case 749. In a Leet a payne was assessed upon the Town for not making of a Tombrell and Stocks and the Bailiff of the Mannor destrained one of the Town for the payne and avowed for it Adjudged the Avowry not good because it was not alledged that the payne was unpaid to the Lord for if any of the Town paid it the Plaintiff in the Replevin was not destrainable and also he doth not show that he had a Precept from the Steward to distrain which he ought to have Resolved that the Lord of the Mannor and Leet is to finde the Tombrell and Stocks upon payne of forfeiture of his Liberty and not the Inhabitants Johnson and Clarks Case 750. Debt upon Obligation The Defendant pleaded the Statute of Usury Quod Corrupte agreaâ—un fuit quod Querens Corrupte recepit Issue upon them found for the Defendant it was said that the double Issue was a Mistâ—yal The Court held the tryal good because an Issue is taken upon a thing material the other upon a thing not material and both being found for the Defendant it is a sufficient warrant for the Court to give Judgment for the Defendant Whitcalfe and Jones Case 751. Assumpsit The Consideration was that the Plaintiff assumed to a stranger to pay a debt which the Defendant owed him It was holden to be a good consideration although he doth not alledge payment of the money Smith and Shepherds Case 752. Trespas for taking of his sheep The Defendant justified as servant to the Lord Barkley by Prescription to take 2 d. for every score of sheep passing through the Town and if it was denyed upon request to detain the sheep till payment Resolved the Prescription was not good to take Toll for passages in via Regia for that the Inheritance of every man for passage in via Regia is precedent to all Prescription 2. Resolved a man may prescribe for Toll Traverse because it is a passage over his own freehold but not for Toll thorough 3. In this Case it was adjudged against the Defendant because it was not shewed that the Sheep were passing thorough the Town before he took the distresse otherwise it doth not sure with the Prescription Warner and his Wife and Babingtons Case 753. Debt upon an Obligation by Husband and Wife the Defendant pleaded the Wife had another Husband living The Plaintiff said the Wife ad annos nubiles disagreed to the former marriage It was said by Popham if she marry another Husband infra annos nubiles it is a disagreement to the first marriage à fortiori where she cohabits with the second Husband after years of Consent adjudged for the Plaintiff White and Gerishes Case 754. The Case was A. and B. levyed a Fine of Land to I. S. with a Render of a rent of 5 l. to B. yearly with a Clause of distresse the Remainder of the Land to A. and his Heirs I. S. dyed his Son distrained for the Rent It was adjudged against the Avowant for the Rent in a Replevin brought because the limiting over of the Remainder of the Land over was an Extinguishment of the Rent Davenant and Hardis Case 755. The Case long put was shortly this The Company of Merchant Taylors of London having power by Charter to make Ordinances for the better Rule and Government of the said Company made an Order that every Brother of the same society who should put any Cloth to be dressed by any Clotheworker not being a Brother of the same society should expose one half of his Cloths to be dressed to some Brother of the Company upon pain of forfeiting 10 l. and to destrain for it This Case was very long and very Learnedly argued vide the Book at
good against a Purchaser bna fide for valuable consideration Crowther and Fryers Case 800. The case was a Parson sued a Copyholder for Tythes arising upon his Copyhold he prayed a Prohibition and suggested that the Bishop of W. was Lord of the Mannor and that he and his Predecessors time out of mind c. for them their Farmors and Tenants had bin discharged of Tythes arising upon the Mannor and shewed he had bin a Copyholder of the Mannor and preseribed in his Lord. It was the opinion of the Justices in this case that although there is a Prescription upon a Prescription one in the Copyholder to make the estate good the other in the Bishop to make his discharge good yet a Prohibition lyeth for the Prescription in the Lord of Right of necessity and common Intendment proceeds the Prescription in the copyhold estate and the discharge of the Tythes in the Lord shall go to the benefit of the Copyholder Blake and Allens Case 801. B. was bounden 10 A. in an Obligation of an 100 l. for the true behaviour of his Son he being an Apprentice to A. A. after the sealing and delivery of the Bond razed out the word Libris and inserted the word Marcis It was the opinion of the Justices it was not a Forgery punishable because he made his own Bond void and it was not a prejudice to any but to himself 802. Two Executors made Partition of their Testators Specialties and then one of them did release to the Debtor an Obligation which did appertain to the part of the other the Debtor having notice of the Partition betwixt them the other sued in Chancery for Reliefe but the Chancery would not relieve him but if the Release was obtained by Covin for a less Sum then the Debt was there it was holden the Debtor should satisfie the Over-plus 803. It was agreed by the Justices that the Hundred is not chargable with the escape of the Felons nor to pay the Robbery if the Robbery be done in an House nor if it be a Robbery in the High-way in the Night 804. Note It was Resolved â—9 Feb. 43. Eliz. by the Justices upon the Arraigment of the Earl of Essex 1. That when the Queen sent the Lord Keeper and others of her Council to him commanding him to disperse the armed persons which he had in his house and to come to her and he refused so to do and kept the armed men in his house that that was Treason 2. That when he went with a Troop of Captains and others into the city of London and there prayed aid of the citizens to assist him in defence of his Life and to go with him to the Court so as he might be of power to remove his Enemies which attended upon the Queen that that was Treason 3. That the