that is naught for it is a several Lease of their Moities and you must declare Quod cum one of them demised one moity and the other the other moity and good If a Tenant in Socage hath Issue and die his Issue being under the age of 14. years the next Freind of the Heir to whom the Inheritance cannot descend shall have the Guard of the Land untill the Heir come to the age of 14. years and he is called Guardion in Socage and in pleading a Lease for Life you are never to alleadge the place where the Lease was made because it passeth by Livery which was executed upon the Land He that pleads a Demise ought to shew that the Lessee entred and he that pleads a Descent ought to shew that he entred and an Exchange is a good Plea in Bar but it shall never be adjudged a good Exchange except this word Escambium be used in the Charter of Exchange HOpkins versus Radford A Defendant shall take no benefit of his own wrong In Sir James Harringtons case the Original was returned Quinque Pasch and the issue joyned that day and the Venire facias returned that day and held naught by the Court upon the first motion A future Lease cannot be surrendred but drowned For things in Action a Deed of Gift is void as Debts without Specialty although he say Goods Chattels and Specialties but for other Debts by Specialty and Goods it is good and for the Debts in Action after the Death of the Party Administration is to be granted and the Administrator is to have the Goods RAiner versus Mortimer One had Judgement upon a Scire facias to have Execution and a Capias ad satisfaciendum returnable 15. Martini and that Writ was returned Album Breve and a Testatum thereupon and the Defendant taken and this matter was moved to the Court and a Supersedeas prayed that the Testatum issued out erroneously because the Capias was not returned and it was granted by the whole Court because the Capias was not returned One seised in Fee may bargain and sell grant and demise Land to others and their Heirs to the use of one for years because he hath a Fee-simple but Lessee for years cannot bargain and sell his Lease to the use of one for years If a Marriage is intended between two men and one of them in consideration that the other hath upon the Marriage assured Land to his Son he doth assume to pay to my Son such a Summ immediately after the Marriage if the Money be not paid the Son must have the Action and not the Father MIch 5. Jacobi 61. One Jury-man appear in Court and when he came to the Barr to be sworn he informed the Court that he was eighty years old and prayed to be dischargâ—d and the Court could not grant it nor pass him by and swear others without committing Error except the Parties would consent for it is Error to skip a Juror who is returned if he appear and therefore the Juror was drawn by the consent of the Parties TRin. 6. Jacobi Upon a Levari facias out of a Court Baron Goods cannot be sold without a Custome to sell the Goods and if Goods be attached by Pone out of a Court Baron the Defendant shall not lose his Cattle otherwise it is if it be a Process out of the Common Pleas then the Defendant loseth his Cattle for not appearing if you lay that you have a Court time out of minde to be held before a Steward you must shew what Pleas you have used to have Conusance of A Sheriff returned but 21. onely upon a Venire facias and at the Triall ten onely appeared and a Decem tales was awarded and tried and Verdict for the Plaintiff and this matter was moved in Arrest of Judgement for that the Sheriff had returned but 21. and the Court were of opinion that if 12. of them had appeared that it had been good notwithstanding but because 10. onely appeared of the principal therefore it was naught and Judgement arrested for that cause If a Juror be sworn of the principal and the Jury remain when the Jury comes again he shall be sworn again TRin. 6. Jac. rotulo 251. Dunnall versus Giles A special Verdict and the Question was a man being possessed of a terme devises the whole terme to A. for Life and if he dies within the terme to B. during the minority of C. and that C. when he comes to full age shall have the Remainder of the terme and held a good Devise To devise Land or Terme or Lease all one it is an Executory Devise If one surrender Land to the use of an Estranger that is to resty the use in Reversion for the Land is in him immediately If a man hath a Rent in esse you cannot grant that in Reversion after your Death but if I surrender to the use of one after my Decease is not good by his opinion of Warburton and Daniel If the Sheriff shall by vertue of a Fieri facias levy the Debt and Damages of a man and make a Return that the said Goods remain in his hands for want of Buyers the Property remains still in the Defendant although the Sheriff hath Possession of the Goods A Sheriff may sell Goods levied upon a Fieri facias out of his County In Watermans case the Issue was whether a Copy-holder in one Town had Common in Land lying in another Town and the Plaintiff shews that he is Lord of the Hundred of C. within which Hundred one of the Villages lie and prayes a Venire facias of the Town next adjoyning to the said Hundred and it was granted and tried and Exception to the Triall for that the Venire was not of both Villages An Alien born being no free Denizen may defend and bring a Writ of Error and it is no Plea to say that he is an Alien born Note by the Common Law the Lord of the Mannour may come and take away a Tree cut down upon the Copy-hold Land by his Copy-holder without laying a special Custome for it If there be an unlawfull Marriage as the Brother doth marry his Sister and they have Issue and one of them dieth before any Divorce had between them now after the Death of one of them the Issue cannot be bastarded as in Cordies case 39 E. 43. 22 E. 4. After a general Imparlance one cannot plead an Outlary in Barr to an Action of Trespass or Case but it must be pleaded in abatement except he be outlawed after the last Continuance for you shall plead nothing in Barr but what goeth to the pit of the Action now the Damages in Trespass or Case are not forfeited by Outlary as Debt because of the incertainty To the Owner of the Soil on both sides of the way of common right belong the Trees that grow in the Lane whether
may take the power of the County to make a replevin upon the plures replevin a replevin will not lye of deeds or charters concerning Land and no return habend lyes upon a justistification and if a discontinuance be after a second deliverance the return habend shall be irreplegiable And if the Defendant after an advowry will not gage deliverance he shall be imprisoned for the contempt no disclaimer lies upon a justification but upon an advowry And if the replevin was sued by writ and the Sheriffe return thereupon that the cattell are not to be found then a withernam shall be awarded against the Defendant and if a nihil be returned then a capias alias plur withernam and thereupon an Exigent and if hee do at the return of the exigent find pledges to make deliverance and be admitted to his Fine then the Plaintiff shall declare upon an uncore detent and goe to tryall upon the right of the cause of distress and if it be found for the Plaintiff he shall recover his costs and dammages And if for the Defendant he shall have a return habend But if upon the return of the Plures repleg the Defendant appear then no withernam lies but he must gage deliverance or be committed and the Plaintiff shall count against him upon an uncore detent and so proceed to the rightfull taking of the distress And if it be found for the Plaintiff if the Cattell be not delivered he shall recover the value of the goods and costs and dammages if for the Defendant costs and dammages and a return habend WIlkins versus Danre Trin. 6. Jacobi rotulo 930. The Defendant avowed a rent charge granted to his Father in fee with a clause of Distress the Plaintiff demands Oyer of the deed which was a grant of the rent to one and his heirs to hold to him his Heirs Executors and Assigns to the use of the said H. and his Assigns during the life of a stranger And whether it was in fee or for life was the question and whether the habendum be contrary to the premises or do stand with the estate If the habendum had been to him and his Heirs during his own life this had been void but it was held otherwise for a strangers life and no occupancy can be of a rent CHappell versus Whitlock Mich. 6. Jac. rotulo 1316. The question was upon a liberty in the deed to make Leases provided they shall not exceed the number of three lives or twenty and one years and the lease was made for 80. years if two live so long if he make a Lease absolute it must not be above twenty and one years but in this case it is uncertain MAnning versus Camb Pasch 7. Jacobi rotulo 341. in Replevin the Defendant avows damage fesant by reason of a devise made to the Advowant by will for one and twenty years by one Lockyer who was seised of the Land in fee The Plaintiff saith that true it is that Lockyer was seised in fee of the Land in question and by the said Will devised the Land to the said D. for the said years in confidence only to the use of it if she should remain unmarried and afterwards and before the taking dyed thereof seised J. L. being then Sonne and Heir of the said Lockyer after whose death the Land descended to the said J. as Son and Heir c. after whose death the Legatees entred into the Land and were thereof possessed to the use and confidence above said the reversion belonging to the said J. L. And the woman took Manning to her Husband by reason wherof the said term devised by the said L. to the said A. and J. to the use and confidence above-said ended the said being under the age of 14. years to wit of the age of two years by reason whereof the custody of the Heir did belong to the Husband and Wife by reason whereof they seised the Heir and entred into the Land and maintained their count the Defendant confessed the Will and the devise for years in confidence and further that after the term he devised the Land to his sonne in fee and a demurrer The condition must go to the estate and not to the use COuper versus Fisher Trin. 6. Iac. rotulo 513. The Defendant as Administrator of Foster advows for rent reserved upon a Feofment made in fee of the Mannor reserving rent in fee to the Feoffer in the name of a Fee-farm-rent with a clause of Distress for the not paying of it and that the rent did desend to the issue of the Feoffer And for the rent due to the Heir the Feoffer in his life advows the Plaintiff in his barre to the Advowry saith that neither the intestate nor his Ancestors nor any other whose estate the said T. hath in the rent were ever seised of the same rent within forty years then last past before the taking c. And a demurrer pretending that he ought to alledg seisen in the Advoury with forty years And it was held by the whole Court that the seisin is not to be alledged being it was by deed made within the time of prescription neither is the seisin but where the seisin is traversable there it must be alledged and in no other case and the Judgment was given for the Advowant Mich. 8. Jacobi An Advowry was made for an amerciament in a Court leet and shews that he was seised of the Mannor in Fee and that he and all c. have had a Court leet and the Plaintif traverses that he was seised of the Mannor in Fee and the Court held If the Defendant had a reputed Mannor it would maintain the Avowry though he had indeed no Mannor in truth REynolds versus Oakley The Defendant avows for rent reserved upon a lease for life and the Plaintiff shews that the place in which c. did adjoyn to the close of the Plaintiff and that the Cattell against the Plaintiffs will did escape into the other close and that he did presently follow the Cattell and before he could drive them out of the close the Defendant did distrain the Plaintiff's Beasts And whether the Distress were lawfull or not was the question And the Court held in this case because the Beasts were always in the Plaintif's possession and in his view the Plaintiff would not distrein the Cattell of a stranger but if he had permitted the Beasts to have remained there by any space of time though they had not been levant and couchant the Lessor might have distreyned the Beast of a stranger BLown versus Ayer Hill 40. Eliz. rotulo 1610. In a Replevin the question was upon these words to wit the said Abbot and Covent granted to the said R. that he and his Assigns Fierboot Cart-boot and Plowboot sufficient by the appointment c. without making wast under the penalty of forfeiting the devise whether those words make a condition or no and
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
