by the whole Court held to be a condition but Judgment was given for the Plaintiff for doublenesse in the plea. BRown versus Dunri Hill 15. Iac. rotulo 1819. The Defendant made cognizance c. as Bailiff M. Walker Widow Administrator c. R. W. for one rent charge of 6 l. granted by one Warner to the said R. and M. his wife for life of the VVife And the said R. by the said writing granted c. That if it should happen the said yearly Rent to be behind and not paid in part or in all by the space of ten dayes next after any Feast c. being lawfully demanded that then c. the said Warner c. ten shillings nomine paene for every default and that then it should be lawfull to the said W. and M. and their Assigns to enter into the premises and distrain as well for the rent as for the nomine paene and shews that the rent was behind in the life of the Husband and that he dyed intestate and that administration was committed to the woman and made cognisance for the rent due at such a Feast in the life of the Husband and being then behind and the issue was that the Grantor was not seised and after a tryall diverse exceptions were taken one was for that a demand was not alledged another was that the cognisance was made as Bailifle to the Administrator when as the woman by the survivorship should have the rent Another was that it is not alledged that the rent was behind by ten dayes next after the Feast and the exceptions upon debate at diverse dayes were over-ruled First the demand is not necessary for the Distress is a sufficient demand as it was adjudged in Iaces case The second was because the cognisance as Administrator are void idle and superfluous and for the ten dayes it was good because that predicto tempore quo c. It was behind and adjudged by the whole Court for the Advowant SLoper versus Alen Trin. 15. Jac. rotulo 3002. Replevin upon the taking of 40. Sheep the issue was that the Sheep were not levant and couchant and found by a speciall verdit that twenty Sheep were levant and couchant and that twenty Sheep were not levant and couchant and it was held upon the reading of the Record that the Plaintiff should have his Judgment BVrton versus Cony Hill 16. Iac. rotulo 2044. The Defendant avows for a rent charge granted to him for life by his Father issuing out of all his Lands in such a Town to have and to hold to levy and yearly to take the said annuity or annuall rent of c. during the naturall life of the said P. at two Feasts in the year to wit c. by equall portions the first payment to be made at the first and next Feast of the said Feasts which should next happen after the term of 8. years ended and determined specified and declared in the said will And if it should happen c. And averres in the avowry that there is not any term of years specified and declared in the said Testament before recited And note that in the premises of the Deed it is recited thus in fulfilling the Will or Testament of me the said T. bearing date such a date I have given c. And the Court held that the grant was present if no term was contained in the will and Judgment was given for the Advowant But after Judgment was entred upon Record an exception was taken because it was not averred that the Grantor was dead and it was allowed for a good exception but it came to late judgment being entred HEyden versus Godsulm Judgment for the Defendant who avowed for rent reserved upon a Lease for years and it was moved that the Plaintiff who brought the writ of Errour upon that Judgment ought to find bayle upon the writ of Errour by the Statute of 3. Iacobi and it was held by the greater number of the Judges that the Plaintiffe should not find bayle for Replevins are not within the Statute TVrny versus Darnes Trin. 17. Iac. rotulo 2887. Demurrer in a replevin upon a traverse of Lands when as the parties have not agreed of the quantity of Land The Avowry was that C. was seised of one Messuage two Barns one Mill c. and 100. acres of Land with the appurtenances in W. and held them of c. by fealty rent c. and suit of Court c. And the Plaintiff prayed in aide and he joyned and alledges that he was seised of 70. acres of Land with the appurtenances in his demesne as of Fee and held them of G. by fealty and rent c. and suit of Court and traverses that he held the Tenements of the said G. as if his Mannor of W. in manner and form as c. and a speciall demurrer and one cause was because he denies not the seisin of the said services but only denies and traverses the tenure and therefore they pretended that the plea contained double matter and was a negative pregnant and secondly whether the Seisin or Tenure be traversable and the Plea was held good by Hubberd and Warburton RIchards versus Young Trin. 16 Jacobi rotulo 104. vel 1700. A Replevin brought for taking of Cattel at Aller in a certain place called Land Mead the Defendant avows as Bailiff of Sir John Davies the Kings Serjeant containing four Acres for damage fesant the Plaintiff pleads in Barr that Henry Tearl of Hunt was seised of the Mannor of Aller whereof one Messuage c. was parcell and customary Land and devisable by Copy of Court Roll and that within the said Mannor there was a Custome that every customary Tenant of the said Messuage hath been used to have Common of Pasture in the said place called Land Mead rhe Issue was without that that within the said Mannour with the appurtenances whereof c. is and time out of mind was a custome that every customary Tenant of the laid Messuage c. had Common of pasture in manner and form c. and Serjeant Harris moved in Arrest of Judgment that there was no custome alledged because it did not appear in the pleading that the place where the taking was supposed to be was within the said Mannor and no custome of the Mannor could extend forth of the Mannor but he ought to prescribe in the Mannor and note he ought to have pleaded that the place in which c. was parcell of the Mannor and then the Plea had been good In a Replevin upon an Avowry for Rent the Plaintiff for part pleadeth payment for the other part an Accord the one Issue is found for the Paintiff and the other for the Defendant the Plaintiff shallrecover his costs and damages and the Defend shall have Judgement of Return habend and no costs and damages I think otherwise it is if the Avowries be severall then on both
to have distrayned the Cattell of the Lord damage fesant and observe his BRaxall versus Thorold Trin. 8. Jac. In Replevin for the taking of 4 Oxen at Coringham in the County of Lincoln in a place called Dowgate leys Sept. 6. Jac. The Defendant says the place contained four acres in Coringham magna which was his Free-hold and justifies the taking damage fesant The Plaintiff in his bar to the Avowry that the place where c. lies in a place called Harrerart quarter parcell of a great Common Field called E. in Coringham aforesaid and that the Plaintiff the said time and long before was seized of one Messuage and of 14. acres of Land Medow and Pasture with the appurtenances to the said Messuage belonging and that the Plaintiff and all they whose estate the Plaintiff had in the Tenements ought to have common and so prescribed to have common for him his Farmers Tenants c. for all comunable cattell levant couchant upon the Tenements c. And upon issue taken upon the Common it was found for the Plaintif and alledged in arrest of Judgment that it did not appear by the Barre to the Avowry in what place the Messuage and Land to which the Common did appertain did lie to wit whether it did lie in Coringham or in any other place or County and thisof necessity ought to have been shewed in certain because the tenure ought to be both of the place where the House and Land did lye and of the place where the Land did lye in which the Common was claimed and therefore of necessity ought to have been shewed incertain and shall not of necessity be intended to be in Coringham where the Common is For a Common may be appendant or appurtenant to Land in another County And the trvall shall be of both Counties and Judgement was arrested by the whole Court TRuelock versus Riggsby Mich. 8. Jacobi In Replevin for the taking of six Kine in a place called Brisley hill in Radley in the County of Berks the Defendant as Bailiff of one Read makes Conisance that the place where c. contains fifty acres and is parcell of the Mannor of Barton whereof the place where c. is parcell and showes that E. 6. was seised of the Mannor of Barton whereof the place where is parcell and granted it by Letters Patents to R. Leigh and divers other Lands by the name of the Coxleyes c. and amongst other particulars in the Patent the King granted Brisley hill in Barton and deduces the Free-hold of the Mannor of which the place In which c. is parcell to Read and he as Bailiff to him took the Kine damage Fesant the Plaintiff replies and shows that one Hide was seised of a Messuage and divers Acres of Land in Radley and that he and those whose estate he hath for himself his Farmers and Tenants used to have Common in the said place called Brisley hill in Radley when the said Feild called Brisley hill in Radley was fresh and not sowed all that yeare with their Cattell Levant and Couchant and when the Field was sowne with Corne and when the Corne was carried away untill it was referred and so justifie the putting in of six Kine using his Common because the Feild was not sown with Corne at the time to which the Defendant pleads and saies that part of the Feild called Brisley Hill in the Avowry named was at that time sown with Corn c. and the Plaintiff demurres and adjudged for the Plaintiff for two reasons The first was because the Defendant in his Avowry referres the taking of the Cattell to another place then that set forth in the Avowry which is not in question and in which the Plaintiff claims no Common for the Plaintiff may claim Common in Brisley hill in Radley and the place named in the Defendants Avowry to which he referres his Plea is Brisley hill in Barton for Brisley hill in Radley is not named in the Avowry by any speciall name but onely by implication by this name the place in which c. and for that reason the rejoinder doth not answer the matter in the replication The second cause was because the Plaintiff claims Common when Brisley hill in Radley was unsown with Corn and the Defendant to that although his Plea should referre to the same Brisley yet hath he given no full answer for he saith that parcell of the said Feild was sowed with Corn and the Court held that sowing of parcell of the Feild shall not hinder the Plaintif from using his Common in the residue for that may be done by covin to deceive the Plaintiff of his Common for the Plaintif claiming his Common when the Field that is the whole Feild is sown shall be barred of his common by sowing of parcell of it notwithstanding that parcell be sowed the Plaintif shall have his common by the opinion of the whole court GOdfrey versus Bullein Mich. 8 Jacobi Bullein brought a Reple vin against Godfrey for the taking of six Beasts in such a place in Bale in the County of Norfolk the Defendant as Bailif of R. Godfrey makes conisance because before the time and at the time in which c. the said R. Geffrey was seised of a Court Leet in Baile of all the inhabitants and râ—â—dent within the Precinct of the Mannor of Baile to be holden within the Precinct of the Mannor as appertaining to his Mannor and shews how that he had used to have a Fine of ten shillings called a Leet Fine of all the cheif pledges of his Leet and if they failed to pay the Steward had used to amerce them that made default in payment shewed how that at a Court holden within the Mannor such a day it was presented that the Plaintif in the Replevin being an inhabitant in B. and resident within the Precinct of the Mannor made default in payment of the said Fine of ten shillings being then one of the cheif pledges of the Court by reason whereof he was amerced at five pounds which being not paid the Defendant took the Beasts and the Issue was whether Bullein at that court was a chief Pledge or no and the Venire to try his Issue was onely of the Mannor and found for the Plaintif and damages and costs to thirty pounds given against Geffrey upon which he brought a Writ of Error in the late Kings Bench and adjudged Error and the Judgement reversed for the Venire facias should have been both of Bail which was the Village as of the Mannor for although the Court be held within the Mannor yet the Leet it self is within the village of Baile and the Plaintiff was an inhabitant and resident within the village which village is within the Precinct of the Mannor and though Fleming cheif Justice held that nothing was in question but whether the Plaintiff was cheif pledge at the Court held within the Mannor or no and so nothing within the
