have a Writ of Disceit after a Fine levyed and the Kings Silver paid 22. If one comes to a Justice of Peace and complains that I. S. is a Felon and hath stolen certain goods and the Justice commands the party who complaines to be at the next Sessions and prefer a Bill of Indictment against the Felon and give Evidence against him who doth accordingly Adjudged That neither he nor the Justice shall be punished in Conspiracy although I. S. the Felon be acquitted 23. A man made a Lease for 40. years by Deed and in the Deed Covenanted and granted to the Lessee that he might take Convenient Housebote Firebote c. in his whole Wood called S. within the Parish of S. which Wood was other Lands and not parcel of the Land Leased Resolved the grant was good and the Lessee should have it during the Term and his Executors shall take the same as his Assignes and the grant shall not restrain him but that he shall have Housebote Firebote also in the Lands Leased to him 24. A man seised of a Mannor parcell in Demesne and parcell in service deviseth to his Wife for life all the Demesne Lands and all the services and chief Rents for 15. years and deviseth the whole Mannor to another after the death of the Wife Resolved That the Deviser should not take any effect for any part of the Mannor till after the death of the Wife and that the Heir of the devisor after the 15. years spent and during the life of the Wife should have the services and cheif Rents 25. Tenent in Dower makes a Lease for years rendring Rent and takes Husband the Rent is behind the Husband dyes Adjudged his Executos shall have the Rent 26. A man destrains for 10 l. Rents due at Mick Cattel which were not of the value of 40 s. and afterwards destrains for the Residue Adjudged he cannot avow for the distresse is not good and it was his folly so to distrain But if a man be behind of hiâ— Rent at several dayes and he take a distresse for one day at one time anâ— for another day at another time it is good 27. Resolved That a Custome That a Lessee for years may hold the Land for half a year after his Term ended is no gâ—oâ— Custome But the Lord of a Copyhold may by Custome Lease thâ— same for life and 40. years after and it is good 28. Upon an Extent the Sheriff returned that he hath extended a Tenement at 20 s. paid but doth not make mention of any House Land nor pasture which should make the Tenement Adjudged the nor Extent was void for the incertainty 29. If a man be Robbed and afterwards for mony he agreeâ— with the Felon that he will not give evidence against him for which the Felon Escapes It was doubted whether he was accessary to the Felon But it was agreed That if after the Robbery hâ— pursue the Felon and take his goods of which he was Robbed and so suffer the Felon to escape the same is a Concealment of the Felony but he is not Accessary to it 30. A Women Tenent in Tail makes a Lease for years to her Husband and dyes The Husband being Tenent by the Curtesie surrenders to the Issue Adjudged the Issue shall avoid the Lease 31. A man says I will you shall have a Lease for 21. years of my Land in D. paying 10 s. Rent make a Lease in Writing and I will seal it Adjudged It is a good Lease in years by paroll though no Writings be made of it 32. Land was let to I. S. Habend to him for life and for the lives of I. his Wife and his Son Quaere What estate I. S. shall have and if there shall be an Occupancy in the Case It was not Resolved 33. If my keeper of my Park will not serve a Warrant which I send him nor suffer it to be served Resolved it is no forfeiture of his Office but only a Disobedience and a Misfeasance which is not a forfeiture But cutting down of Trees is a forfeiture of his Office 34. A man made a Lease for years the Leasor sold the Trees growing upon the Lands the vendor cut them down The Cattel of the Lessee which were in the Close destroyed the springs Resolved That the Leaser could not take the Trees growing upon the Land and it was a wrong in him to cut them down and it is not reason that he should by his own wrong should compel the Lessee to enclose the Lands wherefore Adjudged it was no Wast 35. In a Replevin the Plantiff being Lessee for years prayd in aid of his Leasor and upon Issue joyned upon a false verdict it was found for the Avowant The Plantiff and the prayee in aid joyned in Attaint and pendent the Attaint the prayee in aid which was his Lessor dyed Resolved That the Writ should abate for the prayee is dead who ought to recover the Reversion by the Attaint and his Heir should be at great mischief If the Attaint be found against the then Plaintiff who then should louse his Reversion 36. Resolved by the Court That if an Obligation or a grant be raised after the ensealing of it it is void but it is otherwise of an Indenture if it agreeth in words with the other Indenture and it was agreed If a man be bounden in an Obligation which is rased and the Obligation is endorsed with a Condition to perform the Covenants in an Indenture and the Indenture expresserh the debt notwithstanding the rasure of the Obligation the Plantiff must shew the Indenture to prove the Bond good 37. Action upon the Case for words viz. Thou art a False Knave a Wretch and a Whoremonger Adjudged actionable although for the word Whoremonger he might have his remedy in the Spiritual Court 38. A man hath Issue a Bastard and after marryes the same Woman and hath Issue by her divers Sons and then deviseth all his Goods to his Children Quaere If the Bastard shall take by the Devise But if the Mother of the Bastard make such a Devise It is clear the Bastard shall take because he is known to be the Child of the Mother 39. Lessee for years Proviso he shall not assign the Term nor any parcel of it without the assent of the Lessor Resolved He cannot give grant or sell it without assent of the Lessor But agreed That the Executors of the Lessee may assign it without assent of the Lessor 40. Resolved That if the Lessor makes a Letter of Attorney to his Lessee for years to make Livery of the Land in Lease to a Stranger who doth it accordingly That it is not a surrender of his Term for he doth not make the Livery in his own right but as Servant to his Lessor and by his authority 41. Resolved That if the Lessor infeoff a Stranger and makes Livery the Lessee for years being upon the Land who agrees to it It shall enure as an
be 159. Dower brought the Defendant pleaded that he had assigned to the Wife 20 acres of Corn out of the Land in recompence of her Dower and adjudged a good barr as well as of Rent or any other profit out of the Land 160. Three Coparceners Daughters the one of them and her Husband enter into the whole the other being supposed out of the Realm in the right of his Wife and afterwards the other two return and release to the Husband and Wife and their Heirs It was holden that the Release should enure only to the Wife and her Heirs because the same enures only by way of Extinguishment and the Baron is seised in the right of his Wife But admit the Husband and Wife both enter and are Disseisors then the Release shall enure to them both and then when the Wife survives the Husband she shall have the whole 161. It was held by the Justices upon the Statute of 31 H. 8. of Monasteries That if a Woman who hath a Widdows estate of Lands holden by Copy whereof the Inheritance was in the Abby That if the Abbot will make a Lease of the same in reversion it is no good Lease by that Statute but otherwise it is of a Lease at will by the Common-law 162. Note by the Justices If Issue be joyned if a Church be void by a Cession Deprivation or Resignation it shall be tryed by the Country because it is a thing mixt for the Avoydance is Temporal and the Deprivation is Spiritual But habilitie Bastardy ne unque accouple en loyal Matrimonie shall be tryed by the Certificate of the Bishop but Bastardy pleaded in a Stranger to the VVrit shall be tryed by the Country 163. VVords spoken of an Attorney of the Common-Pleas viz. He is the falsest Knave in England and by Gods blood he will cut thy Throat Adjudged Actionable 164. A man devised his Land to his wife for life the Remainder to another for his life and after their deaths he devised that the same Lands should be sold by his Executors or the Executors of his Executors he dyed after the Wife and he in the Reversion dyed and during their lives one of the Executors dyed intestate It was the opinion of the Justices That the Executors of one Executor should not make the sale for they had authority joyntly and if one of them fail the other cannot execute the Testament and so it was said it was adjudged in Franklyn's Case where a man devised that I. S. and I. D. by advice of the Parson of D. should make sale of his Lands after his death and before the sale the Parson dyed the other two could not sell the Lands 165. Wast assigned in a Marsh for that the Lessee suffered a Sea wall adjoyning to the Marsh to be ruinous by which by the flowing of the Sea the Marsh was drowned The Court conceived That if it was a small breach in the Wall and the Lessee did not repair it but suffered it to continue it was waste bet if it was suddenly done by the violence of the water the Defendant might plead that matter in barr Sir Edward Bray and Andrews Case 166. Action for words viz. My Master was not content to take my Living from me but sent his Man Andrews to kill me Resolved the Declaration was not good for the incertainty for the words My Master comprehends a generality and doth not refer to any Person certain and therefore it cannot be intended the Defendant intended to tax the Plaintiff more then any other Person and it may be he had at that time many Masters and it ought to appear to the Court of what Person certain the Defendant intended the words 167. An Action upon the Statute of Apparel The Writ was Ad respondendum Dominae Reginae quam I. S. Resolved the Action was not well brought because the Queen and the Party cannot joyne in the Action but they ought to have several Actions viz. the Queen shall have an Action for her part and the Informer for the other part For although by the Premises of the Statute it is an entire duty yet the sequel of the Statute determines how the penalty shall be taken and it is as several forfeitures The Earl of Northumberlands Case 168. Resolved one cannot have a VVrit of Forfeiture of Marriage without a Tender made to the Heir contra of a Writ De Valoâ—e Maritagii 169. Upon an Exigent a Writ of Proclamation issued which was returned served but the Name of the Sheriff was not to the Writ Quaere if it be Error The Court would advise of it Felton and Capells Case 170. In a Formedon in the Discender the Tenant vouched to Warranty I. S. who entred into the Warranty and vouched I. D. It was the opinion of the Justices That is a good Counter plea that the vouchee nor any of his Ancestors had any thing after the guift so as he could enfeoff him who vouched him 171. In Debt upon an Indenture the Defendant pleaded that it was rased after the delivery by the Plaintiff But he cannot plead That it is not his deed and give in Evidence the rasure but he ought to plead the special matter 172. A Bishop made a Lease for years which was confirmed by the Dean and Chapter and after he let the same Land to another for 20. years and afterwards before any Confirmation of it he let the same Lands to a third person for 60. years and the last Lease was first Confirmed and after the Lease in Reversion was Confirmed also Resolved that that Lease was good and the Confirmation good notwithstanding the last Lease was first Confirmed for the Lease is not to have any Interest by the Confirmation but only to make it perdurable and effectual Squier and Reads Case 173. It was holden by the the Justices in this Case That it is a good Challenge in a Writ of Right to the 4. Knights that they are not gladiis cincti And a Challenge to them must be made upon their appearance for after they are once sworn they are not Challengeable Also the 4. Knights are to make the Pannell and they need not to put their Names to it at the Return of it as the Sheriff useth to do and they ought to return to be of the Grand Assise but 12. persons besides themselves 174. A man had Judgment to recover in trespasse and had Execution of the Reversion of a Lease for years and of the Rent It was the opinion of the Justices that the Rent and Reversion was presently in him and that he might avow for the Rent without alledging any attornment of the Lessee for years 175. Debt upon Obligation conditioned to pay mony to the Obligee and the Parishoners of D. at such a Feast payment to the Obligee and two of the Parishoners of the Parish is good and it is not requisite the payment be made to all the Parishoners 176. In an Assise of Novel desseisin the Assise
