after his death it shall remain to his son and his wife in fee and the book is that this Covenant will raise an use also if this Covenant and agreement will not amount to raise an use then it is not to any use or purpose at all and by consequence the consideration of the marriage is void also and an action of Covenant will very well lye without any such consideration of marriage and so he concluded and prayed judgement for the Defendant adjourned Mich. 20. Jac. C. P. Johnson against Norway IOhnson brought an action of Trespass against Norway of Trespass made in a piece of ground and the Defendant pleaded that 14. H. 7. Roger Le Strange and Anne his wife were seised of the Mannor of D. and one Giles Sherington Abbot of C. was seised of an acre of land in fee and held this of the said Roger Le-Strange as of the Mannor of D. aforesaid and that the 22. H. 7. the Abbot and all the Monks died by which the said land escheated to Roger c. and the Mannor discended to his son and heire after his death who conveyed the Mannor of which the acre is parcel after the escheat by mean conveyance to Hobert in fee and that Hobert 12. Eliz. infeoffed one Wright of the Mannor of which the said acre is parcel and so justified by a conveyance from Wright to the Defendant the Plantiff replied by protestation that the Abbot was not eligible and for plea he said that the aforesaid Hobert 10. Eliz. infeoffed I. S. of the said acre of land absque hoc that he infeoffed Wright of the sad Mannor of which the said acre is parcel and upon this the Defendant demurred generally And Serjeant Attoe argued for the Plantiff that the Plea of the Defendant is evil and then though the replication of the Plantiff is not good yet the Plantiff shall have judgement and he cited Turners case Hobert it is true Cook 8. if the replication be meerly void then it is as you had said but if the replication be the title of the Plantiff and that be insufficient there the Plantiff shall not have judgement though the plea in barre was evil Attoe agreed that if it appear by the Plantiffs own shewing that he had no cause of action and that he had no title he shall not have judgement but here he had made a good title by the lease of the said acre of land and though our traverse is evil and sounds in doubleness yet the Defendant had demurred generally and so he had lost the advantage of the doubleness or of the negative pregnant for if a maâ— plead double matter this is only matter of form and not of substance and therefore after verdict it is good as hath been adjudged but he proceeded in his argument and he said that the barre of the Defendant is not good for by his own shewing this acre of land is not parcel of the Mannor for by the dissolution of the Monastery by the death of all the Monks the land shall go to the founders and donors and not to escheat to the Lord of which that is holden as appears 2. H. 6. 7. and 5. H. 7. if an annuity or rent be granted to an Abbot in fee and the Abbot and all his Monks do die the annuity or the rent is extinct and shall not escheat see the Deane of Norwiches case Coo. 3. agreed that by the death of the Abbot and his Covent the corporation is dissolved and then the possession shall go to the founders and shall not escheat to the Lord of the Mannor of which the Land was holden and he said that this point is proved cleerly by the Statute of the 27. H. 8. and 31. H. 8. of Monasteries in which Statutes there is an express saving to all persons except to the donors and to their heires and no mention is made of the saving of the right of those of whom the land was holden and that proves cleerly that if the makers of the Statute had thought that the land had escheated to the Lords they would have excepted them in the saving of the act as they had excepted the Donors and Founders for if otherwise the lands and possessions shall escheat to the Lords of which the land was holden they are within the saving of the Statute and then it will follow that after the death of all the Monks as at this day that the Lords shall have the land by escheat which the Sages of the Law never dreamt of who made that Statute that any thing may accrew to the Lord and therefore they provided only for the title of the Donors and Founders which is an argument that they thought that upon the dissolution of the Monesteries that the lands shall go to the Founders and the same he thought concerning a corporation at this day as of Suttons Hospital c. and so he concluded that because in the barre of the Defendant he claimed to hold from the Lord to whom he supposed the land to escheat and did not claim c. by his own shewing the barre is not good and though our replication and traverse is not good yet the Plantiff shall have judgement But admitting that the barre is good yet the replication and traverse is good and then judgement shall be given for the Plantiff and the case is the Defendant pleaded a feofment of the Man 12. Eliz. to Wright after that he had shewed the escheat of an acre the Plantiff replied that the 10th Eliz. the Feofor infeoffed C. of the acre of land absque hoc that he was infeoffed of the Mannor of which the acre is parcel and Attoe argued that the traverse is good and he alleadged 38. H. 6. 49. the same traverse and here when the Defendant had pleaded that the acre escheated and had alleadged a Feofment of the Mannor and had not expresly alleadged a Feofment of the acre the Plantiff may traverse that which is not expresly alleadged because this destroyes the very title of the Defendant and he cited for that 34. H. 6. 15. a writ of priviledge in trespass as a Servant to an auditor of the exchequer the Plantiff replied that he was servant to him in husbandry absque hoc that he was his servant to waite and attend upon him in his office and it was holden a good traverse and yet that was not expresly alleadged by the Defendant Hobert chief Iustice said that the traverse is not good for by the Feofment which was made the 12th Eliz. he had confessed and avoyded the Feofment which was made 10th Eliz. and so there needed no traverse and therefore he said the great doubt of the case will be upon the barre of the Defendant whether by the death of the Abbot and the Monks the land escheat to the Lords of whom that was holden or whether that shall go to the Donors and to the Founders and he thought that the land shall escheat to which
the lessee of the Mannor or to the Bishop was the question and it was argued by Serjeant Hendon that this appertaines to the Plantiff and not to Wood and as to that the single point is a Bishop is seised of a Mannor in the right of his Bishoprick and lets parcel of that for life whether the reversion of this parcel be alwayes parcel of the Mannor notwithstanding this lease and he argued that it was not and yet he agreed that if another let as aforesaid the reversion continues alwayes parcel of a thing in possession and that in the case of the King himself as appears by Dyer 230. if the King lets parcel of a Mannor for life the reversion of this parcel passeth to the King for the reversion had all times continuance in the same capacity and no alteration is made of this by force of the lease but where the lease for life is a discontinuance there he gaines a new reversion and this shall not be parcel of the Mannor and for that if a man is seised of a Mannor in the right of his wife and he lets parcel for life this is a discontinuance and he had gained the reversion in his own right and for that reason the reversion may not be parcel of the Mannor as appears by 18. Assises and also he held if Tenant in taile lets parcel of a Mannor for life that were the reversion of this parcel is not parcel of the Mannor for the cause aforesaid and so in our case when the Bishop granted parcel which is not grantable by the Statute now he had discontinued the reversion and had gained a new fee simple which may not be parcel of the Mannor so long as this new fee simple had a continuance and this was his first reason And secondly he argued from the intent of the parties because the intent was that the lease to Wood shall be good and if the reversion of the 20. acres pass to Wood this will make all the lease void for no rent may be reserved out of the reversion but out of the land it self 3. Assise Placito ultimo a Bishop let land and a hundred rendring rent the rent issues out of the land and not out of the hundred and so here it issues out of the land and not out of the reversion which made the lease all void and so he concluded the first point that the reversion of the 20. acres did not pass to Wood the lessee of the Mannors Secondly when the Bishop lets 20. acres of ground rendring rent and this is not confirmed by the Dean and Chapter as it ought and after he lets the Mannor