Fact in London was actual Rebellion although he did not intend hurt to the Queen 4. That the adherence of the Earl of Southampton to the Earl of Essex although he did not know of any other purpose then of a private Quarrel which the Earl of Essex had against certain of the Queens Sewants was also Treason in him 5. That all those who went with the Earl out of Essex-House into London whether that they knew his intent or not were Traitors although they departed by Proclamation but those who upon a suddam adhered to him in London and departed so soon as Proclamation was made they were within the Queens Grace of pardon by the Proclamation Holland Jackson and Ogdens Case 805. Error was brought to reverse a Recovery and a Scire facias issued against K and other Terre-Tenants depending which a Writ of Estrepment was awarded against the Terre-Tenants and Resolved it did well lye Dalton and Hamonds Case 806. It was Resolved by the Justices in this case that if the Lord demandeth an excessive Fine of his Copyholder and he refuseth to pay it it is no forfeiture otherwise where it is a reasonable Fine and the Court and Jury shall be Judges of the reasonableness of it But if a Fine be certain the Tenant is to bring it with him to Court and to pay it before admittance and if he be not ready to pay it it is a forfeiture Gambleton and Grassons Case 807. In Trover and Commission it was found for the Plaintiff It was moved in stay of Judgment that the Distringas with the Nisi prius bore the same date with the Venire facies It was the Resolution of the Court that it should be amended for it was aided by the Statute of 32. H. 8. Higgins and Spicers Case 808. A Venire facias was awarded to the Coroners ita quod B. who was one of the Coroners se non intromittat because he was the Servant of R. who was Sheriff It was said the same was no cause of Challenge but the Court conceived it was because confessed However it was but a misconverting of process which was aided by the Statute Hall and Jones Case 809. Action was brought upon the case for slanderous words in a Court of Pipowders The Stile of the Court was Curia pedis pulverizati ratione Mercati c. Secundum consuetudinem Civiiatis It was adjudged there for the Plaintiff and Error brought and Assigned that a Court of Pipowders doth not belong to a Market but to a Faire The Court held that by custome of a city or place it might be to a Market 2. Resolved that an Action upon the case for slanderous words did not lie in a Court of Pipowders and for that cause the Judgment was reversed The Countess of Warwick Attwood and Davies Case 810. Action upon the case against two the one pleaded to Issue the other demurred upon the Demurrer the Plaintiff had Judgment and a Writ of enquire of Damages against him alone and the Defendant relinquished the other Issue It was the opinion of the Court that he might relinquish against him and have Judgment and execution of the damages against the other only Sir Gervase Clifton and Chancellors Case 811. In Trover and Conversion of Jewels The Defendant pleaded that a Stranger was possessed of the Jewels and sold them to him in his shop in Bristol he being a Gold-Smith and because he did not say that the Sale was in pleno Mercatu nor aver'd it was his shop in which he used the Trade of a Gold-Smith It was adjudged for the Plaintiff and in this case it was agreed that the King cannot grant to one that his Shop shall be a Market overt to bind Strangers because it is against the Law Ludd and Wrights Case 812. In debt to perform an Accord the breach was assigned of a thing out of the Submission and issue being joyned the Plaintiff at the Nisi prius was Nonsuit Then the Judgment given upon the insufficient Pleas is not upon the Nonsuit It was holden the Defendant should have costs for the unjust vexation Gawen and Rants Case 813. In Replevin the case was
Tenant in tail became Officer yet that Land shall be sold by the Queen 2. When an Officer is endebted to the King and his Land subject to be sold by the Act 13. Eliz. and he to prevent the sale of the Queen and to evade out of the Act makes a conveyance of his Lands to his Issues or others of his Blood in consideration of natural affection that such conveyance shall not be good not said to be Bona fide within the Proviso of the Act of 39 Eliz. but that the Queen may sell the Land for so much of her debt as was due before the conveyance 3. If the Officer or Debtor of the Queen after 39 Eliz. be Tenant in tail or hath power of Revocation there the Queen may sell the Land by the Statute of 39 Eliz. and if any such Officer or Debtor before 39. Eliz. and and after 13. Eliz. had made any conveyance to his Issues or Blood without valuable consideration especially if it be with power of Revocation that Land may be sold by the Queen by the Statute of 39. Eliz. Adams and Lamberts Case 848. A man devised Lands to his Brother for Life the Remainder for Life the Remainder in tail upon condition to find a Chaplain for ever to pray for Souls and for the Souls of all Christian people to celebrate Mass Annusaries and other Superstitious uses and if they failed to perform the Uses then he devised the Remainder for eight years to an Hospital and because he doubted the profits of those Lands would not suffice he devised other Lands to supply them upon condition that if they aliened or let the Land to the prejudice of those in the Remainder they should presently enter and to be seised to the said uses It was resolved 1. That the Devise of Land to find a Priest c. was a Superstitious use 2. That although one of the uses was uncertain and no certain Sum limitted to it 3. That although the Devise was for the Sustentation and Maintanance of poor men yet the Limitation to them to pray for Souls was a Superstitious use because they depended upon the Superstitious uses and therefore it was Resolved in this case that all the Lands were given to the King by by the Statute of 1. Eliz. of Chaunteries Salway and Wales Case 849. It was holden by the Justices That if a man makes a Deed of Feoffinent in December