to whom the private damage is done may have action And he said that the Register contains many Writs for publique wrong when that is done to private men as fol. 95. A man fixes a pale crosse a navigable River by which a Ship was cast away and the Owner maintained action of Trespasse And fol. 97. A man brought Trespasse against one which cast dung into a River by which his Medow was drowned so if the River be infected with watering Hemp or Flax he which hath fishing there may maintain action of Trespasse and 2 H. 4. 11. Action of Trespasse by one for ploughing of Land where one had a common way and so it is 13. H. 7. 17. One brings an action of Trespasse against another for erecting a Lyme Kill where many others are annoyed by that So by an assault made upon a servant the Master and servant also may have severall actions and so in the other cases many may have actions and yet this is no reason to conclude any one of them that hee shall not have his action for in truth those are rather actions upon the Case then actions of Trespass for the truth of the Case is contained in the Writ Also in this case it doth not appeare that there are any other Commoners which have Common there and for that this Objection is not to the purpose and it appears by Heisman and Crackesoods Case 4 Coke 31. That Copy-holder shall have Common by prescription in the demesnes of the Lord and so he concluded and prayed Judgment for the Plaintiff Coke cheife Justice said that it was adjudged in this Court Trinity 41 Eliz. Rot. 153. b. between Holland and Lovell where Commoner brings an action upon the Case as this Case is against a stranger which pleads not guilty and it was found by verdict for the Plaintiff and it was after adjudged for the Plaintiff for insomuch that the Plaintiff may take them damage feasant that proves that he hath wrong and this is the reason that he may distraine doing dammage And by the same reason if the Beasts are gone before his comming he may have action upon his Case for otherwise one that hath many Beasts may destroy all the Common in a night and doe great wrong and shaâ—l not be punished and it is not like to a Nusance for that is publique and may be punished in a Leet but the other is private to the Commoners and cannot be punished in another place nor course and he also cyted one Whitehands case to be adjudged where many Copy-holders prescribe to have Loppings and Toppings of Pollards and Husbands growing upon the Waste of the Lord and the Lord cuts them and one Copy-holder only brings his action upon the Case and adjudged that it was very well maintainable notwithstanding that every other Copy-holder may have the same remedy And he said also that so it was adjudged in the Kings Bench Hillary 5 Jacobi Rot. 1427. in George Englands Case And 2 Edw. 2. b. Covenant 49. If a man Covenant with 20. to make the Sea banks with A. B. and every one of them and after he doth not doe it by which the Land of two is drowned and damnified and they two may have an action of Covenant without the others Quere for it seems every one shall have an action by himselfe But Foster and Wynch Justices seemed that the Plaintiffe ought to sue in his Court that the Beasts of the stranger escaped in the Common or were put in by the Owner for it may be they were put in by the Lord which was owner of the Soile or by a stranger in which cases the Owner of the Beasts shall not be punished But Coke and Warburton seemed the contrary and that this ought to be averred and pleaded by the Defendant in excuse of the Trespasse as in action of Trespasse why he broke his Close And so it was adjourned see Gosnolds case 490. see Judgment Pasche 1612. 10. Jacobi in the Common Bench. Henry Higgins against George Biddle IN Replevin the Defendant made Conusance as Bayliff to Sir Thomas Leigh and Daine Katherine his Wife intimating that Isabel Bradburn was seised of the place where c. in their demesne as of Fee and so seised the first of June 15 H. 8. gives this to the Lord Anthony Fitzherbert and Maud his Wife and to the Heirs males of their bodies which have Issue Thomas Fitzherbert Knight John Fitzherbert and William Fitzherbert Anthony and Maud dyed and the said place where c. discended to Sir Thomas Fitzherbert as Heire to the Donees to the Intayl and the said Thomas Fitzherbert the 5. of Aprill 6 Edw. 6. of that enfeoffed Humphrey Swinnerton Ralph Cotton and Roger Baily to the use of William Fitzherbert and Elizabeth his Wife for their lives and after to the use of Sir Thomas Fitzherbert and the Heirs of his body the remainder to the use of the right Heirs of the said William Fitzherbert William Fitzherbert dyed Sir Thomas Fitzherbert disseised the said Elizabeth and the said John Fitzherbert had Issue Thomas and dyed Sir Thomas Fitzherbert dyed without Heir of his body and the said place where c. discended to the said Thomas as Cousin Heir of the said Sir Thomas and Son and Heir of the said John Fitzherbert which enters and was seised to him and to the Heirs Males of his body as in his Remitter And the said Thomas Fitzherbert 4 of Novemb. 39. Eliz. by Indenture of Bargain and Sale enrolled in the Chancery within six moneths bargained and sold the said Land to Sir William Leighton his heirs and Sir William Leighton 5 of Novemb. 43. Eliz. by Indenture enrolled within six moneths for 4000. l. bargained and sold the said land where c. to Sir Thomas Leigh and Dame Katherine as aforesaid and so avowed the taking for doing damage And the Plaintiff for Barr to the said Avowry pleads that well and true it is that the said Sir William Leighton was seised of the said place where c. in his Demesne as of Fee as it was alledged by the Defendant But further hee saith that the said Sir William Leighton so being thereof seised 1 Decemb 44 Eliz. enfeoffed the Plaintiff in fee and by force of that the Plaintiff was seised and put in his Beasts into the said place where c. without that that the said Sir William Leighton bargained and sold the said Land in which c. to the said Sir Thomas Leighton and Katherine his Wife as in the Conusance hath been alledged by the Defendant upon which the Defendants joyn Issue and it was agreed by all the Justices that notwithstanding this admission of the Parties is an Estoppell by the pleading yet as well the Plaintiffe as the Defendant were admitted to give another evidence to the Jury against their own pleading that is that Sir William Leighton was not seised and so nothing passed by the bargain and sale and also
and before the originall purchased the Indentnre was by the assent of the Plaintiff and the Defendant cancelled and avoyded and so demands Judgment if action and it seemes by Coke cleerly that the Plea is not good without averment that no Covenant was broken before the cancelling of the Indenture Pasch 12. Jacobi 1612. In the Common Bench. Barde against Stubbing IT was moved in arrest of Judgment that the Venire facias wants these words Et habeas ibidim nemina Juratorum but the words Venire facias duodecim c. were incerted and it seems by all the Justices that it was good and that the first words are supplyed in the last and they are aided by the statutes of Jeofai es after verdict and so it was adjourned In Audita querela sued by the sureties upon an escape made by the principall they being in execution offered to bring the Money into the Court or to put in sufficient Sureties to the Court and so prayed that they might be bayled and it was agreed that if Audita querela be grounded by specialty or other matter in writing or upon matter of Record Supersedeas shall be granted before that the party be in Execution and if he be in execution he shall be bayled but if it be founded upon a matter in Deed which is only surmise he shall not have Supersedeas in one case nor shall be bayled in the other case and so was the Opinion of all the Justices In an Action of Waste for digging of earth to make Brick Estrepement was awarded and upon Affidavit that the Writ of Estrement was delivered to the Sheriff and that he gave notice of that to the party and he notwithstanding that continues to make waste attachment was awarded Pasch 12 Iacobi 1612. In the Common Bench. Fetherstones Case Trinity 1612. IN Ejectione firme The Plaintiff had Judgment and an Habere facias possessionem to the Sheriff of Coventry which returnes that he had offered possession to the Plaintiff and he refused to accept it and it seems that the Plaintiff cannot have Habere facias possessionem insomuch that it appeares by the Record that he hath refused to have the possession The case was A Dean and Chapter being Lord of a Maunor parcell of the Demesnes of the Mannor being severall adjoyned to the Common which was parcell of the wast of the Mannor and one Copy-holder which had Common in the sayd Wast puts his Beasts into the sayd waste to take his Common and they for default of inclosure escape into the sayd Demesnes by which the Lord brings his action of Trespass and upon this the Defendant pleads the speciall matter and that the Lord and all those whose Estate he had in the said place where the trespass is supposed to be made have used to fence the said place which is parcell of the Demesnes of the sayd Mannor against the Commoners which have Common in the sayd Common being parcell of the waste and also of the demesnes of the sayd Mannor and that the Beasts of the sayd Defendant escaped into the sayd place in which c for default of inclosure and so demands Judgment upon which the Plaintiff demurrs in Law In the agreement of which it was agreed by Hutton and Haughton the Serjeants which argued it whether a man by prescription is bound to make fence against Commoners as it is agreed in the 22 H. 6. 7. 8. 21 H. 6. 33. But the doubt which was made in this case by Haughton which demurred was for that that the Lord which by the prescription ought to inclose is owner of the soyle also against which he ought to inclose and so he ought to inclose against himself and for that he supposed that the pleading should have been that there is such a custome there and of time out of minde that the Lord shall inclose against the Common insomuch that by that the Copy-holder would bind the Lord and upon that it was adjourned c. Pasch 12 Jacobi 1612. In the Common Bench. Sir Henry Rowles against Sir Robert Osborne and Margeret his Wife IN Warrantia Charte the case was Sir Robert Osborne and his Wife levyed a Fine of the Mannor of Kelmersh with other Lands in Kelmersh to Sir Henry Rowles against all persons and this is declared for the Lands in Relmersh to be to the use of Sir Henry Rowles for life with diverse Remainders over and for the Mannor no use was pleaded to be declared at all and then a Writ of Entry in the Post was sued against the sayd Sir Henry Rowles which vouched Sir Robert Osborne and his sayd wifeâ— and this was declared for the sayd Lands to be to the use of the sayd Sir Henry Rowles for his life with other Remainders over which were declared upon the Fine of the Lands in Kelmersh only and of the Mannor of Kelmersh no uses were declared upon the Recovery also and upon this Recovery pleaded in barr the Plaintiffe demurred and it was argued by Dodridge Serjeant of the King for the Plaintiffe that the Plea in Barr was not good insomuch that it doth not appeare that the warranty which was executed by the Recovery was the same warranty which was created by the Fine and also the Fine was taken for assurance against the Issue in tayle and the Recovery to Barr the remainders and so one shall not destroy the other and for the first he sayd that a man may have of another severall warranties and severall causes of Voucher and all shall be together for warranty is but Covenant reall and as well as a man may have severall Covenants for personall things as well he may have severall reall Covenants for one self same Land as if the Father infeoff one with warranty and the Sonn also releases to the same Feoffee with warranty or if the Father infeoff one with warranty against him and his Heires and the Sonn release with warranty against all men the Feoffee may vouch one and Rebut against the other so of Warranty of Tenant in tayle and release of an Ancestor collaterall with warranty in Law and expresse warranty as it is agreed in 31 Ed. 1. Fitzh Voucher 289. And upon that he concluded that a man may have severall warranties of one selfe same man and the one may be executed and the other remaine notwithstanding that it be for one selfe same Land and he supposed the effect of these warranties are as they are used for if that may vouch generally and bind himselfe upon the Fine or upon his owne warranty or upon the warranty of his Ancestor notwithstanding that the voucher be generally as it is 31. Ed. 3. Warranty of Charters 22. So if he be vouched as Heire though that it were speciall but if he be Heire within age otherwise it is for that is a good Counter Plea that he was within age and so praied that the word might demur during his nonage 17.