and the successor accepts the rent of the Mannor this acceptance shall not make the lease of the 20. acres to be good admitting that the reversion do pass and when the Bishop had made a lease for 3. lives he may not contract for the reversion and when a lease is meerly void in the creation there no acceptance afterwards may make that good but admitting this to be against him yet the lessee shall not have the Herriot for they are not appendant to the reversion but due only by way of Covenant and the words are yielding c. and this being a Collateral thing it shall not go with the reversion and the Herriot here may not be had without it be delivered by the lessee for life Secondly it is paid only in the name of a Herriot and this is not Herriot service Thirdly it is to be paid upon the death of a stranger and not upon the death of the lessee and all this proves this Herriot to be collateral and he cited Rawlins case a lease for years paying for a fine 20. l. this is a summe in gross and shall not pass with the reversion and so he prayed judgement for the Plantiff Attoe contrary and yet he agreed the case of the husband and wife and of the Tenant in tail for here the lessor gaines a new fee simple but in our case when the Bishop lets for life this is not any wrong for the successor may enter and he shall have this lease not in his natural capacity but alwayes in his politique capacity and for that there is an apparent difference between the cases and for that reason he held that the reversion was parcel of the Mannor and so passed to the lessee and as to that which had been said that the intent of the parties was only that the Mannor in possession and not the parcel in reversion should pass to the lessee for that is most beneficial to the lessor to this he answered that by express words this is granted and no construction shall be made contrary to the very express words of the grant and here though the Defendant had not any title at all to the Herriot yet the Plantiff shall not have a trover and conversion for this because that he himself had not right to this and for that reason judgement shall be given for the Defendant and he also argued that the lease of the reversion is not meerly void but voidable and then the acceptance extends to this see 37. H. 6. the lease of a Priâ—r 2. E. 6. Bâ— Abbots case Vpon which authorities he said cleerly by the Common Law this lease of the reversion is not meerly void but voidable and for that the confirmation of the Dean and Chapter after the Statute of the first of Eliz. had not altered that and for that a lease after the Statute shall not be meerly void and see Lincolns Colledge case Coo. 3. and in our case there is a possibility that the lessee of the Mannor may survive the cestui que vies of the 20. acres and that possibility is sufficient to make this good out of the reversion for then the lessor may distrain for his rent but where no possibility of a distress is there no rent may be reserved as in Iewels case the lease was void for there was no possibility that the lessor shall ever distrain but in our case the lease for years is good for the lessor is not without his remedy for he may have an action of debt upon this reservation 1. H. 4. 2. there a measnalty in gross was let rendring rent and good for by possibility the Tenant may die without heires and yet this is a remote possibility 12. E. 3. execution 112. a reversion granted by fine in tail rendring rent is good and Coo. 5. Elmers case that a reversion being let for life rendring rent is a good reservation at the Common Law and he held without question that where a Bishop is seised of a Mannor which consists part of freeholders and part of Copiholders that a lease of the Mannor rendring rent is good and in our case the reservation of the rent is intire and shall bind the successor and as to that which had been said that the Herriot is Collateral and shall not go with the reversion to this he
his son and to Elizabeth Preston and to the heirs of John and so the Defendant claimed by vertue of a lease for 1000. years made by Iohn Buckley and the Plantiff demanded Dyer of the Indenture which was read to this effect that Andrew Buckley by the said Indenture covenanted with Preston that in consideration of a marriage between his son and the daughter of Preston that he will grant a rent charge of 6. l. 13. s. out of his land at Weymouth and at Melcombe Regis payable at 4. usual feasts and he Covenanted for him and his heirs that he would convey the land in Melcombe Regis and Wike Regis to such persons as Preston should appoint provided that the said Andrew Buckley and his wife may injoy that during their lives without impeachment of waste and covenanted that immediately after their deaths the lands shall immediately remain come and be to the said Iohn Buckley and Elizabeth his wife and that the advowson of Bradway shall remain come and be to the said Iohn Buckley and Elizabeth his wife and upon all the matter the question was whether by this last covenant an use will arise of the advowson in Bradway to Iohn Buckley for if an use is raised to him then this lease made by him is good and by consequence the title of the Defendants is good to present to this advowson and if not then the fee alwayes remained in Andrew Buckley the Grandfather and by devise discends did come to Andrew Buckley the Husband of the Plantiff and thâ—n the quare Impedit is maintainable And Hutton began his argument he argued that no use will arise to Iohn Buckley by this Indenture for when a man will raise an use by way of covenant there are 4. necessary things which ought to concur First is a sufficient consideration as of blood or marriage or other Collateral considerations as if I covenant with you that when you infeoffe me of certain land I will stand seised to the use of you and your heirs this is good but if the consideration be for money then this ought to be inrolled or otherwise no use will arise the second point is there ought to be a deed to testifie this agreement for otherwise no use will arise as was resolved 38. Eliz. in Collard and Collards case Thirdly he who covenants ought to be seised of the laâ—d at the time of the covenant as was resolved 37. Eliz. in Yelvertons case a man covenanted to stand seised to the use of his son of such lands as he should afterwards purchase and it was holden void because he was not seised at the time of the covenant and lastly the uses must agree with the rules of the Common law Cook 1. and he cited Chudleys case a man covenanted to stand seised to the use of one for years the remainder to the right heirs of I. S. this remainder is void though this is by way of covenant and use for the free-hold may not be in abeyance and so if I will at this day bargain and sell my lands in fee they shall not pass without the word heirs for it was not the intention of the said Statute to raise uses in such mannor contrary to the rules of the Common law or uses which are uncertain and in our case the intent was that no present use shall arise for out of the same land is granted a rent charge to Iohn Buckley and Eliz. his wife by which it appears plainly that it was not their intent that any present use should arise by the delivery of the indenture and if the use do not arise presently upon the delivery of the Indenture it shall never arise at all also the intent appears for it is that the land shall remain free from incumberances and this sounds only in covenant and for this reason the covenants shall be of the same nature and lastly the covenant is that the land shall remain and be and this is altogether incertaine and for this no use will arise because this failes of words as if I covenant to leave my lanâ— to my son after my death this will not raise an use to my son no more then if I covenant with the friends of my wife that after my death she shall have my goods this will not make my wife to be Executor and he vouched 21 H. 7. 17. 34. H. 8. 59. the Lord Borroughs case Dyer 355. 166. 