and after and before Livery executed the Feoffor sells the Land by good assurance to another and after that the Feoffee takes Livery and Seifin of the Feoffor it is Forgery in the Feffor and the Feoffee So if the Feoffee causeth Livery to be endowed generally upon the Deed without a special day of making the Livery the Indorsement is Forgery Mouse and Weavers Case 850. The case was A. after a Recovery in an Assize in the Court of the Mannor of Isleworth and before Seisin delivered by the Bayliff of the Mannor bought the Copyhold by Surrender It was adjudged maintenance within the Statute of 32. H. 8. But it was holden by the Justices that if one recover Land and be in possession by Writ of Seisin he may sell the same although he nor his Ancestor or other by whom he claims was in possession by the space of a year next before And in this case it was holden by the Justices that a Clerk or Attorney in one Court cannot sollicite a Cause in another Court although it be for the same matter which was in his own Court Pollard and Moretons Case 851. It was Resolved in this case that a Justice of Peace coming to remove a Force may take posse comitatus with him 2. Resolved if one entreth into an house where no man is in the house with armed men or company unusual the same is a forceable entry Whetstone and Mintons Case 852. A. a Citizen of London seised divers Messuages in the Parish of St. Mary Sommerset in Queen-hith London 25 H. 6. devised the same to his two Daughters in tail and for want of such Issue to the Parson and Churchwardens of St. Michael and their Successors they yearly holding and making an Anniversary in the Church for the Soul of him and his Wife paying 6 s. 8 d. yearly amongst the Chaplains and others there and if the Parson and Churchwardens were remisse in holding Anniversary then the Parson and Curchwardens and Successors for that time should pay 20 s. of the Uses of those Lands Nomine poenae to the use of the Chamber of London The Devisor died the Land being of the yearly value of 10 l. 3 s. 4 d. The Daughter 's died without Issue the Parson and Churchwardens entred and took the profits and held the Anniversary and paid yearly the 6 s. 8 d. amongst the Chaplains c. et non ultra The Statute of 1. Ed. 6. of Chaunteries was found The sole Question in this case whether the Land or Annual Rent were given to the Crown by the Statute of 1 Ed. 6. of Chaunteries It was Resolved by the Justices in this Case that only the Annual Rent of 6 s. 4 d. was given to the Crown by the Statute and not the Lands for they said it had bin often adjudged that where a stipend was appointed to an Anniversary Obit Legacy c. there although the Land was given in the Premises the Crown should have but the stipend and in this case the intent of the Devisor was clear that the Parson and Churchwardens should have all the profits over and above the 6 s. 4 d. yearly to their own use Grills and Rigewayes Case 853. The case was A man was in Execution for debt and brake Prison and escaped The Sheriff made fresh Suit and retook him It was adjudged in this case no escape and it was holden that if the Prisoner who escapes be out of his sight yet if the Sheriff or Goaler take him upon Fresh Suit in recenti persecutione he shall be in Execution again 854. Note it was Resolved by the Justices that the breaking of a Dwelling-house in the night to the intent to rob or kill any one is Burglarie although that no person be in the house and if a man have two houses of Habitation which he dwells in by turnes if a Thief in the night breakes the house in which the person is absent it is Burglarie Austin and Twynes Case 155. It was Resolved in this case if two Churches one of the value of 10 l. and the other of 8 l. be within one mile of another the Ordinary may consolidate them and if the Patron and King confirm it the consolidation is good by the common Law and by the Statute pf 37 H. 8. 856. The King made the city of Gloucester a County with a clause of exemption from the County of Gloucester and of the power of the Officers of the County saving to the King and his Heirs Liberty for their Justices of Assize Goal-delivery and keeping Sessions there
Debt against Executors upon Obligation of 200 l. they pleaded a Recovery by a stranger of 200 l. upon another Obligation and averred it was a just and true Debt ultra which they had not in their hands the Plaintiff said the Recovery was by Covin It was adjudged in B. R for the Plaintiff Error brought and the Judgment reversed for it could not be by Covin if it was a just Debt and the Replication should have been absque hoc it was a just and true Debt Morses and Rosses Case 935. Assumpsit In consideration the Plaintiff would surcease his Suit which he had in Chancery against the Defendant the Defendant promised to save him harmlesse from all actions which should be brought against him for or Concerning a Lease which the Defendant had assigned to him and alledged he surceased his Suit and that a Stranger had brought an action against him in B. R. by reason of the said Lease and the Defendant did not save him harmlesse Judgment being for the Plaintiff in B. R. It was reversed because he did not shew the certainty of the Action brought against him nor that it was for any matter in esse at the time of the promise Wood and Bukleys Case 936. Action upon the Case whereas Wood exhibited his Bill against Buckley in Star Chamber containing he had nusselled Pirats Murtherers and other Malefactors he being a Justice of Peace and Vice-Admiral Wood afterwards in another place having speech with divers concerning as well of the ill carriage of the said Buckley as of the matter in his Bill against Buckley in the Star Chamber said I will Justify every matter therein to be true The Defendant Justified the speaking of the words being examined upon the truth of his Bill before I. S. and I. D. by Command of the Councell and traversed that he spake them at any other place or time upon demur being adjudged for the Plaintiff upon Error brought the Judgment was reversed because no action lying for