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
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
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
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
not avoid it and therefore Resolved that it was a joynt Estate and that the Proviso should not sever it Hudson and Lees Case 402. In Appeal of Maihem The Defendant pleaded that the Plaintiff had brought an Action of Battery and recovered therein for the same Battery and Wounding upon which the Appeal was brought and it was adjudged a good and sufficient Plea in Bar. Lee and Lees Case 403. A. had three Sons F. I. and G. he devised his Land to I. for 21. years to the intent to perform his Will and pay his Debts and he made him his Executor and if I dyed within the Term then G. to have the like Term as I. had and G. then also should be his Executor and devised the Land to F. in tail the remainder to I. in tail the remainder to G. I. entred F. died without Issue I. had â—ssue P. the Defendant and died within the Term It was the opinion of the Court That if Land be devised for years to one and if he die within the Term that another shall have the residue of the years that no Act of the first can prejudice the Remainder of the second but otherwise if one who hath a Term deviseth his Term with such a Remainder and a difference taken between a devise of the Term and a devise of the Land Beverley and Cornwell 's Case 404. Note in this Case which Case vide before That if any Advowson comes to the Queen for forfeiture by Outlawry and the Church becomes void and the Queen presents and then the Outlawry is reversed for Error yet the Queen shall enjoy the Presentment because it came to the Queen as a profit of the Advowson but if the Church be void at the time of the Outlawry and the Presentment is forfeited as a Chattel principal and distinct and then the Outlawrie is reversed the party shall have restitution of the presentment More and Hales Case 405. The Case was A Vicar let his Viccarage and all his Glebes and Tythes to I. S. for 21. years rendring 22. l. rent to him and his Successors which Lease was confirmed by the Patron Dean and Chapter the Lessee assigned over his Term to the Plaintiff and averred the Rent was the usual Rent The Plaintiff devised the Viccarage to the Defendant rendring 30. l. per an and for not payment of 15. l. half a years Rent brought debt The Defendant pleaded the Statute of 13 Eliz that no Lease of a Benefice with Cure should continue longer then the Lessor should be resident serving the Cure without absence 80. days and averred the Viccarage was a Benefice with Cure and that before the Rent day the Lessor died and that I. R. was made Vicar Whether the Lease was void the Court was now divided in opinion But vide in Cro. 3. part 131. It was Resolved that in this Case the Lease was void by the death of the Lessor Page and Griffiths Case 406. Ejectione firme the Case was Lessee for Life bargained and sold the Land to one and his Heirs and afterwards 14. Eliz he suffered a Recovery thereof to the use of the Bargainer It was adjudged that the suffering of the Recovery was a forfeiture Spitle and Davies Case 407. A man devised Lands to his youngest Sons Proviso If his Sons oâ— any of their Issues devise any of the Lands before their age of 30. years then the others shall have the Estate the eldest Son made a Lease thereof before his age of 30 years the youngest Son entred and before â—he 30. years ended aliened the Land the eldest Son entred Resolved 1. It was a Limitation 2. That when the younger Brother hath once entred for the Alienation then the Land is discharged of the Limitation Vide Owens Rep. 8. the same Case Ever and Asâ—ons Case 408. The Custom of a Mannor was That if any man had a Wife who was a Copyholder in the Fee of the Mannor and had Issue by her that he should be Tenant by the Curtesie of the Land It was found that A. a Copyhold was seised and had â—ssue a Daughter who was married to I. S. who had Issue A. died his Wife entred the Wife died before admittance The points were 1. If Ejectione firme did lie upon a Lease made by Copyholder 2. If by the entry of the Husband without admittance of the Wife he should be Tenant by the Curtesie The Court doubted of the first point but for the second were of opinion that the Husband was well entituled to be Tenant by the Curtesie before admittance of the Wife and the delay of the admittance by the Lord should not prejudice the husband being a third person Bewacorn and Caters Case 409. Sir Ralpâ— Rowlet possessed of a Term of years devised the same to Sir Robert Cutlin Lord Chief Justice during his Life and after to a strarger and made the said Sir Robert with the Lord Keeper and others his Executors and died The Executors writ their Letter and annexed the Will unto it to Doctor Dlae praying that because they could not attend the Execution of the Will that he would condition the Administration to I. S. which he did so reciting in his Register Quia Executores distulerunt adhuc differunt executionem Testamenti Afterwards Sir Robert without assent of the Administration entred into the Term and devised it The point was if the Letters so written was a Refusal of the Executorship It was Resolved by the Justices after the Case had been argued by the Civilians in Court that it was a Refusal of the Executorship Osborn and Gameones Case 410. The Case was I. levyed a Fine of 48 â— 8. d. Rent charged in W. to I. S. and his Heirs and the use was to such persons as I. S. should declare who afterwards declared the use to I. D. and his Heirs and the Defendant in a Replevin avowed as Bayliff of I. D. It was demurred unto because he did not shew any Attornment The Question was If Cestuy que use of a Rent in esse grant a Rent by Fine after 27. H. 8. might avow without attornment Quaere not Resolved Ognell and Pastons Case 411. In Debt in the Exchequer The Case was W. and F. acknowledged a Recognisance of 200. l. in the Chancery to the Plaintiff for payment of mony at a day to come they failing upon two Scire facias issued and nibil returned a Levari fac issued to the Sheriff of N. and afterwards a Capias ad satisfaciendum to the Defendant the Sheriff who arrested W. the said W. being then in his Custody upon an Indictment of Felony who after upon his arraignment was found Guilty of the Felony and afterwards he escaped being let at large The points were First if a Capias did lie upon a Recognisance in Chancery Second if it did not lie yet if it was void or voidable Third if the Conviction of Felony had discharged the Execution Resolved That if the Chancery had consideration of
the Cause and they do award an Erroneous Process or Misaward a Capias by which the party is taken in Execution yet it is a lawfull Execution and the Sheriff is chargeable with the Escape and he is not to examine the Error of the Court in avoiding the Execution Second that the Conviction of the Felony was no discharge of the parties Execution and it was adjudged against the Defendant 412. Debt brought in Co. B. for an Amercement in a Court Baron the Defendant would have waâ—ed his Law the Court doubted of it and some Presidents were shewed as Trin. 6. Eliz. Tindal and Tuckers Case that he might in such Case wage his Law Quare The Queen Bishop of Lincoln and Skiffings Case 413. Quare Imp. The Case was the Countess of Kent had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was adjudged he was Lawful Chaplain for the Patent is not of necessity but only in Case where he hath Cause to shew it and he hath no cause to shew it because her Retainer was good without a Patent Bâ—rd and Adams Case 414. In this Case a Case of a Prohibition to stay a Suit in the Spiritual Court for Tythes of the Rakings of Lands after the Crop of corn was carried away It was holden That the prohibition would not lye but that Tythes should be paid of Rakings But vide 42. Eliz. in B. R. in Gree and Haales Case It was adjudged that by the Custom of the Realm Tythes should not be paid of Rakings Battey and Trevillions Case 415. Replevin The Defendant avowed That I. and A. his Wife were seised in Fee in the right of his Wife and devised the Land in which to I. H and I. his Wife with E. their Daughter for 60. years rendring four Marks Rent Afterwards 38. H. 8. I. and A. his Wife levyed a Fine and the Conusees rendred the Land to A. for Life the remainder to Tho. their Son in tail with remainder over A. died Tho. entred upon the Lessees and made a Feoffment to I. D. and others to perform his Will the Lessees reentred Tho. 7. Eliz. by his Will ordained that his Feoffees should stand seised untill they had levied sufficient to pay his debts and Legacies which were not payed and therefore the Defendant as Bayliff to the Feoffees made conusance and as to the rest he avowed for that Tho. was seised in Fee of the place in which c. and 6 Eliz. devised the same to H. L. and M for Life rendring 30. s. Rent and afterwards entred upon the Leslees and levyed a Fine thereof to the use of himself in Fee and afterwards infeoffed thereof the first Feoffees to the use of his Will the Lessees reentred and he made his Will as above and died and for 3. l. rent for two years he made conusance as Bayliff to the surviving Feoffees The Plantiff to the first Avowry said that Tho. was seised in Tail by the render of the Fine and the tail descended to H. his Son and then E. one oâ— the Lessees who survived to husband the Plaintiff bâ—que hoc that Tho. enfeoffed the Feoffees to such uses as the Defendant hath a ledged and as to the other Conusance the Plaintiff demurred in Law The Jury found the seisin of A. and her Husband and the Lessee for years to the three persons and the Fine and Render to the seisin of Tho. and the Feoffment of Tho. to I. D. and others to perform his Will and they found a Letter of Attorney to persons whereof the said I. H. one of the Lessees was one conjunctim divisim to enter in all the Premises and take possession and deliver the same to the Feoffees or one of them and that after Tho. made his Will as before and that C. one of the Attorneys to one of the Feoffees and D. another of the Attorneys delivered seisin to another of the Feoffees There were divers points in this Case First because the Jury have sound a Devise of Land and no Tenure if the Justices could judge the Tenure to be Knight Service or Soccage this point the Justices said they would not meddle with Second point admit the Land to be holden in Capite and that the Land passed by the Willâ— they held that but two parts of the Land passed by the Devise 3dly When he devised that his Feoffees should stand seised and he had not Feoffees but he himself was in possession the Justices held it was devise of the Land it self 4thly They held where one of the Lessees made Livery as Attorney to the Lessor that he did not thereby extinct or surrender the Term. 5thly When an Authority is to four conjunctim divisim to execute Livery that one might execute Livery in one part and the other in another part 6thly They held when Tenant in tail of Lands in lease for years makes a Feoffment and the Lessee reentred it was a discontinuance 7thly They held when Tenant in Fee simple of a Reversion expectant upon Lease for years deviseth two parts of the Land that no part of the Rent passeth 8thly In this Case because the avowry is made for the whole Rent and it appeareth he hath title but to two parts It was holden he should not have a Return for any part 9thly They held when the Avowant makes title but to two parts of the Rent and the Jury assesse damages for the whole Rent that the Avowant could not have Judgment unlesse he Released the damages 10thly When the Lessor entred upon his Lessee for life and made a Feoffment and the Lessee reentred the Justices doubt if the Rent was revived Keale and Carters Case 416. False Imprisonment the Defendant Justified that he was Constable and that the Plaintiff brought a Child of the age of 2. years and no more into the Church and there left it to the intent it might dye for want of sustenance wherefore he Imprisoned him till he agreed to take away the Child It was the opinion that the Justification of the Defendant was good because the Act of the Constable was but to prevent a felony which he might do by virtue of his Office Fenwick and Mitsorths Case 417. The Case was A. man seised of Lands in Fee Levyed a Fine thereof to the use of Wife for life the remainder to the use of his eldest Son and the Heirs males of his body the remainder to the right Heirs of the Conusor The Conusor made a Lease for 1000. years to B. the eldest Son dyeth without Issue having a daughter the Conusor dyeth the Wife after dyeth the eldest Son Leaseth the Lands to the Plaintiff It was adjudged in this Case it was a Reversion and no Remainder and this limitation to his right Heirs was meerely void Sir Moiâ—e Finch and Throgmortons Case 418. The Case in effect was this The Queen made a Lease for years rendring rent