324. and so be concluded that judgement ought to be given for the Plantiff Iustice Winch argued to the same purpose and he said the first part of the covenant contains that there shall be a marriage before such a day if the parties shall agree and the second part is a covenant that the feme shall have 6. l. 13. s. for her joynture and if this covenant executed an use of the land presently then this destroyes the joynture which was not the intention of the parties Thirdly there is another covenant to convey Coppihold land and if this covenant do raise an use then it will follow that Iohn Buckley shall have the land though the marriage do take effect and besides the covenant doth create an use presently or not at all and then when this use is to be raised by this covenant which contains in that nothing but future and Executory matter this will not create a present use and he cited the books which were vouched at the barre and by Hutton and so he concluded that this covenant will not raise an use presently to Iohn Buckley and that judgement ought to be given for the Plantiff And at another day the case was argued by Hobert chief Iustice for the Plantiff and that no use will arise by this covenant and he said if I will covenant to make assurance of my land to my son or to a stranger this covenant is meerly nugatorie and will not raise an use but on the contrary if I will covenant to stand seised to the use of my son though there is also a covenant to make further assurance yet this will raise a present use for the covenant is declaratory and not obligatory and so is Dyer 235. and there was no word to assure the land or to stand seised to uses but only that the land shall come remain and be in tail or in fee and there was no word to assure the land and this case is agreeable to the case of 21. H. 7. 18. by Rede that no use will arise and the reason is plain because the covenantor had election in which manner he shall have that whether by discent or in any other manner for if I covenant that my land shall descend to my son after my death no use will arise by this covenant and he put the case in Chudleys case that if a man covenant that after his death his son shall have his land in tall it is said that the son shall have an estate executed by the Statute of 27. H. 8. and the
of the 4. H. 7. cap. 24. the demandant replied that 15. Iac. she brought a writ of Dower against the now Tenants and against two others and that the writ abated by the death of the two others and that she brought a writ by Iourneys accompts the Tenant replied that the others were not Tenants but one Sir Iohn Web and it was moved that this rejoynder was evil for they confessed that they themselves are Tenants by which the writ is good against them at the least Hobert if she brought a writ of Dower against one who is not Tenant that is not any claim within the Statute but if she brought a Dower against 4. who are Tenants and two die and she bring a writ against the others by Iourneys accompts this is a good claim within the Statute though the second writ was after the time limitted but quere here if the two who died were not Tenants Trin. 21. Iac. C. P. Harvey against the Hundred of Chelsam HArvey brought an action upon the Statute of Winchester of Hue and cry against the Hundred of Chelsam and it is found for the Plantiff and a writ of error was brought and all the record was certified and now the Plantiff prayed two things may be amended the first is the title of the action for upon the roll it is an action upon the case it should be an action upon the Statute but it was said by Hobert that it shall not be amended for the Statue of the 18th of Eliz. did not give amendments upon indictments or upon popular actions or actions upon penal Statutes and cited a judgement in Doctor Husses case Coo. 9. 71. which was reversed in Banco Regis upon default in pleading being upon a penal Statute and so in Mich. Term last Judictari for Indictari and adjudged that it shall not be amended and the second point was upon the venire facias where was one Gregory retorned as appears by the names of the Iury but the Clark of the Assise returned one George and it was entered upon the roll and certified in the record to the Kings Bench and per totam Curiam there needs no amendment for that name of George where it should be Gregory being in the tales de circumstantibus and not in the principal panel and it was also by consent of the parties and as to the first point all the Court agreed with Hobert and for the second point Hobert said that if that variance had been material it should not be amended for we will not make a new certificate for the Court of the Kings Bench may choose to credit the first or the second certificate and so we submit our judgements to the censure and pleasure of another Court which we will not do and in the great case of Fulger 18. Iac. where we made such a new certificate though it was adjudged according to our opinion yet they would not credit our last certificate and therefore we will not make a certificate again which note well Hasset against Hanson HAsset brought an ejectione firme against Hanson and upon a general issue and a special verdict the case was this that one Woodhouse was lessee for years of the King of a Mannor and I. S. was a Copiholder of a Tenement of inheritance and the Coppiholder bargained and sold his Coppihold land in such a Town to the lessee of the Mannor and this was by indenture and the indenture was to this effect that he bargained and sold all his lands and Tenements as well Coppiholds as other land bought of Iohn Culpepper in such a Town and it was found that the lessee of the Mannor entered in the Coppihold and occupied and after that the said I. S. died after whose death W. S. his heir was admitted as heir of I. S. upon the presentment of the homage that I. S. died seised and that the said W. is his heir and that at the same Court W. S. Surrendered to the use of the Plantiff and he was admitted and it was argued by Richardson for the Plantiff and by Attoe for the Defendant And these insuing points were agreed by the Iustices S. by Hobert Winch Hutton and Iones and first it was said by Hobert that though a Coppiholder may not convey his Coppihold to a stranger without Surrender and admittance yet he may grant his estate to the Lord of the Mannor out of the Court by bargain and sale for the custome is not between the Lord and his Tenants but between themselves only Secondly Winch said that the admittance of the Lord viz. the lessee of the Mannor amounts to a grant to him who had a title but it is otherwise if it is to him who was in by wrong as by disseissin Coo 4. 22. which was granted by all the Court. Thirdly Iones Iustice said that the bargain is void for it is of all lands and Tenements bought of Iohn Culpepper and it was not found by verdict nor yet averred by the party that the land was bought of Culpepper which Hobert and Hutton granted and Hutton cited 2. E. 4. 29. but Winch to the contrary as to that point but they all agreed that the Plantiff shall have judgement and accordingly so it was done Mich. 21. Jac. C. P. M. 21. Iac. in C. P. Pleadal against Gosmore PLeadal an Attorney of the Common pleas brought an action of trespas against Gosmore and he declared of the taking of a Mare Colt in May and of the retainer till the first of Iuly and that the Defendant held him in Compedibus Anglice in fetters diversis vicibus temporibus by which she Colt was much the worse and the Defendant pleaded that the Countess of Hartford was Tenant for life of the Mannor of Sherstone within which the taking of the Colt is supposed to be and that the Lords of the Mannor time before memory c. had used to have estrayes and used to seise them by their Bailiffs and to proclaim them according to the Law of the land and that the said Mare Colt came within the Mannor such a day and the Defendant as Bailiff to the said Countess seised that as an astray and made proclamation according to the Law and when the Mare Colt was so fierce and wild that he could not came that nor keep that out of the lands of his neighbours he Fettered her as to him bene licuit and he detained her till the first of Iuly at which day the Plantiff came to him and told him that this was his Mare Colt upon which the Defendant delivered her which is the same Trespas c. and upon that the Plantiff demurred and Attoe argued that the plea was not good for matter of Law for a man may not Fetter an estray Colt as appears in the like case 27. Assises and the reason is because satisfaction shall be given for his damages which he made to the Defendant and he cited a case adjudged in that point 8. Iac. Trin. between