the exhibiting of the Bill no action lay for saying the words of his Bill were true Sir Henry Berkley and Earle of Pembrooks Case 937. Action upon the Case by the Earl of Pembroke against Sir Henry Berkley and shewed he was seised of the Mannor of S. to which the Office of the Keeper of the Forrest of F. did appertain in Fee and to have omnia bona forfeited within the Forrest fugam facere bis per annum quicquid de hujusmodi fugatione accidere possit and to have Hony Wax mortuum boscum c. appertaining to his Office and the Defendant disturbed him to exercise the said Office The Defendant pleaded a Deed in Tail in Bar made by the Plaintiff In the Deed there was a Proviso viz. Provided alwayes and the said Sir Henry Berkley doth Covenant for him and the Heirs males of his body to and with the said Earl and his Heirs to preserve the game as far as commonly hath been used and that he nor his Heirs males shall cut or sell any woods there except for browse and necessary reparations and the Plaintiff said the Defendant had cut down four Oakes and converted them to his own use and averred they were not for browse nor reparations and that he entred for the forfeiture It was adjudged upon a demur in B. R. for the Plaintiff Error was brought upon the Exchequer Chamber upon the matter in Law that the Proviso was not a Condition but a Covenant but as to that point it was Resolved by all the Justices that the Proviso was a Condition 2. Error was that the damages were assessed entirely for divers things some of them being uncertainly and insufficiently alledged for he prescribed to have omnia bona forisfacta which could not be without Charter also to have de furgatione quicquid acciderit which was also uncertain and also the damages for them ought to have been severally assessed and not entirely The Court held that for that Cause the Judgment was erroneous and for that Cause only the Judgment was reversed Reymer and Grimstones Case 938. Assumpsit In Consideration he at the Defendants request had promised to wash the Defendants linnen and the linnen of his Servants and to provide meat and drink for the Defendant and his Servants the Defendant promised to pay so much money to the Plaintiff when he should require it so as it should not exceed the proportion used in O. for the like time and further declared that in Consideration the Defendant upon accompt between them made was in arrerage to the Plaintiff 18 l. the Defendant promised to pay him the said 18 l. and the Plaintiff shewed for how long time he had washed the Cloathes c. and that he required 8 l. which did not exceed the proportion in O. upon Non Assumpsit found for the Plaintiff and damages severally assessed for the Costs entirely Error was thereupon brought it was the opinion that the first Assumpsit was good and the second void and the Judgment given for the damages and Costs upon the first Assumpsit was good and the Judgment for them affirmed but for the damages assessed upon the second Assumpsit and for the damages de incremento entirely give for both the Judgment was reversed Goodall and Wyatts Case 939. In Ejectione firme The Case was A. made a Feoffment of Lands to B. in Fee upon Condition if A. paid within a year after the death of the Feoffee to his Heirs Executors or Administrators 100 l. that the Feoffment should be void B. made a Feoffment over to C. and dyed and afterwards within the year it was agreed betwixt A. and the Administrator of the Feoffee that the said A. should pay to the Administrator the 100 l. and that the Administrator should repay back all to A. the Feoffee but only 32 l. which was done accordingly and then A. entred into the Lands pretending the Condition was performed it was adjudged in B. R. that his entry was not Lawfull and that this fraudulent and Covenous payment was no performance of the Condition and upon a Writ of Error brought in the Exchequer Chamber all the Justices a greed that the Judgment given in B. R. should be affirmed Vitsey and Fermours Case 940. The King granted Manerium de H. in Parochia de R. omnia terras decimas haereditamenta sua in R A. in the tenur of I. S nec non omnia alia terras tenementa haereditamenta in R praedict ' It was adjudged in B. R. that the Tythes in H. which was a Town within the Parish of R. did passe But upon Errour brought the Judgment was reversed because R. praedict shall be intended R. the Town and not R. the Parish Adams and Dixons Case 941. Assumpsit the Plaintiff was Bail for I. S. in B. R. the Defendant in Consideration that he should pay him the Condemnation promised to deliver to him the Bond made for the principal Debt and a letter of
Attorney to sue the principal in his name It was adjudged for the Plaintiff in B. R. and upon Error brought the Judgment was reversed because it was an insufficient Consideration Dickenson and Sheres Case 942. Upon the awarding of the Venire facias upon the Roll the day of the return of it was omitted this being assigned after verdict for Error was holden by the Court not to be Error 943. Note it was Resolved by the Justices that an action lyeth for the Rector of a Parsonage against the Parishoners for not seting forth of their Tythes although the Statute of a Edward 6. drâ—h not appoynt who shall have the action English and Bowers Case 944. Covenant upon an Indenture of demyse of the Rectory of S. in the County of O. The Indenture was made at London and the Venire Issued to the Sheriff of O. It was assigned to be Error but the Court held it good because it shall be of the County where the Land lyeth Heley and Rigs Case 945. A Bill was exhibited in the name of Rigs per Johannem Keeling attornaâ— ' suum and the Warrant of Attorny was posuit lcco suo Gulielmum Keeling the same was assigned for Error but the Justices caused it to be amended and affirmed the Judgement Maylard and Kesters Case 946. Assumpsit In Consideration the Plaintiff would sell and deliver to the Defendant pannos laneos pro funer alibus of a Clark he promised to pay him for them cum inde requisitus esset and alledged he sold and delivered divers