others which were present at the said marriage or Actors in that And upon Evidence it appeared that Doctor Hussey was not present nor Actor in it and for that the Jury found him not guilty but they found all the other Defendants guilty of the said Ravishment for upon the Evidence it appeares that the Wife of Doctor Hussey procured and provided the Minister which married them and in the last Michaelmas Terme this was tried here at the Barr and the Jury assessed Dammages to ten pound and the value of the Ward to eighty pound for so much Moore proved that he could have sold him for and also the Jury found that the Ward doth appeare married being of the Age of 16. yeares at the time of his marriage and exceptions were taken to that for that it was not found of what age the Ward was at the time of the verdict and it was urged by Dodridge that by the Statute of Westminster 2. chapt 39. The precise age ought to be found at the time of the verdict Secondly it was found that the Ward did appeare married and doth not say without License of the Guardian and the Guardian may give his consent where the Ward marries himselfe and then there is no cause of action The third and other exception was taken in the behalfe of the Wife of Doctor Hussey for that shee being a married Wife was found guilty of Ravishment of Ward against the Statute of Westminster the 2. chap. 39. And it was urged that it was not the intent of the Statute that provides that he which did Ravish not having right in the marriage though he should restore the Boy naked and not married or should satisfie for the marriage he shall be punished for the transgression by Imprisonment for two yeares and if he shall not restore him or shall marry the Heire after the marrying yeares and cannot satisfie for the marriage he shall abjure the Realme or shall have perpetuall Imprisonment And it was objected that a married woman was not intended to be within this Statute for it is apparent that a married woman hath not wherewith to make satisfaction and it shall not be intended that she shall have perpetuall Imprisonment or make abjuration for this was to make separation betweene the Husband and his Wife and so it was adjourned And the Judges moved the parties to compound amongst themselves see Michaelmas 8. Jacobi Trinity 9 Jacobi Pasch 9. Jacobi 1611. in the Common Bench. Kenricke against Pargiter and Phillipps RObert Pargiter Gentleman and John Phillipps were summoned to answer to Robert Kenricke Gentleman of a Plea why they tooke the Beasts of the said Robert Kenricke and those unjustly detained against Suerties and Pledges c. And thereupon the said Robert Kenricke by Thomas Pilkington his Attorney doth complaine that the said Robert and John the fourth day of August the yeare of the Reigne of our now King seventh at Kings Sutton in a certaine place called Great Greenes took Beasts that is to say one Gelding one Mare and one Colt of the said Robert Kenrickes and do unjustly detaine them against Suerties and Pledges untill c. By which meanes he saith he is the worse and hath losse to the value of twenty pound and therefore bringeth this suit c. And the aforesaid Robert Pargiter and John Phillipps by John Barton their Attorney do come and defend the force and Injury when c. And the said Robert Pargiter in his owne right doth well avow and the aforesaid John Phillipps as Bailiff of the said Robert Pargiter doth well acknowledge the taking of the said Beasts in the aforefaid place in which c. and justly c. Because he saith that the said place in which it is supposed the taking of the said Beasts to be made did containe and at the aforesaid time in which it is supposed the taking of the aforesaid Beasts to be made did containe in it foure Acres of Meadow in Kings Sutton aforesaid which the said Robert Pargiter long before the aforesaid time in which c. and also at the same time in which c. was and as yet appeareth seised of one Messuage and one virge of land with the appurtenances in Kings Sutton in his Demesne as of Fee and that the aforesaid Robert Kenrick the aforesaid time when c. and long before was seised of a Messuage and foure Virges of land with the appurtenances in Kings Sutton aforesaid whereof the aforesaid place in which c. Is and at the aforesaid time when c. and also at the time to the contrary doth not appeare in the memory of man was parcell in his Demesne as of Fee And the said Robert Pargiter and John Phillipps further say that the said Robert Pargiter and all those whose Estate the said Robert Pargiter now hath and at the aforesaid time when c. had in the aforesaid Messuage and one Virge of Land with the Appurtenances of the said Robert Pargiter from time the contrary whereof doth not appeare in the memory of man had and have used to have and were accustomed to have Common of Pasture in the aforesaid place c. For six Horses Geldings or Mares two Colts six young Beasts called Steeres or young Beasts called Heifers and two Mares called breeders in and upon the said Messuage and one Virge of Land with the Appurtenances lying and rising in manner and forme following that is to say every year in and from the first day of August called Lammas day untill the feast of the purification of the blessed Mary the Virgin then next following as to the said Messuage and one Virge of Land with the Appurtenances belonging and the said Robert Pargiter and John Phillipps further say that the aforesaid Robert Kenricke of the aforesaid Messuage and foure Virges of Land with the Appurtenances whereof c. In the forme aforesaid appearing seised the said Robert and all those whose Estate the said Robert Kenricke now hath and at the aforesaid time in which c. had in the aforesaid Messuage and foure Virges of Land with the Appurtenances whereof c. time out of mind had and were used and accustomed to have the aforesaid place in which c. To their proper use in severalty every year in and from the feast of the purification of the blessed Virgin Mary untill the first day of August called Lammas day then next comming that by reason and in consideration therof he the aforesaid Robert Kenrick and all those whose Estate the said Robert Kenrick now hath and at the time in which c. had in the aforesaid Messuage and foure Virges of Land with the Appurtnances whereof c. time out of minde have had and were accustomed to have every yeare from the aforesaid first day of August called Lammas day and from thence untill the aforesaid purification then next following Common of pasture in the aforesaid place in which c. Only for three Mares
or Geldings and no more and because the Beasts aforesaid in the narration aforesaid specified over and above the aforesaid other three Mares or Geldings the aforesayd time in which c. were in the aforesayd place in which c the Grasse then growing there eating and the Common of pasture of the sayd Robert Pargiter overcharging and doing damage to the sayd Robert there the sayd Robert Pargiter in his owne right doth wel avow and the aforesayd John Phillips as Bayliff of the aforesayd Pargiter doe well acknowledge the taking of the Beasts aforesayd in the aforesayd place in which c. and justly c. they then doing damage there c. And the aforesayd Robert Kenrick saith That neither the sayd Robert Pargiter for the reason before alleadged the taking of the aforesayd Beasts in the aforesayd place in which c. can justly avow nor the aforesayd John Phillips as Bayliff of the aforesayd Pargiter for the same reason the taking of the Beasts aforesayd in the aforesayd place in which c. justly can acknowledge Because by protestation that he the sayd Robert Kenrick and all those whose estate the sayd Robert Kenrick now hath and at the aforesayd time of the taking c. had in the sayd Messuage and foure Virges of Land with the appurtenances whereof c. time out of minde had not nor used to have or were accustomed every yeare at the first day of August called Lammas day and from thence to the next Feast of the Parification then next following Common of pasture in the aforesayd place in which c. onely for three Horses Mares or Geldings and not more in manner and forme as the aforesayd Robert Pargiter and John Phillips above have alleadged for Plea the sayd Robert Kenrick sayth That he long before the time of the taking of the Beasts aforesayd and also at the same time of the taking c. was seised of the Mannor of Kings Sutton with the appurtenances in Kings Sutton and Astrop in the County aforesayd whereof the aforesayd Messuage and four Virges of Land with the appurtenances whereof c. are and at the aforesayd time of the taking c. and also time out of mind c. were parcell in his Demesne as of Fee and the aforesayd House and foure Virges of Land with the appurtenances thereof c. and of the taking and likewise time out of mind were parcell of the Demesne Lands of the Mannor of Kings Sutton aforesayd And the sayd Robert Kenrick so of the Mannor aforesayd with the appurtenances in manner aforesayd appearing seised the sayd Robert before the sayd time in which c. put his Beasts aforesayd which then were the proper Beasts of the sayd Robert Kenrick upon the aforesayd House and four Virges of Land with the appurtenances lying and rising in the aforesayd place in which c. to eate the Grafs there growing in the sayd place in which c. called Great Greens parcell c. the Grass in the same then growing feeding and the aforesayd Beasts were in the place aforesayd untill the aforesayd Robert Pargiter and John Phillips the aforesayd fourth day of August the seventh yeare aforesayd at Kings Sutton aforesayd in the County aforesayd at Great Greene parcell c. took the sayd Beasts of the sayd Robert Kenrick and those unjustly detained against Sureties and Pledges untill c. as he above against those complaines and this he is ready to verifie whereof and from which the aforesayd Robert Pargiter and John Phillips the taking of the aforesayd Beasts in the aforesayd place c. further acknowledge the sayd Robert Kenrick demands Judgment and his damages by reason of the taking and unjust detaining of those beasts to be adjudged unto him c. And the aforesaid Robert Pargiter and John Phillips say that the aforesaid Plea of the said Robert Kenrick above in the Bar avowed pleaded and matter therein contained is very insufficient in Law justly to avoid the said Robert Pargiter and the said John from just acknowledging the taking of the Beasts aforesaid to have and shut up and that he to the said plea in manner and forme aforesaid pleaded hath no need not by the Law of the Land shall be held to answer and this they are ready to averr whereof for default of a sufficient plea of the aforesaid Robert Kenrick in this part the said Robert and John as before demand Judgement and Returne of the Beasts aforesaid together with their Damages c. To them to be adjudged c. And the aforesaid Robert Kenrick in respect he hath sufficient matter in Law justly to avoid the said Robert Pargiter and the aforesaid John from justly acknowledging the taking of the said Beasts to be shut out as above alledged which he is reaoy to verify which truly matter of the aforesaid Robert Pargiter and John do not answer according to their verifying they altogether refuse to admit as before and demand Judgment and their Damages occasioned by the taking and unjust detaining of the said Beasts to be adjudged to them c. And because c. Upon the pleadings the Case was thus a Freeholder prescribs to have common in parcell of the Demesnes of the Mannor for six Horses and other Cattel in certain Land from Lammas to Candlemas that the Lord of the Mannor hath used to have the said Parcell of Land in severall to his owne use from Candlemas to Lammas and in consideration of that the said Lord hath used to have Common in the said parcell of Land for Horses only and not more and the Lord unjustly puts in other Beasts then the said three Horses in the said parcel of Land and surcharged the Common and the Free-holder distrayned them doing Damage and the Lord brings a Replevin and it was argued that prescription was not good for that that Free-holder claimes that as Common without number in his severall Soyle the Grantee cannot exclude the owner of the Soile 12 H. 8. Brooke so of him which hath Common Fishing in the severall of another he cannot exclude him which hath the severall 18 H. 6. 16. And it is not like to the Case of the time of Edward the first prescription the 55. Where is Prescription that the Owner of the Soile shall be excluded from his Common for part of the yeare for there the other claimes all the Vesture of the Land and so may well exclude the Lord but not when he claimes it but as Common but it was agreed that by Lawes by the Commoners consent they may order that their great Cattell shall be put in in such Feild only untill such a Feast and after that for sheep and swine and this is good as it appears by 46 Ed. 3. 25. And Coke cheife Justice said that such prescription to have Common and to exclude the Owner of the Soyle is not good and he saith that so it hath been adjudged between Whyte of Shirland 31 Eliz. And in