Harvey and Blacklock in this Court where the Defendant pleaded such plea in all points as here as to the Fettering for the Defendant fettered the horse of the Plantiff because he was so fierce and so wild to one of his own horses and so continued till he delivered him to the Plantiff and because the horse died within the year the Plantiff brought his action and upon this plea pleaded by the Defendant it was demurred in law and judgement was given for him for Cook who was then chief Iustice said that a horse may be of 40. or 100. l. price and it shall be intollerable to allow such Nusance and secondly he had not made proclamation and so trespass lies against and so in our case Harris Serjeant to the contrary for when the Lord of a Mannor takes an estate he had some kinde of property before the year is expired and for that reason he may detain the estray against the owner till amends is made to him 44. E. 3. 14. 29. E. 3. 6. by Knevet 20. H. 7. by Vavasor and Frewick and if he had property against the owner himself he may use that with moderation to make some benefit of that especially in case of necessity as 22. Assise 5. 6. a man may justifie the beating another if he be in a rage and 6. E. 4. 8. one may justifie the felling of a tree in the ground of another in case of necessity and here is no other way to restrain this Savage Colt and so the justification is good but in this case it was resolved by Hobert Winch and Hutton Iones being in the Chancery First when a beast comes within the Mannor of another Lord this is a trespas but after the seisure for an estray it is a possession of the estray in the Lord and the beginning of property as Hutton used the term so that he may have an action of trespass against any stranger which takes that out of his possession and if he estray into the land of another he may him retake Secondly it was resolved that if the Lord make not proclamation in convenient time that this possession became tortious for the law necessarily imposeth it upon the Lord of the Mannor that he make Proclamation because that otherwise the owner may not come to the knowledge of him Thirdly that the estray within the year is as a pledge in the Custody of the law till amends be made to the Lord and for that reason the Lord may not work him no more then he can work a distress Fourthly it was resolved that if the estray goe into the Mannor of another Lord and the last Lord claims that as an estray the first Lord had lost that but not before claim Fifthly Hutton and Winch agree that he might Fetter the Colt being so fierce and wild for he is answerable for the trespas and wrong which he makes in the land of his neighbours and also to the owner if he lose him and therefore it is unreasonable that he may not keep him safe for his indempnity and that is not like to the case 27. Assise which was urged of the other side also they said fettering is the usual way in the Country to restrain wild horses and therefore if it be in an ordinary manner as he Fetters his own there is not any remedy against the Defendant Hobert chief Iustice was against that last point for the Lord may not hold him in arcta custodia as a prisoner because he had rather the keeping of an estray the the property and for that if the estray go into the land of another Lord the first may not take him again if the other claims him as an estray for the possession was rather in regard of his Mannor then in regard of himself and therefore he shall not answer for the wrong which he doth in the lands of others for the possession is in regard of his Mannor and his Fettering is an abuse and he may not neither use nor abuse an estray and he said over that the Defendant had not well pleaded for another reason because he had not shewed that he proclaimed him in the next market Town within convenient time which convenient time ought to be adjudged by the Court and he said the Lord may not keep him else where within the year then within the Mannor Winch Iustice said the Defendant ought to proclaim an estray ut supra if the year be past for by that he gains an absolute propertie but here where no property is devested he needs not to proclaim him within the year and Hobert commanded this case to be moved again see the last case but one in the book Ruled that after imparlance in debt upon an obligation the Defendant shall be admitted to plead alwayes ready though the 13. Eliz. in Dyer was urged to the contrary Hill 21. Jac. C. P. Hillary Term in 21 year Iac. C. P. Trehern against Claybrook TRehern brought an action of debt against Claybrook upon a lease for years and upon nihil debet pleaded and a special verdict the case was to this effect the Grandfather of the Plantiff was seised of lands in Southwark and he made a lease for years of that to the Defendant at London rendring 45. l. rent and after he devised the reversion to the Plantiff in fee and in his will he set forth that his intent was that his Executors shall have the reversion during the Term upon condition that they enter into bond to pay 34. l. per annum at 4. usual Feasts during the Term and he further devised that this bond shall be made by the advise of his overseers and he limitted all this to be done within 6. moneths after his decease and if his Executors refuse his will was that his overseers shall take the profits upon the same condition and appointed that both obligations be made to the Plantiff and the devisor died and the Executors within 3. moneths shewed the will to the overseers but no obligation was offered to be made within the 6. moneths and the Plantiff required the Executors to enter into the obligation and to pay the rent which was not done and he claimed the reversion and brought his action afterwards in London where the lease was made and not in Southwark where the land did lie and this case was twice argued by Councel at the barre and now it was argued by the 3. Iustices Hobert being absent And Iones Iustice moved a point which was not moved at the barre viz. that the Plantiff is devisee of the reversion and so is privie in estate only and for that reason the action ought to be brought in Southwark where the land lies and not in London where the contract was made but the lessor himself had liberty to bring the action where he pleased in regard of the privitie of estate and contract and so was it adjudged in the Kings Bench between Glover and Humble and here though this be
against Hutchinson and made title to present to the Church in the right of his wife and after the issue joyned and before the venire facias the wife died and the Plantiff shewed that himself had took out a venire facias in his own name and upon that Harris demurred in law because he supposed that the writ was abated but Winch was of opinion that the writ was not abated because this was a Chattel vested in the husband during the life of the wife Ferrers against English IN an action upon the case upon a promise between Ferrers and English and upon non assumpsit it was found for the Plantiff and now it was moved in arrest of judgement that the venire facias was not well awarded for it was proecipimus quod tibi venire facias Duodecim liberos et Legales homines Coram Henrico Hobert apud Westmonasterium where that ought to be Coram Iusticiariis nostris and therefore the writ being insufficient it is not amendable and for that he cited the case where the venire facias was awarded to th Coroner and that ought to be awarded to the Sheriff and this adjudged to be erroneous this case was answered that this was the custome and there was a case alledged to be adjudged 30. Eliz. between Cesor and Story where a Capias did issue out of this Court in this form Ita quod habeas Corpus ejus Coram Iusticiariis omitting apud Westmonasterium and this was reversed for error but this was answered to be in an original which ought to be precise in every point but Serjeant Crook said that because this was but judicial process and the trial is taken upon the habeas corpus that it is amendable for in all cases where the roll is right though there be an error in the venire facias yet this is amendable Sir Robert Nappers case A Rent was granted to Sir Robert Napper and if it happen that this annual rent to be behinde that then the land shall at all times be open and subject to distress of the Grantee according to the true form and effect of the said indenture and upon all the pleading a demurrer was joyned and the sole doubt was whether the last words were a distinct covenant by themselves for if they are then the obligation is forfeit for the lands are not open to distress because that the mother of Sir Robert held that till the age of 24. years or whether they are part of the former covenant and then the former worde will qualifie that because there was not any act made by him to the contrary and it was argued by Bawtrie that they are all one covenant for they charge the land with the Annuitie and he covenants that this shall be open to distress and it is all one matter and thing and is therefore a covenant and where one covenant doth depend upon another there one expounds the other so Dyer in Throgmortons case 151. and he urged many cases which are cited there and he cited the Lord Cromwels case where words of proviso are placed between words of covenants yet they will work according to the intent of the persons and there it is said that ex antecedentibus et consequentibus fiat relatio and so it appears to him that this referred to the estate which Sir Thomas had from his father and that he made nothing to impeach or to alter that and he cited the case of Sir Moile Finch though by the