Cloths to him viz. 31. yards of black Cloth for 19 l. and recited divers other particulars amounting to 160 l. upon Non Assumpsit found for the Plaintiff Error brought in Exchequer Chamber and the Judgment was reversed because Debt properly lay and not Assumpsit Wolley and Mosleys Case 947. Action of Assault and Battery in B. R. upon a demur the Plaintiff had Judgment to recover It was a Warded upon the Roll à Fierifac to enquire of damages returnable die Martis post tres Trinitatis and the Writ was in facto returned die Mercurii post tres Trinitatis which was the very date of the return upon the Roll and the Plaintiff had damages and Costs 40 l. Error was brought and assigned whereas by the Record of the Continuance the Plaintiff appeared by I. P. his Attorney that before that time he was dead The Court held that to be no Error because the Record is to be credited before the allegation of the party 2. Because there was variance between the Roll and the Writ the Court held that was amendable 3. That the Writ is executed the same day of the Return that was holden to be no Error and so it was said it was adjudged Mich. 37. and 38. Eliz. in Gawen and Ludlows Case In the Court of Wards The Queen and Savages Case 948. A. seised of Lands holden in Capity by Knight service by License 27 H. 8. conveyed the same to his Son and Heir apparent and F. and their Heirs in consideration of Marriage betwixt them who intermarried and 2 E. 6. by Fine regranted the Land to the Father who rendred it to the Son and his Wife and to the Heirs of their two bodies begotten the Father dyed the Son haveing Issue three Daughters dyed 5 Mar the eldest Daughter had Issue Fran. Mooâ—e and dyed 25 Eliz. F. took second Husband W. Savage and they 28 Eliz. Leased the Rectory of K. to I. S. for 60. years and after granted the Reversion of the Rectory and Leased the Mannor to A. Savage for the life of F. Afterwards a Common Recovery was had in which S. and his Wife were vouched The Queen prayed to have the Wardship of Fran. Moore and to have the primer seisin and profits of the Land after the death of the Wife W. Savage averred the Recovery was to the use of himself pretending thereby that the Issues in Tail of the Son of Agnes and F. were barred In this Case it was Resolved for the Queen for one moyety and that the first Feoffment by A. to his Son F. before Marriage was not within the Statute of 11 H. 7. but when they Reconveyed back the Land that was a Conveyance of each of them their parts and then the render of the whole to them in special Tail as to the moyety of the Son the gift of the Father to the Son and his Wife within the Statute of 11 H. 7. but as to the gift of the Wife by the Fine was not within the Statute but the Recovery as that should bind the Issue Fishers Case 949. It was found by Office that A. seised in Fee of divers parcells of Lands holden by Knight service in Capite 21. Eliz. by License conveyed them to I. S. and E. his Wife Daughter of the said A. and that afterwards by Indenture he Covenanted for Fatherly love and affection that after the sealing of the said Indenture he would stand seised of the premises to the use of the said I. S. and E. his Wife in Tail Remainder in Fee to a stranger It was not found when the said Indenture was sealed and delivered nor that I. S. and E. his Wife were seised in Tail nor was it found in the Office Sic inde Seisitus did Covenant Notwithstanding these Exceptions it was Resolved that the Office was sufficient wherefore a Travers was to the Office Gervoyes Case 950. A. seised of the Mannor of N. in the County of W. and of Lands called F. in the County of of S. in Consideration of Marrage and for a Jointure for his Wife Covenants that he and his Heirs shall stand seised of the Mannors Lands c. to the use of himself and his Wife for their lives after their deceases to the use of the Heirs of the body of A. The Lands in F. are recovered by verdict from A. only during the Coverture between them A. dyeth his Heir within age It was Resolved in this Case that the Wife should have recompence for the Lands which were Enrolled during the Coverture although she accepted of the Residue of her Joynture after the death of her Hâ—sband Forsters Case 951. The Husband seised of Land in the Right of his Wife which was holden in Knight service the Heir being in Wards committed wast in the Lands Resolved the Husband should be charged to the value of the Lands and lose the possession of the Lands so long as his Wife should live Georges and Stanfields Case 652. Lands by Act of Parliament were assigned to the Countesse of Bindon during her life the Reversion to her Daughter who was in Ward to the Queen the Viscountesse took Husband and she and her Husband committed wast in the Land For the punishing of which a Bill was exhibited in the Court of Wards Resolved that the Court of Wards could not adjudge treble damages for the wast in this Case and therefore the Case was dismissed to Law Bridges Case 953. A. bargained and
confessed the conveying to Friends in trust to his own use The points 1. Whether R. C. by the Will of his Father-in-law or equiiy be entituled to the possibility of the Term that shall remain after the death of J. M. 2. Whether he may sue during the Life of J. M. for this possibility It was decreed in Chancery 1. P. C. is Cestuy que trust and although the possibility be not grantable nor diviseable by Law yet cestuy que trust may declare his VVill and so the VVill of P. C. doth amount to a Declaration of the Trust and ought to bind J. M. the Executor 2. That the acts of the Executor tending to destroy the possibility were breaches of the Trust 3. That Suit for prevention of Fraud or breach of Trust might be before the Trust doth fall to the intent to preserve the possibility The Bishop of Sarums Case 1032. King Edward the Fourth created the Office of Chancellor of the Garâ—er but did not annex any Fee to it and constituted B. Bishop of Sarum to be the first Chancellor during his Life and further granted that the Successors of the Bishop of Sarum for and after should