to the estate casts the possession of his Ancestors upon him but a stranger to whom a Copy hold is surrendred hath nothing before admittance because he is a purchasor And a Copy made to him upon which he is admitted is his Evidence by the custome and before that he is not a customary Tenant and so he could not transfer any thing to another and adjudged so according to 24 Eliz Alderman Dixies Case BEdell versus Lull Pasch 7. Jacobi The Plaintiffe declares in Ejectment upon a Lease made by Eliz James of certain Lands The Defendant pleads that before Eliz had any thing one Martin James was seised in fee of it and had issue Henry James and dyed seised by reason whereof it discended to H. J. as Son and Heir and that Eliz entred and was seised by abatement and made the Lease to the Plaintiffe and that afterwards the Defendant as servant to H James and by his command c. The Plaintiffe by way of replication confesses the seisen of M. James And that he being so seised by his last Will in writing devised the said Land to Eliz in fee and afterwards dyed seised by reason whereof she entred by force of the devise and made the Lease to the Plaintiffe and traverse without that Eliz was seised by abatement in manner and form c. And the Defendant demurrs upon this replication and shewed for cause that the traverse was not good and adjudged for the Defendant for the Plaintiffe by his replication need not both confesse avoid and traverse the abatement too for the Plaintiffe made a title to his Lease by the Will of his Ancestor and that proved that he entred legally and not by abatement as the Defendant had supposed And then to take a traverse over makes the replication vitious For a traverse shall not be taken but where the thing traversed is issuable And here the devise is onely the title issuable And it was also held that the traverse was not good as to the manner of it for he should not have traversed without that that he was seised by abatement but it ought to have been without that that he did abate and also if the Plaintiffe had minded to have fully answered the Defendant he ought to have took his traverse in the very same words the Defendant had pleaded it against him to wit without that that he did enter and was seised by abatement which observe The Case concerned Sir H. James to whom the Defendant was Tenant SAunders versus Cottington Mich. 7. Jac. An Ejectment brought of two Houses but the Bill was onely for one and it was filed And the Defendant by his paper book pleaded to both Messuages And the Roll in Court and the Record of Nisi prius were two Houses And there was a verdict for the Plaintiffe and Judgement entred accordingly And a Writ of Error was brought by the Defendant and before the Record was removed the Plaintiffe moved the Court that the Bill upon the file might be amended and made two Messuages And because the Defendant had pleaded to Messuages in his Answer in paper and that the Roll and Record were according it was resolved by the whole Court that the Bill upon the File should be amended and made two Messuages for that Bill which made mention onely of one House could not be the ground of all the proceedings afterwards but it was as if no Bill had been filed and therefore it should be supplied and so had been severall times before the Record was renewed Which observe THe Plaintiffe declared in Ejectment upon a Lease of an House 10 Acres of Land 20 Acres of Meadow 20 Acres of Pasture by the name of one Messuage and ten Acres of Meadow be it more or lesse and upon not guilty pleaded the Plaintiffe had a Verdict but moved in Arrest of Judgement and Judgement was stayed For by the Plaintiffs own shewing in his Declaration he could not have Execution of the number of Acres found by the Verdict for in the Lease there is but ten Acres demised And these words more or lesse could not in judgment of Law be extended to thirty or fourty Acres for it is impossible by common intendment and the rather because the Land demanded by the Declaration is of another nature then that which is mentioned in the per nomen c. For that is only of Meadow and the Declaration is of arrable and Pasture MOore versus Hawkins Mich. 8. Jacobi In Ejectment after issue Joyned upon a not guilty pleaded the cause came to be tried before Brook and Yelverton Judges of Assize in the County of Oxford the Plaintiffe had declared of divers Messuages and divers Acres of Land lying in three Villages in the said County And at the tryall before the Jury was sworn Walter the Defendants Counsell put in a Plea that after the last continuance to wit such a day in Trinity Terme before the day of Assize to wit the 20. of July the Assizes being held at Oxford the 21 of July the Plaintiffe had entred into such a Close by name containing eight Acres parcell of the premises specified in the Declaration c. and this Plea was received by the Judges of Assize And afterward in Mich. Terme Yelverton and Walter being of Counsell with the Defendant desired that they might amend their Plea to wit to put in the very Village where the Land did lye into which the entry of the Plaintiffe was because it was but matter of form and not of substance and they were of opinion that the tryall of that new lssue ought to be of all the three Villages named in the Declaration And Yelverton Justice having asked the opinions of all the Judges in Serjeants Inne Fleetstreet related their opinions in the Court the Record of Nisi prius was returned into the Exchequer to wit that it was in the discretion of the Justices of Assize to accept such a Plea as is before and that it might be well allowed as the 10 H. 7. is and it shall stay the Verdict But otherwise it is of a protection for although they allow a protection yet the Judges may take the Verdict de bene esse yet he said that in the 7. E 3. in a Precipe quod reddat a Release was pleaded at the tryal and the Jury found the Verdict but that was the indiscretion of the Judges to allow it when it should not have been allowed And all the said Judges held as he related that the Plaintiffe could not have a replication to that Plea at the tryall for the Justices have no power either to accept a Replication upon that Plea or to try it but onely to return it as parcell of the Record of Nisi prius And they held also that the Plea being put in the Countrey could not be amended in adding the Town in certain in which the Close did lye for it was matter of substance And that the Court of
Winch held that the Plaintiffe should not be barred for the Misnomer and for the second he held that his house was within the Statute of Chaunterys and so the interest in the King H. 6. And so the Lease made by the Master of the Hospitall void Dyer 246. 287. And Warburton held the Plaintiffe should be barred upon both points SWynerton versus Mills Hill 14 Jacobi rotulo 2049. In a Replevin the Defendant a vows for a rent charge reserved by a Copiholder who is seised in Fee and made a Lease by the license of the Lord reserving Rent at foure Feasts or within one and twenty days being lawfully demanded and afterwards the Copiholder surrendred one moity in Fee to a stranger and afterwards surrendred the reversion of the other moity to another to which the Termer atturned and so avowed for Rent The Plaintiffe pleaded in Barâ— that he was seised of a Close adjoyning to the place in which c. and put therein his Cattell and that they escaped by fault of inclosure and issue taken upon that And after a Verdict by default those exceptions were taken to the Avowry in Arrest of Judgement First because it appeared by the Advowry that the Copiholder had surrendred a Reversion which could not be because a Copiholder is a Tenant at will and so could not have a reversion for he cannot make a Lease for yeers without the license of the Lord but this exception was over-ruled by the Couâ—t Secondly because there was no Atturnment alledged in the first surrender And it was held no exception because the Rent for which he avowed was reserved by the Copiholder by the second surrender to which the Termer had atturned And also the Court said that an Atturnment is not necessary for a Copiholder because there is no time when the Terme should atturn For before the surrender he cannot atturn and after the surrender and admittance it is too late And the Copihold estate is like an estate raised by uses or devise in which an Atturnment is not necessary As also in an estate raised by Fine and the like an Atturnment is not necessarie for if the Termer will not atturn he is compellable by Law as by a Quid juris clamat but a Copiholder hath no means to make the Termer atturn if he refuse And thirdly in the conclusion of the Advowry he doth not say that the Rent was behind such a day and one and twenty dayes after at least and this exception was disallowed because the distresse is a sufficient demand of the Rent and it appears that the day of the taking of the distresse was one and twentie dayes after the Feast at which the Rent was due and Judgment was given for the Advowant and note that a Covenant to distrain is idle for a man may distrain of common right HOwell versus Sambay Mich. 13 Jacobi rotulo 2009. In Replevin the Defendant a vows for a Rent charge and a Nomine pene granted by Tenant in tail generall and one Fine levied afterwards and the use expressed the Plaintiffe replies and saies that the Grantor had only an interest for life and so makes inducement and traverses the use of the Fine The Defendant demurrs And held by the Court that the Grantee was not seised in tail nor to the use of the Fine And it was said that in this case that it was necessary for the Advowant to plead the Fine with the estate tail for if the Tenant in tail grant a Rent charge and dye no Fine being levied and the estate tail discends the issue in tail is not chargable with the Rent And note the Advowry was as well for the Rent as for the Nomine pene and no speciall demand was alledged in pleading the Rent and it was adjudged by the Court a naughty advowry as to the Nomine pene but good for the Rent as it hath been adjudged in one Mildmaies Case COtterell versus Harrington Pasch 6. Jacobi rotulo 545. In a Replevin the Defendant avows for an Annuity for 20 d. granted for yeers payable upon demand and alledges a demand the Plaintiffe demands either of the Deed and by the Deed it appeared that for a hundred and ten pound one Rent of twenty