fine the Mannor of Beamstone was destroyed yet in the said indenture free egress and regress was reserved to the Courts for the Lady Finch afterwards an other fine was levied of all the lands and Tenements except the Mannor of Beamstone where in verity that was destroyed before and yet the judges did construe this to be a good exception because this was in verity the intent of the parties and there they made a construction upon the covenants which did lead the fine and upon the latter indenture which did direct the others and so the principal case in Althams case the judges did not only adjudge upon the first words of the lease but upon altogether and he cited the case of Hickmote where the exception extends to all the parties of the precedent deed and Hendon argued to the contrary that they were several covenants and yet he granted all the cases cited by Bawtrie but said they all stood upon this difference where it is a joynt thing and where it is a several thing as here and for that reason that ought not to be applies to that for they are distinct sentences and not joynt as is expressed in Sir Henry Finches case Coo. 6. and they ought to be construed as distinct covenants for otherwise they shall not take effect at all for then he had not any remedy for the rent which is expresly against the intentions of the parties and Crawley Serjeant said that if the two first covenants were according to the title and the last was only conditional if the rent was behinde that then it should be open to distress and the Court seemed that they were several covenants but judgement was respited for that time and the same Term the case was moved again by Hendon that they were distinct covenants and that this was the scope of the indenture and the intention of the parties that this should begin presently and secondly the two covenants are of several natures and if the third covenant be not several then it is idle for all is implied in the first and day was further given to advise of that but the opinion of the Court seemed to be for the Plantiff See after Trin. 22. Iac. Westlie against King VVEstly against King in debt the bond did bear date the 11th of February 18. Iac. and this was to perform an award Ita quod the ward be made before Easter of all controversies depending between them in the Star chamber and the Defendant pleaded that there was no award made in the mean time and the other shewed the award and assigned the breach and the Defendant replied that before the award was made c. upon the 16th of March they discharged the Arbitrators and so concluded as at the first they made no award and now Serjeant Davenport moved that he had not maintained his bar quod non fecerit tale arbitrium and have given the discharge in evidence for now it appears that the bond is forfeit but Hutton said that the Plantiff ought to have shewed this discharge and so he had shewed the forfeiture and he said further that the rejoynder is an affirmation of the bar if they were discharged then they made no award and this notwithstanding shewed a forfeiture of the bond but not upon the point which the Plantiff had alledged and Winch said though this is is so yet it appears that the Plantiff had cause of action by all the record before and day was given over in the case
Plantiff in Hammond which indenture rehearseth that King Henry the eight was seised of this land in his demeasne as of fee in the right of his Crown from him conveyed that to Ed. 6. who in the 7. year of his Raign by his letters patents bearing date at Westminster he granted that to one Fitz Williams to Hilton in fee as by his letters patents may appear they being so seised by indenture which bore date c bargained and sold that to Henry Hoskins and to Proud also recited that Proud releaseth to the said Hoskins all his right as by the said release may appear and conveyed that to Iohn by discent and so the said Iohn being seised he and his son Peter made this conveyance to the Plantiff upon a good consideration in which they did covenant with the Plantiff in this manner and the said Iohn and Peter for them and there heirs do Covenant and grant to and with the Plantiff c. that they the said Peter and Iohn Hoskins according to the true meanâ—â—ing of the said indenture were seised of a good estate in fee simple and that the said Iohn and Peter or one of them have good Authoritie to sell that according to the intent of the said indenture and that there was no reversion or remainder in the King by any Act or Acts thing or things done by him or them and the Plantiff laid the breach that neither Iohn nor Peter had a lawful power to â—â—ll the Defendant pleaded that Iohn had a good power to sell that according to the intent of the said indenture notwithstanding any Act or Acts made by him or his faâ—her or by any claiming under them and upon that the Plantiff demurred and the case was now argued by the Court and Iones Iustice began and said that his opinion was that the Plantiff shall be barred the case being upon construction of covenants and the sole question is whether they are several covenants or only one covenant and I held that they are all one covenant and those words for any Act or Acts do relate to the two other precedent sentences and so it is all but one covenant though this stand upon several parts for if these words were placed in the fore-front there had been no question but that this had been but one covenant and this made no difference when it is set before and when it is set after and the repeating of that had been toutalogie for if I covenant I will build a house at Dale Sale and a vale of Brick here Brick shall refer to them all because it is tied in one entire sentence and covenant and so if I covenant with you that I will goe with you to Canterbury to Salisbury and Coventrie here the word goes relates to all 3. as in the case of Sir Henry Finch the rent was granted out of the Mannor of Eastwel and not of the Messuage lands and Tenements lying and being in the Parish of Eastwel or else where in the same Countie belonging thereto and resolved that land which is not parcel of the Mannor is not charged with the rent because it is all but one sentence and one grant and cited the case of Althams case and Hickmots case where special words will qualifie general words where they are all in one sentence and so I conceive they are but one covenant Cook 8. 9. especially in the intents of the parties and upon the intents of all the parties of the deed for when a deed is doubtful in construction the meaning must be gathered from all the parties of that but yet that is tied with two cautions that it be not against any thing expressed by the said indenture but only in case where it is doubtful Cook 2. 5. so Cheineys case and Baldewins case a habendum will destroy an implied premisses Cook 4. but not an expressed and so in Nokes case an express particular covenant qualifies the generalty of the implyed covenant like to the case which was 32. Eliz. in the Court of Wards between Carter and Ringstead Cook 8. where Carter was seised of lands in Odiham and of the Mannor of Stoy and there covenanted that he would Levie a fine to his son of all his lands in Odiham in tail and for the Mannor of Stoyes that should be to the use of his wife now these subsequent words drew that out of the tail according to the intent of the parties and so in our case and I also take an exception to the form of the declartion for he conveyes that to Fitz Williams and to Proud and Hoskins by the name of all his lands and Tenements which were in the tenure of Anne Parker and did not aver that these lands for which the Covenant was made were in her hands and for that it is not good and for these reasons I conceive the Plantiff shall be barred The argument of Hutton Justice HUtton to the contrary I hold that they are 3. several Covenants and yet I agree the cases afore cited and the reason is they are all included in one sentence for it is the care of the Purchasor that he had an owner of the land before he purchase for that which is the ground of assurances that he is seised in fee and hereafter that the Covents that this is free from incumberances made by him and that he had good title to alien which strikes at the very root of assurances and my first reason is because here are several parties and they covenant that one of them is seised of a good estate and that they or one of them had power to alien that for it may not stand with the intents of the indentures to buy of him who had no title and might not sell and also the last Covenant is meerly in the negative that they have made no Act or Acts by which the reversion shall be in the King and that is all one as if the word Covenant had been added in every clause of the sentence and Covenants in law may be qualified by express Covenants but if a man made a lease for years upon condition to pay 20. l. in this case an entrie by the law is implyed for default of payment but yet if it added that if it be behinde he may enter and retain till he is satisfied of the 20. l. now in this case this had taken away the implyed Covenant and condition but every express Covenant must be taken most beneficially for the Covenantee and in Nokes case it is said that an express Covenant controuls an implied one but he may use either of them at his pleasure and election and I grant Henry Finches case to be good law for there is not any clause or sentence till after the Alibie but yet in Dyer 207. they are distinct sentences and shall receive several constructions and so here the matter being several they shall receive divers constructions and he Covenanted that