annex Fee to a necessary Office to be taken of the Subjects but it was objected that the Alneger had no Fee and if he had that he was abridged of that by the Statute of 2 Ed. 3. 14. Where it is sayd that they shall be ready to make proofe when they should be required to measure without taking any thing of the Merchant but this refers only to the Maiors and Bailiffs of Towns where such Cloathes shall come and not to the Alneger and that the Statute of 11 Ed. 3. chapter 3. consists upon two parts First that Clothiers may make Cloth of what length and breadth that they will The second that no Cloth shall be brought into England Wales or Scotland but that which is made in them and then if the Clothiers have such liberty to make Cloath of what length and breadth they will then there is no need of Alneger As to that it was answered that there was need of him to see and search the Goodness of that as well as the length and breadth And also the Statute of 25 Ed. 3. chap. 4. Provides that all Clothes vendable which shall be sold whole Cloathes in England in whose hands soever they are shall be measured by the Alneger of the King and the Statute of 27 Ed. 3 chapter 4. Statute the first provides that no Cloathes shall be forfeited though they be not of the same Assise but the Alneger of the King shall measure the Cloath and mark it with such a mark that a man may know how much that contains so for these Statutes and for the reasons aforesaid it appears that it belongeth to the Office of an Alneger to survey measure and marke Cloathes as well by the Common Law as by the Statute Law It was objected first that the Statute of 27 Ed. 3. limits and appoints that the Alneger should measure broad Cloath and doth not make mention of any other Cloathes but broad Cloathes and for that it seems that he shall not meddle with any other Cloathes but it appears by diverse Accounts that he should meddle with Wadlowes and Sayes and the Statute of the 17 R. 2. chap. 2. Provides that none shall sell any Cloath before that it be measured by the Alneger of the King and that none shall make any deceit in Kerseys The second Objection that Cloathes of Lesser Assise then halfe broad Cloath the Alneger shall take nothing by the Statute of 27 Ed. 3. This is intended of Broad Cloath which hath used to be sold and these be in lenght above the broad Cloath and in breadth as Kerseyes and others were but as Remnants which have not been used to be sold no subsidye was due by the Common Law for that is granted by the Statute of 27 Eliz. And in this Grant two things are to be considered First the Statute of 2 Ed. 3. and the Statute made at Northampton where it was petitioned to the Parliament that the King would remit the penalties aad the Kiug should have recompence for the loss and for this the Statute gives subsidy this was no private gift but a publick gift and the reason of this was the retribution of his loss and the King payd for it and that for this he should have a Subsidy Secondly Woolls are the continuall Treasure of the Realm and let them be of what nature they will they are called Panui And for that when the King hath a settled Inheritance it is no reason that the slight of an Artist should prejudice the King And it appeares by the Statute of 11 H. 4. 7. that was made to prevent the barrelling of Clothes and the making of them into Garments and the transporting of them beyond Sea And also the third reason is usage for all other clothes pay Subsidy and there is no other Law to charge them but the Statute of 27 Ed. 3. 4. That this subsidy is setled in the King and no devise of man may divest it the Statute of 27. Ed. 3. and 47. Ed. 3. Set down and alter the length and breadth of clothes and yet the Custome remaines The fifth objection that the Statute doth not extend in equity to a thing which is not in Rerum natura at the time of the making of the statute which is false position for how can makers of statutes prevent all mischeifes Eaton and Studdes case Com. Aristotle in Ethicks liber 5. chap. 10. saith that Equitas est correctio legis generatim late qua parte deficit And Bracton in his first Book of new Division Ch. 3. saith that Equitas est rerum convenientia que in paribus causis paria desiderat jura omnia bene coequi paret dicitur equitas quasi equalitas and for that it is enacted by the Statute of 11 Ed. 1. Acton Burnell for understanding of the Statute that if praysers of Goods prayse them at too high a value that they themselves shall have them at the same price at which they were praysed and after another Statute is made which provides that lands shall be extended upon a Statute which is taken to be within the Statute of Acton Burnell which was made before and so it appears by Littleton that the Statute of Glocester provides that warranty by Tenant by the Curtesie shall not bind the Heir without Assets and an Estate tayl was not then created but it was afterwards created by the Statute of Westminster 2. which was made the 13 of Ed. 2. Yet this Warranty shall not binde the Heire in tayl and also two objections have been made against the Patent First That it was against an expresse statute Secondly That it did not observe any rate or proportion proportionable to the quantity of the peece to that he answered that it is not against any statute see 7 Ed. 4. 2. 27. H 7. 5. H. 8. 2. 1. and 2. Phil. and Mary It is not against any of those for those provides and ordaines that there shall be Wardens for the better performance of all things which are to be done by the Alneger and doth not deprive the King of any thing given to him by any former statute but adds further care and deligence and when there is a Law which adds care and Manner and Forme to a former Law That doth not abridge and deprive the former Law of any thing given by that and if the Wardens do not do their Office yet that cannot prevent but that the Alneger may do it which to him belongeth as in 1 Ed. 4. 2. For Indentures taken in Sheriffs Turnes which should be delivered by Indenture to the Justices yet the Justices may proceed though they be not delivered by Indenture and so it is in 43. Ed. 3. 11. The Sheriff ought to array his Pannell four daies before the taking of that and adjudged that if he doth not it shall be no error in 43. Ed. 3. Assise 22. and so the Statute of 5. and 6. of Ed. 6. provides that the Mayor appoints
agreement was not by him performed CRockhay versus Woodward Hill 15. Jac. rotulo 2001. An Action of Covenant brought upon this Writing Videlicet Memorandum that I John Woodward do promise and assume unto B. C. to pay to him such Moneys or other Goods as Josias my son shall imbessell mispend or wrongfully detain of his during the time of his being Apprentice with him within three Moneths next after request to me in that behalf made and due proof made of such imbesselling or wrongfull detaining in witness c. and the Plaintiff shews that the Defendants son did imbessell Goods of his Masters and shewed what Goods and left out in his Declaration these words Videlicet and due proof likewise made of such imbesselling or wrongfull detaining The Defendant demands Oyer of the Writing and pleads that he did not imbessell and it was tried for the Plaintiff and after Triall Exception taken because the Plaintiff did not alleadge any proof made and for that reason Judgement was arrested BRagg Assignee of Bragg versus Wiseman Executor of Fitch Mich. 12. Jac. rotulo 538. Action of Covenant brought and the case was this that Fitch and his Lady were seised of Land in right of his Wife for terme of her life and joyn together in a Lease by Deed indented in which were these words demise and grant and afterwards Fitch dieth the Lady enters and avoids the Lease and maketh a new Lease to a stranger whereupon an Electione firme is brought against the first Lessee and Judgement thereupon and the first Lessee put out of Possession whereupon the first Lessee brings his Action of Covenant against the Executors of Fitch upon the words demise and grant The Defendant demurrs The words were have demised granted and to farm letten for years if the Wife should so long live and Judgement for the Difendant A Covenant in Law shall not be extended to make one do more then he can which was to warrant it as long as he lived and no longer The Law doth not binde a man to an inconvenience If Tenant for Life make a Lease for twenty years and covenant that the Defendant shall injoy it during the terme that shall be during his Life for the terme endeth by his Death but otherwise it is if the Covenant be during the terme of twenty years by the word Demise an Action of Covenant lieth although he never enter and this word Demise implieth as much as Dedi concessi An Action of Covenant brought for that the Defendant covenants to bring again a Ship Perils and Damages of Sea onely excepted and he to excuse himself saith that the Hollander in a warlike manner by force and armes took the Ship and much doubt was where the Issue should be tried and the opinion of the Court was that the Action should be tried where it was laid COwling versus Drury Action of Covenant brought for that the Defendant did not pay a Rent with which the Land was charged the Defendant replies he was to injoy the Land sufficiently saved harmless and answers not the Breach and adjudged a naughty Bar by the whole Court SElby versus Chute Trin. 11. Jac. rotulo 3804. Action of Covenant brought and the Breach was alleadged that the Plaintiff should quietly injoy the Land demised to him and he shews that Chute exhibited a Bill in Chancery against him pretending the Lease was made in trust and it was decreed to be otherwise and whether the exhibiting this Bill was a Breach of Covenant there being no Disturbance at Common Law was the Question and the Court were of opinion that it was no Breach of Covenant for it was no Disturbance at Common Law nor Entry and the Law could not take notice of it and Judgement for the Defendant HOlder versus Tailor Pasch 11. Jac. rotulo 1358. An Action of Covenant brought upon this Covenant that the Lessee should repair the House provided alwayes and it was agreed that the Lessee should have such necessary Timber to be allowed and delivered by the Lessor and the Breach was that the House wanted Reparations and that so many Loads of Timber were necessary and that the Lessor allowed them according to the form and effect of the Indenture and a general Request laid and Exception was taken to the Declaration for that the Plaintiff did not alleadge a special request to the Defendant and that it was laid in the Declaration that a stranger brought the Timber which was held to be naught by the whole Court for it amounted to an Entry upon the Lessees Possession Exception taken to a Breach laid