pound was granted for eight yeers and another for 20 l. for two yeers if E. R. and T. should so long live the Plaintiffe pleads the Statute of Usury and sets forth the Statute and a speciall usurious Contract If it had been layed to be upon a loan of Money then it was Usury but if it be a bargain an Annuity it is no usury But this was alledged to be upon a lending VVOod versus Moreton Hill 6 Jacobi rotulo 1802. In Replevin the Defendant advows to have Common Appendant out to his house and Land the Plaintiffe saith that he had Common Appendant to his House and Land And the Defendant to avoid the Common saith that the Commoner sold to the Plaintiffe five Acres of the Land to which the Common is appendant pretending that he should not have Common for that Land being but parcell of the Land to which the Common was appendant Common Appurtenant cannot be to a House alone purchasing of part of Common Appendant doth not extinguish the Common otherwise it is of Common Appurtenant And it was pretended to be Common Appurtenant because it is to a House and Land whether by severance his Common is gone and held to be common Appendant and Judgment given for the Plaintiffe MOrse versus Well Replevin for Common of Pasture the casewas that the Father was seised of two yard Land with Appurtenances and had Common of Pasture for four rother Beasts three Horses and sixty Sheep and he demised part of the said two yard Lands in being And whether the Common should be apportioned and if it should be apportioned whether the Prescription failed because the issue was taken that he and all those c. had Common in the said two yard Land A Release of Common in one Acre is a Release of all If I have Common Appurtenant and purchase part the Common is gone but otherwise it is of Common Appendant And note this Common was Common Appendant and the purchasing of Common Appendant doth not extinguish the Common and Judgment was given for the Commoner by the whole Court HVghes versus Crowther Trin. 6 Jacobi rotulo 2220. In a Replevin a Lease for years made to Charles H. and the said A. T. to have and to hold from c. for sixty years if they live so long Charles dyed in this case Judgment was given that the Lease was ended by the death of Charles but otherwise it had been if it had been for life BIcknall versus Tucker Trin. 9 Jacobi rotulo 3648. in a Replevin the case was whether a Fine with five years will bind the Copy-holder in remainder there was a Copy-hold granted to three for lives to have and to hold successively the
try the Issue anew DOwglas against Kendall Mich. 8. Jacobi The Plaintif declared that the Defendant the 21. of January 6. Jac. by force and Arms thirty Loads of Thornes of the Plaintifs ready to be carryed in a place called the Common wast at Chipping-warden in the County of Norfolk did take and carry away to the Plaintifs damage of ten pounds the Defendant pleaded not guilty to all but to ten Loads and as to them that the place where c. contained one Acre of pasture and that one William Palmer was seised in fee of a Messuage and three quarters of a yard Land in C. aforesayd and that he and those whose estate he had in the sayd Messuage c. time out of minde were used to have for their farmers c. all the Thornes growing upon the sayd Acre of pasture to their use to be imployed and spent upon the sayd Messuage c. as appurtenant thereunto and the sayd ten Loads were growing and unjustly cast downe by the Plaintif upon the sayd Acre of wast and being ready for them to carry the Defendant as servant to Palmer and by his command took them and carryed them away and imployed them upon the House as it was lawfull for him to doe the Plaintiff by protestation that Palmer and such c. time out of minde had not the Thornes growing upon the sayd Acre of pasture parcell of the wast and that Sir Richard Saltonstall was seised of the Mannor of Chipping-warden whereof the common wast was parcell in fee and that he the 21. of January the sixth yeare of K. James granted license to the Plaintif to cut and carry away thirty Loads of Thornes mentioned in the Plea in barr growing upon the Wast by reason whereof they cut those ten Loads of Thornes growing upon the wasts and they were ready to be carryed by reason whereof they were possessed thereof untill the Defendants took them away and upon this Replication the Defendants demurred and adjudged against the Plaintif and there was a differance taken by the Court where a man claimes reasonable Estovers in anothers Soyle and where a man claimes all the Thornes in anothers Soyle for in the first case if the Owner of the Soyle shall cut downe the Thornâ—s first he that hath title to the Estovers cannot take them for the property and interest of all the Thornes continues in the Owner of the Soyle and the other hath onely Common there and if the Owner of the Soyle cut them downe all he that should have the Estovers shall have an Action upon the Case onely and not an Assise for when all the Wood is destroyed it cannot be put in seisin as the Abridgement of the Assise is fol. 21. And so it appeares by Sir Thomas Palmers Case Co. lib. 5. fol. 25. And if one grant an hundred Cords of Wood to be taken at the election of the Grantee and the Grantor or an Estranger cut downe the Wood the Grantee cannot take the Wood but must supply his Grant out of the residue for the Grantee hath but an especiall interest in part of the Wood and not in all but now in this Case the Defendant in right of Palmer claimes all the Thornes in the name of all the Thornes growing upon the sayd Acre of pasture and if he hath all Sir Richard S. cannot have any and so by consequence cannot license the Plaintif to cut any and so the whole interest is in Palmer and it is not in the nature of Estovers for Estovers is but parcell of the Wood and that to be taken to a speciall purpose and in this case it was agreed that although the Defendant had alledged an imployment of the Estovers yet since the Defendant had claimed all the Thornes and Trees the imployment is not traversable for he that hath the generall interest and property in Trees by custome or prescription cannot be restrained but may use them at his pleasure And see 10 E. 4. 2. and adjudged accordingly MAssam against Hunt Mich. 6. Jacobi A Copi-holder of a Messuage and two Acres in fee. The Lord grants and confirms the Messuage and Lands with the appurtenances to the Copy-holder in fee and whether he to whom the confirmation was made shall have by the usage as a Copy-holder common in the wasts of the Lord was the question and adjudged he should not for the Copy-holder by that confirmation is extinct and infranchiz'd for the words with the appurtenances will not create a common for at first the Common was gained by custome and annexed to the customary estate and is lost and perished with that for Common of its own proper nature is incident to a Copy-hold Estate FArmer against Hunt Hilar. 8. Jacobi An Action of Trespasse brought for chasing the Plaintiffs Cattle in such a Close the Defendant justifies taking damage fesant in his Free-hold The Plaintiff replies and shewes one grant of Common in the place where c. by the Defendant to the Plaintiff and that afterwards the Defendant had erected a reek of Corn and the Plaintiff put in his Beasts to use his Common and the Defendant chased them But note that the Plaintiff in his replication in pleading the grant of the Common by Indenture did omit the bringing it into Court. And by all the Judges the chasing of the Cattell by the Defendant is not lawfull for by such means he may defeat his own grant for by the grant of common in such a place the Grantee may use the whole Common And then when the Grantor erects a Reek of Hay upon part of the Common he had granted he will diminish the Common and tend to the enfeebling of his Grant which ought not to be for the Beast ought to range over the whole place and eate the Hay without doing any wrong for the wrong did first begin in the Grantor who is the Defendant of which he shall never take advantage And whereas hee hath erected one Reek of Corn hee may erect twenty and so the Beasts shall have no liberty of pasture there but because the Plaintiff did not shew to the Court the Indenture of the Grant which is the ground of his title for that very cause judgment was given against the Plaintiff DVrant against Child Hillar 9. Jaco An Action of Trespasse brought for chasing the Cattell of the Plaintiff and shews what Cattell and that the Trespasse was done at B. to his damage of c. The Defendant justifies the chasing in one Close called M. in B. which is his Free-hold and that the Cattell were there damage fesant The Plaintiff replies and shews that one B. is seised of one Close called Catley in D. in fee and made a Lease thereof to the Plaintiff for years and that the Defendant is seised of one Close called Fursey in Fee which lies next adjoyning to the Close called Catley and that the Defendant and all those whose Estate he hath in Fursey Close have used
omit to take them every other year I cannot take them in the third year But for Rent and such other things that are in the Render I ought to have it when ever I demand it as it best pleases me And note that in such case one prescribed for eight Loads of Wood to be cut and taken as appertaining to a Messuage which was held naught by the whole Court for the Prescription should be laid for Estovers to be imployed upon Repairs of the said Messuage or to be spent in it for a man cannot prescribe to have a Prescription to come and cut down my Wood which is as much as I that have the Free-hold can do For the claim to take and sell my Wood cannot be good And the Court held it a good Prescription to prescribe to have Common every other year although you shew not the Commencement as to shew what time of the year when it begins If a man hath Common of Pasture in divers Closes and parcels of Ground where he hath some Land of his own there and in all other cases where one is to prescribe he need not to make his Title to every peice but to say he hath Common in loco in quo c. in t alia and need not to speak of the rest of the Land in the residue of the Feild because he hath Land of his own Common appendant belongeth to arrable Land not to Pasture Land If two Issues be joyned and in the awarding the Venire facias these words Videlicet Quoad triandum tam exit istum quam praedictum alium exit superius junct were omitted and after a Verdict such Default was moved in Arrest of Judgement and the Exception over-ruled and held good notwithstanding that omission The whole Court were of opinion that local things shall not be made transitory by laying the Action in a forrain Shire as for Corn growing in one Shire and an Action of Trover brought in another COmes Cumbr. versus Comitem Dorset It was moved by the Defendant that whereas the Plaintiff had prosecuted a Distring Jur. and onely eleven of the Jury appeared and the Inquest remained to be taken for want of Jurors and that at such time neither Plaintiff nor Defendant desired a Tales and afterwards the Defendant in another Terme prayed a Tales of that Writ which the Plaintiff had prosecuted and the Court denied to grant it because he prayed not a Tales when the Distress was retorned and if he would have a Tales he must purchase anew a Plur. distring and if then the Jury fill not the Defendant may pray a Tales and the Court ought to grant it And note upon the first Habeas Corpus the Defendant shall not have a Tales but in Default of the Plaintiff IF the Chamberlain of the County Palatine of Chester make an insufficient Return to the Court of Common Pleas upon a Writ issued out of that Court the Sheriff shall be amerced because the Sheriff is the Officer responsible to the Court. The King hath power to make and create a Leet anew where none was before A Distress is incident of Right but in a Court Baron a Prescription must be laid to distrain J. Rogers versus Powell My Lord Cook held that the Surrender of a Copy-hold in Tail is not any Discontinuance and Justice Foster of the same opinion In Doctor Husseys case in