he was seised in fee and that he had power to alien that and this was to encourage the Purchasers and for the form he needs not aver that this was in the hands of Anne Parker for he had confessed that in the bar that he came lawfully to that and besides the Covenant is broken though he never was seised and so I conceive that the Plantiff shall have judgement Winch to the same intent it is true if it had been all but one Covenant then if it had been no question this had not been broken but I think they are several Covenants like to the case of Sir Robert Napper lately adjudged also the first two Covenants are in the affirmative and the other in the Negative and for that they ought to be answered with several pleas and these kinde of assurances are the Common assurances and therefore they ought to be interpreted favourably for the Purchasers and Iohn was not deceived in these Covenants for they brought down upon the deed an estate in fee and it is also agreed if the word Covenant and grant had been divers times added to the several clauses then they had been several Covenants and now it is all one word and made those to be several Covenants and words of relation never will controul that which is certainly put down before and so he concluded in this case the Plantiff shall have judgement to recover Hobert chief Iustice to the contrary every deed ought to be construed according to the intention of the parties and the intents ought to be adjudged of the several parts of the deed as a general issue out of the evidence and intent ought to be picked out of every part and not out of one Word only and here Peter joyned with his father to strengthen the assurance and Iohn had not only his own estate but the estate of Proud and it is plain he never meant to intangle himself with other Conveyances then those which he and Proud had made and I hold this to be no independent Covenant and it is all bound with one clause S. for any Act or Acts made by them c. and it is confessed if these words had been placed in the forefront that then they should relate to all and it is as clear as if they were and the first reson is that the intent appears only to undertake for himself because he should but have part of the land and for that he was to warrant his evidence and to that end he was to deliver to him his title at large in the said indenture and here he had made the Plantiff privie to every several conveyance of that to inform the Purchaser of it and will you also intangle him with a covenant you might have taken notice of his title and it appears to be the very intents of the parties that you should take notice of the title and inform your selves concerning the same Secondly this is a sentence which may be taken both wayes and I say it is agreed that if it had begun with these words notwithstanding any Act or Acts c. that then it shall be all construed by this and I never saw any difference I grant they are several Covenants in point of fact but not in point of obligation for there are not several words of binding nay I say if he had released this last he had released all but it hath been said that one is in the negative and the other is in the affirmative but I do not value that and it hath been said that this is the Common assurance of the Realm and if other construction shall be made then no man shall be sure of his own we had given him leave to say that no reversion nor remainder is in the King by any Act by him made and the King may not have any reversion and he seised in fee also this clause standing indifferent whether this shall be referred to all or not and then the question is how the Court will adjudge of that for my part I take it that this may stand with the intent of all the parties of the deed but take that as you take it that this destroyes all for if he is absolutely seised in fee what matter is where the reversion is and yet if the reversion was in the Crown and not by his Act you confess that may not charge him which is expresly against the first Covenant if this be distinct by it self but take that indifferently and all the parties will stand together Nappers case hath no affinity with this for questionless there were several Covenants for in that indenture it did not appear what estate Sir Thomas Eearsfield had and for that reason nothing might be collected out of that but he had a present estate but in our case all is contained in the bodie of the indenture and Nokes case is a strong case and stronger then the case at the bar is for thereupon construction of all the parties of the deeds the special warrantie controuls the general warranty and the reason is no man will take an express special warranty when the intent is that he shall have a general warranty there was a case lately ajudged between the Earl of Clanrickard and his wife against the Countess of Leicester where the Lady pleaded that she was Tenant in Dower where in veritie she had the revesion in fee expectant upon a Term for life and they conveyed all the estate the Lady had in Dower and then they covenanted that they would convey all their estate to the Lord of Leicester and his heirs during the life of his wife and then Covenanted that they would convey all their estate to the Earl of Leicester and his heirs for ever in the aforesaid land and it was resolved that though such Covenant will raise an use to the partie who ought to have that and so the reversion will pass if there had been no more words now it was but during the life of the Lady for that third part for the Covenant was but to strengthen an estate and not to convey it and so he concluded that the Plantiff should be hard and after it was said by the Court that this case was not of weight to be brought into the Exchequer Chamber and therefore the Court advised that the parties would agree quere for the residue in the Exchequer Chamber concerning that Entred Hill 18. Jac the case of Comendams Richard Woodley against the Bishop of Exeter and Mannering RIchard Woodley brought a quare Impedit against the Bishop of Exeter and Mannering who was Parson of the said Church and he declared that Arthur Basset was seised of an acre of land to which the said Advowson was appendant in his demeasne as of fee and that he the 13. Octobris 13. Eliz. granted the next advowson to one William Manwood who was then incumbent in the said Church who by his will 20. November made one Harcourt his executor
years then this is void by resignation and so is the case of Packhurst that when he resignes during the years of the Commendam the Patron shall have that and not the King and so also my opinion is clear that if he had died within the 6. years limitted by the Commendam that the King shall not have that for then it is void by death and not by the assumption of the Bishoprick which book proves directly that a Commendam may be aswel for years as for life but yet I do not hold that upon those temporary Commendams if the Bishop continued Parson during the years and made no Act to impeach that then is a void cause S. the assumption of the Bishoprick and then when that is determined the supension is determined and it is void by the original cause S. by the assumption of the Bishoprick and this Commendam doth not turn the second or first Patron to any prejudice for the incumbent is still in by the presentation of the Patron and the determination of the Commendam is not any cause of the avoidance of the benefice but this is quasi non causa which is causa stolida as the Logicians do term it but in this case the assumption is the cause of the Cession and it is like to the case of 25. Ed. 3. 