passed against the Plantiff who thereupon brought an Attaint and alledged that the Jurors to the Attaint had not the view of the Tenements in demand It was the opinion of the Court that after the Verdict given it cannot be alledged that the Jurours had not the View and Judgement was given without the View 177. In Dower the Defendant pleaded That the Husband of the demandant did not dye seised so that she could not have damages and because there were Woods upon the Lands she prayed a Writ of Estrepment Quaere if it doth Lie It was not Resolved Griffiths Case 178. Lessee for years suffered the Banks of the River of Trent which ran by the Lands let to be unrepaired so as the Water brake the Banks and drowned the Lands Adjudged That River was not so violent but that the Lessee by his Industry might repair the Banks and to make the water run in its Current and therefore adjudged it was Wast 179. Debt was against Executors upon an Obligation which was that if the Testator or his Executors at Mich. every year during the life of the Obligee delivered to the Obligee a Load of Dung that then the Defendants pleaded that they and their Testator had performed not shewing how which was found against them It was adjudged that for this false plea of the Executors Judgment should be against them de bonis propriis 180. One was named in the Original in Debt A. B. of C. in the County of Denbigh He appeared upon the Cepi Corpus and said that he was dwelling at D. at the time of the Action brought It was holden it was No plea that he was not dwelling at C. at the time of the Action brought unlesse he say Ne unque puis 181. Lands in London which by the Custom were deviseable came to the King by Escheat who granted them over to I. S. to hold by Knights service It was holden That notwithstanding the Statute the devise of the whole Land was good as it was by the Custome which is not taken away by the Statute 182. The King by his Letters Patents gave authority to his Surveyour to make Leases of certain Lands for life reserving the antient Rent He by Indenture between the King of the one part and I. S. of the other part Quod Dominus Rex dimisit c. and the Surveyour put his own Seal to the Deed. It was adjudged a void Lease for he ought not to have put his Seal to it but the Seal of the King and it cannot be the Lease of the King without his Seal 183. Grandfather Father and Sonne The Grandfather is Tenant for life the Remainder to the Son in tayl the Remainder to the right Heirs of the Grandfather The Grandfather suffers a Recovery and levyes a Fine with Proclamation to I. S. and after the Statute of 27 H. 8. is made and the Grandfather enfeoffeth the Sonne of the Land and dyeth Resolved that the entry of the Father upon the Son was lawful and he shall not be estopped by the warranty of the Grandfather for that the Warranty was gone by the reprisal of the estate and it was holden That although the 5. years were past in the life of the Grandfather yet when the Grandfather dyes the Father shall have other 5. years to make his Entry or clayme and that by the Statute of 4 H. 7. 184. Lessee for years rendering Rent upon Condition if the Rent be behind the Lessor to Reenter a Recovery in Debt is had against the Lessor and the Reversion and Rent extended by Elegit and given in Execution It is a good Execution and the Condition suspended so as if the Rent be behinde the Lessor cannot enter into the other moety 185. Two Tenants in Common of a Wood one Leaseth his part for years who cuts Trees and commits Wast he shall be punished for the moety of the Wast and the Lessor Recover the moety of the Land Wasted 186. The Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free Chapel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majesties Free Chapel of of the Castle of Windsor in the County of Berks. Resolved the Lease was good for although the King in the Act of Parliament call it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Newdigates Case 187. Lessee for life and he in the Reversion joyned in a Lease for years Lessee for life dyed the Lessee committed Wast Resolved that during the life of the Lessee for life it was her Lease and the Confirmation of him in the Reversion But when the Tenant for life dyed then it was the Lease of him in the Reversion and that he should have an Action of Wast ex divisione propria 188. A man hath 3. daughters and Covenants with I. S. that he shall have the disposition in marriage of one of them the Election is in the Father of which of the daughters the other shall have the Mariage and he is not to deliver the daughter till request but upon request he is to deliver the daughter to I. S. otherwise he cannot have the effect of the Covenant 189. In a Writ of False Judgment the Sheriff returned Quod accept is secum 4. legalibus Militibus de Com. suo accessint c. Et recordum illud habeo c. coram c. sub sigillo meo sigillis praedict Militum It was adjudged to be no good return nor the Record removed but it ought to be sub sigillis ex his qui Recordo illo intersuerant and not of the 4. Knights 190. It was holden by the Justices that if upon the Exigent the Defendant hath a supersedeas but doth not deliver the same before the 5th County so as he is returned Outlawed yet because the Supersedeas was upon Record the Justices held the Outlawry to be void 191. A Writ of Wast was Quod secit vastationem in the Land and assigned the Wast in cutting down of Trees It was holden that was not good but if he had assigned the Wast in digging of Clay or such other things it had been otherwise for that is Wast in the Land 192. A man devised his Lands to his eldest Son in Tail the remainder to his youngest Son in Tail the remainder to his Daughter in Tail and if they all dyed without Issue that then the Land should be sold by his Executors the eldest entred and dyed without Issue the younger Son entred and suffered a Comon-Recovery and after dyed without Issue and the daughter also dyed without Issue Resolved That the Executors could not now sell the Land 193. Note If an Enfant levy a Fine and take back an Estate for life or in Tail by render he shall not avoid after the Fine by
of B. was behind for which the grantees destrained by their Bayliffs In this Case it was Resolved 1. That this demise and Lease was joynt and entire and so was the Condition of it notwithstanding the several Reservations of the Rents 2. That the grantee of parcell of the Reversion could not take advantage of the Condition but that the Condition as to the grantee was determined 3. That the bargainee was a sufficient Assigne within the Statute to take advantage of the Condition by the Statute of 27. H. 8. of uses which gives Cestuy que use the possession and the Estate of the Feoffees and all the advantages which the Feoffes might have and they agreed the Condition to be determined upon this difference viz. When it is entire one cannot divide it by his own act but by act of Law in may be divided and apportioned and so it was in this Case Hunks and Alboroughs Case 232. A man made his Will and gave divers Legacies and in the end of it he gave all the rest of his goods to his Wife who he made his Executor to pay his debts she took Husband who made the Defendant his Executor and dyed against whom the Wife Executrix brought Detinue of the goods of her first Husband and adjuged maintainable because she took the goods not as Legatee but as Executrix Harwell and Lucas Case 233. A. seised the Mannor of K. leased 6. acres parcel of it to I. S. for 21. years without any Remainder and after lets the 6. Acres to I. D. for 26. years to begin after the expiration of the first Lease rendring rent and afterwards made a Feoffment of the Mannor and all his Lands to the use of the Feoffees their Heirs upon Condition if they did not pay 10000 l. within 15. dayes then it should be to the use of himself and his wife the Reversion to their second Son in tayle with divers Remaâ—nders over the Remainder to his right Heirs Livery was made of the Land in possession and not in the 6. Acres the Money was not paid afterwards the first Lessee for years attorned the Husband and wife dyed the first Lease ended the second Lessee dyed his Wife married the Defendant The Son of A. distreyned for the Rent It was adjudged in this Case That although the reversion of the 6. Acres did not passe by the Livery without attornment yet the attornment of the first Lessee was sufficient and although the use to the Feoffees and their Heirs was determined before the attornment yet the attornment was good to passe the Reversion to the last contingent use and so the Title of the Sonne of A. to the Rent was good Cranmers Case 234. King Henry 8. made a Lease of Land for 21. years the Reversion came to E. 6. who Anno primo of his reign granted the same to Cranmer Bishop of Canterbury He 6 E 6. granted the Reversion to D. and C. to the use of the Bishop for life the Remainder for 20. years to the use of the Executors of the Bishop the Remainder in tayle to the Grantor the Remainder to his right Heirs The Bishop in time of Queen Mary was attainted of Treason and all his Lands and Chattels given to the Queen by Act of Parliament The Queen was possessed of the Term for 20. years and granted the same to I. S. It was adjudged That the term for years in remainder was never in the Bishop to forfeit but it was only an authority to nominate Executors in whom the Term should vest by purchase and because by reason of his Attainder he could not make Executors the Term for 20. years did never rise and so the Grant of it by the Queen Mary to