be Chancellors of the Garter B. was received and did execute the Office and died Bishop of Sarum 22 E. 4. It did not appear that any Successor of the Bishop was admitted to the said office but the Kings of England have placed Chancellors If the Bishop of Sarum by Succession had title to the Office was the question It was Resolved he had no title to it 1. because the Pattent was originally void to make the Successor of a Bishop Officer for B. took the Estate for his Life in his natural Capacity and not in his politick Capacity and he could not take both in his natural and his politick Capacity together 2. Because there had not bin any use or exercise of the Office by any Successors 3. In this Case it was agreed that the constitution of a new Office and Officer was good though no Fee was annexed or given to it Tatton and Sir Richard Mollineux Case 1033. A Lessee for 99. years of the Rectory of B. by the Bishop of C. assigned the same to the Defendant and others to the use of the said A for Life the Remainder to B. the Plaintiff and to the Heirs Males of the said B. the Remainder to A. and to those he should assign the same by his Will and for want of such Limitation to the Executors and Administrators of A. A. assigned his Use Interest and Trust to I. S. B. by Decree at Chester recovered the Rectory against the Assignee paying 500 l. B. required the Defendant to assign all the Term to him and to such as he should appoint It was in the Chancery Decreed that the Defendant should make the Assignment to B. or to such as he should name because the Limitation to B. of the Trust and the Heirs Males of his body resembled a Grant or Devise of the Term itself to one and the Heirs Males of his body which cannot be an entail because against the Rules of Law that a Term should be entailed and therefore the Term for such Grant or Devise rests wholly in the Donee or Devisee and he hath the whole disposition of it and such a Term shall not go to the Issue but to the Executors of the Donee or Devise Boldney and Curties Case 1034. A man covenanted to make farâ—her assurance upon request be it by Fine c. The Plaintiff delivered to him a note of a Fine and required the Defendant to acknowledge the same before the Justices of Assize and he did not acknowledge it because no VVrit of Covenant was first brought or depending Resolved the Covenant was broken because the acknowledgment of the Note for a Fine is an Act preparatory for the Fine itself upon which a Writ of Covenant may be after sued â—orth Trot and Spâ—rlings Case 1035. In Audita Querâ—la the case was B. acknowledged a Statute to S. There was a defeazance of it That if his Lands in the county of D. should be extended the Statute should be void Afterwards B. sold his Lands in the county of D. to F. the Plaintiff which being extended he brought Audita Querela It was Resolved in this case by the Justices that the Audita Querela did well lie and F. should be relieved upon it for they held the defeazance to be good and not repugnant They agreed that if the Condition of an Obligation be that the party shall not sue the Obligation that the condition is repugnant but a Defezance by another Deed to that effect is good It was adjudged for the Plaintiff Swaine and Becketts Case 1033. The Queen seised of the Mannor of D. made a Lease thereof for years to I. S. excepting the Trees King James granted the reversion to the Plaintiff the custome of the Mannor was that a Copyholder of the Mannor might top and lop Trees The Defendant being a Copyholder cut Trees for firewood for which Trespass was brought Resolved that the Action did not lie because the Copyholder was in by the custom which was paramount the exception of the Trees in the Lease and the exception should not hinder the custom although the Copyholder came to his Estate after the Exception The Countess of Cumberlands Case 1037. It was Resolved by the Justices in this case That great â—eeches of 200 years growth which were for use for Timber in the country where they did grow could not be felled or taken by Tenant for Life because they did belong to the Inheritance and so they said it was of Wind-falls which had Timber in them they did belong to the Inheritance otherwise if they were Dotards and had no Timber in them Lambs Case in the Star-Chamber 1038. It was Resolved by the Justices in this case 1. That the Procurer and also the VVriter of a Lâ—bel were both contrivers of it 2. That if a man read a Libel or heard it read the same is no publication of it but if after it is read he repeat it to another it is a publication of it 3. That he who writes a Libel by the commandment of his Master or Father is not a publisher of it Stone and Walters Case 1039. W. being robbed accused Stone being a Poulterer to be the party who robbed him but afterwards withdrew his accusation Stone not satisfied therewith brought his Action upon the case against W. W. then accused him again of the Felony for which he was bound over to the Sessions where W. swore directly that S. was the party that robbed him yet the Jury found an Ignoramus so as S. was never Indicted nor lawfully acquitted Yet for this conspiracy to accuse him W. and his conrederates were all fined and punished in the Star-chamber And in this case it was holden by the Justices that such Conspirators were punishable by Indictment although an Action upon the case did not lie for the party