a Ravishment de gard wherein the Judgement is penal the Habeas Corpus was denied by the Court to be amended being a blank Writ after a Verdict but was adjudged Error For the Proviso in the Statute of Jeofailes 18 Eliz. excepts Actions upon penal Statutes One Jury was impannelled of the Town of Southampton and called to the Bar and made Default and the men of that Town shewed to the Court a Grant made to the Inhabitants of that Town that no Return should be made of the men of that Town to be of any Jury and prayed the Allowance of their Charter and the Court appointed them to plead their Charter and it was done accordingly TRier versus Littleton A special Verdict was found whether Fraud or not Fraud and the Jury did not finde the Fraud expresly but they found Circumstances that the Deed might seem thereby to be fraudulent but the Court will not adjudge it Fraud where the Jury do not expresly finde the Fraud for the Judges have nothing to do with matter of Fact and so by the whole Court no Fraud Tenant for Life Remainder for Life Remainder in Tail Remainder in Fee the first Tenant for Life suffereth a Recovery the Remainder in Tail is barred although the second Estate for Life be no party Baron Feme seised of the Wives Land for Life of the Wife Remainder to the Husband and Wife in Tail and afterwards the Husband doth bargain and sell the Land by Deed inrolled and a Precipe is brought against the Bargainee and he voucheth them in Remainder this is a good Recovery to barr the Estate Tail If an Information be brought against three upon the Statute of Maintenance and two of them appear and the third doth not appear the Plaintiff may declare against the two that do appear before the other appears for it is but a Trespass and Contempt as in Trespass and Conspiracy but it is otherwise in Debt upon a joynt Contract for there the Plaintiff cannot declare against one untill the Process be determined against the other by the opinion of the whole Court If Judgement be entred in Trespass of Oct. Hillarii the Writ to inquire of Damages may bear teste of any other Return of that Terme besides of Octab. Hillarii for the Terme is as one Day and so hath been adjudged upon a Writ of Error in the upper Bench but it is otherwise held in the Common Pleas. If a Bargain and Sale be void in part it is void in all If an Officer or priviledged person of the Court of Common Pleas sue another priviledged man of any other Court whatsoever yet he of the Common Pleas that first sued shall force the other priviledged person to answer in the Common Pleas but if a priviledged man be sued with another as Executor no Priviledge lies Summons and Severance lies between Executors Plaintiffs and if one of the Executors be outlawed or excommunicated he may be demanded and if he comes not shall be severed by an award without Process after he hath appeared and the other shall proceed without him but if he had not appeared then Summons and Severance shall issue out against him FLetcher versus Robson An Extent upon a Statute Merchant issued out against Robson the Cognisor and the Sheriff returned that the Cognisor was possessed of divers Goods and seised of Lands which he delivered to the Cognisee and that the Cognisee accepted of the Land and because the Sheriff did not return that he had not any other Lands Goods or Chattels it was
by Obligation and that he retained the Money in his hands to satisfie the Debt The Plaintiff replies that the Money was not due and payable to him at the time of the Intestates Death and that he took Administration after the Day of Payment and if the Administrator had pleased he might have took Administration before the Day of Payment and the Court held the Defendants Plea good but he shall not have the Forfeiture CArrell versus Paske Trin. 13. Jac. rotulo 1018. Debt brought upon an Obligation made at C. in the County of Surry The Defendant pleads the Priviledge of Cambridge granted to them by the Queen Eliz. for Scholars Bachelours Masters and their Servants upon Contract made within the University and shews the Bond was made in Cambridge and that he was a Servant of the Scholars to wit Bailiff of Kings Colledge in that University and inhabiting within the Town of Cambridge and Precincts of that University and therefore a priviledged Person of the same and upon reading the Record it seemed that the Defendant being a Bailiff of the Colledge is not capable of the said Priviledge PReist versus Cee Trin. 12. Jacobi rotulo 2197. An Action of Debt brought upon a Bill bearing Date 17 Novomber 1604. by which Bill the Defendant did acknowledge himself to owe the Plaintiff 10. l. to be paid to the Plaintiff at two Payments to wit 5. l. to be paid upon the 19. of November then next following and other 5. l. to be paid upon the 10. Day of December then next following The Defendant pleads it was not his Deed. The Jury finde it specially that the Defendant the 17. of November 1604. sealed and delivered to the Plaintiff one Bill obligatory shewed to the Jury bearing Date the Day and Year above and finde the Bill in haec verba Be it known c. to be paid at two Payments that is to say 5. l. to be paid the 19. of November which is the present of this Moneth and the other 5. l. on the 10. of December The Question was whether the Bill maintain the Count for the first Payment and adjudged it did RAwdon versus Turton Trin. 13. Jac. 1011. An Action of Debt brought upon a Bond for Payment of Money such a Day The Defendant pleads that he the same Day made an Obligation for the Payment of the said Money another Day which the Plaintiff accepted for the Money and Issue taken thereupon and tried for the Defendant and after the Verdict the Plaintiff moved the Court to have Judgement though the Verdict passed against him because the Plea was insufficient and that he confessed the Debt but the Court would not grant it The like Mich. 6. Jac. rotulo 1061. And the like Hill 12. Jac. CArter versus Freeman Mich. 13. Jac. An Action of Debt brought upon a Bond with a Condition that the Defendant should appear before the King at a certain Day Videlicet Die Jovis post Octobras Martini and upon a Nul tiel Record pleaded the Defendant brought his Record of Appearance Lunae post xvam Martini and this was held by the whole Court an Appearance at the Day in the Condition by the whole Court GRubham versus Thornborough Hill 12. Jac. rotulo 1773. An Action of Debt brought for Rent and for a Nomine penae the Rent due 14 November Anno 9. and no name alleadged for the Nomine penae therefore the Action would not lie for the Nomine penae but it would for Rent PAsch 44. Eliz. Elliot versus Golding An Action of Debt brought and Judgement given for the Plaintiff and a space was left in the Roll for the Costs of the Judgement and after the Year and a Day a Scire facias was brought to revive the Judgement and in the Scire facias the Costs are put in and so Judgement by Default and afterwards a Writ of Error brought and the Error was assigned because there were no Costs put into the principal Roll and afterwards the Record was removed the Count was moved that Costs might be put into the Roll but it was denied upon the first motion and afterwards Pasch 13. Jac. it was denied by the whole Court BOnd versus Green Administrator An Action of Debt brought against him as Administrator he pleads divers Judgements amounting to 670. l. and the Assignement of 100. l. Debt to the King by Deed inrolled and he pleaded that he retained his Debt in his hands and he might have given this in Evidence or pleaded it at the Liberty of the Defendant COoper versus Bacon Action of Debt brought upon the Statute of E. 6. for Tithes and the Plaintiff declares that one was seised of the Rectory of Elveley alias Kirkley in Kingston upon Hull in his Demesne as of Fee and being so seised such a Day and such a Day at Elveley alias Kirkley did demise to the Plaintiff the said Rectory with the Appurtenances to have and to hold c. for years and that by vertue thereof he hath been and is thereof possessed and that the Defendant such a Day and before and alwayes afterwards hitherto had held and occupied 30. Acres of Land in Swandland in Kingston in a place called T. and that the Tithes did belong to him The Defendant pleads Nil debet per patriam and after a Verdict it was alleadged in Arrest of Judgement that the Issue was mis-tried because the Venire facias was of Elveley alias Kirkley and it should have been of Swandland where the Tithes grew CHapman versus Pescod Trin. 11. Jac. rotulo 2106. An Action of Debt brought upon an Obligation with a Condition to give and grant to him his Heirs and Assignes The Defendant pleads that he hath been ready to give and grant and adjudged naught for he must plead that he did it otherwise it had been if the words had been as Councel should devise MAncester versus Draper Hill 10. Jac. rotulo 2613. An Action of Debt brought upon a Bond with a Condition to pay Money if C. R. shall be then living and shall before the same 20. Day of O. by due form and course in Law perfect levy and knowledge a Fine and a Recovery before his Majesties Justices of his Highness Court of Common Pleas of and in certain Houses and Tenements with the Appurtenances which the said Draper lately had and purchased of the said C. R. the Defendant pleads that C. R. was living and did not levy c. and a Demurrer and the Question was whether Draper or Ro. should levy the Fine and held that Draper should levy the Fine BAker versus Pain Hill 10. Jac. rotulo 3139. An Action of Debt brought upon a Bond to pay Rent and perform all the Covenants Grants Payments and Conditions contained in a pair of Indentures and the Defendant pleads the Indenture and performance thereof The Plaintiff assignes the Breach that the Defendant had not paid the Money The
Carr. The Tenant in Dower before the value inquired of and Damages found brought a Writ of Error and by the opinion of the whole Court a Writ of Error would not lie for the Judgement is not perfect untill the value be inquired upon The Demand in Dower was of the third part of two Messuages in three parts to be divided and the Judgement was to recover Seisin of the third part of the Tenements aforesaid with the Appurtenances to hold to him in severally by Meets and Bounds and adjudged naught because they are Tenants in common and the Judgement ought to be to hold to him together and in common but if it had been in three parts divided it had been good Actions in Ejectment ALlen versus Nash Hill 5. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and a special Verdict upon a Surrender of Copy-hold Land which was to the use of the second Son for Life after the Death of the Tenant and his Heirs and it was adjudged not to be good in a Surrender for though it be good in a Will yet Implication is not good in a Surrender and in Copy-hold Cases a Surrender to the use c. this no use but an Explanation how the Land shall go if the Lord grant the Land in other manner then I appoint it is void if there be found Joynt-tenants and one Surrender to the use of his Will it was a Breach of the Joinder and the Will good EYer versus Bannaster Trîn 16. Jacobi rotulo 719. The Plaintiff brought an Ejectione firme and declared upon a Lease made by Ed. Kynaston to which the Defendant pleads not guilty and the Plaintiff alleadges a Challenge that the Wife of the Sheriff is Cosin to the Plaintiff and desires a Venire facias to the Coroners and the Defendant denied it and so a Venire was made to the Sheriff and at the Assises the Defendant challenges the Array because the Pannell was arrayed by the Sheriff who married the Daughter of the Wife of the Lessor and note the first Challenge was made after the Issue joyned and at the Assises the Defendant challenged as above and a demurrer to it and Hutton held that a Challenge could not be after a challenge except it were for some cause that did arise after the challenge made and that the party ought to rely upon one cause of challenge though he had many causes observe the Defendant could not challenge the Array untill the Assises but Husband held that a Challenge might be upon a Challenge but this challenge was adjudged naught by all the Judges HIll versus Scale Trin. 16 Jacobi rotulo 5. 