in Covenant for Repairs because it was generally alleadged and not shewed in what but being after a Verdict it was helped by the opinion of the whole Court TIsdale versus Essex Trin. 12. Jac. rotulo 2131. Action of Covenant brought upon these words covenant promise and agree that the Lessee should quietly occupy and injoy the Lands demised for and during the terme of seven years and the Plaintiff shews that an Estranger entred upon the Land and shews not that he entred by Title and the Court was of opinion that it was naught because it did not appear that he had a good Title to enter Dedit concessit imply a Warranty for Life and Judgement was given for the Defendant because the Breach was naught HIcks versus Action of Covenant brought and the Land alleadged to be in Weston alias Weston Vnderwood and the Venn was de visu de VVeston Vnderwood and it was alleadged by the Defendant that the Venn was mis-awarded because it was not of VVeston onely but the Court was of a contrary opinion that it was well awarded and Judgement for the Plaintiff CAstilion al. versus Smith Exec. Smith Trin. 17. Jac. rotulo 1849. Action of Covenant brought against the Defendant and the breach of Covenant alleadged to be in the time of the Executor and the Judgement was entred of the Goods of the Testators the Breach was for plowing of Land contrary to Covenant RIdent versus Took Hill 13. Jac. rotulo 3516. Action of Covenant brought to discharge the Plaintiff of a single Bill in which he was bound for the Debt of the Defendant and he alleadges for Breach non-payment and a Suit and recovery at Law for the Money which remained in force The Defendant pleaded that he paid the Money at the Day and thereof gave the Plaintiff notice before the purchasing his Writ the Plaintiff demurs and the Court held the Plea naught and Judgement for the Plaintiff Actions upon Account WIlloughby against Small An Action of Account brought against the Defendant as Receiver of the Plaintiffs Money The Defendant pleads that he never was Receiver where he hath a Release from the Plaintiff whereby he shall lose the benefit of his Release for that he cannot give that in Evidence upon such Issue The Process herein is Summons Pone Distress and upon a Nichil returned
that it was collaterall warrantry where in truth it was a lineall warranty and it was held naught because the warranty was in Law a lineall warranty the Case was that Land was givenby Feoffment made to the use of the Feoffer for life remainder in Tail Tenant for life dies Tenant in Tail had Issue a Son and two Daughters and the Father and Son joyn in a Feoffment with warranty and after the Father and Son die without issue and the Daughters bring a Formedon and this is a lineall warranty PIt versus Staple Trin 14 Jac. rotulo 112. Formedon in le discender against three which plead non-Tenure and issue thereupon joyned and found specially that two of them were Lessees for life the remainder to the third person and whether the three were Tenants as is supposed by the writ was the question and the better opinion was that it was found for the Demandant for the Tenants should have pleaded severall Tenancy and then the Demandant might maintain his writ but by this generall non-Tenure if any be Tenant it is sufficient but in some Cases the Precipe may be brought against one who is not Tenant as a morgagor or morgagee COmes Leicester versus Comit. Clanriccard In Formedon upon a Judgement given in part for the Demandant and part for the Tenant the Tenant brought a writ of Error and had a Supersedeas upon it and afterwards the Demandant prosecuted a writ of Seisin and delivered it to the Sheriff and he executed the writ and immediately afterwards the Tenant delivered the Supersedeas to the Sheriff and the Tenant moved the Court and prayed a writ of restitution and it was granted him because the Tenant had done his indeavour and had not delayed the prosecuting the writ of Error COmes Clanriccard Francisca uxor Ejus Demandants versus R. S. milit vicecomit Lyple for three messuages c. which R. late Earl of Essex and Frances late wife of the said Earl by Fine in the Court of the Lady Elizabeth late Queen of England before her then Justices at Westminster levied and gave to William Gerrard Esquire and F. Mills Gentleman and the Heires of the said W. for ever to the use of Elizabeth Sydney Daughter and Heir of P. S. Milir and the Heirs of the Body of the said E. comming and for default of such issue to the use of the said F. then wife of the said Earl and the heirs of the said Fr. and which after the death of the said Eliz. ought to revert to the said Fr. by form of the gift aforesaid and by force of the Statute in such case provided because the said Eliz. died without Heir of her Body The Tenant pleaded in abatement of the writ because the writ ought to revert to the woman alone and it should have been to the Husband and wife and upon a demurrer Judgement was that he should answer over the writ may be either to revert to the Husband and wife or to the wife alone and herein the Tenant vouch two vouches and one is Essoined and an idem dies given to the other and Serjeant Harris demanded of the Court if he should Fourcher by Essoin because the Statute of Westminster the first is that Tenants Parceners or Joint Tenants shall not fourcher in Essoin therefore they two should not fourcher by Essoin but the Court held that before appearance it could not appear to the Court whether they were Tenants or not and therefore before appearance they shall have severall Essoins and Westminster the first is expounded by Gloucester the tenth which is that two Tenants shall not fourcher after appearance and at the day of the adjournment of the last Essoin the Tenant was Essoined and such Essoin was allowed and adjudged by the whole Court and the reason hereof seemed to some to be because the Tenant might be informed of the Vouchee that he vouched was the same person or no for he might be onother person for if he should be an estranger and demand the place and the Demandant could not hold him to the warranty the Demandant should loose his Land and they held that upon severall Processe to wit upon the view and upon the summons to warranty which are divers Processes the Tenant ought to be Essoined and the Court held that this Essoin was at the Common Law if the Tenant and the vouchee at the day given to the Tenant and the vouchee make default Judgement shall be given against the Tenant to wit a petty Cape and nothing against the vouchee SHotwell versus Corderoy In Formedon the Tenant prayes in aid â—nd the prayee in aid and Tenant vouch and the Vouchee was essoined and adjourned and at that Day the Attorney of the Tenant without the Prayer in aid cast an Essoin and an Idem dies given the Prayee in aid and it was quashed for they shall not have severall Essoines but joynt Essoines A Formedon brought of Lands in A. B. C. The Tenant pleads a Fine of all by the name of the Mannour and Tenements in A. B. And it was objected that he said nothing to the Land in C. but the Courtheld that by the name of the Mannor the Land in all the Villages would pass and the Demandant may if he will plead as to the Land in C. that it was not comprised in the Fine Hill 7. Jacobi rotulo 76. vel 69. Formedon in the Discender the Writ was general that J. L. gave to T. L. and the Heirs Males of his Body upon the Body of D. V. Widow lawfully to be begotten which D. the said T. afterwards took to Wife and which after the Death of the said T. c. Son and Heir Male of the Body of the said T. upon the Body of the said D. lawfully begotten to the said J. L. younger Son and Heir of the said J. L. Son of the said T. ought to descend by form of the Gift aforesaid c. and whereof he saith that the said T. was seised c. and 2 Eliz. of the said Tenements did infeoff the Plaintiff in Fee to the use of the said T. L. and his Heirs c. and note in the Count no mention made of the Marriage If a Gift be made in tail to D. and his Heirs Males the Remainder to A. in tail D. discontinues in the Life of A. and D. dies without Issue and the Heir of A. brought his Writ as the immediate Gift to A. his Ancestor who never was seised in his Life and for that cause the Writ was naught but if A. had been seised of the Land then it had not been necessary to have shewed the first Gift to D. by the opinion of the whole Court Actions upon the Statute of Hue and Cry NEedham versus Inhabitant Hundredi de Stoak Trin. 8. Jac. rotulo 534. Action brought upon the Statute of Hue and Cry by the Servant who was robbed in his own name and part of the Goods
village is in question or could come in Issue yet it was resolved by the whole Court but him that those of the village of Bail might well know whether the Plaintif being an inhabitant within the village in which the Leet was were a chief Pledge at the Court or no for to have cheif pledges doth properly belong to a Leet which Leet is within the village and therefore they of the Mannor cannot have so good knowledge of the matter as they of the Mannor and village together and therefore they all ought to have been of both as in the Case of Common or a way from one village to a house in another village this ought to be tried of both villages and so also of the Tenure of Land in D. held of the Mannor of Sale the triall must be as well of the village where the Land lies as of the Mannor of which the Land is holden as it was adjudged Hill 45. El. in the then Queens Bench in the Case between Lovlace and and Judgement was reversed and see 6 H. 7. and Arundels case in my Lord Cooks Reports BVrglacy versus Ellington Burglacy brought a Replevin against Ellington for the taking of his cattell c. the Avowant pleads that one W. B. was seised of the place in which c. in his Demesne as of Fee and being so seised died by reason whereof the Land descended to one Crist. his Daughter and Heir who took to Husband the Avowant the Plaintiff in his Barr to the Avowry confesses that W. B. was seised and that it descended to C. who took to Husband the Avowant but he further said that the 16 of April primo Jac. the Husband and Wife by their Deed indented and inrolled did bargain and sell the same Land unto one Missenden and a Fine levied by them and that M. the 30 of James bargained and sold it to F. M. in Fee and he being so seised licensed the Plaintiff to put in his cattell the Avowant replies if in the said Bargain and Sale made by the Husband and Wife a Proviso was contained that if the said Ellington should pay one hundred pounds a year after then c. and pleaded the Statute of 13 Eliz. of usury with an averment that the profits of the Land were of the value of twelve pounds by the year the Plaintif rejoyned that true it is there is such a clause in the Indenture but he further said that before the sealing of the Indenture it was agreed by word that the said Ellington should have and receive the profits and not the Plaintif and thereupon the Avowant demurres and the Case was thus Ellington bargains his Land to M for the payment of one hundred pounds a yeare after to be paid and that the Bargainee should have the profits the bargainor enters as upon a void Sale because of the statute of usury for by the Proviso â—he is to have the hundred pounds and ten pounds for the forbearance and by the Law he is to have the profits and the which did amount above ten pounds by the hundred the bargainee to avoid the usury pleaded an agreement by word before the sealing of the Bargain and Sale and the question arising upon this was if the Bargainee might plead this verball agreement for the avoiding of the Deed which did suppose the contrary and Moore of Lincolns â—nne counsell was of opinion that he could not put that maxime that every thing must be dissolved by that by which it is bound and his whole argument depended upon that and he cited divers Cases as 1 H. 7. 