I. S. not good See Dyer 310. contr Plastow and Batchâ—llors Case 235. Aâ—man brought a Formedon in Discender and pending it he brought a Writ of Estrepment which he delivered to the Defendant who notwithstanding the Writ afterwards committed Waste It was adjudged the Plaintiff should recover his Dammages and Costs Manwoods Case 236. Wast was brought and assigned in digging of Clay and selling of it and in plowing of Meadow and cutting down of 100. Oaks The Defendant pleaded Not Guilty as to all but cutting down of 6. Oaks which grew in a Hedge row which he said were Pollards not sufficient for building upon which it was demarred and adjudged for the Plaintiff Calthrops Case 237. Ejectione formae The Case was A. seised in Fee 26 H. 8. in consideration of Marriage between E. his Brother and F. the Daughter of W. and 200 l. of Money paid by W. covenanted to execute an Estate of the Mannor of N. to the uses following viz. of Lands of the value of 20 l. to the use of the said E. and F. for their lives and after carnal Copulation to the use of the Issues of their Bodyes with remainder over to E. and the Heirs of his Bodye the remainder to the right Heirs of A. and of the residue to the use of A. for life the remainder to E. F. for their lives and after carnal Copulation the remainder as before and afterwards he executed the estate by Fine and Recovery to the said uses The Marriage did not take effect but E. by another Wife had Issue 3. Daughters A. took a Wife and had Issue by her and dyed E. and F. dyed C. conveyed the Mannor to D. upon whom the eldest Daughter of E. entred and made a Lease of her part In this case It was resolved 1. That the use for the life of E. and F. did well rise although the marriage took no effect the use being declared upon an Estate executed which needs not any consideration but otherwise if it had been upon a Covenant to stand seâ—sed upon consideration of Marriage and Money for there without Marriage no use would rise although the Money was paid 2ly That the Election should go to him who was to take the use 3ly That the limitation was not void for the incertainty 4ly That in this Case although the Cestuy que use did not make the Election during his life yet he in the Remainder might after his death 5ly The Court doubted whether the Remainder did take effect because the Marriage did not take effect and they conceived it was not the intent of the Parties that should be advanced with so much Land if the Marriage did not take effect The matter was afterwards ended by Arbitrament Lane and Coopers Case 238. The Case was The Mannor of H. to make a Joynture was conveyed by a Deed in Latine to himself and his VVife for the Term of their lives the Reversion Seniori puero de corpore ipsius W. H. Haered de corpore suo legitimo procreato the Remainder to the general tayl to the Husband the Remainder to I. S. in fee thereof Afterwards by an Indenture between him and I. S. in English he covenanted that he and his wife should levy a Fine to B. and C. to
Praecipe but the Recovery as to the estate of the Husband took effect only by way of Estoppel but it was no bar as to him who was in Remainder and in this case it was said That if Lands be given to husband and wife and the heirs of their two bodies and the Husband alone suffers a common Recovery that the same should not bind the Estate tail although the husband doth survive the wife Martin and Wilks Case 335. It was adjudged in this Case in B. R. That Land in Antient Demesne is extendable upon a Statute Staple or Statute Merchant Hill 11. Jac. in t C. B. Cox and Barnesbyes Case adjudged accordingly Wolstan Dixies Case 336. A seised in Fee of Lands in London made a Lease to I. S. for years and after by Deed enrolled in the Chancery he sold the reversion to Dixie and his wife and afterwards the Rent was behind and he brought debt against I. S. The Defendant said That after the Lease and before the Sale to Dixie A. the Lessor by Deed enrolled in London bargained and sold the Land to him It was adjudged a forfeiture of the Term and judgment was for the Plantiff Rudhall and Milwards Case 337. Rudhall Serjeant at Law Cestuy que use before the Statute of 27. H. 8. Devised the use to C. his younger Son and the Heirs Males of his body the Remainder to I. his eldest Son and his Heirs upon condition that C. should not alien nor discontinue but for the Joynture of his Wife and only for the life of such wife C. after the death of his Father entred and levyed a fine to a stranger and declared the use to himself and his wife and to the Heirs Males of his own body the Remainder to the right Heirs of his Father afterwards C. having Issue male died the Wife died the Heir of I. the eldest Son entred upon the Lessee It was adjudged that because the Statute of 27. H. 8. gave the possession in quality and condition with the use and also gave to Cestuy que the same advantages as the Feoffees had that the said Heir was enabled to take advantage of the Condition be it a Condition or a Limitation The Vis-Countess Bindons Case 338. The Executors of Viscount Bindon brought Detinue against the Widdow of the deceased Viscount and declared upon the Detainer of certain Jewels The Defendant did justifie the Detainer of them as her Paraphronalia It was agreed in this Case by the Chief Baron and others That Paraphronalia ought to be allowed to a Widdow having regard to her Degree and in this Case the Husband of the Defendant being a Viscount that 500. Marks was but a good allowance for such a matter Mich. 28 Eliz. in Cur. Wardor Mounsons Case 339. A Commission in the Nature of Diem clausit extremum after the death of Robert Mounson issued to Enquire what Lands and Tenements he had the day of his death of whom by what services the yearly value of them who was his next Heir and of what age he was It was found that the Father of Robert was seised of the Mannor of B. in Fee and gave the same to Robert in tail the remainder to G. brother of Robert the Remainder to the right Heirs of the Father That G. died in the Life of Robert and Robert died without Issue and that F. the Son of G. was within age and the Lands holden of the Queen in Capite and that Robert long before his death was seised in tail of H. Farm and N. and 17. Eliz. levied a Fine to the use of himself in tail the Remainder to F. the Son of G. in tail and died such a day without Issue of his body and upon this Office one Mounson the Heir general prayed a new Office for it was said that the said Office was insufficient to entitle the Queen to the Wardship of F. the Son of G. It was the opinion of the Court that the Office was good to entitle the Queen to the Wardship of F. the Son of G. But if it was not then a Melius inâ—quirendum should issue forth and not a New Office Branches Case 340. In the Case of a Prohibition It was Resolved that an Union of Copyhold Lands and of the Parsonage in the hands of the Parson as Parson Impersonce was no discharge of the Tythes of the Copyhold Lands and in this Case also it was adjudged That a Farmer of Lands might prescribe in modo Decimandi but not in non Decimando Moor and Williams Case 341. Assumpsit The Case was Lessee for years the reversion to M. the Lessee in defence of the Plantiffs Title spent such a Sum money and prayed contribution or recompence Moor said in consideration thereof he should have the like Lease after the expiration of the Term which Williams the Defendant required and the said Lessor refused to make upon which Williams brought Assumpsit Resolved it did not lie because the Consideration was executed before the promise Stanley and Bakers Case 342. A man possessed of a Lease for years devised the same to his eldest Son and the Heirs of his body and if he died without issue to his youngest Son and the heirs of his body and for want of such Issue that the Term should remain to his Daughters he died having two daughters and afterwards another daughter was born The eldest Son sold the Term and died without Issue the youngest Son died without Issue the three daughters entred It was adjudged they all three should have the Term although the youngest Daughter was not born at the time of the death of the Devisor Owens Case 343. Tenant in tail the Remainder in tail Tenant in tail bargained and sold to him and his Heirs and levied a Fine which was not alledged to be with Proclamation It was adjudged that the Bargainee was not such a Grantee of the Reversion as should maintain Wast because it was no discontinuance and but for the Life of Tenant in tail Higham and Harwoods Case 344. A man had houses and Land which had bin in the tenure of those who had the Houses and he devised his Lands with the appurtenances It was adjudged That the Lands did pass by the words with the appurtenances for that it was in a Will in which the intent of the Devisor shall be observed Watkins and Ashwels Case 345. A seised in Fee made a Feoffment upon condition that if he or his Heirs paid such a sum such a day to reenter He died his Son and Heir within the age of 14. years The Mother of the Infant without the privity of the Infant and who was not Guardian in Socage in the name of the Infant tendred the mony at the day It was resolved it was an Insufficient tender otherwise if she had been his Guardian in Socage Carewas Case 346. The Abbot of M. was seised and made a Lease for years De scitu Manerii Rectoriae suae de omnibus aedificis
Covenant he devised to each of the Daughters 10. l. to be paid at their several ages of 21. years One of the daughters sued his Executors in the Spiritual Court for her Legacy and upon suggestion by the party that he is bound to pay her 10. l. at her age of 21. years a Prohibition was granted and the intent of the Devise was that he should not be twice charged 369. One sued an Administrator for debt upon pleinement administr The Jury found Assetts for part to the value and Judgment for that part for the Plaintiff and that for the residue the Defendant eat siae die and now he brought a Scire fac surmising Assetts to the value of the Residue It was the opinion of the Court that it did not lie 370. Debt upon Obligation with condition if the Obligor pay to the Obligee 10. l. or four Kine such a day at the then Election of the Obligee the Obligation to be void It was the opinion of the Court that the Obligor is to tender both at the day appointed by reason of the words at the then Election which word then shall have relation to the day appointed 371. A Lease was made to three Habendum to them for 99. years viz. to the first for 99. years if he should so long live and if he died to the Second pro residuo termino anaorum tunc ventur if he should so long live and if he died within the Term then to the third pro residuo termino annorum ad tunc ventur It was the opinion of the Justices that it could not enure by way of Remainder because there was not any Estate in esse during the particular Estate Yet they conceived the Estate of the second was good because it did enure as a new Grant Qu. 372. In a false Imprisonment against a Mayor he justified because he being a Magistrate the Plantiff said he was a Fool It was the opinion of the Justices that if he called him Fool