18. the Plaintiff brought an Ejectione firmae and declares upon a Demise made to the Plaintiff by J. C. bearing date the first of January anno 15. and sealed and delivered the twelfth of January following to hold from Christmasse then last past for two years the Jury found a speciall Verdict and found the Lease and a Letter of Atturney to execute the Lease in this manner that the Lessor was seised of the Land in Fee and being so seised he made signed and sealed an Indenture of a Demise of the said Tenements and found it in haec verba this Indenture c. and they further found that the Lessor the said fifth day of January did not deliver the said Indenture of Demise to the Plaintiff as his Deed but that the Lessor the said fifth day of January by his writing bearing Date the same Day gave full power and authority to one C. to enter into all the premises and to take possession thereof in the name of the Lessor and after possession so taken to deliver the said Indenture of Demise to the Plaintiff upon any part of the premises in the name of the Lessor and find the Letter of Atturney in haec verba To all c. whereas I the said J. C. by my Indenture of Lease bearing date with these Presents have demised granted and to Farm let c. for and during the Term of two years c. and they further find that the said C. such a day as Atturney to the Lessor by vertue of that writing did enter into the Tenements aforesaid and took possession thereof to the use of the Lessor and immediately after possession so taken the said C. did deliver the said Indenture of Demise upon the Tenements as the Lessors Deed to the Plaintiff to have c. and the doubt was because the Lessor in the Letter of Attorney and said that whereas he had demised and if it were a Demise then the Letter of Attorney was idle but notwithstanding the Court gave Judgement for the Plaintiff WEeks versus Mesey An Ejectione firmae brought against two and one of them was an estranger and was in the house and the principall would not appear and the other appeared and pleaded non informat and the Court was acquainted with the proceedings and the Plaintiff prayed an habere facias possessionem and the Court told the Plaintiff that by that Writ and recovery he could not remove him that had Right when a Lease is made to bring an Ejectment of Land in divers mens hands then they must enter into one of the parcells and leave one in that place and then must he go unto another and leave one there and so of the rest and then after he hath made the last Entry there he sealeth and delivereth the Lease and then those men that were left there must come out of the Land and this is a good executing of the Lease and Pasch the ninth of James the Court held that an Ejectment would not ly of Common pasture or of Sheep-gate BEamont versus Cook Trin. 13 Jacobi An exception taken in Ejectment because the Originall was teste the very same day that the Ejectment was made and adjudged good by the whole Court and one Goodhall brought an originall in Ejectment against Hill and three others and the Plaintiff counts against three of the Defendants and no simulcum against the fourth and this matter was moved in arrest of Judgement And the Judgement was stayed by the whole Court COronder versus Clerk Hill 10 Jacobi rotulo 3315. Action upon an Ejectment brought the Jury found it specially upon a Devise the words of the Will were to my right Heires Males and posterity of my name part and part like the question was who should have the Land and the Court held the Land must go to the Heire at the Common Law and not according to the words of the Will because they cannot consist with the grounds of Law a Will must be construed in all parts the brother cannot have it by the Devise because he is not Heir and the Daughters cannot for they are not Heirs and posterity and therefore neither of them could have it because they are not Heirs and posterity because they that take it must be Heir and posterity
of the King for the Plaintiff and day given for the argument of that till the next tearm Hillary 8. Jacobi 1610. in the Common Bench. Tresham against Lambe LEwes Tresham was Plaintiff in waste against John Lambe the Plaintiff supposed the Defendant had made waste in sowing and plowing ancient meadow the which he had let to the Defendant for years in Rushton in the county of Northampton and sowed it with Woade and prayed Estrepement upon the Statute of Glocester chapter 13. And upon examination it appears that the Lands let was pasture and Meadow the Pasture was Ridge and furrow but had been mowed and used for meadow for diverse years and that the Defendant plowed and sowed that with Woade but this which had been ancient meadow he used that as Meadow and did not convert that to Arable Land but the Judges would not grant any Estrepement to the Pasture for that it was Ridge and furrow and it was no ancient meadow although that had been mowed time out of minde c. But to the ancient Meadow they granted a writ of Esterpement but Foster seemed to be of another opinion for that that it was to sow Woade for that that it is against common Right and the fume and smell of that is offensive and infectious but if it had been to sow Corne he agreed as above and for the executing the Writ of Estrepement they all agreed that the Sheriff ought to take if need be the power of the County against those which made the waste hanging the Action and may commit them if they will not obey him for the words of the Statute are that you shall cause to keep which shall be intended in safety But if Lessee for years trench or draine that is no Wast as it was now of late times adjudged where if the Lessee takes any of the reasonable Bootes that the Law allowes that it shall be no Waste nor Estrepement shall be granted see Fitzherberts Natura Brevium 59. m. If a man devise Land to his Executors for years this is assetts but if he devise that his Executors shall sell his Lands or devise his Lands to his Executors to be sold this shall be no assets untill the Lands are sold and the money for which the land shall be sold shall be assetts A Record of Nisi prius in an Action of Debt upon an obligation with condition to pay such a sum of Money at such a Feast next after the date of the obligation and the day of the date of the obligation was omitted in the Record of the Nisi prius so that it doth not appear which shall be the next Feast at which the mony ought to be paid after the date and by all the Justices that was no perfect Issue and for that the Justices of Nisi prius have no power to proceed upon it and for that it shall not be amended otherwise if it had been a good Issue though that another thing had been mistaken see Dyer 9. Eliz. 260. 24. And see before the same Tearm here The King pardoned a man attaint for giving a false verdict yet he shall not be at another time impannelled upon any Jury for though that the punishment were pardoned yet the Guilt remaines Hillary 8. Jacobi 1610. In the Common Bench. James versus Reade THE case was the King was seised of a Mannor where there were diverse Copy-holders for life and was also seised of eight Acres of Land in another Mannor in which the Copy-holders have used time out of minde c. To have common and after the King grants the Mannor to one and the eight Acres to another and a Copy-holder puts in his beasts into the eight Acres of Land and in trespasse brought against him by the Patentee of the eight Acres he prescribes that the Lord of a Mannor and all those whose estate he hath in the Mannor have used time out of minde c. For themselves and their Copy-holders to have Common in the said eight Acres of Land and further pleaded that he was Copy-holder for his life by grant after the said unity of possession in the King and so demanded judgment if action against which the said unity of possession was pleaded upon which the Defendant demurrs and all the Justices seemed that though that prescription was pleaded that the common was extinct but it seems also to them that by speciall pleading he might have beene helped and save his common for this was common Appendant see 4. Coke Tirringhams Case 37. 6. Hillary 8. Jacobi 1610. In the Common Bench. Cartwright against Gilbert IN Debt upon an obligation with condition to be and perform an Arbitrement to be made the Arbitrators award that the Defendant should make Submission and should acknowledge himself sorry for all transgressions and words at or before the next Court to be held in the Mannor of P. And for the not performance of that Award the Plaintiff brought this Suit and the Defendant in Barr of this pleads that at the said next Court he went to the Court to make his submission and to acknowledge himself greived according to the Award and was there ready to have performed it but further he saith that the Plaintiff was not there to accept it upon which the Plaintiff demurred and it seemes to Coke and Foster that the Defendant hath done as much as was to be done of his part and for that that the Plaintiff was not there ready to accept the Defendant was discharged for this submission is personall and to the intent to make them freinds and for that both the parties ought to be present But Walmesley and Warburton seemed that it might have been very well made in the absence of the Plaintiff as well as a man may submit himself to an Arbitrement of a man which is absent for this is only to be made to the intent to shew himself sorrowfull for the Trespasses and words which he hath made and spoken and it was not argued but adjourned till the next tearme and the Justices moved the parties to make an end of that for that it was a trifling Suit Hillary 8. Jacobi 1610 In the Common Bench. Sir Edward Ashfeild SIR Edward Ashfeild was bound in an obligation by the name of Sir Edmund and subscribed that with the name of Edward and in Debt brought upon that he pleads it is not his Deed and it seemes to all the Justices that he might well plead that for it appears to them that he is not named Edmund and the originall against him was Command Edward otherwise Edmund and this was not good for a man cannot have two Christian names and if judgment were given against him by the name of Edmund and the Sheriff arrest him by Capias that false imprisonment lies against him But if he have a name given to him when he was christened and another when he was confirmed he shall be called and known by the name given unto him at the time