28. 28 H. 8. 25. 1 Eliz. Dier 16. 9. Rutlands Case 5 Rep. and Cheyney 6 Case there but the whole Court without any argument were of opinion that he might plead the verball agreement and avoid the usury and first they all agreed that when a Deed is perfected and delivered as his Deed that then no verball agreement afterwards may be pleaded in destruction thereof as it is in the Cases put but when the agreement is parcell of the Originall contract as here it is it may be pleaded and secondly otherwise it would bring a great mischief being the custome so to do by word but if it had been expressed within the Deed that the Bargainee should have the profits and that it was delivered accordingly that no agreement or assignment of the profits could now avoid it for it is an usurious contract and therefore the whole court gave Judgement for the Plaintif that he might well plead the agreement Actions of Trespass and Battery JOhnson versus Turner Trin. 44 Eliz. Trespasse brought for breaking the Plaintifs house and the taking and carrying away his goods the Defendant justifies all the Trespasse the Plaintif as to the breaking of the House and taking the goods and the matter therein contained demurres upon the Defendants Barr the Defendant joins in demurrer in this form to wit because the Plaintif aforesaid as to the breaking of the House and taking the goods is sufficient demands Judgement and Judgement given in the Common Pleas for the Plaintiff and a Writ to inquire of Damages upon which Damages are assessed for the breaking of the House and taking the goods and whether the subsequent words to wit and the matter therein contained go to the whole matter in the Barr to wit to the carrying of the Goods away also for when the Defendant joyned in Demurrer with the Plaintiff he joyned specially to wit to the breaking of the House and taking the Goods but nothing of the carrying them away and so as to the carrying of them away nothing is put into Judgement of the court yet the Writ to inquire is for the whole and the Judgement also and the carrying of the Goods away being parcell of the matter and for which greater Damages are adjudged and that being not put into the Judgement of the Court by the Demurrer therefore the Judgement is erronious for there is a discontinuance as to the carrying of the Goods away which is part of the matter and this businesse concerned Mr. Darcy of the privy chamber concerning his patent for Cards PVrrell versus Bradley Pasch 1 Jacobi The Plaintif declares in Trespass wherefore by force and Arms such a day the Defendant did assault him and one Mare price six pounds from the person of the Plaintiffe then and there did take and Yelverton moved for the Defendant in arrest of Judgement and the Declaration was not good for the Plaintif did not shew any property in the Mare for he ought to have that it was his Mare or the Mare of the Plaintif for as it is laid in the Declaration the words may have two intendments that the property of the Mare was to the Defendant and then the taking was lawfull or that the property was in the Plaintif and then the taking was wrongfull and it being indifferent to whether it shall be taken most strongly against the Plaintif for his
John W. was seised of three hundred Acres of Land in R. aforesayd of which the place in question called G. is parcell and that 30 H. 6. the sayd John Whithing reciting that whereas N. de la moore 31 E. 1. the Plaintiffs Ancestor Son and heire of H. de la Moore grants to William de la Moore Corsum aque which runs from W. thorow the middle of the Land of the sayd M. And shews further that by meane discents it discends to the Defendant c and so justifies The Plaintiff replies if W. S. was seised of the place where c. and made a Lease thereof to him for yeares and traverses that the three hundred Acres of Land were parcell and Issue joyned upon that and found for the Plaintiff and it was moved in Arrest of Judgement that the Defendant had not made any answer to the Plaintiff and so no Issue joyned for the Plaintiff layes the Trespass in G. in L. the Defendant sayes he was seised of three hundred Acres of which the place c. was parcell but he conveys no title to himselfe but by a course of water thorow the middle of the Land of M. but whose Land that was it doth not appeare and is another thing and therefore an Issue upon that which the Defendant doth not claime is voyd and although Issue be joyned yet it is not helped by the Statute of Jeofailes of 18 Eliz. or 32 H. 8. for it is as no Issue when it is of a thing not in question but if the Issue had been of a matter in question although ill joyned yet it is ayded as Nichols Case is 5 Rep. 43. upon payment pleaded without Deed And Doddridge and Crooke Justices agreed to that but Haughton seemed to incline that it was an Issue and so helped by the Statute FVller against Pettesworth Knight Mich. 11. Iacobi Fuller brought an Action of Trespass against Pettesworth and his Servant for breaking his Close and taking one Cow in D. in the County of B. One of the Defendants plead not guilty the Servant pleads that the Plaintiff holds of Sir Peter P. as of c. in the County aforesayd and for services behinde by the command of his Master he seised the Cow c. The Plaintiff traverses c. and one Venire facias was awarded out of both the Villiages and being found for the Plaintiff it was new moved in Arrest of Judgement by Finch of Grays Inne that two Venire facias ought to have been awarded because the Issue is of things in severall places for if there be severall Issues in one place one Jury shall be onely Impannelled but if in severall places for severall things locall severall Juries shall be but the whole Court held that one Jury onely should be impannelled and one Venu onely should be awarded out of both the places and it is all one as if it had been in one place but it had been otherwise if in severall Counties as 41 Eliz. DAme Petts Case Mich. 11. Iacobi In an Action of Trespass brought by the Lady Petts upon not guilty pleaded the Jury being at Bar the matters following came in question upon the evidence by Haughton and the other Justices If A. be seised of a great Close where c. and a Stranger enter and occupy part of the Close yet notwithstanding A. continues the posaession of the residue whether this shall preserve his possession in the residue and he shall be judged to be in possession of that because it is an intire thing 5 E. 4. 2. and 8 E. 3. 13. Seisin of part of the services is the seisin of the whole and so is Bettisworths Case 2. Rep. The possession of the House is the possession of the Land for the Lessee against his Lessor of that which passes by one demise But if a stranger enter and sever part by metes and bounds nothing is wrought by the possession of the residue Another question was this A Lessee for yeares of ten Acres paying twenty shillings Rent the Lessee is outed of parcell yet he payed all the Rent to him in Reversion the Lessor having notice of the enter whether this protects the Reversion so that nothing is gained by the entry but the interest of the Lessee and shall be no disseisin And Yelverton at the Barr was of opinion that it should be no Disseisin Rithen Sect. 590. saith That so long as the particular Tenant continues his possession so long is the reversion in the Lessor for in such case as to the Lessor the Lessee shall be alwayes deemed in possession by force of the Lease and the reason why the Lessee shall be adjudged in posaession of all as to the Lessor is because the Lessor cannot have notice of the alteration of the posaession for when the Lessee by his owne Act or sufferance doth a thing in alteration of the posaession of which by common intendment the Lessor cannot have or take notice there the Law will not prejudice the Lessor And see for that Farmers Case in the third Rep. 79. If Tenant for life levy a Fine having Land in the same Villiage this shall not bind the Lessor if five yeares pass before he take notice of what Land the Fine is levied And the same Law if Tenant for life make a Feofment to one who hath land within the same Village levies a Fine and in this cafe if the Lessee hath continually payd all his Rent the Lessor cannot intend or suspect but that the Lessee is absolute Tenant of the whole and in Farmers Case it is sayd That if the Lessor levy a Fine the Disseisee is barred without claime for it is impossible but he to whom the wrong is done shall presently know it But if he that hath the particular estate by Grant or trust reposed in him shall secretly practice although he pay the Rent and continue posaession yet it is otherwise But the Reporters opinion was that if in the principall case no Rent had been reserved then the Reversion had been devested by the entry for there had been no act done to mislead or hinder the knowledge thereof and also although rent be reserved and all payd yet if he had express notice thereof the reversion had been devested And secondly if it should be a Disseisin a great mischeif would follow for if a discent should be it would take away the Lessors entry and yet no fault in them because in common presumption the Lessee alwayes continued Tenant but Cook of a contrary opinion for he said it could not be denyed but that the Lessee is out of the posaession and then it follows of necessity that the Lessor must be out of his reversion And as to notice to make his claime he must take notice at his perill 4 M. Dyer 143. b. But note that this is when the Law intends that he may take notice which it will not intend in this Case Haughton was of opinion that it was a