47. where the King brought a quare Impedit against the Arch-Bishop of York for a Prebendary vide the case and ruled in that case that the confirmation of the King had not taken away his title to present and the reason was because the confirmation had not filled the Church but continued that full which was full before and here this temporarie Commendam may not restrain the King to present afterwards for this is not a presentation and therefore may not take away the title of the King and here the Plantiff hath not well expressed it for he hath not shewed in this Court that the presentation of the King was lawful neither that Chardon held that by vertue of the Commendam for all the 6. years but only that the Church became void by the Laws of England and that is not sufficient and then if all before were for the Plantiff yet the question is whether he hath lost his turn and I think that he hath omnis argumentatio est à notoribus and the first is better known then the second and the second may not be the first and there when the devise gave him the first it is idle to say that he shall have the second for that departs from the meaning of the words and in every grant the law implies quantum in se est and no man may say that the devisor did intend to warrant that from antient Titles and so the Lord Hobert concluded his argument and said his opinion was that the Plantiff shall be barred and judgement was commanded to be entred accordingly Mich. 22. Jac. C.P. Michaelmas Term in the two and twentieth year of King James in the Common Pleas. DAvenport moved for the amendment of a Record where a recovery was suffered of lands in Sutton in the Countie of York and the indenture of bargain and sale was by the right name and the indenture of uses by the right name but the writ of entrie was of the Mannor of Sulton and upon the examination of the parties to be recovery that the recovery was to no other uses then is expressed and mentioned in the said indenture this was to be amended Sheis against Sir Francis Glover SHeis brought an action upon the case against Sir Francis Glover and shewed for the ground of his action that where one Harcourt was bound to the Plantiff in a Recognizance c. upon which the Plantiff took forth an elegit and the Defendant being the Sheriff of the Countie took an inquisition upon that upon which it was extended but he refused to deliver this to the Plantiff but yet he returned that he had delivered that and upon that he brought his Action and upon not guiltie pleaded it was found for the Plantiff and now it was moved in arrest of judgement by Serjeant Hendon and the reason he shewed was because he laid his action in an improper Countie for though the return was in Middlesex where the Action was brought yet because the land lies in Oxfordshire where the seisin ought to be delivered the place is Local and for that the Action ought to be brought there and now Serjeant Breamston argued that the Action was well brought in Middlesex for this being but a personal thing he may bring that in either of the Counties as 14. Ed. 4. 13. Ed. 4. 19. expresly in the point and to the second objection that had been made that an Averment may not be against the return of the Sheriff to that Breamston answered that in an other Action an Averment may be against the return of the Sheriff though not in the same Action as 5. Ed. 4. but it was agreed to have a new trial by the preservation of the Iustices for otherwise it seemed the opinion of the Court was that the Plantiff shall have judgement upon the reasons urged by Serjeant Breamston Mary Baker against Robert Baker an Infant in Dower MAry Baker brought a writ of Dower against Robert Baker an Infant who did appear by his Gardian and he pleaded that his father who was husband of the demandant was seised of a Messuage and of land in Socage and devised that to the demandant for her joynture in full satisfaction of all Dower and he shewed that after the death of his father the demandant did enter into the said Messuage and land and was seised of that by vertue of the devise and to that the demandant did replie by protestation that he did not devise and for plea confessed the seisin of the husband and her own entrie but she further shewed that the Infant who was then Tenant was but of the age of 14. years and that she entred as Gardian in Socage to the Infant and disagreed to accept of that by vertue of the devise and traversed the entire and the agreement and it was said by the Court that his bar is good though it had been more pregnant to have alledged that she entred virtute legationis praedictae and so was seised and after it was said that the Replication was very good without the traverse for this was not expresly set down but that was but meerly the consequence of the plea which in veritie was not traversable Hickman against Sir William Fish HIckman had judgement for 600. l. and 10. l. damages against Sir William Fish and he acknowledged satisfaction for 410. l. of the said debt and damages and after there was an agreement between them that if Sir William did not pay the residue by such a day that then it should be lawful for Hickman to take out execution against the said Fish without suing of any scire facias though it was after
recovery here the Term is saved and yet for the time the lessee was seised to his own use but because that the fine was Preparatory to inable him to suffer the recovery now in this case after the recovery suffered that will look back to the first agreement of the parties and so the Statute hath saved the Term and for that reason if the Statute do save a Term which is of small account much more a freehold and so he prayed judgement for the defendant see more after The case of Hilliard and of Sanders entred Mich. 20. Jac. Rot. 1791. HIlliard brought a replevin against Michael Sanders for the taking of Beasts in a place called Kingsbury and the Defendant avowed and shewed that Sir Ambrose Cave was seised in his demeasne as of fee of Kingsbury where the place in which c. is parcel and 14. Feb. 16. Eliz. granted a rent charge of 42. l. 8. s. 4. d. to one Thomas Bracebridg and to the heirs of Thomas upon Alice to be ingendred the remainder to the right heirs of Thomas and Thomas had issue John and Thomas died and then Iohn his son died having issue Anne the wife of the Avowant in whose right he avowed for the rent of half a year c. 21. l. 4. s. 2. d. due at W. in Bar of which avowrie the Plantiff pleaded that true it is that Sir Ambrose Cave was seised of the Mannor c. and he made the grant according and that Sir Ambrose Cave died seised and that the said Mannor descended to Mary his daughter as daughter and heir to him who was married to one Mr. Henry Knowles and shewed that he was seised and then shewed that the 12. Iac. it was agreed between the said Sir Thomas Bracebridg and Alice his wife Mich. 22. Jac. C. P. and the said Henry Knowles and mary his wife that for the extinguishment and final determination of the said rent that Thomas and Alice should levie a fine to Henry and Mary of the said lands and Tenements aforesaid by the name of the Maniior of Kingsbury 300. Acres of land and of divers other things but no mention was made of the rent and this fine was upon Conusance of right as that which they had c. and also they released all the right which they had in the land to Henry and to Mary and then shewed that after the death of Mary this land descended to two daughters one being now married to the Lord Willoughby the other to the Lord Paget under whom the Plantiff claimed to which the avowant said by protestation that there was no such agreement and for plea that the rent was not comprised and upon that it was demurred in Law and now Serjeant Attoe this Term argued for the Plantiff and the substance of his argument was in this manner Attoe said the case was Tenant in tail of a rent charge agreed with the Tenant of the land to extinguish that and that he would levie a fine of the land to the land Tenant which is upon Conusance of right and upon release which fine is levied accordingly whether this cuts off the tail of the rent and I hold that it will and I do not finde any opinion in all the Law against this but only the opinion of Thornton in Smith and in Stapletons case in Plowden which I do not esteem to be a binding authoritie and the case is Tenant in tail of a rent disseised the land Tenant and levied a fine with proclamation of the same fine to a stranger now said Thornton this shall not bar the issue in tail of the rent because the fine was only levied of the land and he cited this to prove another case which is Tenant in tail of land accepted a fine of a stranger as that which he had c. and he rendered to him a rent and he said that his issue may avoid that rent and this case I grant because the rent was not intailed but for the other case I openly denie that and there is much difference between those two cases for a fine levied of the land may include the rent as well as the land but it is impossible that a fine of rent should include the land and our case