in the place and exercise of his Offic◠that the Imprisonment was lawfull otherwise not Vdeson and the Mayor of Nottinghams Case 373. Vdeson was in the custody of the Mayor upon the Statute of 23. H. 8. and he would not let him at liberty upon Sureties wherefore he sued by Bill here and and Declared against the Mayor in Custodia Marischalli and recovered by Verdict It was the opinion of the Justices that by the Statute of 18. Eliz. none should sue for any penalty upon a penal Law but by original Writ or Information and so it was said it was adjudged in the Bayliffs of Bosworths Case Griffiths Case 374. It was was Resolved by the Justices That Error lyeth in the Kings Bench upon a Judgment given in an Ejectione firmae in Wales given before the Justices there 375. A Draper having a Servant to sell Clothes in his shop the Servant took the clothes and converted them to his own use It was adjudged that Trespasse vi armis lyeth only against the Servant because he had the possession as Servant and it was Resolved That in all cases where the Servant hath not a speciall nor general property Trespasses lyeth 376. One made a Lease for years the Lessee devised the Term to his wife for so many years as she should live and after to his Son the Wife purchased the Inheritance and sold the same again and covenanted that it was discharged of all Incumbrances and died The Son claimed the Term it was adjudged the possibility to the Son was a forfeiture of the Covenant and Bond of the Wife Sir Thomas Gorges Case 377. The Queen seised of a Mannor to which an Advowson was appendant and granted the Mannor una cum advocatione Ecclesiae the Church being then void Adjudged the Avoidance did not pass but the Queen should present pro hac vice 378. A man who was bound in a Recognizance for the good Behavior was indicted that he called one Pealer Lier Druakard and said I will make thee a poor Kirton and also Quare clausam fregit averia cepit injustè detinet It was Resolved by the Justices in B. R. That these were not words which threaten a battery of his Body without which the Recognizance is not forfeited 379. Debt brought in the City of Oxon The Defendant pleaded that he was one of the Barons of the Cinque Ports within the County of Kent and pleaded to the Jurisdiction of the Court upon which the Plaintiff demurred Qu. If a good Plea It was not Resolved Hayward and Bettesworths Case 380. Replevin the Defendant avowed for Rent the Case was The Father was seised in Fee and let the Land to the Plaintiff for years rendring Rent and afterwards he infeoffed a Stranger and executed livery upon parcel of the Land in a Close called D. the Lessee nor any of his Cattel being there but being in the house It was adjudged that nothing passed by the Livery but that the reversion of the whole descended and therefore it was adjudged for the Avowant Pigott Palmers and Grangers Case 381. The Case was A. was seised of Land which he intended to sell to the Father for 160. l. of which 140. l. was paid by G. in consideration of the Marriage of Pigott with the daughter of Granger and that the Land shall be conveyed for the Joynture of the daughter and the Heirs Males of their Bodies they intermaried and had Issue the Plaintiff Pigot died the wife took Husband Palmer the Defendant and they accepted a Fine of a Stranger with a render to the Stranger for 100. years rendering the ancient rent the wife died It was resolved that the taking of the Conveyance with the render for 100. years made the Estate of the wife void by the Statute of 11. H. 7. Zouth and Bamfields Case 382. In a Formedon in the Discender brought of the Moiety of a Mannor The Defendant pleaded in Bar that the Grandfather of the Demandant levied a Fine sur Conusance de droit c. with Proclamation of the moiety of the said Mannor by which Fine it was granted and rendered to the Grandfather and his Heirs whose estate the Tenant in the Formedon had The Defendant replyed that at the time of the Fine levyed and after the Demandant was seised of the Land in his Demesne as of Fee It was Resolved That the Defendant being Heir in tail against such Fine levyed by his Ancestor whose Heir he is was estopped to aver his seisin and continuance thereof as a stranger at the time of the Fine levyed Nor to add Quod partes finis nihil habuerunt Against which it was objected 1. That by the Statute of Donis It is provided Quod finis ipso jure sit nullus 2. That the Statute of 27. E. 1. of Fines doth not extend to Heirs in tail but to Heirs in Fee and that the Issues in tail are not bound by Fines which enure by way of Estoppel 3. That the Statute of Fines
Justices that if one be bounden to make such assurance of all his Land that another will devise and require if it be to be done at the Costs of the Devisor he may devise one Assurance of one part and another of another part of the Land but if be at the Costs of the other he can devise but a joynt assurance for the whole Land Gage and Topers Case 741. Resolved in this Case If the Writ of Covenant upon which a fine is levyed be returned before the date it is Error because it is an Original Writ and not amendable by any Statute Strougborough and Biggins Case 742. In Appeal by a Woman of the death of her Husband of Murther the Defendant is found guilty of Manslaughter It was holden that a general pardon could not pardon the burning of the hand because it is at the suit of the party Vide Co. 6. p. the Case Reported to be adjudged contrary 743. It was holden by the Justices that in a scire fac to have Execution of a Fine it is no plea that there are other Terre-Tenants not named in the Writ otherwise it is upon a scire fac to have Execution of a Recognizance Bennes and Edwards Case 744. The Patron of the Advowson granted the next Avoydance to B. and after granted an other next Avoydance to R. who first presented and the Bishop refused the B. presented and the Bishop refused his Clerk also R. brought duplex Querela against the Bishop before the Metropolitan against B. and upon default his Clark was Inducted by the Metropolitan but depending the duplex Querela B. recovered against the Bishops Ordinary in a Quare Impedit and his Clark was Instituted and inducted and he took the profits of the Gleab Lands which were sowed by the Clark of R. It was Resolved in this Case that the Clark of R. being in upon the Judgment in the duplex Querela the Clark who was in upon the Recovery in the Quare Impedit could not oust the Clark of R. without a scire facias first brought Foxley and Ansleys Case 745. The Bayliff of the Queens Mannor which had waifes and estrays appertenant took goods esloyned by a Felon and relinquished in the Mannor and seased them for the use of the Queen and in Trover brought against him prayed in aide of the Queen Resolved the Aide not grantable being an action transitory and not local James and Rudledges Case 746. Words viz. Hang him he is full of the Pox I marvel you will eate or drinke with him adjudged not Actionable for it may be the small Pox and not to defame the party but to Counsell his friend 747. The Sheriff sells a Terme upon a scire fac and afterwards the Judgment is reversed Resolved the party shall not be restored to the Terme but to the money for which it was fold Holford and Andrewes Case 748. Debt upon an Obligation the Condition was to pay a sum at a certain day The Defendant pleaded that in respect of a Trespas done by the Plaintiffs beasts upon the Defendants Lands the Plaintiff gave him a longer day of payment which is not yet come Resolved it was no plea for that an agreement by perol cannot dispense with the Obligation Scrogs and Stevensons Case 749. In a Leet a payne was assessed upon the Town for not making of a Tombrell and Stocks and the Bailiff of the Mannor destrained one of the Town for the payne and avowed for it Adjudged the Avowry not good because it was not alledged that the payne was unpaid to the Lord for if any of the Town paid it the Plaintiff in the Replevin was not destrainable and also he doth not show that he had a Precept from the Steward to distrain which he ought to have Resolved that the Lord of the Mannor and Leet is to finde the Tombrell and Stocks upon payne of forfeiture of his Liberty and not the Inhabitants Johnson and Clarks Case 750. Debt upon Obligation The Defendant pleaded the Statute of Usury Quod Corrupte agreaâ—un fuit quod Querens Corrupte recepit Issue upon them found for the Defendant it was said that the double Issue was a Mistâ—yal The Court held the tryal good because an Issue is taken upon a thing material the other upon a thing not material and both being found for the Defendant it is a sufficient warrant for the Court to give Judgment for the Defendant Whitcalfe and Jones Case 751. Assumpsit The Consideration was that the Plaintiff assumed to a stranger to pay a debt which the Defendant owed him It was holden to be a good consideration although he doth not alledge payment of the money Smith and Shepherds Case 752. Trespas for taking of his sheep The Defendant justified as servant to the Lord Barkley by Prescription to take 2 d. for every score of sheep passing through the Town and if it was denyed upon request to detain the sheep till payment Resolved the Prescription was not good to take Toll for passages in via Regia for that the Inheritance of every man for passage in via Regia is precedent to all Prescription 2. Resolved a man may prescribe for Toll Traverse because it is a passage over his own freehold but not for Toll thorough 3. In this Case it was adjudged against the Defendant because it was not shewed that the Sheep were passing thorough the Town before he took the distresse otherwise it doth not sure with the Prescription Warner and his Wife and Babingtons Case 753. Debt upon an Obligation by Husband and Wife the Defendant pleaded the Wife had another Husband living The Plaintiff said the Wife ad annos nubiles disagreed to the former marriage It was said by Popham if she marry another Husband infra annos nubiles it is a disagreement to the first marriage à fortiori where she cohabits with the second Husband after years of Consent adjudged for the Plaintiff White and Gerishes Case 754. The Case was A. and B. levyed a Fine of Land to I. S. with a Render of a rent of 5 l. to B. yearly with a Clause of distresse the Remainder of the Land to A. and his Heirs I. S. dyed his Son distrained for the Rent It was adjudged against the Avowant for the Rent in a Replevin brought because the limiting over of the Remainder of the Land over was an Extinguishment of the Rent Davenant and Hardis Case 755. The Case long put was shortly this The Company of Merchant Taylors of London having power by Charter to make Ordinances for the better Rule and Government of the said Company made an Order that every Brother of the same society who should put any Cloth to be dressed by any Clotheworker not being a Brother of the same society should expose one half of his Cloths to be dressed to some Brother of the Company upon pain of forfeiting 10 l. and to destrain for it This Case was very long and very Learnedly argued vide the Book at