shall be said conclusion and agreement within the said Provision and for that as it seemes it is so uncertain as going about but admitting that it is good yet it shall be good but to some purpose but not to restraine the Daughter which was Tenant in taile to do lawfull Acts as to suffer a Recovery or to levy a Fine as it is resolved in Mildmayes case 6 Coke 40. By which it appears that she hath as well power to dispose that by Recovery as of Fee simple notwithstanding that the Reversion remaines in the Giver as it appears by 12 Ed. 4. 3. For all lawfull Acts made by Tenant in taile shall binde the Issue as 44 Ed. 3. Octavian Lumbards Case Grant of Rent for Release of right is good and shall binde the Issue for there are foure incidents to an Estate tayle First That he shall not be punished for Waste Secondly That his Wife shall be indowed Thirdly That the Husband of the Wife Tenant in Tayle shall be Tenant by the Courtisie Fourthly That Tenant in Tayle may suffer common recovery So that a Condition which restraines him so that he cannot suffer a common Recovery is void for it is incident to his act and it is a lawful Act and for the benefit of the Issue as it is intended in respect of the intended recompence and he said that a Feoffment to a woman covert or infant shall be conditionall that they shall not make a Feoffment during their disability is good for that the Law hath then made them disable to make a Feoffment so a Lease for life or years upon condition that he shall not alien is good in respect of the confidence that was reposed in them by the Lessor and so concluded that the Condition in this Case which restraines Tenant in Taile generally from alienation First was uncertain in respect of the words conclude and agree Secondly for that it was against Law so void and for that prayed Judgment for the Defendant Hutton Serjeant for the Plaintiff he argued that the verball agreement of the Wife shall bind her notwithstanding the Coverture for that that this is for her benefit for in performance of the said agreement she suffers a recovery to the use of her selfe and her Heires and so Dockes the remainder and he agreed the cases put by the other part which concerne free-hold but he said in cases of Limitation of Estates as if Limitation be if a Ring be tendred by a woman that the Land shall remaine to her and she takes a Husband and after that she and the Husband tender the Ring this shall be sufficient tender and it shall be intended the Act of the wife and 10. H 7. 20. a. A man devises his Lands to a married woman to be sold she may sell them to her Husband And though that it be not any agreement of the Husband only yet here is an act done in a Precipe brought against the Wife and she vouches over for that is not only an agreement but an Act executed upon which the Estate Limited to the eldest Sister shall take effect and the 2. Coke the 27. a. Beckwiths Case If the Husband and the Wife joyne in a Fine of Land of the Wife the Wife only without the Husband may declare the use of that And he intended it was a Limitation and not a condition and so it might be well at this day in case of devise and then the Act shall be that the Estate is Limited to have beginning being made the Estate of the youngest Daughter which made the Act shall be destroyed and determined for if it be a condition then all the Daughters shall take advantage of that and this was not the intent of the Devisor for they are the parties which should be restrained by the devise from Alienation And also he cited Wenlocke and Hamonds Case cited in Bractons Case 3. Coke 20. b. Where a Copy-holder in fee of Lands devisable in Burrough English having three Sons and a Daughter deviseth his Lands to his eldest Son paying to his Daughter and to his other Sons forty shillings within two yeares after his death the Devisor maketh surrender according to the use of his Will and dieth the eldest Son admitted and doth not pay the money within the two yeares and adjudged that though the word paiment makes a condition yet in this case of devise the Law construes that to a Limitation and the reason is there given to be for that that is it shall be a condition then that shall discend upon the eldest Son and then it stands at his pleasure if the Brothers or Sister shall be paid or not and 29. Assis 17. cytes in Nourse and Scholasticas Case Commentaries 412. b. where a man seised of Lands in Fee devisable deviseth them to one for life and that he should be Chapleine and single for his Soule all his life so that after his decease the sayd tenements should remaine to the Commonalty of the same Towne to finde a Chapleine perpetuall for the same Tenements and dyed and adjudged that this shall not be a condition of which the heir shal take advantage but limitation upon which the remainder shall take effect and also he cyted S. E. Clâ—ers Case 6 Coke 18. a. b. 11 H. 7. 17. Pennants Case 3 Coke 65. a. That if a man makes a Lease for years upon a condition to cease that after the condition is broken grantee of reversion may take advantage of that so he said in the case at the Bar when the first Estate is determined and destroyed by the limitation then he to whom the Remainder is limited shall take advantage of that and not the Heire for as he intended an Estate of Inheritance may as well cease by limitation of devise as tearme as in 15 Ed. 4. Lands are given to one so long as he hath heires of his body the remainder over and if he dye without heires of his body the remainder over shall vest without entry and the Free-hold shall vest in him and 2 and 3. Phil. and Mary Dyer 127. and 56. Fisher and Warrens Case If a man devise Lands to one for life the remainder over upon condition that if he do such an act that his estate shal cease and he in remainder may immediately enter there he in remainder shall take advantage though he be a stranger for that that the Estate determines there without re-entry And he saith that the Case of Wellock and Hamond cyted in Barastons Case was a stronger Case then this for there the limitation was upon Fee-simple and here it is upon an Estate tayle and the Law hath favourable respect to devises as in Barastones Case is alteration of words for the better exposition of that for Shall is altered to Should and also see 16 Eliz. Dyer 335. 29. for the marshalling of absurd words in a Will for the expounding of that and 18 Eliz. Cheekes Case he cyted to be adjudged that
is now out of the Statute for the advancement ought to be continuing until the death of the Father And so he saith also it was adjudged in Butler and Bakers Case that if a man devise Socage Lands and after sell to a stranger for good consideration his Lands held by Knights service this devise is now good for all for hee hath not any Land held by Knights service at the time of his death and so he concluded that the devise was good and prayed Judgement for the Plaintiff Houghton Serjeant for the Defendant he thought the contrary and hee argued that before the statutes of 32. and 34. of H. 8. men were disabled to devise any Land and for that they cannot provide for their Wives Children or for payment of their Debts and for remedy to that Feoffments to uses were invented and then to dispose the use by their Wills and then experience finds that to be inconvenient and then the statute of 27. H. 8. transfers the use into possession and then neither use nor land was deviseable without speciall Custome and then this was found to be mischeivous after five years experience and then was the statute of 32. H. 8. made and where by the statute of Marlebridg of those which did enfeoff their begotten sons a Feoffment by the Father to his son and Heir was void for all Now by this statute this is good for 2. parts and void only for the 3d part that for the good of the Lord but as to the party that is good for all as it is agreed in Mightes case 8 Coke Then to consider in the case here if all things concur that the statute requires and to that here is a person which was actually seised of Land held by Knights service in 12. Eliz. So that it is a person which then was having within the statute 2. If here be such conveyance for advancement of his children as is intended within the statute and to that he seemed that so notwithstanding that it may be objected that here is no execution to the youngest children insomuch that it is first limited to such Farmers and Tenants c. But he intended that this is no impediment Secondly also there is a limitation to the use of his last Will. Thirdly also there is a limitation to the use of such persons to whom he devises any estate by his Will But these are no impediments for the last is no other but a devise to himselfe and his heirs and there is not any other person knowne but meerely contingent and it is not like to a remainder limited to the right heirs of I. S. for there the remainder is in Abeiance but here it is only in contingency and nothing executed in Interest till the contingency happen and the not having of a son at the time shall not make difference as in 38. Edw. 3. 26. in formedon in Remainder where the gift was in one for life the remainder to another in tayle remainder in fee to another stranger and he in remainder in tayle dyes without Issue in the life time of the Tenant for life he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle But here he intends that the devise shall be void in respect of the Lands first conveyed which were held in cheife by Knight service for the words of the statute are by act executed either by devise or by any of them and they are conjoyned and it is not of necessity that the time of the Conveyance shall be respected but the time of the value And notwithstanding that the Testator doth not mention any time But in so much as the provision of the statute is to save primor seisin and livery to the King as if the man had 20 l. by year in Socage and one acre in cheife and makes a conveyance of all that it shall be void first to the livery and priâ—or seisin to the third part So if he make conveyance of the 20 l. by yeare and leave the said acre held in cheife to discend and after that purchase other Lands to the value of the third part of all the conveyance of the 20 l. land notwithstanding which for the advancement of his Wife Children or payment of his Debts for he had a full third part at the time of his death which discended And he supposed that the having of a dry reversion depending upon the estate tall is sufficient having within the words and letter of the Statute and yet he agreed the ease put in Butler and Bakers case that if a man devise his Socage Lands and after alien his Lands held in cheife by Knight service to a stranger bonafide this is good So if he had made a reservation of his Lands held in chiefe to himselfe for his life in so much that his estate in that ended with his life and hee remembred the case cyted in Bret and case Comment That if a man devise a Mannor in which he hath nothing and after hee purchaseth it and dyes the devise is good if it be by expresse name But when a man hath disposed of two parts of his Land the Statute doth not inable him to devise the Residue but he hath done all and executed all the authority which the Statute hath given to him But he agreed also that the reversion is not such a thing of value which might make the third part discend to the Heir but it is uncertaine as a hundred and the other things of uncertain value contained in Butler and Bakers Case And also he intended that the remainder could not take effect insomuch that the condition is precedent and it is not found that the eldest Sonne hath aliened and then dead without Heir male and so he concluded and prayed Judgment for the Defendant In Replevin the Defendant avows for 9 s. Rent the Plaintiff pleads a Deed of feoffment of the same Land made before the Statute of quia emptores terrarum by which 6 s. 8 d. is only reserved and demands Judgment if he shall be received to demand more then is reserved by the Deed See 4 Ed. 2. Avowry 202. 