Presidents cited to that purpose Apsleys Case 1067. He was brought by a Habe as corpus to the Bar It was returned that he was committed by the Court of Chancery for a contempt to the Court Resolved he should be discharged vide 9 Eliz. Astwicks case accordingly vide 13 Jac. Allen and Woods case Allen was committed to the Fleet by the Lord Chancellor for a contempt in not performing of a Decree and upon that Retorn the Court refused to deliver him Deytons Case 1068. He was committed to the Fleet by the High Commissioners for not performing of the Orders in the Common Prayer and for refusing to answer to Articles exhibited by the Commissioners unless he might have a copy of the Articles Resolved he should be delivered because the Statute upon which he was sued in that Court is penal and also because perhapps the High Commissioners had not jurisdiction of the cause Brokes Case 1069. He was committed by the High Commissioners to the Fleet because he refused Alimony to his wife and that being returned upon an Habeas corpus he was delivered Isaack and Clerks Case 1070. Action de Trover and Conversion The case was A recovery was against A. in the Court of E. and a Precept in the nature of a Fieri fac directed to the Defendant Bayliff of the Court who took three Butts of Sack in Execution The Plaintiff came to the Defendant and delivered him 22 l. in a bag as a pledge that the three Butts should be delivered to the Defendant the next Court day there upon Request if the Plaintiff who recovered should not in the mean time be satisfied at the next Court the Butts were not redelivered nor the first Plaintiff satisfied nor any Report made It was Resolved that there was no Conversion in this case for although prima facie Denyer is a conversion of money yet when the mony is delivered as a Pledge it is a special bailment and Denyer in such case is no conversion 2. That the Plaintiff had no cause of Action because the three Butts being not Re-delivered the Defendant might detain the 22 l. and the Bag for ever 3. There needs no request in this case because the Plaintiff at his peril is to cause them to be delivered before he is enabled to have his mony again It was adjudged for the Defendant Ford and Hoskins Case 1071. Action upon the case that the custom of the Mannor of B. was that every Copyholder might name who should have his Copyhold and that the Lord ought to admit the Copyholder so named after the death of the Nominator which the Lord refused to do It was Resolved the action did not lie for that the Nominatee hath no right at all the Interest being in the Lord and the Nominatee hath neither jus ad rem nec in re and he shall not draw an Interest to himself from the Lord against his Will and if one hath the Nomination and another hath the Presentation to a Benefice if he who hath the Presentation will not present an Action upon the case will not lie against him Brownlo Cop and Mitchells Case 1072. Assise against the Defendant for a Disseisin made to the Plaintiff of the profits of the Office of making Supersedeas The King directed his Writ to the Justices reciting that he by his Letters Patent had granted the making of Supersedeas to the Defendant and required the Justices not to proceed Rege inconsulto It was argued that the Writ did not lie because the King had not any title to the thing in demand nor could any prejudice come to the King On the other side it was said That in common Right it belonged to the King to make Grants of Offices Ministerial and Judicial unless another made Title to the same by Charter or Prescription and if the Plaintiff had title to the Office or not it is matter of Title for which the King is to have search in Chancery and if nothing be found for the King against the Prescription made by the Plaintiff then a Procedendo shall issue out of the Chancery otherwise if title be found for the Patentee against the Prescription Afterwards the Supersedeas was allowed by the Court and afterwards the matter was ended by composition Keckwichs Case 1073. It was holden by the Justices If an Infant brings Error to reverse a Fine levyed by him and he is inspected and witnesses produced to prove his Infancy though he dieth after before his full Age his Heir may reverse the Fine Gold and Deaths Case 1074. Debt upon an Obligation the Condition was That if the Apprentice shall lose and embessel any of the Goods of his Master and the Master prove the same to be true by confession or other then if the Obligor pay all Sums as the loss shall amount unto the Obligation to be void In the case the Master brought in the confession of the Apprentice himself under his Hand and Seal It was adjudged that it was a good and sufficient proof and it was holden the proof might be in the Action brought Phelps and Winscombs Case 1075. In False Imprisonment The Question was whether a Constable may make a Deputy to arrest one by a Warrant to him directed by a Justice of Peace the constable himself being sick and whether upon the Defendants pleading in such case of the Statute of 7 Jac. cap. 5. he shall have double costs It was Resolved he may make a Deputy and a Deputy is within the meaning of the Statute for he is a Constable pro tempore Smith and Bulls Case 1076. In Assault and Battery The Defendant justified that the Plaintiff entred his Close and that he molliter imposuit manus upon him It was said he ought to shew what estate he had in the Close and that the Plaintiff came there to eject or disseise him otherwise the Justification is not good 1077. Tenant in Tail made a Feoffment in Fee to the use of himself and his Heirs and afterwards made a Lease for years rendring rent and died and the Issue accepted the Rent It was adjudged that the acceptance of the Rent did not continue the Lease because the Issue was remitted to the Tail by discent Roe and Woods Case 1078. It was holden by the Court that whereas the name of the Sheriff was not endorsed upon the tales de circumstanubus that was no cause to stay Judgment because the Statute which gives tales doth not provide for such Retorn and also because it is done in the face and view of the Court and of the Judges and therefore not to be doubted but the Sheriff made the Return Luke and Clerks Case 1079. If the Defendant challenge the Array for Consanguinity of the Sheriff which is found against him and after he challenge the Poles Resolved he must shew cause of challenge of every one of them presently Blandford and Blandford Case 1080. The Grandfather possessed of a Term for years devised the same to his Wife