But in this case before Attornement the Grantee hath nothing and after Attornement the particuler Estate being granted it shall be drownd in the reversion Harris Serjeant the words of the devise are that his Feoffees and all other Persons which after his Death shall be seised shall be seised to the same uses before declared and of one Acre he hath not any Feoffees for of that the Feoffment was voyd and yet it was agreed that the devise was good as Lyngies Case was in 35. H. 8 cited by Anderson in Welden and Elkintons Case Commentaries 523 b. And he argued that though that when a conveyance may enure in severall courses yet it cannot enure for part in one course and part in another course and for that this devise enures as a devise of Land for one Acre and declaration of the use of the Feoffment foâ—…her Acre for it is agreed in Sir Rowland Haywards Case 2. 〈…〉 a. 6. Coke 18. a. Sir Edward Cleeres Case and also in this 〈◊〉 the devisor hath made expresse declaration that the Land shall passe by the Feoffment and that the Will shall be but a declaration of the use of the Feoffment and for that nothing shall passe by the devise with which the Justices seemed to accord and cited a case to be adjudged in the Kings Bench 40. Eliz. where the Father gives and grants Lands to his Son his heires with warranty and makes a Letter of Attorney within the deed to make Livery and adjudged that that shall not enure as a Covenant to raise a use for that that it appeares by the Letter of Attorney that his intent was that that should enure as a Feoffment and not as any other manner of conveyance see 14 Eliz. Dyer 311. 83. Master Cromwells Case and so it was adjudged accordingly Hillary 8. Jacobi 1610. in the Common Bench Gargrave against Gargrave Katherine Gargrave was Plaintiff in a Replevin against Sir Richard Gargrave Knight and the case was this The Father of Sir Richard Gargrave was seised of divers Tenements called Lyngell Hall in Lyngell Hall and of a Moore called Kingstey Moore in another Town and the Tenants of the said Father of Sir Richard have used to have Common in the said Moore and the said Father so being of that seised demised the said Tenements to the said Katherine Gargrave for her Joynture by these words by the name of Hingell Hall and certaine Land Meadow and Pasture in certainty and with all â—ands Tenements and Hereditaments to that belonging or with that occupied and enjoyed now or late in the Tenure of one Nevill and Nevill was Tenant of the said premises and had Common in Kingsley Moore upon which the question was if the said Katherine by this demise shal have Common in the said Moore or not And Hutton Serjeant argued that the said Katherine shall have Common in the said Moore for he said that the said demise shall be expounded according to the intent of the partie 〈◊〉 as it is agreed in Hill and Granges Case Commentaries 270. b. Where a man makes a Lease for yeares of a house and all the Lands to that belonging and though it is there agreed that Land cannot be appurtenant to a house yet this word appurtenant shall be taken in the effect and sense of usually occupied with the Messuage or lying to the house by which it appeares that the words are transferred from the proper signification to another to satisfie the intent of the parties for it is the office of the Judges to take and expound the words which the common People use to expresse their intent according to their intent and for that shall be taken not according to the very definition insomuch that it doth not stand with the matter but in such manner as the party used them And for that this grant shall amount to a new grant of Common in the said Moor for as it seems common or feeding for Cattell may be granted and passe by the name of Tenements Hereditaments or at least shall be included and comprised within the words Tenements and Hereditaments and so shall be construed as a thing occupied and injoyed with the said Messuages see Hen. Finches Case 39. Coke And it was an expresse endorsment upon the demise that the said Katherine should not have Common in the said Moore but it was agreed by all that this was vaine and idle and nothing worth but he urged that this shall have a favorable construction for that it was for Joynture which shall have as favorable construction as Dower And so he prayed Judgement for the Plaintiff and of the other part Nicholls Serjeant argued that this shall not amount to a new grant for he said that they are not apt words to receive such construction for he said that this is no Tenement or Hereditament no Common but only a Feeding for the Cattell of the Lessee in the wast of the Lessor see 20. Edw. 2. Fitzherbert admeasurement and it cannot passe as a thing used with the said house for that was not in Esse at the time of the grant and there is not any apt word to make a new grant â—nd he cited 〈◊〉 Iudgement in Action of wast between Arden and Darcy where Ardon was seised of the Mannor of Curball and also of Parkhall and makes a conveyance of the Mannor of Curball to divers uses and at this time parcell of the Mannor of Curball was occupied with Parkhall as parcell of that and after made another conveyance of all his Lands in England except the Mannor of Curball And adjudged that the Parke which is used with Parkhall shall not be within the exception Coke saith that it was only feeding and not Hereditament for the Inheritance of both was in the Lessor but if it be granted of feeding it shall be intended the same like feeding that the Tenant hath as if the King grant such Liberties as the City of London hath and that shall be good and so it was adjourned Hillary 8. Jacobi 1610. In the Common Bench. Cannige against Doctor Newman IN an Information upon the Statute of 21 H. 8. chapter 13. Of non-residency it was found by speciall Verdict that Doctor Newman was Incumbent invested in the Rectory of Staplehurst in the County of Kent and that hee was also seised of a house in Staplehurst aforesaid scituate within twenty yards of the said Rectory and that the mansion house of the said Rectory was in good repaire and that Doctor Newman held that in his hands and occupation with his one proper goods and did not let it to any other and that he inhabited in the said Messuage and not in the Parsonage the Statute of 21 H. 8 chapter 13. Provides that every Parson promoted to any Parsonage shall be personally resident and abiding in at and upon his said Benefice and in case any such spirituall Parson keep not residence at his Benefice as aforesaid but absent himself willfully by the space
defects and with this agreed the expresse Booke of 11 Edw. 3. Fitz. Ayde 32. and so he concluded that it should not be granted Warburton Justice doubted and insomuch that the granting of ayde where it is not grantable is no error but otherwise of the denying of that where it ought to be granted he would be advised But he conceived that the cause for which ayde is granted is not the feeblenesse of the Estate of him which prays it onely but to the intent that they may joyne together and one defend the other for Tenant for life may plead some Plea which he in reversion may plead saving the joyning of Issue in a Writ of Right and he had a Manuscript of the 11 Rich. 2. where Tenant for life the remainder for life the remainder for life was and the first Tenant for life had ayde of them both in remainder and so concluded Coke cheif Justice that aid ought not to be granted in this Case insomuch that he which is the first Tenant hath greater Estate then he in Remainder for his Estate in Remainder is more Remote and uncertaine and to the Book of 11 R. 2. He agreed that the ayd was granted of all in Remainder but there they in Remainder had Estate tayle and he sayd that ayd is to be granted in two Cases in personall Actions to maintain Issue and when Tenant for life prays in ayd of him in Remainder or Reversion without which they cannot answer nor plead nor Issue cannot be deduced but so it is not here for the first Tenant for life may answer and plead to the Issue as well without him in Remainder for life as with him for if Tenant for life Remainder in tayl Remainder in fee if the first Tenant for life be impleaded he shall have ayd of him in Remainder in tayl otherwise if the Reversion had been to the first Tenant for life with a mesne Remainder in Tayle 41 Ed. 3. 42 Ed. 3. 10 Ed. 3. And 11 Ed. 3. Receit 118. Tenant for life Reversion for life Remainder in fee was he in Reversion for life shall be received upon default of the first Tenant for life and if he will not then he in Remainder in fee shall be received and yet he shall not have Wast as it appears by 24 Ed. 3. for this destroyes the first Estate but the receit maintains and preserves it and he sayd that the 11 Ed. 3. Ayd 32. before cited rules this case and so of 4 H. 6. And so he concluded and insomuch that Warburton doubted of it it was adjourned Trinity 10. Jacobi 1612. In the Common Bench. Yet Rowles against Mason See before 57. WINCH Justice argued that the Defendant is not guilty and that the Plaintiff shall take nothing by his Writ for he conceived that the verdict is uncertaine insomuch that it is not found that Livery and Seisin was made upon the Lease for three lives of the Mannor but onely one Memorandum that it was made in the house of the Lord but it is not found that this House was parcell of the Mannor but after it is found that the Lessee by force of this was seised by which it is implyed that it was very well executed and this being in speciall verdict would be very good he conceived there were two principall matters in the Case First Upon the Bargaine and Sale of Trees if they be re-united to the Mannor or remaine undivided Secondly Upon the two customes the which he conceived depend upon a question for the first warrants the second And to the first When a man devises a Mannor for three lives and by the same Deed in another clause bargaines and sells the Trees and then insues the Habendum and this is of the Mannor only and limits Estate of that for three lives without mention of the Trees hee conceived that the Trees passe before the Habendum absolutely and it is not like to a Bargaine and Sale of a Mannor with Trees or Advowson appendant and here the purpose and intent appeares that they shall pass together and as appendant But in the first case they shall passe as a Chattell immediately upon the delivery of the Deed before any livery made upon this to pass the Mannor and if Livery had never been made yet he shall have the Trees see 23 Eliz. 379. 18 Dyer Where a man devises and grants a mannor and trees Habendum the Mannor for one and twenty yeares without mention of the Trees and yet by Windham Periam and Meade against Dyer the Lessee cannot cut and sell the Trees for there was all in one sentence that is the grant of the Trees and the Demise of the Mannor see the 8 Coke Pexells Case how a Grant shall be construed and where that shall be intended to pass Inheritance and where to pass but a Chattell where a man grants a Chattell and ten pound yearly to be payd and in 7 Ed. 4. If a man hath Inheritance and a Lease in one Town and he by one and the same Deed gives Grants Bargaines and sells all to one Habendum the Inheritance to him and his Heires this is no forfeiture of the Lease insomuch that the Fee doth not passe of that so in the Principall Case Fee-simple passeth in the Trees and Free-hold in the Mannor and he conceived that by the Demise over the Land and Trees are not re-united and this he collected out of Herlackendens Case 4. Coke and 12. Eliz. Bendlowes a man made a Lease for anothers life and bargaine and sold the Trees to him for whose life Lessee dyes he for whose life becometh occupant of the Land he shall have severall Estates one Estate in the Land and another Estate in the Trees and so in Ives Case 5 Coke 11. a. Lessee takes a Lease first of Land except the woods and after takes a Lease of the Woods and Trees and they remaine distinct and though that after there are generall words in the Lease that is of all Meadowes Pastures Profits Commodities c. That is not materiall for these shall be referred to all such things which belong to the Land and so he concluded this point that the Trees remain severall from the Land and do not passe to Hoskins by the Demise of the Copy-hold only and so he cannot take advantage of the forfeiture otherwise he did not doubt but that the particular Sum might take advantage of the forfeiture Secondly for the customes he conceived that the first that is that the Copy-holder for life might nominate his Successor and is good and so for the second that such Copy-holder may cut and sell all the Trees growing upon his Copy-hold and he conceived that the validity of the custome ought to be adjudged by the Judges and the Truth of that by the Jury and when it is found true by a Jury and that it hath such antiquity that exceeds the memory of man then this obtaines such priviledge as the