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
abate upon the Plaintiffs own suing Strowde and Willis Case 521. Debt upon an Obligation The Condition was If the Obligor shall pay the Rent of 37 l. yearly at two Feasts according to the intent of certain Articles of Agreement made between the Obligor and Obligee during the Term that then c. The Defendant pleaded the Articles did contain That the Obligor Dimisit ad forman tradidit to the Defendant omnia talia domus tenementa terras in Parochia de Y. in quibus the Obligee had an Estate for Life by Copy according to the custom of the Mannor Habendum for 21. years if the Obligee should so long live rendring to the Obligee during the Term 37. l. to be paid at the Castle of C. and further pleaded That at the time of the making of the Articles the Obligee had not any Estate in any Lands Houses c. in Y. for term of Life by Copy upon which Plea the Plaintiff demurred There were two points in the case 1. If nothing passed by the Articles and so the Reservation of the Rent is vod 2. If the Obligation for payment of the Rent was void It was Resolved upon the first point That no Rent is reserved for the Lease did never begin and therefore the Rent should not For the second point the Court differed in opinion Fenner Justice held the Condition of the Bond is to pay the Rent according to the Articles which is That if the Lessee have not the Land the Lessor shall not have the Rent Papham cont That the Obligor is bound to pay it although nothing was dimised to him for that by the Bond he hath made it a Sum in gross and it is altered from the nature of a Rent and he is bound to pay the Rent or Sum and if this be either of them he must pay it Qu. There is no Judgment in the Case upon that point Alsop and Claydons Case 522. Assumpsit That the Defendant upon good consideration promised to pay the Plaintiff 5 l. when he should be required The Jury found that the Defendant promised to pay but found no Request wherefore it was adjudged against the Plaintiff Perin and Corbets Case 523. In an Appeal the Defendant was acquitted of the Murder and found guilty of Man-slaughter It was agreed in that case that the Plaintiff could not be Nonsuit Brown and Brinckleys Case 524. The Plaintiff declared that he was produced for a Witness the Defendant said he was disproved before the Justices of Assize by the Oath of K. innuendo that he was disproved in his Oath Adjudged that the Action did not lie for the innuendo cannot supply such intendment Adderby and Bouthbyes Case 525. Assumpsit in consideration the Plaintiff would be Bail for one F. in a Plaint that Adderby had brought in London against F. the Defendant did promise to save the Plaintiff harmless touching the Bail and shewed a Recovery was against F. and 2. Cap. returned non est inventus upon which Process issued against the Bail who paid the money and the Defendant had not saved him harmless It was found upon Non assumpsit the first Action was entred by the name of Adderby and the Bail accordingly and that the Decleration was by the name of Adderley It was adjudged that although the Jury found the Assumpsit yet the special matter proves the Plaintiff had no cause of Action for he was not damnified by reason of the Bail at the Suit of Adderby for which the Assumpsit was but he was wrongfully taken if he was Bail for Adderley against whom the Recovery was had whereas in truth he was not Bail for him wherefore it was judged against the Plaintiff Austin and Twins Case 526. The Patronages of two Churches adjoyning within one mile were belonging to one Parson and both being void and of the value of 7 l. in the Queens Books the Ordinary made an union of them at the request of the Patron which was afterwards confirmed by the Patron and the Queen Qu. If a good union Tusking and Edmonds Case 527. A Lease was made of Tythes rendring Rent at a place out of the Parish with clause to be void upon non payment Adjudged the Lessor is to make his demand of the Rent at the place and for not payment the Lease is void Broughton and Mulshoes Case 528. False Imprisonment The Defendant justified that he was Constable and the Plaintiff being in the presence of a Justice of Peace not having opportunity to examine him commanded he Dedant to take the Plaintiff into his custody till the next day which he did accordingly It was adjudged a good Justification though not alledged what cause the Justice had to imprison the Plaintiff Megs and Griffins Case 529. Words viz. I. S. told me that he heard say That thou didst poyson thy first Husband and that he died of that poyson with an averment that I. S. near told the Defendant so Yet adjudged that neither words nor the averment of them were sufficient to maintain the Action Brokes Case 530. Words spoken of a Merchant viz. He is a false man and I will prove it and be keepeth a false Debt-book for he charged me with a Piece of three Piled Velvet which I never had Adjudged the Action did not lie without saying That by disswasion of Customers or other they did not deal with him nor that they would not trust him The Lord de la Ware and Pawlets Case 531. Words spoken of the Plaintiff in open Sessions viz. You have perverted Justice and to your shame and dishonour I will prove it adjudged the words actionable Weekes and Taylors Case 532. Words viz. he hath laid in wait to rob and was one of them that would have robbed me adjudged actionable though he was not robbed Carters Case 533. Words viz. Carter is a proging pilfring Merchant and hath pilfred away my coâ—n from my Wife and my Servants and this I will stand to adjudged the words are not actionable Bowyer and Jenkins Case 534. Action upon the case for words spoken at B. in the County of S. the Defendant justified that he spake the worda at C. at a Tryal there being produced as a Witnesse by Subpoena and sworn The Plaintiff said de injuria sua propria and found for the Plaintiff and because the venire was from B. whereas it ought to have been from C. where the Justification was It was adjudged Error Penniman and Rawbanks Case 535. Action for slandring his Title That the Plaintiff was seised of Land and put it to sale and the Defendant said I wish not any man to deal with the Land for I know one that hath a good Title to it and the parties will not depart with their interest for any reason The Defendant Justified that he had a Lease in Reversion of it and at will of other part It was replied de injuria sua propria and found for the Plaintiff Resolved by the Justices If
levied a Fine Come Ceo c. he in the Remainder entred In this Case it was Resolved first that the Grant to C. was void for that an Estate of Freehold cannot begin at a day to come 2. That the Grant being void at the beginning the attornment afterwards cannot make it good 3. When C. entred by color of the Grant he was a Disseisor 4 If the Fine had been levied to the Disseisor himself he who had the right to the Remainder might have entred for the forfeiture 5. That the Fine levyed to the Tenant at Will was a forfeiture and he in the Remainder entring upon it had purged the Diseisin 6. It was Resolved in this case that if the Diseisee levieth a Fine to a Stranger the Diseisor shall retain the Land for ever for that the Diseisee against his own Fine cannot claim but by the Fine the Right is extinct of which the Diseisor shall take advantage Abraham and Twiggs Case 569. A seised of Land in Fee by his Will in writing devised 40. l. annuity to I. S. for Life with clause of distress payable at Mich. and our Lady-day and died The Rent was behind at our Lady-day 35 Eliz. I. S. distrained a Replevin was brought and the Plaintiff in the Replevin said â—hat before A. was seised that B. was seised in Fee and enfeoffed divers persons to the use of himself and the Heirs of his Body the Remainder to the use of G. Et haeredum masculorum suorum legitimè procreatorum pro defectu talis exitus ad usum I. D. et haeredum masculorum suorum legitimè procreat pro defectu talis exitus ad opus usum rect haered dicti G. imperpeâ—uum B. died without Issue G. had Issue A. the Devisor The principal point in the Case was If the Limitation to the use of G. and his Heirs Males lawfully begotten and for want of such Issue ut supra without the words Heirs Males of his Body was an Estate tail or a Fee simple in G. for if tail then the Devisor his his Son was seised in tail and his Will of the Rent void It was Resolved he was seised in Fee-simple and not in tail for default of the words Heirs of his body in the limitation of the use Wrights Case 570. In a Prohibition in this case it was holden by the Court that the Bishop of Winchester might prescribe that he and his Praedecessors Farmers and Tenants of Temporal Lands had held their Lands discharged from the payment of Tythes and so might any other spiritual person but Temporal persons could not prescribe in non Decimando but in modo Decimando they might prescribe Marsh and Curties Case 571. Ejectione firme The case was A seised in Fee let a Messuage and 20. acres of Land for years rendring Rent Provided the Lessee shall not parcel out any of the Lands from the House The Lessee devised the house and 10. acres for half a year reserving the other 10. acres the Lessor at the next day accepted of the Rent and notwithstanding entred upon the Land the Lease not being expired It was Resolved That the words in the Proviso were a condition 2. That the condition was broken by the Devise of the House with parcell of the Land as well as if he had devised the whole Land But some of the Justices were of opinion that the acceptance of the Rent after the condition was broken had dispensed with the condition and had barred them of his entry for the condition broken especially if the Lessor had notice of the Condition