was adjudged Murder for the Malice which he had to Herbert 208. A man made a Lease for years upon Condition if the Rent was behind the Lease to be void the Rent is behind the Lessee continued possession for 3. years after the Lessor brought debt for the Rent for all the time Quaere if it doth lye the Justices were divided in opinion Moreton and Hopkins Case 209. In a second Deliverance by A. against H. the Defendant he made Conusance as Bayliff to I. S. and M. his Wife The Case was the Plainâ—iff 17 Octob. 4. 5. Mar. by deed granted a Rent of 10 l. to B. and to E. and W. the younger Son of the said A. Habend for the life of E. to the use of E. and gave seisin of it W. and E. so seised W. dyed E. took Husband I. S. who for 5 l. Rent arrere avowed The Plaintiff said That the said I. S. Z October 7. Eliz. acknowledged that he had received 5 l. of the Plaintiff of the said Rent It was adjudged that the said receipt and acquittance of I. S. the Husband was a good barre of the Conusans Howse and the Bishop of Elys Case 210. In Debt the Plantiff declared that the predecessor of the Bishop granted to him the Office of keeping the Mansion House of D. of the Bishop for the Term of his life with the Fee of 2 d. per diem to be issuing and paid out of the profits of the said Rents and Farme of D. by the Receiver of the Bishop and also an yearly Robe which grant was confirmed by the Dean and Chapter the Bishop dyed the Annuity and Robe was not paid for which the Plaintiff brought his Action against the Successor Bishop who pleaded that the Plaintiff did not exercise the said Office and because D. was within the Isle of Ely where the Kings Writ did not run a Venire was to the Sheriff of Cambridge from S. next adjoyning to D. in the said â—sle of Ely who found for the Plaintiff and he had Judgment to recover the Annuity and the Arerages and the Robe and that the grant did binde the Successor Luken and Eves Case 211. In Replevin The Defendant avowed for that A. was seised of the Mannor of D. in Fee and had a Leet within the Mannor to be holden in the Feast of c. and let the Mannor to the Defendant for years And that the Defendant held the Court Leet such a Feast and that the Plaintiff was an Inhabitant within the Leet at the time and being Summoned to appear at the said Leet did not appear which being presented by the Homage he was Amerced 5 s. which was afferred and for the Amercement the Defendant did destrain The Defendent pleaded that he was not a Resient within the Leet at the time which was found against him wherefore the Defendant was adjudged to have a Return of the Cattel and his damages Stephens and Clarks Case 212. Quare Imp. King Henry 8 seised of the Mannor of D. and the Advouson Appendent presented I. S. the Mannor with the Advouson by Discent came to the Queen who granted it to the Lord Stafford and his Wife and the Heirs of the body of the Lord the Lord Stafford dyed His Wife and eldest Son granted the Mannor and Advouson to I. D. and his Wife for their lives The Incumbent dyed who during the Avoydance granted the Advouson to the Plaintiff It was Resolved That the grant of the next Avoidance to the Plaintiff during the Avoidance was void in Law Playn and Crouches Case 213. A Villein was Regardant to a Mannor the Lord of the Mannor had not seisin of the Villein nor any of his Ancestors from 1. H. 7. to this time but they had seisin of the Mannor to which the Villein was Regardant and if seisin of the Mannor was seisin of the Villein was the Question The Issue in an Assise being upon the seisin Quaere It was not Resolved It was Conceived that in favore Libertatis the Lord could not now seise the Villein No Judgment was in the Case 214. If the Husband be seised of Land in the Right of his Wife the Husband makes a gift in Tail of it rendering Rent and afterward the Husband and Wife grant the Reversion by Fine It was holden it should bar the Wife of the whole but if they had granted the Rent only then the Wife after the death of the Husband might enter into the Land 215. A man Leaseth a Mannor for years rendring Rent with a Reentry a stranger recovers in Debt against the Lessor and hath Elegit upon the Judgment Resolved he shall have the moyety of the Reversion and the moyety of the Rent in Execution and the Condition is suspended for the whole vide before 216. Tenant in Tail makes a Lease for 21 years and afterwards makes a Feoffment in Fee with a Letter of Attorney to make Livery who enters and ousts the Lessee and make Livery Adjudged It was a discontinuance And it was said That it was adjudged in the Earl of Warwicks Case A man made a Lease for life and afterwards made a Feoffment in Fee and a Letter of Attorney to make Liver who ousted the Lessee and made Livery That it was a good Feoffment and if the Lessee for life reentred the Reversion remainder in the Feoffee 217. A maid Servant conspires with her Lover to rob her Mistrisse the Man comes in the night the Maid hides him and after the Man kills the Mistresse Adjudged Murder in the Man and Petty Treason in the Maid Servant Symonds Case 218 A. 24. H. 8. Covenants with I. S. that all persons who were Feoffees of Certain of his Land should be seised thereof to the use of the said A. for life and after his decease to the use of W. his Son and M. S. and the Heirs of their bodies begotten and for want of such Issue the remainder to the Right Heir of A. and after he makes a Feoffment to those uses W. and M. S. intermary A. dyeth After 27. H. 8. the Husband aliens the whole and dyeth his Wife enters into the whole Adjudged her entry into the whole was not Lawfull but only for a moyety and it was agreed that several moyeties may be of an Estate tail aswell as of a Fee simple between Husband and Wife 219. A man made a Feoffment to the use of a Woman for â—â—fe who was a Feme sole at the time the remainder to the right Heirs of their two bodies the remainder to his right Heirs in Fee after they intermarried and the Husband having Tenants at Will of the Lands Devised that the Wife should have the Reversion in Fee so as she pay his debts and Legacies and performe his Will and by his Will deviseth his Tenant should have the Tenements for life and dyeth the Wife takes another Husband who ousts the Tenants at Will It was Resolved the same was no forfeitute of her remainder But if the Will
had been upon condition that his last Will should be performed It had been otherwise 220. A man made a Lease for 30. years The Lessor Covenanted to Repair the House The Lesse granted parcel of the Term for 10 years It was holden that his Grantee should not have an Action of Covenant by the Statute of 32. H. 8. of Conditions for he is not Tenant to the first Lessor But if the Lessor ganteth his Reversion for years his Grantee shall have Covenant or benefit of the Condition with which the Lessee is charged for he is an Assignee within the Statute because the Lessee holdeth of him 221. If the Ancestor of the Husband Covenant to stand seised of Certain Lands to the use of the Husband and Wife in Consideration of Marriage and also for a Certain Sum of Mony If the Wife alien that Land after the death of the Husband It was said that the Heir of the Husband might enter by the Statute of 11. H. 7. for the Consideration of Marriage shall be preferred before the Consideration of Mony and then it shall be said the gift of the Ancestors of the Husband and within the Statute as it was said it was adjudged in Villiers Case The Lord Treasurer and Bartons Case 222. A man made a Lease for 100 years The Lessee made a Lease for 20. years rendering Rent with clause of Reentry the first Lessor granted the Reversion in Fee attonement was had the grantee purchased the Reversion of the Term It was holden and adjudged that he should not have the Rent not the reentry for that the Rent which was incident to the Reversion was extinct by the purchase of the Reversion in Fee 223. A man was Tenant by the Curtesie of a Mannor a Copy-hold came to his hands by forfeiture Afterwards he was bound in a Statute and afterwards demised the Copyhold Land again It was holden this Copyhold should be lyable to the Statute because it was once annexed to the Freehold of the Lord and bound in his hands Pasch 12. Eliz. 224. If the Lord grant to his Copyholder the Trees growing upon the Land and which afterwards shall grow and that it shall be Lawfull for the Tenant to cut and carry them away It was holden to be No forfeiture of his Copyhold because he hath dispensed with the forfeiture by his grant but he cannot cut the Trees which shall after grow for as to them the grant is void Brabrokes Case 225. I. D. 19. H. 8. gave the Mannor of N. to I. S. and A. and the Heirs of the body of the said I. S. on the body of A. remainder to a stranger in Tail the remainder in Fee I. S. Maried A. and after 26. H. 8. he suffered a Common Recovery with single voucher to the use of him and his Heirs the Statute of 27. H. 8. was made and after he in the remainder in Tail was attainted of Treason and 28. H. 8. It was Enacted in Parliament that all his Lands and hereditaments which he had or ought to have should be forfeited the Recovery was without any Original Afterwards I. S. gave the Mannor to I. D. and his Heirs who made a Joynture thereof to M. his Wife for life after the death of I. D. M. took to Husband the Plaintiff against whom Intrusion was brought It was adjudged against the Plaintiff for one moyety Hil. 14. Eliz. 226. The Earl of Oxon. Tenant for life of certain Mannors made a Copy in reversion to I. S. for life and dyed the Copyholder in possession dyed The Heir of the Earl demised the same by Copy to I. S. It was the opinion of all the Justices that the Copy in Reversion was not good But it was agreed If it come in possession during the Tenant for life then it is good 227. Two Acres discend to two Coparceners one of them before Partition grants a Rent Charge out of one of the Acres and upon Partition the Acre charged is allotted to the other Sister It was adjudged she should hold it discharged of the Rent Pledall and Pledalls Case 228. It was Adjudged in this Case That the Jurours are not to to take Notice of matters of Estoppel which are given in Evidence between the parties upon pain of Attaint for they are strangers to the Conclusions of the parties Evans Case 229. A man had issue two Sons and devised Lands to his youngest Son in Tail and dyed the eldest having Issue a Son the younger Son aliened the Land in Fee with Warranty and went beyond Sea and there dyed without Issue the Son of the eldest being within age It was the opinion of the Justices the same was a Collateral Warranty and without asserts was a bar to the Issue of the eldest Son notwithstanding his Nonage Muttons Case 330. A man seised of Land levyed a Fine to the use of himself and such Woman as he should after Marry and after their decease to the use of I. his daughter and the Heirs of her body afterwards he Married A. and dyed who entred It was the opinion of the Justices to A. for her life Appowel and Monnoux Case 231. A. seised of the Mannors and Rectories of B. G. and D. let the same except the scite of the Mannor of B. to I. S. for 25. years Reserving for the Mannor of B. 76 l. for the Mannor and Reversion of B. 30 l. for the Rectory of B. 14 l. and for the Rectory of D. and the Lands to it belonging â—3 l. payable yearly at â— Feasts in the Church of F. not parcel of the Premisses upon Condition if the said Rents or any of them were behind for the space of 7. Weeks it should be Lawfull for him his Heirs and Assignes to Reenter on all the premises and afterwards he bargained and sold the Scite of the Mannor of B. and the Reversion of all the Mannors and Rectories to I. D. and his Heirs who enfeoffed certain persons and granted the Reversion of all the Mannors and Rectory to have and hold the Scite of the Mannor of B. and the Reversion of the Rectory of D. to the use of himself and Eliz his Wife for their lives and the life of the Survivour of them the remainder to W. his Son and his Heirs for ever And to have the Reversion of all the other Mannors and the Rectories of B. and C. to the use of himself for life the Remainder to the said W. his Son and his Heirs I. S. the Lessee attorned I. D. dyed Eliz. his Wife held the Scite of B. and the Reversion of the Rectory of D. by Survivour W. seised of all the Mannors and Rectories as aforesaid granted the Reversion of a Messuage parcell of the Mannor of B. to W. D. and his Heirs to which grant I S. attorned and afterwards by Bargain and sale enrolled granted the Reversion of all the said Mannors and Rectories to H. I. and K. and their Heirs half a years Rent reserved for the Mannor