this case that if S. had died and no other was instituted by the Patron but the Church remained void that the King might Present otherwise it had been if the Patron had presented a new Parson to the Church before the King presented Pym and Gorwins Case 1165. It was Resolved by the Justices in this case that one cannt prescribe for a Seat in the body of the Church for that the Seats there are disposable by the Parson and Churchwardens but for a Seat in an Isle of the Church a man may prescribe because it may be presumed that he or his Ancestors who had house and lands within the Parish had edified and built the said Isle and so it was said it was adjudged in the Lady Grays case Norris and the Hundred of Gawtrys Case 1166. Debt against the Hundred upon a Robbery 9. Octob. 13 Jac. the Teste of the original was 9 Octob. 14 Jac. It was said the Action was not brought within the year for there is but one ninth of October within the year It was the opinion of the Justices that in this case a Fraction of a day should be by devision of time in a day viz. the Robbery committed 9 Oct. 13. post meridiem is within the year of the bringing of the Writ 9 Octob. 14 Jac. in the morning Vide Ludford and Grettons Case Plowd Com. 491. Dawks and Hills Case 1167. Upon an Information upon the Statute of 5 E. 6. an Ingrosser of Chattel justified for a certain number of Chattel and sold upon two several Licenses without distinction how much upon the one and how much upon the other and upon a Demurrer it was adjudged for the Plaintiff Middleton and Lawtes Case 1168. Two Patrons pretended title to present the one presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after there he obtained Institution and Induction by the Arch-Bishop Afterwards the inferior Bishop instituted and inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction for that would determine the Incumbency which is tryable at the Common Law Stewkley and Butlers Case 1169. In Trespass the case was A. seised of the Mannor of D. made a Lease of the Scite and Demeans to the Defendant for three Lives except all Tymber-trees and covenanted that his Lessee should take all Woods Afterwards the Lessor bargained and sold to the Lessee all those the Trees Woods and Under-woods growing within the Mannor viz. within the Grounds called A. B. and C. Habendum una cum omnibus aliis arboribus within the Mannor which may conveniently be spared and the Bargainor covenanted that it should be lawful for the Barganee at all times within five years to enter and cut the Trees and Woods and convert them to their own uses In this case it was Resolved 1. That the Viz. was void for a Viz. may explaine or distribute a thing precedent but not restrain it 2. Resolved that the una cum aliis arboribus in the Habendum should make a new Grant of the other Trees 3. Resolved that the words which followed the una cum cest ' una cum omnibus arboribus within the Mannor which could be spared was void for the uncertainty and there is no means agreed betwixt the parties here to reduce the same to a certainty 4. Resolved that the Covenant of the Bargainor that it should be lawfull for the Bargainee to take the Trees and Woods within five years was not a Condition but a meer Covenant and the difference was taken where one sells all his Trees to be taken within 5 years after there the Vendee shall not take them after 5 years ended but if the time of taking of them be by way of Covenant there it shall not restraine the party to take them at all times as well after the five years as within the five years but the parties are to have their remedy by an Action of Covenant upon the disturbance Yet it was said by Hatton that if one grants his Corn growing and the Grantee doth not take it in convenient time so as the Grantor receive detriment thereby the Grantor shall have Action upon the case against him Hansons Case 1170. He was cast over the Bar because he gave direction in writing to an Under-Sheriff what persons he would have him return upon a Pannel for tryal of an Issue and named others who he would not have to be retorned Kingswell and Crawleys Case 1171. Replevin The Defendant avowed for Rent for that I. S. held of him by Fealty and Rent whose Estate the Plaintiff had The Plaintiff said I. S. enfeoffed I. N. who made a Lease to the Plaintiff for Life absque hoc that he had the estate of I. S. Resolved that the Traverse was void for after the Statute of 21 H. 8. the party is to avow upon the Land and then it is not material what Estate the Tenant had so he occupied the Land but before the said Statute it had bin a good Plea so as the Statute hath changed the Law for the Traverse in pleading although there is not any word of it in the Statute Andrews and the Bishop of Yorks Case 1172. It was Resolved that is a good Plea in an Assize of Darrien Presentment that the Plaintiff hath a Quare Impedit depending the same avoidance 1173. Words viz. He hath stollen my coâ—n out of my Barns Adjudged per curiam the words were actionable Hall and Wingfields Case 1173. The Defendant acknowledged a Recognizance before the Lord Hobart at Serjeants-Inn in Fleet-street London which Recognizance was enrolled in the Court of common Pleas The Plaintiff brought debt upon this Recognizance in the Common Pleas and layed his Action in London Whether it ought to be brought in Middlesex where the Record of the Judgment was or in London was the Question The Justices were divided in several opinions Winâ—h it ought to be in Middlesex where it is enrolled because the Debt is consummate Warberton it may be in any County where the party pleaseth Hutton it lieth where the Record is Hobert if no mention had bin made upon the Inrollment of the Recognizance before the Chief Justice at Serjeants Inn it ought to have bin brought in Middlesex but now it was in the Election of the Plaintiff to bring it either in London or Middlesex vide this case more at large Hob. Reports 195. where the case seems to be Resolved Lea and Pains Case 1175 Debt upon Obligation to stand to an Award The Plaintiffs in January submitted themselves to stand to the award of I. S. for all Quarrels Debates Questions stirred moved or depending I. S. in April made an Accord that the Defendant should pay to the Plaintiff should pay Twenty Nobles in