broken at the time of the acceptance of the Rent Quaere The Lord Norris and Barretts Case 572. Debt for an Amercement in a Leet The case was The Abbot of A. was seised of the Hundred of H. in Com. B. and of Leet appendant to it to be holden by prescription once in the year at Easter The Dissolution of the Abby was found and that the Towns of C. and N. with 20. other Towvs were in the Hundred King Edward the Sixt granted to L. divers Lands in N. which was parcel of the possessions of the Abby and also granted to him Omnes omnimodas Curias Leetas Perquisitiones proficua Curiarum Leetarum fines amerciamenta in N. seu in eorum aliqua seu alicui inde parcellae modo spectant sive pertinent With a further Clause that L. and his heirs should have tot talia tanta hujusmodi consimilia curias Leetas fines amerciament quaecunque prout Abbas c. Infra Messuagia terras tenementa caetera praemissa quamlibet inde parcellam Afterwards Ed. 6. granted the Hundred and the Leet to I. B. and I. D. which by mean conveyances came to the Plaintiff L. conveyed the Land to his second Son under whom the Defendant claims It was the opinion of the Justices That L. had not any Leet by the Grant nor any Amercement nor was discharged from the general Leet because the first clause of the Patent is restrained to Leets and Amercements belonging or appertaining to the Land granted and the Leet which the Abbot and King had was appertaining to the Hundred and not to Land 2. That L. could not have the like Leet as the Abbot for when eadem may be had and the Plaintiff hath words to have eadem if he fail of eadem he shall not have Consimile for eadem remains in the King and if the King hath a Leet none other can have a Leet in the same place because two Leets cannot be in one place simul semel Laughton and Gardiners Case 573. In Action upon the Case Upon a Latitat the Sheriff returned a Cepi habeo Corpus paratum which he had not and the Defendant did demur to it Adjudged the Action did lie because by his demur the Defendant hath confessed his false Retorn but if he had pleaded the Statute of 23. H. 6. and shewed he had taken Bail the Action would not lie Nicholas and Badgers Case 574. The Defendant in an Action upon the case for words by his Council gave in evidence That one I. S. had stollen certain Sheep and that by compart betwixt the Plaintiff and I. S. the Plaintiff did take a Lease of a Close of I. S. in D. to help him to cloak and to keep him from the Felony and that he said He would affirm all to be true that the Council had said It was adjudged that for these words a new Action did lie for although they do not accuse him as an accessary to the Felony but for misprision of Felony which is not Fineable yet it is a great-scandal of any man to say That he cloaks Felony Note in this Case It was Resolved that an Action upon the Case doth not lie against a Counsellor for delivering slanderous words in evidence Boneham and Springs Case 575. Assumpsit in London The Defendant pleaded a Concord in another County for all Matters in any County except London
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
life and after to the use of his Son and his Heirs The point was if the same did after the use because the Father afterwards devised the Land to his younger Son this Case was argued only and adjorned Collins and Hardings Case 691. A man seised of Freehold and Copyhold by License made a Lease of both at one entire Rent the Lessee assigned his Terme and afterwards the Lessor Released all demands to the first Lessee Afterwards the Lessor granted and surrendred the Reversion of the whole to a stranger who brought Debt against the Assignee for Rent It was Resolved that the Rent was not determined by the Release because the Release was after the assignment of the Terme in which case it was in the Election of the Lessor to charge the Lessee or Assignee but for Rent due before the Release that was extinct by the Release But whether the whole Rent should issue out of the Freehold or should be apportioned the Justices were divided in opinion Cooper â—nd Langworths Case 692. A man sued forth an Elegit upon a Recognizance in Chancery but nothing was done nor Returned upon it Resolved that he might sue a Fieri fac upon the same Recognization and so if a man hath Recovered debt upon a Obligation he shall have another Action of debt if he hath not sued forth Execution Marsh and Edmonds Case 693. Debt upon an Obligation to be such a day at the Kings head in D. and there to choose two Arbitrators to joyne with others to arbitrate all matters betwixt them The Defendant said he was there at the last instant of the day to make the Choice adjudged no plea for he ought to have been there in such time that they might have chosen Arbitrators Bolls and Smiths Case 694. A man made a Feoffment in Fee to the use of himself and Wife for their lives and after to the use of B. their eldest Son and after his decease to the use of him who should be his eldest Son at the time of his death in Tail the Remainder to C. in Tail the Remainder over in Fee the Feoffor dyed the Wife made a Lease to B. for years who enfeoffed a stranger the Wife dyed C levyed a Fine to the Feoffee with Proclamation afterwards B. dyed having issue a Son at his death who entred the Feoffee having granted a Rent charge the grantee distrained and avowed It was adjudged that the Feoffment of B. and the Fine of C. had prevented the future use to rise in the Son of B. and so it was adjudged in Ards and Terringhams Case Stebbing and Goswells Case 695. By the Custome of the Mannor the Copyholders had used to have the tops and loppings of the Trees upon their Copyhold the Lord cut down all the Trees Adjudged that Trespas did lye by the Copyholder against the Lord. Drove and Shorts Case 696. A Jurour delivered to one of his Companions an Escrowle for Evidence which was not given in Evidence at the Tryal Adjudged no Cause to stay Judgment unlesse it appear he received it from one of the parties which did not appear Hewleys and Brices Case 697. A man devised all his Lands whereas but two parts passed the devisee entred and let the whole for years the Heir without actual entry Levyed a Fine to a stranger of a third part the Conusee made a Lease for life to a stranger the Remainder to the Queen by deed enrolled upon condition to be void upon tender of money to the Tenant for life Resolved in this Case that the entry of the devisee into the whole and his making a Lease of the whole for years was no disseisen to the Heir 2. That the Tender of the money to the stranger should devest the Remainder out of the Queen because the condition was not performable to the Queen but to the Tenant for life Markham and Gomastons Case 698. Action upon the Case Whereas the Plaintiff for the debt of I. S. was bound with I. S. in Recognizance to F. and I. S. and F. his servant became bound to the Plaintiff to save him harmlesse in which the first Bond was recited with a blank for the Christian name and dwelling place of T. the Defendant after the sealing and delivery of the Counter bond and before the Plaintiff agreed to it filled up the blank so as in debt brough against F. he pleaded non est factum and the Plaintiff was compelled to be Nonsuit It was holden that the action did well lye against the Defendant Elston and Brets Case 699. Execution was sued upon a Statute in Chancery and the Liberate executed by the Conusee himself being Sheriff and the proper name was not endorsed but only Vic. It was adjudged erroneous and void Mills and Parsons Case 700. Tenant in Tail for 1000 l. bargained and sold by deed enrolled certain Lands to I. S. and Covenanted in consideration of the said 1000 l. and of a Rent then after to be granted by the bargainee that if he sold any other part of his Lands which he held in Fee that the bargainee should have the offer of them before another and if he attempted to sell without offer and notice to the bargainee then he and his Heirs for those considerations would stand seised to the use of the said I. S. and his Heirs of all he should attempt to alien without notice or offer I. S. dyed K. being his Heir the bargainor sold other Land without notice or offer to another and he sold the Land to one who had notice of the Covenant It was in this Case Resolved that the Consideration to raise the use in the other Land was good although but one of the things was performed viz. the payment of the money 2. If the Heir shall have benefit of the contingent use not Resolved Terrâ—ll and Darcyes Case 701. Accompt against the Defendant as Bailiff of Cloathes the Defendant said for part he was Bailiff to the Plaintiff and a stranger joyntly and for the Residue he was as Bailiff to render accompt It was found he was Bailiff for 16 Cloathes but there was no mention if the 16. were to them joyntly or not It was in Co. B. adjudged for the Plaintiff and upon Error brought the Judgment was affirmed Scrogs and Spencers Case 702 A Distringas to the Coroners was returned by them with subscription of their names but not Coronatores It was adjudged Error for both the Sirnames and names of Office ought to be subscribed Medcalfes Case 703. Two shooting at Butts having both but one shott to winne the game waged 40 l. one with the other for the upshot he who won brought Assumpsit against the other for the 40 l. upon nihil dicit Judgment was for the Plaintiff It was holden the action was maintainable Ardes and Watkins Case 704. A. seised of Land made a Lease for 30. years the Lessee made a Lease for 28. years rendring 30 l. rent and afterwards he Devised 28
any essence and also because the possibility of the Wife was included in the Fine Ferry and Redings Case 718. Two were bound in a Statute to make such assurance as should to devised by the Conusee or his Councell upon Notice Assurance was devised and notice thereof given to one of them who refused but no Notice was given to the other It was Resolved that by the Refusal of one of them the Statute was forfeited and should bind both of them Strangewayes and Hicks Case 719. The Defendant knowing that the Plaintiff was an Enfant within age procured him to enter into a Recognizance of Debt to him for wares bought of him and for this the Defendant was fined in Star Chamber 100 l. and Imprisoned Lewes Case 720. He being Clark of the Assises in the County of S. and hearing his Deputy reading an Indictment of Murther the 31. day of June whereas June hath but 30. dayes and because he did not discover the same to the Justices of Assise before the Tryal of the person for that cause he was fined in the Starre Chamber 40 l. and the Judgment and execution of the party respited Rosses Case 721. A. levyed a Fine to the use of himself for life the remainder to his Excecutors untill they have levyed 300 l. for the performance of his Will and dyes The Executors permit a stranger to enter who receives greater profits then will pay the 300 l. afterwards the Excecutors enter and make a Lease for years Resolved that the estate of the Excecutors was determined by their own negligence and although the words of the Will are they shall have Levyed It is intended untill they might conveniently have Levyed the 300 l. 722. King Hen. the 8. Mortgaged certain Lands to Citizens of London upon condition of Redemption by payment of the money by the King to them They did not demand the money at the Receit of