the use of himself and his wife for their lives the Remainder to the use of the eldest Child of the said W. H. and the Heirs of the body of such eldest Child the Remainder over A Fine was levyed accordingly and after his wife died without issue and W. H. married another woman and by her had issue a Daughter his eldest Childe and a Sonne his younger It was a Question which of them should have the Remainder It was the opinion of the Justices That the Daughter should have the Remainder and not the Sonne for that was the intent of the Ancestour as they conceived though puero in Latine is intendable rather to an Issue Male than Female and yet they said That many Authors have taken the word indifferently to extend to both Sexes Mich. 17 18 Eliz. Andrews Case 239. Q. Imp. The Case was A Tenant in Tayle the Remainder to the Lord Mountjoy in fee of a Mannor with an Advowson appendant bargained and sold the same by Indenture not enrolled to I. S. and his Heirs rendring 42 l. rent with Clause of Distress and Nomine pene and covenanted for further assurance to levy a Fine to the Bargainee Proviso that the Bargainee grant the next Avoydance to A. for life and if it happen not void then one life to his Executors A and I. S. afterwards levyed a Fine with the render of a Rent of 42 l. to A. in tayle the remainder to I. S. in fee B. in his life did not grant the Advowson to A. and dyed the Church became void A. entred for the Condition broken It was in this Case resolved 1. That the Proviso made a Condition 2ly That the Fine levyed had not extinguished the Condition 3ly That no time being limited for the regrant the Bargainee was bound to regrant it without request at his peril during the life of the Bargainor if he were requested in the life of the Bargainor and because the Bargainor dyed the Condition was broken Fox and Colliers Case 240. Ejectione firme the Case was E. G. Bishop of York 6. Nov. 18. had made a Lease from the date of the Indenture of Lands for 21. years to the Plaintiff which Lease was confirmed by the Dean and Chapter at which time there was unexpired 4. years of an antient Lease made for 40. years Afterwards E. G. was removed to Canterbury and S. elected Bishop of York the 4. years expired the Plaintiff entred The Defendant upon a Lease made to him by S. after the 4. years ended put him out It was resolved by all the Justices and Barons in the Exchequer Chamber That the Lease made to the Plaintiff was good yet they agreed it should be void if it was not for the Confirmation 2ly They held that the Lease now in Question being to commence presently in Estoppel but not in Interest was not void by the Statute of 1 Eliz. neither within the letter nor the intent of the Statute not within the letter because it is not prejudicial to the Successor and the Statute is satisfied in the intent it not being a Lease longer than 21. years and having the Confirmation of the Dean and Chapter it is now good although it was not good by the Statute of 32 H. 8. Knowles and Lines Case 241. Ejectione firme The Case was Sir Francis Englesfield was seised in the right of K his wife of the Mannor of S. whereof a Messuage and Lands in question were Copyhold demiseable for 3. lives 1 Eliz. Sir Francis Englefield went beyond Sea with license for 3. years after his Licence expired the Queen sent a Privy Seal to him commanding him upon his Allegiance to return he spretis Mandatis of the Queen continued there and adhered to the Queens Enemies This being retorned a Commission issued to seize his Lands upon which the said Mannor of S. was seized The Queen at the Suit of K. his Wife for her Releif granted the Mannor to St. John and Fetiplace the Friends of K. for her Releife quamdiu in manibus nostris fore contigerit who entred and were thereof possessed accordingly and then the Statute of 13 14 Eliz. of Fugitives was made After which the Defendant procured a Warrant from the Lord Treasurer to C. and F. joynt Stewards for the Queen to hold Court within all the Lands of Sir Francis Englefield and to grant Copyes according to the Custom of the Mannor C. alone executed the Grant and granted the Messuage and Lands to the Defendant's being Copyhold In the Case was two points 1. If the Statute of 13 14 Eliz. of Fugitives had taken away the Estate of St. John Fetiplace and reduced the Mannor again to the Queen 2ly If the Court holden by C. only being a joynt Grant of Stewardship was good Resolved 1. That the Statute of 13 14 Eliz. of Fugitives was made in affirmance of the Common law and did not give the Queen any new thing but added only some Circumstances to it and therefore the Grant made to St. John and Fetiplace stood good so as the Queen could not oust the Patentees and so by consequence the Grant of the Copyhold to Lines the Defendant was not good 2ly They held that the Court holden by C. only was good For it was said a Disseasor c. might hold Courts and make admittance and take surrenders and the like because he is but an Instrument of Conveyance but he could not grant Copyhold estates 242. Note by the Justices If a man be to make sufficient proof it may be made by Witnesses produced as by Jury 243. A man seised of Lands parcell Copyhold and of Lands at the Comon Law and by Licence of the Lord makes a Lease of them for 21. years Provided if the Lessor or his Wife or his Heirs or Assignes or any of them give warning to the Lessee that the Husband or Wife or their Heirs will dwell there that then the Lessee should avoid Except that the Lessor or his Heirs shall pay to the Lessee then 20 l. The Lessor and his Wife dyes and the Reversion of one part discendeth to the eldest Son and the Reversion of the other to the youngest and the youngest purchaseth the Reversion of the eldest and then the youngest gives warning to the Lessee It was the opinion of the Justices that the warning given by him was good and that the Law which hath severed the Reversion hath severed also the Condition although at the begining they were entire and so for one part as Heir and for the other part as Assignee he shall take advantage of the Cndition 244. A man makes a Lease of Land and of an House for years reserving one Rent for all and afterwards the Lessor grants the Reversion of all the Lands saving the Reversion of the House to himself Resolved that by agreement betwixt the Lessor and grantee in the Reversion in pays the Rent may be apportioned if it be according to the quantity and quality of the Land
of the Justices that for want of Certainty no use is created by the said Covenant and Consideration but the same amounts to a Covenant and no more and the words Discend come and remain cannot create an Use but to the Heir apparant only 254. In Trespas the Case was The Custom of a Mannor was Quod quilibet tenens per Copiam poterit dimittere terras suas for life in Fee or alâ—ter and that a Woman Cooperta viro poterit devise her Copyhold Lands to any other or to her Husband by the assent of the Husband The Court held that the custome was not unreasonable but because it was poterit devisorre where it should be usi sunt devisorre and also because it appeared that the Plaintiff was Tenant in Common with the Defendant It was adjudged against the Plaintiff 255. A seised in Fee of a Messuage and of divers Lands time out of minde occupied with it let parcel of the Lands to a stranger for years and afterwards made his Will in this manner viz. I will and bequeath to my Wife my Messuage with all the Lands thereunto belonging in the occupation of the Lessee and after the decease of my Wife I Will that it with all the rest of my Lands shall remain to my Younger Son It was the opinion of the Justices that the Wife should not have the whole but only that which was Leased before and therefore that the remainder thereof could not be in the Younger Son till after the death of the Wife and that till the death of the Wife the Eldest Son Heir at Law should enjoy it 256. A man bound himself in an Obligation that he and his Wife would levy a Fine upon reasonable request of the Obligee he made the Request the Wife being very sick so as she could not travail Resolved that her sicknesse did save the Obligation from being forfeited 257. A Copyholder in Fee by License of the Lord made a Lease for years Rendring Rent and having Issue a Son and a Daughter by one Woman and a Daughter by another dyed his Son within age who before any Rent incurred or any admittance dyed Adjudged The Eldest Daugter should have the Land and that the discent of the Reversion is possessio fratris quae facit sororem esse haeredem Kenrick and Burges Case 258. A Lease in Reversion for years was granted to I. S. who dyed Intestate his Wife assigned it to B. and afterwards took Letters of Adminâ—stâ—ation and made an Assignment of it to the Plaintiff Resolved that the last Assignee should have it Trinit 25. Eliz. in Exchequer The Queen Her Almoner and Coxeheads Case 259. The Case was I. S. Anno 9. of the Queen took the Office of Bayliff of the Hundred of A. and 11. Eliz. became indebted to the Queen by Obligation and 13. Elz. he being seised of Land Covenanted with C. in Consideration of Mariage with his daughter to stand seised to the use of himself for life and after to the use of C. and the Daughter in Tail and afterwards he took the Office of Woodwardship of the Mannor of S. and became indebted for that also and then granted a Rent Chaâ—ge for years out of the Land and then C. and I. S. joyned in a Fine to the use of the said I. S. for life the remainder to C. and afterwards I. S. having purchased the Rent and possâ—ssâ—d of goods and Chattells because Felo de so for which his Lands and goods were seized It was the opinion of the Justices the Almonor had no title to his goods because the Patent did