here is pleaded to be of the land and of the rent and a fine of the land may carry the rent inclusively because it is a fine of a thing intailed yea it is not a new thing that rent should be carried inclusively by way of extinguishment in the case of a feofment and then á fortiori in a fine which is a feofment upon Record and especially when it is levied on purpose to extinguish the rent and the Statute of fines is more strong for that is of any lands Tenements and hereditaments any wayes intailed to any person c. but this rent is an hereditament intailed to the person who levied the fine and this which is carried inclusively is within the Statute nay if a man had nothing in the land yet if it was intailed to him who levied the fine this shall bar the estate tail for ever as if Tenant in tail made a feofment to G. S. and after that he did levie a fine to a stranger of the same land that in this case the issue shall never avoid this and yet neither the Conusor nor the Conusee had any thing in the land and see for Archers case Cook 3. where the issue in tail levied a fine in the life of his ancestor and a good bar and yet there he had but a possibilitie and so was the case of Mark-williams Mich. 19. Jac. Rot. 763. C. B. where all the distinctions were made for Henry Mark-williams was heir apparant to his Mother who was Tenant in tail and he levied a fine in the life of his Mother and died without issue and then his Mother died and it was ruled that this did not bar the sister heirs because she may have that and never make mention of her brother but in our case if the rent had been granted in fee it had been no question but that a meer release will extinguish that and I think a fine with proclamation is as forcible to extinguish a rent which is intailed as a release is for a rent in fee another reason is this is a fine directly of the rent though this is by the name of land and also this is upon Conusance of right c. and also in that he released and remised to the Conusees all his right in the said land but a case out of Bendloes Reports may be objected Tenant in tail accepted a fine of the land and rendred that for life ruled the issue is not barred but first I do not allow this case to be good law but if it be good law the reason is because he accepted only a fine of the land and for that it only extends to that and not to the rent as if a man is seised
if one be named in the venire facias Gregory is returned George there needs not amendment if it be in a Tales otherwise in a principal pannel 66 Action for words he is as arrant a Thief as any is in England the Plantiff needs not aver that there are Thieves in England for the difference is when the words relate to a particular place and when to an intire Realm and so when it is tied to one kinde of fellonie 70 89 Action upon the case where it lieth for a malitious prosecution at the Sessions 73 An action by the Obligee for the Obligor saying he had forged the bond but if he had said to another that he was a forger and had forged false writings no action lies 76 Action upon the case upon a contract in London to Table with the Plantiff at A. in N. and he then and there assumed to pay 4. s. by the week where the action must be brought 78 An action upon a promise against a Parson in consideration that the Plantiff would better his Tithes by Planting hops that he would allow him 40. s. an acre for his charge if that be a good consideration 80 Action upon the case where it lieth against an Attorney for convinous pleading 90 Action by an Attorney for saying he had forged writings and deserved to lose his ears lieth not 90 91 An action against a Sheriff whethâ—r it lies in the Countie where the return of the extent was made or where the land lies 100 Averment against the Sheriffs return where good and where not 100 Amendment where the venire facias habeas Corpus and the pannel agree but the Jury Rolâ— differs 101 Action of the case upon a promise 101 Action for saying the Plantiff stole a ring and had been hanged but for me lieth 102 Action upon a promise where the time and place of the request ought to be expressed 102 103 112 113 Aâ—bitrators amongst other things award interest mony whether good for all or part 114 120 Action by Serjeant Hitcham for saying I doubt not but to prove Sir Robert Hitcham hath spoken Treason 123 124 B A Bail where he is not liable to the judgement until default be in the principal or if the principal die 61 62 C A Commission to 4. or 2. of them and one refuseth the other sit the 4th may be a witness 45 Condition to save harmless he plead in the affirmative he must show how 9 A Coppiholder releaseth to his Companion it is good without admittance 3 A Coppiholder where he may inclose or dig for Marle and where not 8 A Covenant to injoy without the let of the Grantors c. or by their procurement 4 A Custome for a Coppiholder to cut trees at his pleasure is void 1 If Tenant in antient Demesne devise his lands the Devisee shall have fee 1 Covenant See fine Costs where they shall be given against an Administrator 11 A Condition to surrender coppihold he pleads he did it not good because he shewed not when the Court was holden 11 A Commission to seise for recusancie they seise an advowson the Kâ—ng grants to I. S. who presents and is disturbed by the Universitie of Oxford to whom the presentation belongs 11 12 13 Costs upon a Nonsuit at a nisi prius whether assessible by the Court or by the Judge of Assize 16 Common claimed to 600 acres and certain Messuages and lands and that he was disturbed by digging common Borrowes and doth not say he was seised at the timâ— much good matter 16 17 Custome of Merchants in Bills of Exchange varietie of good matter 24 Condition to free the nâ—xt avoidance from incumbrance the Grantors heir presents if that be a breach 25 Custome to have a widdowes estate and the husband is attainted if it holds 27 Condition that I. S. shall levie a fine to the Obligee who sued not a writ of Covenant the Plantiff replies that before c. I. S. had made a feofment of c. whether the Obligee must sue a writ of Covenant 29 30 A Condition contingent where extract by release 30 31 54 55 56 Covenant to make assurance by advice so that it be within Norfolk or Citie of N. a fine is advised not good because not shewed where it should be levied 32 33 Covenant not to alien an advowson without assent the Plantiff saith he had aliened c. good although he had not said by deed 34 Covenant where it raiseth a present use and where not 35 36 37 59 60 Custome touching Marchants and nationall lawes 52 Church shall be repaired by him who hath land there though he be no inhabitant but not lyable for the ornaments thereof 53 Coppiholder what act by him will make forfeiture 62 Covenant by a draper against his apprentice for defrauding him the Defendant pleads the Statute 5. Eliz. and that thereby there ought to be a certificate that his father had 40 s. per annum freehold which was not done here 63 64 If a Coppiholder sels his land to a Lessee of the Mannor it is good 67 Condition in a Will where nothing vesteth till it be performed 69 Costs not to be paid where the Plantiff mistakes his action 69 Covenant brought by an Executor the Defendant pleads giving of an horse in full satisfaction which the Testator accepted 76 A Court of equitie if it doth decree against a maxime in law as benefit of Survivorship a prohibition lieth 79 Covenant that he was seized of a good estate in fee and had good authoritie to sell and that no reversion was in the King c. 91 92 93 Condition where it shall be precedent and where subsequent 105 106 107 108 c. 115 116 c Costs not discharged although the offence be pardoned 125 Commendam See King D IN dept after imparlance alwayes ready is a good Plea 4 Distress gone as to the nomine Paenae if the rent be expired 7 A Declaration where it shall be mended in matter of substance 20 Damages where good in part especially after verdict 27 28 Debt against an Administrator who pleads outlawrie in the intestate no good Plea 33 58 A man soweth land and deviseth to I. S and dies before severance whether the devisee or Executor shall have the Corn 51 A Devise for years if an entrie by him must be pleaded 53 Declaration see new assignment Dower a Tenant pleads a fine levied by her husband and that the wife had not claimed within the Statute 4. H. 7. she replied she brought a writ which abated and this writ now brought was by Journeys accompts 66 Debt for rent must be brought by a privie in estate only where the land lies otherwise of a Privie in estate and contract 69 Debt upon a bond the Plantiff saith he had not paid the money and did not say nor any part thereof good for that must come of the other part to shew 72 Debt upon a bond to perform an award the Defendant