the Exchequer which was so found by Office It was the opinion of the Justices that the King might enter upon the Land Wherefore the Mortgagees and their Heirs were compelled to compound de Novo with the Queen for the Land and paid ten years purchase and took new grants from the Queen of the Lands Townsend and Kingsmills Case 723. Ejectione firme The Defendants pleaded that the Dean and Canons of Windsor was seised and made a Lease for years and the Lessee assigned the Terme to the Defendant who was possessed till the Lessor of the Plaintiff ousted him and disseised the Dean and Canons and made the Lease to the Plaintiff The Plaintiff Replyed and confessed the seisn and Lease of the Dean and Canons and made title to the Terme by the assignment made by the Lessee to his Lessor before the assignment to the Defendant and Traversed the disseisin It was the opinion of the Justices that the Traverse was not good because he confessed and avoyded and also Traversed Vide Helyors Case before pl. 709. Barres Case 724. Information in the Exchequer against divers Merchants some Aliens some English After issue the Aliens prayed tryal per medietatem Linguae It was denyed by the Court because the English who were Defendants could not have that tryal Lewen and Coxes Case 725. A. seised of Lands in Fee devised them to his 2. Sons equally and their Heirs If it was a joynt estate in them or they were Tenants in Common was the Question It was said the words equally had 2. significations in the one it referreth to the estate in the other to the quantity of the Land It was said in a Devise of Lands to 2. equally they were joynts But if a Devise were to 2. and their Heirs equally or part and part like it is a Tenancy in Common At last after long debate it was adjudged it was a Tenancy in Common and so it was affirmed in a Writ of Error in the Exchequer Chamber upon the opinion of 4. Judges against 3. of them Lovedon and Windsors Case 726. Quare Impedit the Case was L. had 2. Presentations and W. the 3. of Inheritance perpetual L. presented P. who was Institute and Inducted and afterwards in the time of Queen Mary was deprived because a Married man wherefore he again presented D. who was Inducted Afterwards P. was restored with Declaration that he had good Title Afterwards P dyed W. presented H. L. brought the Quare Impedit It was adjudged for the Plaintiff because the sentence declaratory for the restitution made a nullity in the deprivation of P. and upon that P. was restored without new Presentation and so avoyded the Incumbency of D. and so L. had good Title to present as his second Turne and W. had no title to present as yet 727. Upon the Statute of 39 Eliz. Cap. 6. Of Charirable uses these poynts were Resolved by the Justices 1. That although the Bishop of the Diocesse be a Commissioner by the expresse words of the Act yet it is not necessary that he be present at the execution of the Commission but if it be directed to him and others they may proceed in it without the Bishop but it must be directed to the Bishop else it is void 2. If it be directed sede vacante the Metropolitan is not to be named in it because he is not Bishop of the Diocesse and if a Bishop be made before the Execution of the Commission the same doth not take away the force of the Commission 3. If the Commissioners decree a Lease or Feoffment to be void it is void in interest and estate and if the Lord Chancellor c. after decree the estate good it is again good in interest but the Chancellor cannot make any decree in it if the former decree of the Commissioners be not against equity 4. If a Lease be made in deceit of the Charitable uses which is assigned to one who hath not notice of it for good and valueable Consideration The Commissioners have power to decree the Assignment void 5. The Commissioners may decree the mean profits long time before taken to be repaid by the party his Excecutors or Administrators and had received the and misimployed them as well as they may the profits which are to come 6. The Commissioners cannot by decree estabblish a Corporation of Churchwardens or others to take for Charitable uses but they may Decree Land to a capable body Politique without danger of Mortmain be the Land holden in Capite or not because the Queen is bound by the Statute Yet afterward the Justices altred their opinion in one of the poynts viz. That they could not decree the Lease or estate void of one who came in without Notice and upon good Consideration Druries Case 728. The Case shortly put was this A Countesse being a Widdow retained two Chaplins and afterwards she retained a third Chaplain which third Chaplain purchased a Dispensation to have two benefices with Cure his first benefice being of the value of 8 l. per an It was Resolved after long Argument that
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
Justices that if one be bounden to make such assurance of all his Land that another will devise and require if it be to be done at the Costs of the Devisor he may devise one Assurance of one part and another of another part of the Land but if be at the Costs of the other he can devise but a joynt assurance for the whole Land Gage and Topers Case 741. Resolved in this Case If the Writ of Covenant upon which a fine is levyed be returned before the date it is Error because it is an Original Writ and not amendable by any Statute Strougborough and Biggins Case 742. In Appeal by a Woman of the death of her Husband of Murther the Defendant is found guilty of Manslaughter It was holden that a general pardon could not pardon the burning of the hand because it is at the suit of the party Vide Co. 6. p. the Case Reported to be adjudged contrary 743. It was holden by the Justices that in a scire fac to have Execution of a Fine it is no plea that there are other Terre-Tenants not named in the Writ otherwise it is upon a scire fac to have Execution of a Recognizance Bennes and Edwards Case 744. The Patron of the Advowson granted the next Avoydance to B. and after granted an other next Avoydance to R. who first presented and the Bishop refused the B. presented and the Bishop refused his Clerk also R. brought duplex Querela against the Bishop before the Metropolitan against B. and upon default his Clark was Inducted by the Metropolitan but depending the duplex Querela B. recovered against the Bishops Ordinary in a Quare Impedit and his Clark was Instituted and inducted and he took the profits of the Gleab Lands which were sowed by the Clark of R. It was Resolved in this Case that the Clark of R. being in upon the Judgment in the duplex Querela the Clark who was in upon the Recovery in the Quare Impedit could not oust the Clark of R. without a scire facias first brought Foxley and Ansleys Case 745. The Bayliff of the Queens Mannor which had waifes and estrays appertenant took goods esloyned by a Felon and relinquished in the Mannor and seased them for the use of the Queen and in Trover brought against him prayed in aide of the Queen Resolved the Aide not grantable being an action transitory and not local James and Rudledges Case 746. Words viz. Hang him he is full of the Pox I marvel you will eate or drinke with him adjudged not Actionable for it may be the small Pox and not to defame the party but to Counsell his friend 747. The Sheriff sells a Terme upon a scire fac and afterwards the Judgment is reversed Resolved the party shall not be restored to the Terme but to the money for which it was fold Holford and Andrewes Case 748. Debt upon an Obligation the Condition was to pay a sum at a certain day The Defendant pleaded that in respect of a Trespas done by the Plaintiffs beasts upon the Defendants Lands the Plaintiff gave him a longer day of payment which is not yet come Resolved it was no plea for that an agreement by perol cannot dispense with the Obligation Scrogs and Stevensons Case 749. In a Leet a payne was assessed upon the Town for not making of a Tombrell and Stocks and the Bailiff of the Mannor destrained one of the Town for the payne and avowed for it Adjudged the Avowry not good because it was not alledged that the payne was unpaid to the Lord for if any of the Town paid it the Plaintiff in the Replevin was not destrainable and also he doth not show that he had a Precept from the Steward to distrain which he ought to have Resolved that the Lord of the Mannor and Leet is to finde the Tombrell and Stocks upon payne of forfeiture of his Liberty and not the Inhabitants Johnson and Clarks Case 750. Debt upon Obligation The Defendant pleaded the Statute of Usury Quod Corrupte agreaâ—un fuit quod Querens Corrupte recepit Issue upon them found for the Defendant it was said that the double Issue was a Mistâ—yal The Court held the tryal good because an Issue is taken upon a thing material the other upon a thing not material and both being found for the Defendant it is a sufficient warrant for the Court to give Judgment for the Defendant Whitcalfe and Jones Case 751. Assumpsit The Consideration was that the Plaintiff assumed to a stranger to pay a debt which the Defendant owed him It was holden to be a good consideration although he doth not alledge payment of the money Smith and Shepherds Case 752. Trespas for taking of his sheep The Defendant justified as servant to the Lord Barkley by Prescription to take 2 d. for every score of sheep passing through the Town and if it was denyed upon request to detain the sheep till payment Resolved the Prescription was not good to take Toll for passages in via Regia for that the Inheritance of every man for passage in via Regia is precedent to all Prescription 2. Resolved a man may prescribe for Toll Traverse because it is a passage over his own freehold but not for Toll thorough 3. In this Case it was adjudged against the Defendant because it was not shewed that the Sheep were passing thorough the Town before he took the distresse otherwise it doth not sure with the Prescription Warner and his Wife and Babingtons Case 753. Debt upon an Obligation by Husband and Wife the Defendant pleaded the Wife had another Husband living The Plaintiff said the Wife ad annos nubiles disagreed to the former marriage It was said by Popham if she marry another Husband infra annos nubiles it is a disagreement to the first marriage à fortiori where she cohabits with the second Husband after years of Consent adjudged for the Plaintiff White and Gerishes Case 754. The Case was A. and B. levyed a Fine of Land to I. S. with a Render of a rent of 5 l. to B. yearly with a Clause of distresse the Remainder of the Land to A. and his Heirs I. S. dyed his Son distrained for the Rent It was adjudged against the Avowant for the Rent in a Replevin brought because the limiting over of the Remainder of the Land over was an Extinguishment of the Rent Davenant and Hardis Case 755. The Case long put was shortly this The Company of Merchant Taylors of London having power by Charter to make Ordinances for the better Rule and Government of the said Company made an Order that every Brother of the same society who should put any Cloth to be dressed by any Clotheworker not being a Brother of the same society should expose one half of his Cloths to be dressed to some Brother of the Company upon pain of forfeiting 10 l. and to destrain for it This Case was very long and very Learnedly argued vide the Book at