10. H. 7. 20. Ed. 4. 7. Edw. 4. Lung 5 Ed. 4. 22 H. 6. 50. This Deed was without date and it was averred that it was made before the Statute of quia emptores terrarum which was made in the 18. of Edw. 1. And also it ought to be averred to be made after the beginning of the Reign of Richard 1. For a writing after the beginning of his Reign checks prescription But if a man hath a thing by grant before that he may claim by prescription for hee cannot plead the grant insomuch it is before time of memory and a Jury cannot take notice of that and for that the pleading before with the said averments was good If debt be due by Obligation and another debt be due by the same Debtor to the same Debtee of
hath the Copy-hold Estate for life in remainder was the question And it was argued by Harris Serjeant that the Estate of Fines in the body of that binds all persons but onely some which have Infirmities and by the saving Rights Titles Claimes and Interests are saved But Title comes in the conditionall perclose of saving that is so that they pursue their Title Claime and Interest c. By way of Act or lawfull Entry within five yeares next after the said proclamations had and made So that in this case the principall matter to be considered is what thing is operated by the acceptance of the Bargaine and Sale for if by that the remainder of the Copy-holder be turned to right then insues that the Fine shall be a Barr And it seemes that this determines the first Estate for life and he agreed that it cannot be a surrender insomuch that there is a mesene remainder as it is 37. H. 6. 17. b. 4. H. 7. 10. But this Lease to commence at a day to come cannot be a surrender but shall be determined and extinct by acceptance of a new Lease as it is there and in 22. H. 7. 51. a. agreed and so it was adjudged in Hillary 30. Eliz. between Wilmottand Cutlers Case that if a Husband which was seised of a Copy-hold Estate in right of his Wife accept an estate for life this determines the copy-hold Estate which he hath in right of his Wife in possession So if Lessee for yeares accept an estate of one which hath no Estate yet this determines his Tearme as it was adjudged Hillary 31. Eliz. Rot. 1428. b. That if Lessee for yeares of a Lease made by the Ancester accept an estate of Guardian in Soccage this determines his Lease which he had of the Ancestor and upon that he concluded that in this case the acceptance of a Bargaine and Sale turnes the Copy-holder in remainder to a Right and then it appeares by Saffins Case 5. Coke 125. That he shall be bound though that he hath only Interest and so of Title also and he said that it appeares by Kite and Quarintons case 4. Coke 26. a. that a Right or Title may be of Copy-hold Estate for it is there said by Wray cheife Justice that it shall be with in the Statute of 32 H. 8. chapter 9. of buying of Titles and so concluded Dodridge the Kings Serjeant agreed that the sole question is if any thing be here done to turn the Copy-hold-Estate in remainder into a right for then he agreed that this shall be barred otherwise not and to that hee intended that the first Estate for life shall be sayd to be in Esse notwithstanding the acceptance of the Bargaine and Sale as to all estrangers and especially when it is to their prejudice as if Tenant grant Rent and after surrenders his estate now between the parties the Lease shall be extinct by the surrender but to the Grantee of the Rent it shall be sayd to be in Esse and if during his life he in Remainder also grants a Rent hee shall hold the Land subject to both the Rents though that the grants be both to one self sameperson so if he in Reversion grants his Reversion with warranty and after the Tenant for life surrenders and the Grantee be impleaded he shall never vouch during the life of the Tenant for life 5 H. 5. Comment 24 Ed. 3. And here also is a custome which preserves the Copy-hold Estate in Remainder and their particular Tenant cannot that prejudice and for that also it shall not be turned into a right as if a Copy-hold Estate be granted to one for life by one Copy and after the Lord grants another Estate for life by another Copy to another and then the first Copy-holder commits forfeiture he which hath the second estate cannot take advantage of that but the Lord shall hold it during the life of the first Tenant for no act made by the particular Tenant shall prejudice him in Remainder for otherwise many Inconveniencies would insue upon that as by secret conveyances or as if a grantee of a Rent charge grant that to the Tenant of the Land for his life the Remainder over the Remainder shall be good notwithstanding that the particular Estate bee extinct and drowned also he intended that the Copy-hold Estate is another thing then the land it self and for that the Fine shall not be a Barr no more then in Smith and Stapletons Case Com. Where a Fine levied of Land shal not be a Barr of Rent insomuch that it is another thing so in this case he intended that the fine shall not be a Barr of the Copy-hold Estate and concluded c. Wynch Justice was of opinion that the Fine shall not be a Barr to the Copy-hold Estate in Remainder for the acceptance of the Bargaine and Sale doth not determine the first Copy-hold Estate for life as to him in Remainder but only to the first Tenant and the Lord and betweene those he agreed that the Copy-hold Estate is determined as in Heydens Case by acceptance of a Lease for years and for that the Remainder shall not be turned to a Right and by consequence shall not be barred and for that he supposed that the reason that the Fine was a Bar in Saffins Case 5 Coke 123. b. was insomuch that the Lessor entered made a Feoffment and after levied a Fine and it is there agreed that the Feoffment turnes the Estate of the Lessee to a Right and for that the Fine shall be a barr and also there the Lease was by limitation of time to have a beginning but if a man makes a Lease for years to begin at a day to come and before the beginning of that makes a Feoffment or is disseised and Fine with proclamation is levyed yet he which hath future Interest shall not be barred for this is not turned to a Right and it was not the intent of the Statute of Fines to make a Barr of right where there was no discontinuance or Estate at least turned to right and this was the cause that at the Common Law Fine with Non-claime was no Barr but where they make alteration of possession and he cited Palmers case to be adjudged that a Fine of Land shall not be a barr for Rent where the case was Lessee for life Remainder for life of Rent The first Lessee for life of the Rent purchaseth Land and levies Fine of that and adjudged that this shall not binde them in Remainder of the Rent no more if he in remainder levy a fine that shall not prejudice the particular Tenant and so he concluded in this case that the Ramainder shall not be barred and that the Plaintiff shall have Judgment Warburton Justice accordingly and he argued that the Statute of Fines containes two parts The first to barr those which have present right and they ought to make their claim within five yeares after the Fine levied or otherwise they
Ed. 2. Counter Plea of voucher 111. 21. Ed. 4. 71. Then he supposed here was generall warranty which is executed and also another warranty which remaines notwithstanding any thing which appears to the Court for he hath not demanded any binding 10. Ed. 3. 15. a. b. Also the warranty in the Fine is the warranty of all the Conusees and the warranty upon which the voucher is is only the warranty of Sir Robert Osborne which cannot be intended the same warranty which is contained in the Fine which is by two as it is resolved in 10. Ed. 3. 52. But admitting that it agrees in all that is the voucher and the warranty in the Fine that is in number of persons and quantity of land and all other circumstances yet it shall be no Barr for the Common Recovery is only as further assurance for it is for forfeiture if it be suffered by Tenant for life as it is resolved in Pelhams Case 1. Coke Also he supposed that notwithstanding that the Fine was levied hanging the Writ of entry and â—o Sir Henry Rowles made Tenant yet this is good being by purchase but not if it be by discent or by recovery upon elder Title And he supposed that if the recovery and the warranty might be together by any possible meanes they shall not be distroied insomuch that this is the common case of assurance and for that shall be taken as in Pattenhams Case 4. and 5. Phil. and Mary Dyer 157. and 2. Coke Cromwells Case 77. b. where a man makes a Feoffment upon condition rendring Rent and after suffers common recovery and yet this notwithstanding the condition and Rent remaines And so it seemes that in this case the warranty remaines notwithstanding the Recovery and so he concluded and praied Judgement for the Plaintiff Nicholls Serjeant for the Defendant and he seemed that the warranty is destroied first insomuch that the Recovery was to other uses and the Fine was when proved that there was no further assurance also he supposed that insomuch that it doth not appeare to what use the Recovery was for the Mannor of Kelmersh that for that it shall be intended to the use of Sir Robert Osborne himselfe and then for that also the warranty is distroied insomuch that part of the Land is re-assured to Sir Robert Osborne as in 40. Ed. 3. 