was Error and for this cause and another exception to the Record which was not much materiall he reversed the Judgment And at another day Flemming cheife Justice rehearsed the case and this argued and to the first matter he conceived First That it is no such entry that abates the Writ Secondly Admitting that it were yet this cannot be assigned for Errour And to the first matter he took this ground That every entry which may abate a writ ought to be in the thing demanded and for that he sayd if a man brings an Assise of Rent or common and hanging this Assise he enters into the Land this is not any Entry which will abate the Writ and he sayd that the Park and the keeping of the Park are two distinct things and for that the entry into one that is the Park will not abate the Writ for the keeping of that and to that which is sayd that he took a Fee that is a shoulder of a Buck that doth not make any matter for two reasons First he hath not shewed a Warrant he had to kill the Buck. Secondly the taking of the fee is no entring into the Office but the excercising of that but admit that this were an entry or the thing it self yet he sayd every entry into the thing shall not abate the Writ and to that he sayd that if this entry of the Earl of Rutland to hunt was no such entry that shall abate the Writ for his office was not to hunt and for that his entry being to another purpose it shall not be sayd an entry to abate the Writ and for that he cited a case which hath been cited as he sayd by Justice Yelverton that if a man have Common in the Land of J. S. between the Annunciation of our Lady and Michaelmas and the Commoner brought an Assise of his Common and at Christmas put in his Beasts and this shall not be any entry to abate his Writ for it cannot be intended for the same Common which case is agreed to be good Law and he cited the case put by Brooke in Assise of Freshforce before remembred Com. 93. Where hanging a Formedon the Tenant pleads in abatement of the Writ that the Demandant hath entred after the last continuance and upon the evidence it appears that many were cutting wood upon the Land and the Demandant comes into the Land to them and warnes them upon the perill that might ensue to them that they should do no more then they could do by Law and this was found no entry Also the case of 26. Assise before cited by Justice Crooke and he sayd that the Statute of Charta de Foresta chapter 11. willeth that every Arch-Bishop Bishop Earl or Baron comming to the King by his command and passing by his Forrest c. Was licensed to take one Beast or two by the sight of the Keeper c. Put case then that the King had sent for the Earl of Rutland and he had passed through this Park and had killed a Buck had this beene an entry to abate this writ Quasi diceret non for this was entry to another purpose so he sayd in the principall case the entry to hunt and so no entry to abate the Writ but admitting that this had been an entry which would abate the writ then let us see if this entry hath so abated the writ being Mesne between the Verdict and the Judgment it cannot be assigned for errour and to that he agreed the diversity before taken by Crooke and Williams where the writ is abated by Plea and without plea and he cited a Judgment in the Kings Bench between Jackson and Parker 2 Eliz. where in Ejectione firme the Plaintiff entred Mesne between Verdict and Judgment and this was assigned for Errour in the Exchequer Chamber and the Judgment notwithstanding affirmed and he sayd that if Memorandum had been made of it or if a Jury had found it and it had been prayed that that might be Recorded yet this had not been materiall and that that be not assigned for Errour And to the matter moved by my Brother Williams that there should be a variance between the plaint and the Title he conceived that there is no such variance that shall make the Judgment errronious and to that he examined the matter First that the Assise was of a Free-hold in Clepsom and his title is made of the parke of Clipson that that cannot be otherwise intended but that of necessity it ought to be the same park For first there is but one park by all the Record Secondly the plaint saith De parco predicto which hath reference to Clepsom park and there is but one park put in view by all the record Fourthly It shall be so taken according to the common speaking Fiftly when he hath made his plaint of the custody of the park of Clepsom and of the Herbage and paunage of the park aforesaid called Clepsom these words called Clepsom are but Idle and Trifles and that which is but Surplusage shall not annoy Also he said that J. and E. are letters which do not much differ in pronunciation and they are all one as I and he shall be pronounced as hi and he cited the Book of 4 H. 6. 26. Where in Debt variance was taken between the writ and the Obligation that is Quatuordecem pro Quatuordecim and this variance was not materiall but that the writ was awarded good and so he conceived that in this case the variance of Clepsom and Clipsom shall not be such a materiall variance that shall make the Judgment erronious and to the title First to Markhams grant that is where the Jury have found Quod ulterius concessit c. And doth not say Per easdem he held that good without scruple and this for the necessary relation that this had to any thing before granted for he sayd that this should be a strange and marvelous patent which begun in such a manner that is Et ulterius Rex concedit c. And there was not any thing granted before And for that he cited the case of 11 Ed. 4. 2. where Debt was brought upon an Indenture against the Abbot of Westminster and the Indenture was between the Abbot of the Monastry of the blessed Mary of Westminster and rehearsed divers Covenants for performance of which Covenants the Abbot of Westminster bound himself in twenty pound and doth not say that the aforesayd Abbot and yet good for it shall be intended the same Abbot for he is party to the Deed and the case of 10 H. 7. 12. Where in Assise of Common the plaintiff makes his plaint of Common appurtenant to his Free-hold in D. and shews for Title that he was seised of a Messuage and of a Carve of Land in D. to which the Common is appurtenant and that he and his Ancestors and all those whose Estates c. have used Common of pasture with ten Beasts and exception
is appurtenant or appendant the Grantee shall have Common Pro Rata but if a commoner purchase parcell of the Land in which he hath Common appurtenant that this extincts all his Common And it was agreed that Common may be appendant to a Carve of Land as it appeares by the 6 Ed. 3. 42. and 3. Assise 2. as to a Mannor but this shall he intended to the Demesnes of the Mannor and so a Carve of Land consists of Land Meadow and Pasture as it appeares by Tirringhams case 4. Coke 37. b. And Common appendant shall not be by prescription for then the Plea shall be intended double for it is of common Right as it appeares by the Statute of Morton chap. 4. And the common is mutuall for the Lord hath Right of Common in the Lands of the Tenant and the Tenant in the Lands of the Lord And it was urged by Nicholls Serjeant that the Common shall be apportioned as if it were Rent and that the Lessee shall have Common for his Lease and then the Lessor hath no Common appurtenant or appendant to the two Virgats of Land and for that the Prescription was not good Coke cheife Justice if it had been pleaded that he had used to have Common for the said Beasts Levant and Couchant upon the said Land there had been no question but it should be apportioned for the Beastes are Levant and Couchant upon every part as one day upon one part and another day upon another part and for that extinguishment or suspention of part shall be of all as if a man makes a Leafe of two Acres of Land rendring Rent and after bargaines and sells the reversion of one Acre there shall be an apportionment of the Rent as well as if it had been granted and attornment And he agreed that if a man have Common appurtenant and purchase parcell of the Land in which he hath Common all the Common is extinct but in this case common appendant shall be apportioned for the benefit of the Plow for as it is appendant to Land Hyde and gain And in the principall case there was common appendant for it was pleaded to be belonging to two Virgats of Land and for commonable Beastes And he conceived also that the prescription being as appertaining to such Land that this shall be all one as if it had been said Levant and couchant for when they are appurtenant they shall be intended to Plow Manure Compester and Feed upon the Land And also he conceived that the right of Common remaines in the Lessor and for that he may prescribe for after the end of the Tearme shall be returned and in the intermin he may Bargain and sell and the Vendee shall have it and shall have common for his Portion And Walmesley Justice agreed to that and that during the Tearme the Lessor shall be excluded of his Common for his proportion Foster Justice agreed and that the possession of the Lessee is the possession of the Lessor but he conceived when the Lessor grants to the Lessee six acres of Land in such a feild where the Land lies and then the Beasts were taken in another feild And so they agreed for the matter in Law and also that the pleading was ill and so confesse and avoid the prescription But upon the traverse as it is pleaded the Jury shall not take benefit of it and Judgement was given accordingly Termino Pasche 7. Jacobi 1609 In the Common Bench. THOU art a Jury man and by thy false and subtill means hast been the Death and overthrow of a hundred men for which words Action upon the case for slander was brought and it seemed to Coke cheife Justice that it did well lye if it be averred that he was a Jury man and so of Judge and Justice for Sermo relatus ad personam intelligo debet de qualitate persone as Bracton saith and in the like Action brought by Butler it was not averred that he was a Justice of Peace and resolved that an Action upon the case doth not lye But Walmesley Justice conceived that an Action doth not lye for one Juror only doth not give the Verdict but he is joyned with his Companions and it is not to be intended that he could draw his Companions to give Verdict against the truth and false and subtill means are very generall Warburton Justice agreed with Coke and conceived that the Action well lies being averred that he was a Jury man as if one calls another Bankrupt Action well lies if it be alledged that the Plaintiff was a Tradesman and it is common speaking that one is a Leader of the Jurors and a man may presume that other Jurors will give Verdict and may take upon him the knowledge of the Act. Walmesley conceived that the Action did not lye for that the words are a hundred men which is impossible and for that no man will give any credit to it and for that it is no slander and for that Action doth not lye no more then if he had sayd that he had kild a thousand men But Coke Warburton Daniell and Foster agreed that the number is not materiall for by the Words his malice appears and for that they conceived that the Action doth well lye Pasch 7. Jacobi 1609. In the Common Bench. Denis against More ANthony Denis Plaintif in Replevin William More Defendant the case was this Two joynt Lessees for life were the Remainder or Reversion in Fee being in another person he in Reversion grants his Reversion Habendum the aforesaid Reversion after the death surrender or forfeiture of the Tenant for life it hapneth that the Lease determines for the life of the Grantee and Remains to another for life and resolved that this shall be a good grant of the Reversion to the first effect of Possession after the Deaths of the Tenants for life according to the 23 of Eliza. Dier 377. 27. And it shall not be intended to passe a future interest as if it were void of the other party and so was the opinion of all the Court see Bucklers case 2. Coke 55. a. and Tookers case 2. Coke 66. Upon a Fine the first Proclamation was made in Trinity Tearm 5. Jacobi And the second in Michaelmas Tearm 5. Jacobi And the third in Hillary Tearm 6. Jacobi where it should be in Hillary Tearm 5. Jacobi And the fourth and fifth in Easter Tearm 6. Jacobi And this was agreed to be a palpable Errrour for the fourth Proclamation was not entered at all and the fifth was entered in Hillary Tearm 6. Jacobi where it should have been in Hillary Tearm 5 Jacobi and it shall not be amended for that it was of another Tearm and the Court conceived that this was a forfeiture of the Office of the Chirographer for it was an abusing of it and the Statute of 4. H. 4. 23. and Westminster 2. Are that Judgement given in the Kings Court shall stand untill