especial matter upon the division of the day ought to come on the other side otherwise it shall not be intended Bullock and Bibleys Case 771. A Woman Copyholder in Fee took Husband who without his Wife surrendred to the use of a Stranger who was admitted and surrendred to the use of D. the Defendant who was admitted the Husband died the wife survived and died the Heir before admittance made a Lease to trie the Title It was adjudged that the Surrender of the Husband alone made no discontinuance of the Copy-hold of the wife 2. Resolved that the Lease was good before Admittance otherwise it was of a Surrender before Admittance Gooles and Granes Case 772. An Infant surrendred Land which was Copyhold to the use of a Stranger who was admitted It was adjudged that the Infant at his full age might enter because it was no bar nor discontinuance Ford and Holborns Case 773. A. let the Mannor of D. to H. for 17. years rendring yearly to D. G. 10 l. and he was bound in an Obligee to A. to pay the said Rent to D. G. if she so long lived and the said H. or his Assignes should or might so long enjoy the Premises In Debt by the Executors of A. against H. he pleaded that after the Lease to him he himself surrendred the Lease to A. which he accepted and that till the Surrender no Rent was unpaid It was adjudged for the Plaintiff because the acceptance of the Surrender was no conclusion against the collateral payment to a Stranger and H. but for his own Act might have enjoyed the Land still Savage and Bechams Case 774. In Action upon the case for an Escape against the Prisoner brought by the Plaintiff Sheriff It was Resolved that upon a voluntary escape the Sheriff should not maintain an Action against the Prisoner but otherwise upon a negligent escape West and Blackwells Case 775. A. Outlawed after Judgment was taken upon the Capias utlagatum and afterwards escaped Resolved that he was not in Execution for the party without prayer Williams and Beathles Case 776. Debt upon an Obligation after Verdict and Judgment it was assigned for Error that the Teste of the Original was before the day of payment in the Condition It was holden Error and the Judgment for that cause reversed Wells and Dennyes Case 777. Upon a Recovery in Debt of 400 l. upon 2 Fieri fac 100 l. was levyed and returned Afterwards a Capias ad satisfaciend issued for the whole 400 l. It was the opinion of the Court it ought to issue forth but 300 l. and the Judgment for Execution was reversed May and Middletons Case 778. After Debt brought the Plaintiff attached in London a debt due by another man to the Defendant and had Judgment to recover Adjudged a good bar to the Action for so much Bufkin and Edmonds Case 779. It was adjudged in this Case That a Rent payable off the Land upon Cesser of an Estate ought to be demanded where no entry may be Hughton and Princes Case 780. Resolved Tythes shall not be paid of Turkies nor their Eggs nor of tame Patridges or Pheasants quia ferae naturae Beswick and Cundens Case 781. It was adjudged in this case That the Feoffee shall have Action upon the case for a Nusance continued though it was erected before his time Sharington and Fleetwoods Case 782. It was Resolved if a Parson Libells for Tythes and a Prohibition is granted and after he libelleth for the Tythes of another year the first Suit not being determined an Attachment upon Prohibition lieth against him Hall and Vaughans Case 783. If the Jurors eat and drink at their own proper costs before Verdict after their departure from the Bar it is fineable only but it shall not make their Verdict void Adams and Albons Case 784. Resolved that if a Venire facies bears date the day it is retornable it is amendable by the Roll. Gregory and Blasâ—fields Case 785. An Action upon the Statute of 4. and 5. Philip and Mary for using the Trade of a Clothier not having bin bound an Apprentice for seven years was brought by Plaint in the Court of Ludlow and Judgment there The Judgment was reversed because first it ought to be by Original or Information and Secondly because it ought to be brought in the Courts of Record at Westminster and not in Borough Courts Varrel and Wilsons Case 786. Conspiracy The Defendant pleaded his goods were Feloniously Stollen and he found them in the possession of the Plaintiff for which he Indicted him and gave evidence against him and upon the Tryal the Plaintiff was acquitted and traversed the Conspiracy aliter vel alio modo It was adjudged a good Justification because the finding of the goods in his possession was a sufficient cause of Suspition Marrow and Tarpins Case 787. Debt against two Administrators for Rent behind after the death of the Intestate they pleaded that before the Rent behind one of the Administraters assigned all his Interest to I. S. of which the Plaintiff had notice and accepted of the Rent by the hands of the Assignee before the day in which the Rent in arrear was due It was Resolved that the privity of contract as to the Action of debt was determined by the act of the Lessee and therefore the action of Debt after the Assignment did not lie against the Administrator Smith and Johnsons Case 788. Error of a Judgment in Action upon Assumpsit in the Court of Reding The certificate was Plita c. ad Cur. Dominae Reginae Burgisui de Reding tenend per consuctudinem Libertat Major Burgensibus concess I without saying per consuetudinem ex antiquo usitot or alledging by what person the Liberties were granted and for this cause the Judgment was reversed Corbet and Corbets Case 789. A seised of Lands for real affection covenanted to stand seised to the use of himself for Life and after to the use of R. and the Heirs Males of his Body the Remainder to C. and the Heirs Males of his Body Provided if R. or any Heir Male of his Body shall intend or go about any act to cut off the Estate tail then it shall be lawful for him that is next to enter A. died R. suffered a common Recovery Resolved the Proviso was repugnant to the Estate tail and that the Cesser of the Estate tail as if the party had bin dead was impossible and the going about it such a secret thing that an Issue cannot be upon it Grar Marshal and Marshals Case 790. A. levyed a Fine of five yard Land to the use of himself for Life the Remainder to the use of his eldest Son who was the Plaintiffs husband and the Plaintiff and the Heirs of the Body of the Husband Proviso if the Husband died living A. his Father then G. the Plaintiff his wife should have yard Land and a half for her Life in possession without shewing which Land the Husband died
took him upon the Capias Utlegatum and returned Cepi and after suffered him to Escape It was adjudged an action of Escape lay against the Sheriff by the party and that the Jury are to give him the value of his debt and the damages Web and Hargraves Case 835 Debt upon Obligation the condition was where W. was Patron of a Benefice with Cure then void if he presented the Defendant and if the Defendant continued Incumbent for a year and after the year all time within three moneths after Notice and request was ready to resigne and did resigne the Benefice to the Ordinary to be presented thereunto again by W. and should not before Resign that then c. the Defendant pleaded the Statute of 13 and 14 Eliz. that Obligation and Covenants for enjoyage of Lease were void and pleaded that after he was Inducted he made a Lease to the Plaintiff W. of the benefices for 21. years and avered the Obligation was made for the enjoying of the Land by the Lease upon which the Plaintiff demurred It was the opinion of the Court that the plea was good but that the averment was not sufficient It was adjudged against him Williams and Greens Case 136. Debt upon a single Bill the Defendant pleaded he delivered it to the Plaintiff as an Escrowle upon Condition that if he delivered him a horse at such a day it should be his deed otherwise not It was the opinion of the Court that the Plea was not good because a Deed cannot be delivered to the party himself as an Escroale Hungate Mease and Smiths Case 837. Debt upon an Obligation to perform an accord of all Controversies betwixt the parties from the beginning of the World to the 30. of August 4 Eliz. so as the Award be pronounced and delivered utrique parti ante 14. diem Augusti and shewed that he awarded that all Suits should cease and they should be friends and that the Defendant should pay to the Plaintiff 7 l. and that the Award was pronounced to the parties before 14. Augusti upon nihil debet all the said matter was found only that the pronouncing of the Award was to Mease and not to Smith It was adjudged against the Plaintiff because he ought to have pronounced the Award to each of the parties Defendants and also it was void it was but an Award of one part also void that all Suits should cease which could not be without Non-suit Retraxit or discontinuance of the parties Dogett and Vowells Case 838. Assumpsit In consideration the Plaintiff had lent to the Defendant 20 l. the Defendant promised to lend the Plaintiff 10 l. quando requisitus c. It was adjudged no good consideration because consideration of a thing past is not sufficient to ground Assumpsit Parhan and Nortons Case 839. Replevin The Defendant avowed for a Relief by the death of I. S. late Tenant The Plaintiff said the Land discended from I. S. to his two Daughters who enfeoffed the Plaintiff and that the Lord accepted the Rent of him Adjudged that the acceptance of the Rent from a new Tenant was no bar of the Reliefe due by the former Tenant Lord Berkley and Countess of Warwicks Case 840. Before the Statute of West 2. Lands are given to Husband and Wife in Frankmarriage the Remainder to the Heirs of the Husband if it be tail Quaere not adjudged vide 25. Eliz. Webb and Potters Case Guy and Brownes Case 841. A Farmor of the King of a capital Messuage made a Conduit to convey the water to his House over the Land of a Copy-holder of the Mannor afterwards the Mannor is granted to one and the Copyhold to another Resolved the Farmer may amend the Pipes in the Land of the Copyholder without Trespass Worleys Case 842. A. lent B. a 100 l. for a year and took an Obligation of him for 10 l. Interest Interest being then 10 l. per cent payable 5 l. at the half year and 5. l. at the end of the year Adjudged it was not Usury within the Statute Hainsworth and Prettyes Case 843. A seised in Fee having four Sons and a Daughter by Will devised 20 l. to each of his younger Sons and his Daughter to be paid by his eldest Son at their ages of 21. years and if the eldest Son do not pay he devised the Land which he had before devised to his eldest Son and his Heirs to the younger and the Daughter and their Heirs It was Resolved 1. That the eldest Son took by discent and not by the Devise 2. The breach of payment to one of them should give the estate to them all and the eldest Son should lose the Land for not payment of the Fourth and they should have the Lands as Joynt-Tenants 3. That the entrie of one of them in the name of the rest was good because they are Joynt-Tenants More and Morecombs Case 844. The condition of an Obligation was to deliver all the tackle of a ship mentioned in an Inventory under the hands of four men or in default thereof to pay so much mony to the Plaintiff before such a Feast as the four men shall value the tackle at the Defendant said they did not value the tackle Adjudged no Plea because the Defendant had Election to do two things and if he cannot do the one for any default of a Stranger or other he is to do the other and in this case he at his peril is to procure the men to value the tackle Walter and Pigotts Case 845. Debt upon an Obligation de Septingentis Libris The condition was Septuagintis Libris Adjudged he was to pay 400 l. not 70 l. and the Bond good Bibell and Dringhowses Case 846. A. conveyed Lands to the use of himself in tail with divers Remainders in tail with a Proviso it should be lawful for him to make Leases for Life or years afterwards he made a Lease for the Life of D. the Defendant After the death of A. the Plaintiff in the â—ight of his Wife in Remainder entred The points were 1. If the Demise generally made unto was Tenant in tail in Interest and who had Authority by the Proviso to make Leases shall be constâ—ued to be made by his Interest or his Authority without declaring his Election the Court doubted of this point 2. Because the Deed did comprise as well Fee simple Land and Lands in tail if it shall enure by way of Interest for the Fee simple Land only and by Authority for the Land in tail Quaere also But they Resolved the Proviso to make Leases was good 847. Note Upon the Statutes of 13 Eliz. Cap. 4. and 39 Eliz. Cap. 7. upon Sale made by the Queen upon Accomptants and Debtors Lands That if any Officer be Tenant in tail the Remainder over and afterwards the Officer dieth without Issue before any sale made by the Queen and he in the Remainder enters and is in by force of his Remainder which was created before the