13. The Father enfeoffes the Son with warranty which re-enfeoffes the Father this destroies the warranty So if they make partition by their owne Act as it is agreed in the 34. Ed. 3. Also he supposed that the Tenancy in Sir Henry Rowles is distroied before that the Fine was Levied insomuch that this was Executed by voucher and so he did not purchase hanging the Writ for this is also conveied from him by the Recovery in the value before that the Fine is levied and it is all one with the case where a man recovers upon good Title hanging a Writ and he agreed that the recovery had been for further assurance that then it shall be as it hath been objected by the other party and the warranty had remained but this he supposeth it was not insomuch it was to other uses then the Fine was and he intended that if the Estate to which the warranty is annexed be distroied the warranty also shall be distroied 19. H. 6. 59. 21. H. 6. 45. 22. H. 6. 22. and 27. So if the Estate be avoided the warranty is distroied if it be by the Act of the parties named also he supposed that the warranty is executed and that it shall be intended the same tye upon which the warranty is created as it is 10. Ed. 3. 51. Mauxells case Com if he demand no tye but enter generally into the warranty there shall be execution of all warranties and shall bind all his rights for otherwise all the Estates tayl cannot be bound by that But where the Lieu is demanded as where there are three severall Estates tayl limited to one man and upon voucher he enters generally into the warranty all the tayles shall be bound but if he demand the Lieu's which he hath to bind him to warranty there shall be a Barr of that only upon which the voucher is and the remedy is that if he be impleaded by the party that hath made the warranty he shall be rebutted by his owne warranty But if he be Impleaded by a stranger he shall vouche him that warranted that and if warranty be once executed by voucher and Recovery in value though that the Land recoverd in value be a defeasable Title yet the party shall not voucheat another time by the same warranty as it is 5. Ed. 3. Fitz. voucher 249. and 4. Ed. 3. 36. And for that in this case insomuch that the warranty was once executed he shall not vouche againe upon the same warranty Also it is not alledged in the Count that the Plaintiff was Impleaded by Writ of Entry in the Post but in the Per in which he might have vouched and so shall not have this Action where he might have vouched And also he supposed that Sir Henry Rowles shall not have benefit by this warranty without praying aid of those in remainder insomuch that he is but Tenant for life but he supposed that it was no Remainder but reversion for otherwise they are but as an Estate and he may have advantage of the warranty as it seemes without aid praying But not where there is Tenant for life with the reversion expectant And so he concluded and praied Judgement for the Defendant And he cited one Barons Case where Tenant in tayl levies a Fine with warranty and after suffers Recovery And it was agreed by all the Justices that yet the Recovery shall be a Barr to the Remainder notwithstanding that the Estate tayl be altogether barred and extinct by the Fine but Coke cheife Justice said that Wrayâ— cheife Justice would not suffer that to be argued insomuch that it was of so great consequence being the common course of assurances But it seemes that the Recovery shall not be a Barâ— for the Remainders for the causes aforesaid and he said that he was of councell in Bartons Case and thought this Objection to be unanswerable and of this opinion continued Pasche 1612. 10. Jacobi in the Common Bench. Richard Lampitt against Margeret Starkey EJECTIONE Firme upon speciall verdict the case was this Lessee for five hundred yeares devised that to his Father for life the remainder and residue of that after the death of his Father to his Sister the Devisor dies the Sister which hath a remainder takes a Husband the Husband at the request of the Father grants release and surrenders all his Right Tearme and Intrest to the Father which had the Possession And the question was if by that the remainder of the Tearme should be extinct or not And it was argued by Dodridge for the Plaintiff that the remainder remaines that notwithstanding insomuch that this is
22 Assise 24. 48 Ed. 3. 8. Register 47. And in case that one common person hath any Office which he cannot exercise by a Deputy yet if he be imployed in the Kings service as if he be made Ambassador out of the Realm or other such imployment he may during his absence make a Deputy and this shal not be forfeiture of his Office and an Earl in ancient time was not only a Councellour of the King but by his Degree was Prefectus sive prepositus commitatus as it appears by Cambden 106 107. Comes prefectus Satrapas which is Prepositus comitatus and was in place of the Sherif at this day and when that he was Sherif though that he had the custody of the county committed unto him which was a great trust yet then by the Common Law he might make an under Sherif which was but a Deputy the like Holinsheads Chronicle 463. Amongst the customes of the Exchequer he called the under Sheriff Senescallus which agreed with the Definition before for he held the place of Sherif himself and by the statute of Westminster 8. chapt 39. It is sayd that Vice comes est viccarius commitatus and if a Barony discend upon the Sheriff yet he shall continue Sheriff 13. Eliz Dyer and Britton 43. If a Rybaud strike a Baron or a Knight he shall loose his Land And Tenant by Knights service may execute it by Deputy 7. Ed. 3. Littleton And if it be so in the case of a Sheriff which hath the County committed to him that he may make a Deputy by the Common Law upon that he inferred that the Steward which hath but the Mannors of the King committed to him that he may make a Deputy And also he said that the words in the last clause that is Volentes precipentes that the Officers and the Subjects should be attendant expoundes and declares the intent of the Queen for the words are Omnibus premisses and the Grant of the Office of the Stewardship is one of the premisses and so he concluded upon these reasons that Judgement shall be given for the Plaintiff and that the Grant was good and the Action wel maintainable And oâ— this opinion were Warburton and Foster Justices And Judgement was given accordingly this Trinity Tearm 8. Jacobi And Coke cheife Justice remembred a Report made by him and Popham cheife Justice of England upon reference made to them that this Patent was good and that the Earle of Rutland might exercise this Office by Deputation and he conceived that there were other words in the Patent which were found by the Jury that the said Earle should have the said Office Cum omnibus Juribus Jurisdictionibus c. as full c. as any other Patent hath been had and withall the Appurtenances and it seemed that a former Patentee had power by expresse words to execute that by a Deputy and he conceived though these words Adeo plene c do not inlarge the Estate yet this inlargeth the Jurisdiction of the Officer as in 43. Ed. 3. 22. Grant is made by the King of a Mannor to which an advowson is appendant Adeo plene tam amplis modo forma c. And these words past the advowson without naming that and he said it was adjudged Hillary 40. Eliz. in Ameridithes case where the case was the Queen granted a Mannor Adeo plene intigre in tam amplis modo forma as the Countesse of Shrewshury or any other had the same Manno r and Queen Kathrin had the same Mannor and diverse liberties with it of great value during her life and adjudged that these liberties should passe also by this Patent by these words and so in the principall case if the former Patent had been found also by the Jury and so was the opinion of Popham and him and was certified accordingly FINIS A Table of the Second Part. ARch-Bishops Jurisdiction 1 2. 28. Admiralties Jurisdiction 10 11. 13 16 17. 26. 29. 31. 37. Arbitrement satisfaction what 31. 131. Assumpsit 40 41. 273. Arrianisme one committed for it 41. Assets 47. Almony 36. Apurtenant what shall be said 53 Action sur Case by a Commoner for words 55. 84. 100. 119. 122. Avowry the whole plea 62 63. 102 Agreement what 72 Account 76 Audita Querela 81. 83. 168 Atturnment good by one under age where and why 84 Award void 100 Age not allowed in Dower 118 Administration repealable 119 Accord with satisfaction good plea where where not 131 Attorney ought to finde Baile in an Originall not Bill 134 Action sur Assumpsit 137 Assuâ—psit against an Executor where maintainable 138 Assets in Formedon what 138 Attachment 144. 168 Assent to a Legatee 173 Ayd prayer 191 Attachment for contempt of the Court 216 Accessary null unlesse there is Principall 220 Assignment of an estate suspended 225 Assise of novel Disseisin 229 Abatment of brief per entry 231 232 Abatement de facto and by plea differ in what 235 Agreement and Arbitrement good pleas where 132 Agreement by word to keepe backe tythes 17 Admiralls Commission for measuring of Corne 29 Administration during minority of c. 83 Atturney brings Debt for Trees 99. Arbitrement 130. 131. Arrest of Judgment 167. Acts what to make an Executor de seu tort 184. Attachment of Priviledge for an Estate against the Marshall c. 266. Assise where it may lye sans view 268. Assise the Recognitors challenged ibid Ajournment of the Tearm 278. Annuity or Writ of Covenant where 273. Arbitrement submission and revocation 290. Approvement of Common 297. Account 308. Award submission 309. Arbitrement 310 Arbitrement who it binds 323. Assise del Office 328. B BIshop not displaceable 7. Baron alone cannot sue for not setting forth Tithes without the feme proprietory 9 Ballast granted to Trinity House a Monopoly 13. Baron and Feme joyn where 66. Baron Judgment against an Executor 83 Baron how chargeable pur sa feme 92. 93. 95. Bar in trespass 121. By-Laws whom they bind 180. To what extended 258. Baron and feme take by intirity where 226. Barwick whether part of England or Scotland 270. Bayle 293 Banckrupt actionable 299. C CHase an action not to be divided 56 Cui in vita of Copy-hold 79. Custome for pound breach 90. Common Recovery 16. Copiholder shall hold charged where 208. Confirmation to a copiholder destroys common 209 210. Consultation after it no Prohibition grantable upon the same Libell 247. Cape grand Petit 253 Cause of a commitment traversable 266. Count in trespass after the teste del Breife 273. Covenant to pay Rent 273 Continuance Ibidem Chellenge 275 Customes of London argued by the Justices 284. 285. 286. Certiorari 312. Capias ad satisfaciendum no satisfactory execution 312. 313. 314. 315. 316. Copy-hold at common Law 44. Creditor may sue both heireand Executor 97. Court of Equity not proper after Judgment 97. Copyhold intayled 121. Covenants direct and collaterall how they differ 136.