not extend to the goods of a Felo de se against the Queen for her debt because it wanted the Words Licet tanget nos and that the Lands and goods of the said I. S. were chargeable as well for the debts which were due by the Obligation as also upon the accompt aswell before the Conveyance as after Wherefore C. paid the Queen her debts and had the Lands cleered Newtons and Barnardines Case 260. A. had Issue 3. Sons F. R. and G. F. dyed his Wife with Child The Father A. devised in this manner viz. To the Child my Son F. his Wife now goeth with 28 l. yearly to be paid to the use of the Child for 20 years And if my Son R. dyeth before he hath Issue of his body so as my Lands discend to G. before he come of the age of 21. years then my Executors shall occupy it till G. be of the age of 21. years the Father dyeth R. enters a Daughter is born who enters and lets the Land to the Defendant rendering Rent It was adjudged That R. in this Case had an estate Tail by Implication of the words of the Will and that the entry of R. was a Lawfull eviction of the Terme and destroyed the Rent Hâ—dons Case 261. It was Resolved by the Justices in this Case An Abbot made a Lease for 8. years of Lands of the possession of the Abby a Copyhold estate being in esse at the time that it was an estate in being as did make the Lease for years void by the Statute of 31 H. 8. of Monasteries The Case of the Skinners of London 262. In Intrusion the Case was A. a Cittizen and Freeman of London seised of divers Messuages and Tenements of the yearly value and profit of 30 l. 6 s. 8 d. by his Will before the Statute of 1 E. 6. devised the same to the Corporation of Skinners and that 42 s. 8 d. thereof should be imployed upon an Obit and 12. Marks yearly thereof upon the Priest and the Residue to be imployed upon poor men of the Corporation decayed by misfortune who inhabited the said Messuages and Tenements and appointed the said poor men to pray for his soul and further with the profits to repair the Messuages and Tenements and after the Statute of 1 E. 6. of Chauntries was made It was the opinion of the Court 1. That Lay Corporations are Excepted out of the Statute for their Lands which they have to increase their Treasure for the good of the Corporation but not for Lands which they have to imploy to superstitious uses 2. Resolved that all the money which was given for the Obit and the finding of the Priest was a superstitious use and given to the King by the Statute but that which was given for the maintenance of the poor men and although it was appointed them to pray for his soul which was a precept suteable for that time and which was given for the Reparations of the Messuages c. was not given to the Crown by the said Statute and Turnors Case was vouched to be adjudged Where Land was given to the intent that his Feoffees should keep an Obit with so much of the profits of it as they should think fit in their discretions that the Land thereby was not given to the Crown but so much of the yearly Rent as the Feoffees imployed to that purpose
several Writs issued to Certifie one to the Custos Brevium the other to the Chief Justices They both Certified there was not any Warrant of Attorney The Plaintiff alledged Diminution upon a new Writ of Error brought Resolved That he could not alledge Diminution not have a new Writ of Error after the two former Certificats in the first Writ Ive and Tracies Case 281. A man seised of Socage Land and of Lands holden in Capite by Act executed in his life Conveyed the Capite Lands for the Advancement of his Wife Issues and payment of his debts Adjudged he could not after devise the Socage Land Bonncys Case 282. King E 6. seised of the Mannors of R. and B. in the right of his Dutchy of Lanc. made a Lease thereof to B. for years rendering several Rents upon Condition that if the Rent be behind 40. dayes after the Rents payable to reenter It was found by Office that the Rent was behinde after the 40. dayes and by another Office that the Rent was tendered the Last instant of the 40. dayes and that the Queens Officers of the Dutchy accept of the Arrerages and of the Rent at other dayes and Feasts and made accquittances thereof to the Lessee and had accompted for the same in the Dutchy and after that the Queen to defeat the Lease brought the Intrusion The poynts of the Case were 1. If the Queen was bound to demand the Rent 2. If the Tender was sufficient and sufficiently found by the Office 3. If the acceptance of the Rent accrued after the Office should conclude the Queen of the Condition The 4. If the Acquittances of the Officers should conclude the Queen 1. It was Resolved that the Queen ought to have made a Demand of the Rent before Reentry 2. That the Tender found shall be intended a tender made upon the Land which was a sufficient destruction of the Reentry 3. That the acceptance of the Rent at a new day after the Rent found behinde should conclude the Queen and that the Act of her Officer should be the Act of the Queen her self so as she could not enter for the Condition broken and so it was adjudged against the Queen Hunt and Gateleys Case 283. In a Replevin the Case was this Tenant in Tail the remainder over in Tail the remainder over in Fee Tenant in Tail in remainder granted a Rent charge and afterwards Tenant in Tail in possession suffered a Common-Recovery and dyed without Issue The Question was If the Recoverers should hold the Land charged with the Rent It was Resolved that the Recoverers nor any which came in under their estate should be subject to the charge of him in the Remainder because the Recoverers are not of an Estate which they gained under the estate of Tenant in Tail in possession whose estate is not subject to any Charge of him in the Remainder 2. Resolved That no Lease nor Rent nor estate made by him in the Remainder should charge the possession of the Recoverers Brand and Glasses Case 284. Action upon the Case against an Inkeeper of London for goods of the Plaintiff stolen out of his Inn The Defendant pleaded an agreement betwixt them that the Inkeeper should not be charged with any goods brought by the guest but with such only as he should deliver to the Inkeeper himself or to his Wife and that the Plaintiff did not deliver the goods stolen neither to him nor his Wife It was Resolved by the Court it was a good bar of the Action and this Case was put and vouched to be adjudged 7 Eliz. A Clothier came to an Inn with a Wayne of Wool to Lodge at his entry the Inkeeper said to him That if he would that he should take the Charge of his Wayne that he should draw the same into an Inner Court otherwise he would not answer for it The Clothier did not do it and the Wool was stolen The Clothier brought his Action upon the Case against the Inkeeper and upon shewing the special matter the Inkeeper was discharged 185. The Case was Lessee for life Covenanted for himself his Executors and Administrators to build a new Wall during the Terme and after he assigned over his estate It was Resolved that in this Case upon the Statute of 21. H. 8. that the Grantee of the Reversion or the Grantor might have an Action of Covenant against the Assignees for by the acceptance of the possession he had made himself subject to all Covenants concerning the Land and the building of a Wall was a Covenant inherent to the Land with which the Assignee should be Charged though there wanted the word Assignees in the Deed. Mich. 26. 27. Eliz. The Case of Saffron Walden 286. King Henry 8. seised of the Mannor of Saffron Walden parcell of his Dutchy of Lanc. Anno 6. of his Raign granted to the Guild of Walden 2. Mills a Market and the Clarkship of the Market in Fee Farme rendering 10 l. per Ann. and after 31. of his Raign granted the Mannor Rent and Fee Farme to the Lord Audley in Fee 1 E. 6. by the Statute of Chauntries the Guild was dissolved by which the Mills and Markets came again to the King with a alvo of the Rent to the Lord Audley Afterwards the said King E. 6. Anno 3. of his Raign granted the two Mills Market and Clarkship of the Market and also a Fair yearly to be holden there to the Town of Walden in Fee Farme reddendo inde annuatim to the King and his Successors vel tali Capitali Domino vel Dominis feodi illius ad qâ—em vel quos de nostro pertinet vel pertinebit the sum of 10 l. per Ann. upon which Reservation they were charged with 10 l. per Ann. in the Exchequer and upon a scire facias they pleaded in discharge of the said Rent that they had payed 10 l. per Ann. to the Heirs of the Lord Audley The points debated were two 1. That when the King had granted the 2. Mills and Market to the Guild reserving Rent if the said Rent were parcel of the Mannor of Walden as the Mills were or was a Rent in grosse for if it was parcel of the Mannor then it was parcel of the possessions of the Dutchy if it was not parcel then it was a thing given to the King in Capite 2. If by the Reddend in the Patent of E. 6. the Town of Walden was charged to pay 10 l. to the Lord Audley and other 10 l. to the King This Case is very long and Learnedly argued by Walmesby for the Town of Walden and by Popham for the King And it was Resolved by the Justices That the Corporation of Walden should pay both the Rents Vide the Book at Large for the Reasons Sir William Herberts Case 287. Sir Matthew Herbert acknowledged a Recognizance to the King of 3000 l. and afterwards he made several Feoffments and Allienations of divers of his Lands the residue discended to
Lawfull before he had a discharge of this Office or perfect notice of a new Sherff Johnson and Smiths Case 318. Action upon the Case for slandring of his Title and declared That he was seised of Lands by discent from hâ—s Father and was agreed with I. S. for a sale of the same Lands and I. S. went to the Defendant being an Attorney and prayed his advice for the making the Assurance and that the Defendant said to I. S. that he had heard that the Father of the Plaintiff had granted a Rent Charge out of the Lands in Fee by reason of which words I. S. refused to buy the Lands and all other persons for fear of the said Incumbrance to his damage c. The Defendant said he was an Attorney at Law and I. S. came to him for Counsell in secret he said the words spoken in the Declaration It was strongly urged that although he was an Attorney that would not excuse him because an Attorney is allowed to give Counsell and the utterance of the words in private did not excuse being spoken to the buyer himself But it was Resolved the Action did not lye and adjudged against the Plantiff Dawbney and Goores Case 319. In Disceit D. G. and G. were Joynt Merchants they made F. and S. their Factors in Barbary G. and G. conspired with S. to demand allowance of 1000 l. which was allowed them upon accompt by which D. was damnified for that the money was not due and the truth was S. only made the Account The poynt was if one Factor might make an Account for both and if the two Merchants might take an Account for them all three It was said that they all ought to joyn in Account but one solely might Assigne Auditours to take the Account on the other side it was said there was no Joynture in Merchandize and that one