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
Resolved it was a good Saving and that all Justices in their Sessions to be holden within the city might hear and determine Offences committed in the County but no offence done within the city though in the time of the Sessions Heydon Smith and others Case 857. Audita Querela The case was A. and B. seised of Capite Lands and P. seised of Soccage Lands they all three acknowledged a Statute of 8000 l. to R. A. and B. levyed two several Fines of their moyeties to C. and W. to the use of themselves and their heirs until default of payment was of certain Annuities and then to the use of C and W. they after default of payment sold the Lands to H. and D. H. released to D. who devised the Land in tail and died the Devisee in tail died without Issue the Wives of the Plaintiff were Heirs to D. to whom the third part of the Capire Land discended R. had extended the Lands upon Statute before the default of payment of the Annuities and before the Bargain and Sale and although he sued the extent against A. and B. and also P. yet the Sheriff extended the Lands of A. and B. and to defeat the extent and to have Restitution because the Land of P. was not extended the Audita Querela was brought The principal point in this case was if the Bargainee and those which claim under him should have no Audita Querela for the extent made before his time Another point was if the Coheirs should have an Audita Querela without the owner of the two parts all of them being Tenants in common and equally grieved with the extent The case is very learnedly argued pro con but not Resolved Salter and Botelers Case 858. A Rent was granted to A. his Executors and Assignes for the Life of B. out of Bl. acree A. died living a Cestuy que use The Executors of A. distreined for the Rent and averred the Life of B. It was adjudged the Distress was not lawfull because by the death of the Grantee the Rent was determined but if the Rent had been granted to the Grantee and his Heirs the Heir of the Grantee should have bin a special Occupant and he might distrein for the Rent Ewer and Moiles Case 859. In a Replevin by E. in the Kings Bench against M. M. being an Infant appeared there by Artorney also an Imparlance was entred Petit licentiam interloquendi usque and no day was named and Judgment being there given for these Errors the Judgment was reversed Boulton and Bastards Case 860. A. and his Wife seised in the Right of the Husband of the Mannor I. exchanged the same with S. and D. for the fourth part of the Mannor of S. A. died the Wife entred into I. and evicted it for her Life It was adjudged it was a defeating of the Exchange for ever because the exchange was of Land in possession and yet the Justices held that a Reversion might be exchanged for Lands in possession and Note It was said that unequall value or quantity in the one more then the other should not avoid the exchange but otherwise it is of unequality of Estate Stephen and Tots Case 861. T. and his Wife being divorced in the spiritual Court à thoro mensa The Father of the Wife devised a Legacy to her for which she sued the Plaintiff his Executor in the Spiritual Court he there pleaded the Release of the Husband which the Spiritual Judges would not allow of It was the opinion of the Justices in this Case that the Release of the Husband was good notwithstanding this Divorce Sparke and Sparkes Case 862. A man made a Lease for life and after made a Lease for 99. years after the death of Tenant for life if the Lessee for 99. years should so long live and if he dyed within the Terme the Lessor granted that the Land should Remain to his Excecutors and Assignes for 21. years after the death of the Survivor of both the Lessees The Lessee for 99. years granted the Lease for 21. years rendring Rent and dyed Intestate having survived the Lessee for life the Administrator brought Debt against the Assignee of the Terme for 21. years for the Rent It was adjudged that the action did not lye because the Contingent foe 21. years never vested in the Lessee for 99. years the Intestate nor ever was in him to dispose or grant Bridge and Atkins Case 863. Words viz. Thou art an old perjured Knave and that is to be proved by a stake between the ground of such and such adjudged that for these words the Action did not lye Bothes Case 864. He was arraigned of Felony for a second forgery after Cónviction of a former forgery in the Star Chamber upon the Statute of 5 Eliz. of writings concerning the Lands of I. S. In this Case Resolved that no Accessary can be in Forgery but all one principally 2. Resolved that for Felony the Kings Bench might commit one to the Fleet or unto any other Prison and also that a Prisoner who is condemned to perpetual Imprisonment was not Baileable nor Removeable Shaw and Norwoods Case 865. A man by his Will devised 40 l. to two Infants equally the Executrix delivered the money to one to whom the Defendant was Executor who made a Bill testifing he had received the 40 l. to the use of the Infants one of the Infants dyed Intestate his Administrator brought Debt against the Defendant the Executor of the Baylee It was adjudged the Action was maintainable and the specialty although it was not made to the Infants yet it was a sufficient Testimony of the debt Fort and Wards Case 866. A Copyholder had Common of Estovors in the Lords Woods appurtenant to his Copyhold and he purchased the Freehold of Inheritance in the Copyhold and had words in his deed of purchase of all Commons appertaining to the said Messuage Yet it was adjudged that the Common which he had to the Copy estate was extinct but if there had been special words in the Grant of the like Common as he had in the Copyhold before the surrender it had been good and as a new grant of Common Morgan and Slades Case 867. It was Resolved by all the Justices of England that an action upon the Case upon Assumpsit lyeth upon every contract Executory as well as an Action of Debt Seymayne and Greshams Case 868. G. and B. were Joynt Tenants of a house in Lond wherein they had several goods B. acknowledges a Statute and dyed a Writ of Execution came to the Sheriff of Lond. who came to the house with a Jury to extend the goods of B. G. seeing them and knowing the Cause of their comming to the intent to frustrate the Execution shut the Door of the house so as the Sheriff could not do Execution For which the Plaintiff brought his Action upon the Case and layd it to be to his damage of 2000 l. It was adjudged against the
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
the Tenant in Dower shall not avoid it Hall and Fettiplaces Case 993. A man prescribed to make the first crop of the Hay in little Cocks that is no good prescription to discharge the Tythe of After-mouth but other it is of a Prescription to make it into great Cocks or to carry it into the Parsons Barn the same is a good Prescription Forster and Browns Case 994. Lessee for years devised his Term to his Wife for life the Remainder to A. for life if I. S. within two years after her death be not bound in 100 l. to pay 5 l. per an to the said A. for her life and if he do become bound he devised the Term to the said I. S. and the Heirs males of his body and if he dyed without Issue he devised the Remainders A. dyed within a Moneth I. S. never entred bond but dyed having Issue male and the Issue dyed during the Continuance of the Term It was in this Case holden 1. That it was a good Remainder 2. That the Remainder limited to I. S. upon this condition precedent was good and should take effect although he never entred Bond for he had time to do it within two years and then when A. dyed within the two years the Condition was discharged by the Act of God and so the Remainder was good Banks and Brownâ—s Case 995. Copyholder for life surrendred to the Lord of the Mannor in Tail the Reversion in the Crown the Tenant in Tail made a Lease for three lives the Lease to begin from the day of the Date and the old Rent was Reserved and more It was Resolved by the Justices that it was a good Lease within the Statute of 32 Hen. 8 if Livery was made after the day of the date Combes Case 996. It was Resolved by the Justices in this Case 1. That the omitting of a thing or Legacy out of a Will which is appointed to be inserted in it is not Forgery But if a man directs one who writes his Will to limit Land to one for life the Remainder to another in Fee and he leaves out the estate for life so as the Remainder takes present effect the same is Forgery 2. It a man writes a Will without direction and brings it to the Devisor who is non Compos mâ—nt is and he allowes of it the Will is void but it is not Forgery But if a man writs a Will with blanks and then the Devisor is not of perfect memory and the writer fâ—ills up the blanks though this be not Forgery yet it is a Misdemeanor punishable in the writer of it Stoâ—kwells Case 997. It was Resolved in the Star Chamber in this Case That a Purveyor or his Debuty cannot take any thing by way of purveyance without shewing of his Commission 2 That no Purveyor can take Wood or Trees growing upon the Land without agreement made with the owne of the Land 3. That no Purveyor can take any thing by Purveyance which is provided by the Owner for his own provision but of those who have the things to sell 4. That the King is to have the preemption of all things put to sale before others at reasonable Rate Bâ—llew and Brookes Case 998. The Plaintiff exhibited a Bill into the Star Chamber for the pulling up of 16 foot of hedging for putting of his Cattel to take Common there Both the Plaintiff and the Defendants were both Fined the Plaintiff for the Suit being to small a Ryot and the Defendants for the Act done Holloway and Pollards Case 999. A. bargained and sold Lands to B. and his Heirs for 500 l. upon Condition that if he paid 500 l. he should re-enter and be seised to the use of himself and his Heirs untill he should attempt to â—dien without the assent of the bargainee then to the use of the bargainee and his Heirs a Fine was Levyed to the uses the â—00 l. was paid A. aliened to I. S. and I. D. without the assent of the Bargainee Resolved that the use could not rise to the bargainee because the bargainor entring for the Condition broken was in of his old use and estate and the bargainor who came in by the use of the Fine could not â—tand seised to another use for then there should be an use upon an use which cannot be Springs Case 1000. In a Case of a Prohibition It was Resolved that a Parson cannot prescribe against the Composition made by the Vicar for things allowed to the Vicar upon Composition Heywards Case 1001. A. acknowledged a Statute and dyed Extent issued he was returned dead a new extent issued against his goods it was Returned that his Widdow Administratrix had sold them a new Extent Issued against her and her second Husband Andrews and Lord Cromwells Case 1002. In the Case of a Writ of Right it was Resolved That the demy mark may be tendred at the time of the appearance of the Jury 2. That the Tenant shall begin first to give evidence 3. That in this Action the Jury cannot finde a speciall verdict Reynolds Case 1003. Resolved by the Justices in the Case of a Prohibition That Tythes shall not be payd of the Lopping of Trees above the age of 20. years but Tythes shall be paid of Acorns Browne and Wottons Case 1004. In Trover and Conversion of Plate It was Resolved that it was was a good plea that the Plaintiff had brought Trover and Conversion against a stranger for the same plate and had Judgment But it is not so in Debt where a certain sum is demanded Richards Case 1005. He was sentenced in the Star Chamber for divers offences 1. That he took divers sums of mony from the Kings people affirming to them That the King had granted to him the penalty of penal Lawes for which he had Exhibited Informations whereas in truth he never had exhibited any Information and that he being a Deputy Purveyor had charged the people with so great sums of money for purveyance of Beans and Oates and to the purpose to take money for Composition which money he divided betwixt him and others and for divers the like Misdemeanors In this Case it was Resolved 1. That Purveyance was due to the King by Prerogative at the Common Law 2. Purveyors cannot take Trees growing nor transplant fruit Trees nor take without apprisement nor without shewing their Commission 3. That their deputies were under the same penalties as the Masters were and that the Masters should answer for the offences of their Deputies for all the wrong done to the subjects 4. That a Deputy could not make a Deputy 5. That the selling of things which the Purveyors took by way of Purveyance was Fellony The Countesse of Rutlands Case 1006. Information in the Star Chamber against divers Sâ—rjeants at Mace in London for arresting the body of the Countesse The case upon the matter appeared to be this A Capias was awarded against the Countesse out of Common Pleas In which Case
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
and Stermons Case 1120. Resolved that an Action upon the Statute of 2 E. 6. for not setting forth of Tythes lieth by the husband and wife in the Temporal Court and so it was adjudged in Wentworth and Crispes case which vide there Stebs and Goodtriks Case 1221. The custom of L. in the County of B. was alledged that the Parson ought to have the Tenth Land of corn beginning at such Land which was next to the Church the Occupiers of the Land to defraud the Parson by Covin did not sowe their Tenth Land nor manure it The Parson sued for Ththe in Kinde to have the tenth Cock for Tythe of the Corn sowed and a Prohibition awarded notwithstanding the Covin because he had remedy at the common Law for the Fraud and a Prohibition was awarded Quarles and Spartings Case 1222. The Temples were dissolved and their Possessions and Priviledges by Act of Parliament 17 E. 2. transferred to St Johns of Jerusalem and their Possessions by Act of Parliament 32 H. 8. cap. 24. given to the King It was Resolved that the King and his Patentees should pay Tythes of those Lands although the Lands propriis sumptibus excolantur because the Priviledge to be discharged of Tythes is proper to Sipritual persons and ceaseth when the person Spiritual is removed And the Statute of 31 H. 8. of Dissolution did not extend to such Lands as came to the King by special Act of Parliament as these Lands of St. Johns of Jerusalem did Bakers and Rogers Case 1223. The Church being void B. contracted with the Patron for 180 l. to have the Presentation and thereupon presented W. his Brother who knew nothing of the Symonaical contract till after his Induction notwithstanding he was deprived in the Spiritual Court because he was Symoniace promotus and it was holden in this case That if a Usurper present by Symonie the Clerk is punishable in the Spiritual Court for the Symonie although the Patron doth recover the Advowson and the Presentation Sir Richard Chapman and Hills Case 1224. Debt brought upon the Statute of 2 E. 6. for not setting forth of Tythes and declated upon two Leases one of the Parson who had two parts and another of the Viccar who had the third part The Defendant pleaded Not Guilty which was found against him It was moved in stay of Judgment that Not Guilty was no Plea but Nihil debet ought to be pleaded and that the Plaintiff ought to have brought several Actions being several Demises both Exceptions over-ruled by the Court. 1. That Not Guilty was a good Plea 2. for that the Suit was for the wrong aswell as upon the Title Day and Peckvells Case 1225. It was Resolved in this case upon the Statute of 2 Ed. 6. that the Statute giving Treble Damages the Jury cannot give other damages 2. That the Jury cannot give Costs 3. That two Farmors may joyn in one Action upon this Statute 4. That a Farmor shall have an Action upon the Statute although the Statute doth not give him an Action by Equity of the Statute because he hath the right to the Tythes and the agreement with one Farmer shall bind his Companion The Queen and Blanches Case 1226. Resolved that the Certificate of the Bishop that the Incumbent refused to pay his Tenths is not Peremptory but Traversable and that the demand of the Tenths must be at the house of the Incumbent and the refusal there Kelley and Walkers Case 1227. Suit was in the Spiritual Court for laying violent hands upon a Clerk It was surmised there that the Clerk assaulted the Plaintiffs Servant for which the Plaintiff peaceably laid his hands upon the Clerk which allegation they would not allow of there and a Prohibition was awarded notwithstanding the Statute de Articulis Cleri Sir Robert Lane and Pigotts Case 1228. It was Resolved in this case that if Lessee for years be sued in the Spiritual Court for Tythes he in the Reversion may have a Prohibition Smith and Sherburnes Case 1229. The Incumbent being sick the Father contracted for 100 l. in the presence of his Son for the next Avoidance and after the Incumbent died and the Father presented his Son after Induction he was sued in the Spiritual Court to be deprived he pleaded the General Pardon of 35 Eliz. in which Symonie was not excepted It was the opinion of the Justices that notwithstanding he was deprivable there and in this case it was adjudged that the Presentment of the Father of the Son was Symonie Reynolds Case 1230. The Church-warden and Parson that all those who had the house wherein the said Reynolds did dwell had used to find meat and drink for them and the Parson going in Procession in Rogation week at his house and because he did not find them meat and drink he sued them in the Spiritual Court and a Prohibition was awarded because the custom was a custom against the Law Dorringtons Case 3231. He sued in the Admiralty because his Ship called the S. lying upon the Thames at Râ—driff at anchor was there broken by the Ship called the Aeneas by the negligence of the Officers thereof and a Prohibition was awarded because the Thames is Infra corpus Comitatus and not within the Jurisdiction of the Admiralty Saccars Case 1232. Resolved that a Prohibition is awardable against any who wasts the Houses of the Parson the Incumbent or cuts down the Trees or doth other waste Lanes Case 1233. Resolved Tythes shall not be paid of Wood under 20. years growth which is imployed in hedg-poles for repairing of the Coppices Biggs Case 1234. Resolved where a Prohibition is awarded upon a Suggestion of a Modus Decimandi and a consultation awarded for not proving the Suggestion within six months there a new Prohibition shall not be awarded upon an Appeal in the same Suit Babingtons Case 1235. Resolved If one be sued in the Spiritual Court ex officio or by Libel and he demands the Copy of the Libell which is denied that a Prohibition lieth in such case vide Statute 2 H. 4. Lloyd and Maddox Case 1236. An Executor was sued in the Spiritual Court for a Legacy who pleaded a Recovery in debt against him at the common Law ultra which to satisfie he had no assetts The Plaintiff there said the Recovery was by Covin and that the Plaintiff who recovered the Debt offered to discharge the Judgment and the Defendant would not do it Resolved that the Covin was properlie examinable in the Spiritual Court because the Lgatee could not sue for the Legacy at the common Law and therefore a Prohibition in this case was denied Barnard and Bridgmans Case 1237. Resolved in this case that if the Master of a Ship gage a Ship in Spain for 50 l. and for that the Ship is attached in the Thames at its return the Owner of the Ship shall have a Prohibition otherwise if the Ship be engaged for necessary Tacle the Owner shall pay it FINIS The TABLE
made Title by a Demise in Fee to himself the Plaintiff traversed the Custome and the Custom was found to demise in Fee or for Life but not in Tail It was adjudged that the Issue was found for the Defendant because the substance was found for him and the tail was but Inducement Ewer and Heydons Case 468. A. seised of three Houses and other Lands Pastures and Meadows in W. in the County of H. and of Land in the County of O. devised in this manner viz. I give my Capital Messuage in the County of O. and all other my Lands and Meadows and Pastures in the Parish of W. That the Houses passed by the Devise for that Land comprehends Houses The Bishop of Worcesters Case 469. The Bishop presented a Felon at the Sessions at Newgate who had stollen a Bason and Ewer from him for which the person was attainted and a Writ of Restitution awarded to the Bishop In Bar of the Restitution a Scrivener of London a Freeman came and said That every Shop in London is a Market overt and that he bought the Bason and Ewer in his Shop being a Scriveners Shop Adjudged the sale of it in the Scriveners shop did not alter the propriety of the Plate for it was not a Market overt for such things And it was said That any Shop in London by Custom was a Market overt for the buying of all things It was Resolved that such a Custom was an unreasonable Custome The Lord Norths Case 470. Christ Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon and they made a Lease by the name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon and the Liberties de Accademia did extend further then the Liberties of the City yet it was adjudged a good Lease because the substance of the Corporation was inserted in the words of the Lease Bullen and Bullens Case 471. The case was S. B. being Cestuy que use before the Statute 27. H 8. devised to his Wife certain Lands for her Life and that after her decease R. B. his eldest Son shall have the Land 10 l. under the sum or price it cost and if he died without Issue F. â— his Second Son should have the Land 10. l. under the price it cost and if he died without Issue of his Body then his two Daughters A. and E. shall have the Land paying the value thereof to the Executors of his Wife The Question was if R. B. the Devisee had an Estate Tail or not It was argued it was an Estate tail and it was compared to Frenchams case 2. Eliz. Dyer where a man devised Lands to his Wife for use the Remainder to C. F. and the Heirs Males of his Body and if he die without Heirs of his Body the Remainder over and it was clearly taken that the general Limitation if he die without Heirs of his Body shall not alter the especial Tail On the other side it was said that the Estate was Fee-simple for that the words are That he shall have the Land 10. l. under the price and so the word paying implies a Fee-simple The Court enclined to be of opinion It should be a Fee-simple But the Case was not Resolved but Adjourned Germin and Ascotts Case 472. A. seised of Lands â—n Fee devised the same to his eldest Son and the Heirs males of his body the remainder to his second Son and the Heirs males the like remainder to his third Son the remainder to his Daughter in Tail with remainder over Proviso That if any of the Devisees or their Issues shall go about to alien discontinue and incumber the premisses that then and from the time they shall go about to alien discontinue c. their estate shall cease as if they were naturally dead and from thenceforth it should be Lawfull for him in the next remainder to enter and hold for the life of him who shall so alien c. and presently after his death the Land shall go to his Issue the Devisor dyeth the eldest Son and all the other but the second Son levy a Fine the second Son claimes the said Land by the Devisor It was Resolved in this Case by all the Justices that the Proviso of ceasing of the estates upon an attempt to alien or upon an Alienation was repugnant to the estate Tail and that remainder which was limited to the second Son upon such attempt was void in Law St. Johns Case 473. A. Capias ad satisfaciend was directed to the Sheriff who made a Warrant to a special Bayliff to execute it who arrested the party after a new Sheriff was elected but had not received his Writ of discharge adjudged the Writ was executed well but otherwise if the party had been arrested upon the Warrant after his Writ of discharge was delivered Godwin and Ishams Case 474. Error of a Judgment in debt upon an Oblation to perform Covenant in an Indenture The Covenant was That if the Plantiff pay the Defendant 100 l. at Mich. then the Defendant would pay him 10 l. yearly after during his life and it was alledged that the Defendant did not pay him the 10 l. yearly but did not mention the payment of the 100 l. by him which was assigned for Error It was adjudged No Error because the Defendant by pleading Conditions performed which he did plead had confessed the payment of the 100 l. to him by the Plaintiff The Judgement was affirmed Woodlife and Vaughans Case 475. Words viz. He hath forsworne himself and I will prove him perjured or else I will pay his charges Adjudged the words are actionable notwithstanding the Disjunctive or else I will pay his charges Barton and Lever and Brownloes Case 476. Tenant in tail upon a Recovery had came in as Vouchee It was Resolved that in such Case he had barred his Issue from any Writ of Error to reverse the Fine and it was said That it was adjudged Mich. 32 Eliz. in Carringtons Case That if Tenant in Tail levyeth an Erronious Fine and afterwards levyeth another Fine the Issue in Tail was barred of his Writ of Error upon the first Fine Rolls and Germins Case 477. It was Resolved in this Case where the Testator retained an Attorney of the Common Pleas to prosecute a Suite in that Court That an Action will lye for his Fees which be due to him in that Suit against the Executor of the Testator because the Testator in such Case could not wage his Law but for monies expended in Suites in other Courts by the Attorney the Action will not lye Welcombs Case 478. Debt brought to answer to Tho. Welcomb Excecutor of Joh. Welcomb The Judgment was Quod praedict Johis recuperet where it should have been Quod praedict Tho. recuperet Resolved it was not amendable because no default in the Judgment is amendable being the Act of the Judges and not of the Clarks 479. The Bargainee Covenanted
That if the Bargainor paid a certain sum of money at a certain day and place that the Bargainee and his Heirs would stand seised of the Land to the use of the Bargainor and his Heirs and entred Recognizance to performe the Covenants The Bargainor paid the money before the day at another place and after day tendred a deed to be sealed by the bargainee containing the receit of the mony and also a Release of all his right in the Land the Bargainee refused to Seal it The Court doubted if by the Refusal the Recognizance was forfeited because he was not bound to Seal the Deed not being pertinent to the Assurance of the Land But the Court conceived that the acceptance of the money before the day was sufficient to excuse the forfeit of the Recognizance Isams Case 480. Three Women and the Husband of one of them recovered Debt in C. B. the Record was removed by Error in B. R. where the Judgment was affirmed the Husband dyed The Women sued forth a Capias against the party without first suing a scire facias It was adjudged that there ought to have been a scire facias first sued forth because the Defendant perhaps had a Release of the Husband who was dead to plead Morgan and Williams Case 481. An Administrator brought debt and declared That Administration was Committed to him by A. B. sacrae Theologiae praefessorem and doth not say loci illius Ordinarium and for that cause the Judgment was reversed Sheffield and Rises Case 482. Assumpsit In consideration that the Plaintiff had submitted himself to the Arbitrament of I. S. the Defendant ad tunc ibidem assumpsit It was said the Action did not lye because it was upon a Consideration executed But adjudged for the Plaintiff because the words ad tunc ibidem extend to the time of the Assumpsit Sir John Perrots Case 483. In Intrusion against the Lady Dorothy Perrot and James Perrot the Case though very long was thus in effect Sir John Perrot 26 Eliz. before his Attainder seised of diverse Mannors by Indenture tripartite Reciting that whereas he had 2. Sons viz. F. and W. by diverse venters for Love and affection which he bore to his said 2. Sons and such other Issue male as should be of his body and for the Love which he boâ—e to I. his reputed Son and other Considerations Covenanted that he his Heirs and Assigns and all other persons who had Interest in the said Mannors should stand seised thereof to the use of himself for life without impeachment of Wast and after to the use of W. for life and after to the use of the first Son of the said first Son for life and after to the use of all the Sons and Issues male of the said W. by his first Wife which he should Marry one after the other in such Course and forme as they successively ought to discend by due course of Law for the terme of the lives of the said Sons and Issues males and for want of such Issue Then he limited the remainder in use to F. for life and after to his first Son for life and so further as the same was limited to W. and for want of such Issue to I. and for want of all such Issue the remainder to himself and his Heirs and Assignes There was a Proviso for the making of Joyntures to the Sonnes Wife Proviso That Sir John by any Writing signed and sealed with his hand and seal might revoke alter change any use estate or limitation in the said tripartite Indenture that then the said Sir John and all other seised and all assurances aforesaid should be of such estate or in such manner as by such Revocation enlargement or limitation should be declared W. dyed without Issue male Sir John Perrot afterwards 35 Eliz. by writing under his hand and seal did limit the Lady Dorothy his Wife the Defendant for her Joynture a third part of the Mannors in 3. equal parts to be divided 36 Eliz. T. dyed seised in possession and Dorothy entred and took the 3d. part of the profits of the said Mannor and averred the Feoffment was by writing with and under the proper hand of Sir John and traversed the Intrusion upon which it was demurred There were many points in this Case both upon the pleading and matter in Law 1. If all the estates perpetually limited in Freehold for life to all the Sons were void or which of them were good which void 2. If Sir John in making of the Feoffment had duly pursued the Authority limited to him by the Proviso 3. If Sir John in the Assignment of the Joynture to Dorothy his Wife which is the principal title by which she Justifies had duly pursued the Authority limited to him by the other Proviso for making of Joyntures The Case was very Learnedly oftentimes argued at large and Tr. 38 Eliz. It was adjudged for the Queen against the Defendants not upon the matters in Law but upon a poynt of pleading only For it was said by the Barons that they did not take plea sufficient that he did enfeoffe such person Habend to them and their Heirs to the uses in the Indentutres unlesse it had been pleaded the Feoffment was by writing or so averred to be which shall not be intended so to be without special pleading or averment of it King and Hunts Case 484. Tenant in Tail enfeoffed his Son of full age and afterwards disseised and levyed a Fine with Proclamation before the last Proclamation the Son entred and made a Feoffment the Father and Son dyed the Feoffee made a Lease for years to a stranger and dyed seised The Issue in Tail brought a Formedon and recovered by faint pleader It was adjudged in this case because it appeared by the plea That the Fine was levyed to the Lessee for years himself and not averred it was to other uses the Terme was extinct and so he could not falsifie the Recovery East and Hardings Case 485. Note It was adjudged by the whole Court in this Case That if a Copyholder cut down Trees without a Custome it is a forfeiture unlesse it be for Reparations Barwicks Case 486. Intrusion the Case was That the Queen made a Lease to Barwick of a Mannor for 21. years he surrendered the same to the Queen Anno 23. and the Queen in Consideration of the surrender granted him the Mannor a die Confectionis of the Patent for the life of I. S. and the Lessee pur auter vye devysed the same to him for 40. years and averred the life of I. S. The Plaintiff said That after the Lease made by the Queen to him for 21. years that he granted all his estate in a part of the Mannor to a stranger and afterwards in Consideration of the surrender the Queen made the Lease pur auter vye Resolved the 2d Lease made by the Queen was void because all in the first Lease was not surrendered and so the Queen