Merchant shall have an Account against his Companion Quaere the Case was not Resolved Hill and Morses Case 320. It was Resolved in this Case That a Copyhold without a special Custome could not be entailed 321. An Enfant acknowledge a Fine before the Cheif Justice but the Conusee would not have the Fine ingrâ—ssed till his full age The Enfant came now with the Note of the Conusance and prayed a Wriâ— of Error and examination of his age which the Justice agreed unto and that an Entry be made thereof and by that save to him his advantage 322. A man sold his Land and Covenanted to save the Vendee harmlesse upon request It was said if the Land be extended by force of a Statute before the request the Covenant is not broken for that now the Covenant is become impossible by the negligence of the Covenantee himself but if he had made request before the extent there the Covenant should be broken for default of saving harmelesse Foreman and Bobâ—ams Case 323. Repâ—evin The Defendant avowed for a Rent charge of 3 s. 4 d. â—issâ—ing out of the place where c. which was one parcell of the Mannor of W. of whâ—ch Mannor I. S. was seised in Fee and 33 H. 6. made a Feoffment of the said Close rendering Rent with distresse and dyed seâ—sed and it discended to his Son who bargained and sold the Mannor with all Lands Rents Reversions services and herediraments which are parcell or had been deemed reputed or taken as part parcell or member of the Mannor and the Defendant as Bayliff of the Heir of the Bargainee made Conusans for the Rent and whether the Rent did passe as parcell of the Mannor was the Question by the bargain and sale It was said it did nâ—t passe by the word parcell but it passed by the words reputed parcell if it were so reputed parcell at the time of the grant Quaere the Case is not Resolved in this Book but vide Pasch 26 Eliz. in B. R. Leon. 1. part 13. there the Judgment was given against the Avowant Justice Windhâ—ms Case 324. A Lease was made reciting that whereas he had made a Lease of one Close to the Lessee for â—0 years rendring 8 s. Rent and another Lease of another Close to the same Lessee for 40 years now he demised to the same Lessee both the said Closes for 40. year from and after the determination of the several demises It was a question if the last Lease was good because there is not any certain time of the begining of it Resolved the Lease was good and the Law shall make an Interpretation of the demise reddendâ— singula singulis how the Terme shall begin Vide Cook 5. part the same Case Dolman and Vavasors Case 325. A. seised in Fee of Lands 15 Eliz. suffered a Common Recovery to B. which Recovery was executed by Habere facias seisinam After the Recovery had it was declared by Indenture between the parties that the Recovery should be to the use of the said A for life without impeachment of Waste the remainder to the first begotten Child of his body and the Heirs male of such first begotten Child and so to his 9. Issues and for want of such Issue to V. the Tenant or Defendant and the Heirs male of his body and if these Indentures were sufficient to declare the uses of the Recovery was the Question It was Resolved that these Subsequent Indentures were sufficient to declare the uses of the said Recovery for so was the Intent of the parties as appeareth by the Indentures and it was adjudged that the declaration by the subsequent Indentures should stand good because there was not any other declaration of any other use Scroggs and Lady Greshams Case 326. Debt upon an Obligation against the Defendant Executrix of Sir Thomas Gresham The Defendant pleaded several Obligations made by the Testator to the Queen amounting to 8000 l. solvendum eidem Doâ—inae Reginae quando requisitus â—uisset ultra quam non habet upon which the Plaintiff demurred because the Obligation not being upon Record but taken in paâ—s was not good for that the Queen could not take but by matter of Record and also the solvendum is not to the Queen and Successors and the Queen is not to have the preferment of payment of her debts unlesse they be debts upon Record But yet in such Case if the Queen first sue she shall be preferred although she hath Judgement after another who sueth The Lord Pagetts Case 327. The Case was the Lord Pageâ—t seised of divers Mannors by deed Indented Covenanted with I. S. and others that in consideration of discharge of his Funerals payments of his Debts and Legacies and advancement of his Son and others of his blood to stand seised of the said Mannors to the use of the said I. S. and others for the Life of the Lord Pagett and after to the use of C. P. and other for 24. years and after the expiration of the said Term of 24. years to the use of William Pagett his Son in tail Afterwards the Lord Pagett
was attainted of Treason The first Question was If the Uses limited to I. S. and others were good or not Resolved they were void because they wanted a good consideration but if he had made them Executors and chargeable to the payment of his debts then the same had been good Second point If the use limited to William Pagett should begin presently after the death of the Lord Pagett or should expect untill the 24. years were incurred after the death of the Lord Pagett or not at all Resolved That the use should be in William Pagett presently before the 24. years were expired Wiseman and Barnards Case 328. The case was Tenant in tail for the advancement of his Blood Name and Issue covenanted to stand seised to the use of himself in tail the remainder to the Plaintiff in tail the remainder to the Queen in see and died his issue entred and suffered a common Recovery and died without issue he in the remainder entred Resolved That the consideration that the Land should continue in his Name and Blood was no consideration to raise the use to the Queen 2. Resolved that he in the Remainder was barred by the common Recoverie and the Remainder not preserved by the Statute of 34. H. 8. because it was not of the Provision of the Queen but of a common person Chenyes Case 329. A seized of Lands made a Lease for years thereof to B. and C. upon confidence for the preferment of the wife of A. and afterwards he made a Feoffment to B. and others to certaine uses of the same Lands the point was If the Lease for years were extinguished by the Feoffment Resolved That the Terme was not extinct but was saved by the Proviso in the Statute of 27. H. 8. of uses which preserved all Interest which the Feoffees had in the Lands to their own uses and here B. had the Term to his own use and therefore not extinguished Pimbs Case 330. A committed Treason 18. Eliz. and was attainted 26. Eliz. In the interim he was Conusee of a Fine levied by I. S. which fine was to the use of the said I. S. and his wife Afterwards I. S. and his wife bargained and sold the Land for money to Pimb It was conceived that the Land was in the Queen upon the discovery of the Treason and Attainder which intitles the Queen to all the Lands which Traitors had at the time of the Treason or after so as the estate of I. S. and his wife was thereby destroyed by the Relation of the Attainder Wherefore Pimb sued to the Queen and she granted him the Land by her Letters Patent Beckwiths Case 331. Husband and Wife seized of Lands in the right of the Wife levied a Fine The husband detained the uses solie one way and the Wife detained the uses upon the Fine another way It was resolved that both the Declaration of the uses were void and so by consequence the uses upon the Fine should be to the use of the Wâ—te and her Heirs The Lord Mountjoys Case 332. The Case was this A Mannor which did consist of Free Rents of 7. l. copyhold Rents of 3. l. and of domaines which had used to be devised for several Rents and Farmes to which Mannor an Acre of waste parcel of the Mannor of the yearly value of 12. d. Heriotts Court Baron Leet and perquisits of Court which never were devised for Life years or otherwise did appertain and were incident was by a private Act of Parliament given to A. and B. in tail with diverse remainders over and the Donees were restrained Quod non facerent aliquid ad Nocumentum or disinheritance of the Tenant in tail or them in remainder and that they should have power to make a Lease for Life Years or at Will rendring the true and ancient Rent of the said Tenements to be demised and that all other acts should be void Tenant in tail accepted of a fine from a stranger of the Mannor by which they granted and rendred the Mannor for 300. years rendring rent yearly amounting to the free Rents Copy rents and Farme Rents and 18. d. more and 12. d. for the waste to be paid at two Feasts whereas the ancient Rent was paid at four Feasts Tenant in tail died and if the Lease for 300. years was to be avoided by the clause of Restraint was the Question It was Resolved 1. That although by the purview of the Act That all Estates restrained by the Act should be void yet the same should not avoid the Lease as to the Tenant in tail himself but it should be avoided by the Issues in tail 2. Resolved That in respect the Acre of waste was never devised before that the Rent which is entire reserved out of the whole cannot be said the true and antient Rent 3. Resolved That the reservation of the Rent at two Feasts where the antient Rent was payable at four Feasts made the Grant and Render void for that was to the hurt of the Issues in tail for it was more beneficial to have the Rent at four Feasts then at two Feasts and all beneficial Qualities of the Rent ought to be observed and for these causes and others the Lease for years was to be avoided by the Issue in tail Knights Case 333. The Case was a Prior seised of divers houses with the consent of his Covent made a lease of them for years rendring rent of 5. l. 10. s. 11. d. at four usual Feasts upon condition that if the Rent was behind in part or in all at any of the said Feasts he and his Successors to reenter The Priory came to the King by surrender the King by his Letters Pattents under the Great Seal granted one of the houses to the Lessee and another in Fee and afterwards it was found by Commission under the Exchequer Seal that parcel of the said Rent was behind at one of the said Feasts the King before the Commission returned granted the residue of the houses to I. S. in Fee It was resolved in this case amongst other things That although without Office found the Lease was not void and although the Office was not returned before the date of the Letters Pattents made to I. S. yet forasmuch as the Office was found before the Grant and afterwards it was returned of Record that the grant was good and that in this case of Reentry without seisure the Lease was void Owens Case 334. Upon a Fine levyed the Lands were rendred to A. and to his wife and to the Heirs of the body of A. A. suffered a Recovery with Voucher in the life of his wife and afterwards died the wife died It was resolved in this case that the Recovery suffered by the Husband only did not bind him who was in the Remainder for betwixt husband and wife there are no moyeties and the joynt estate was not severed by the Recovery against the Husband only and the husband was not the only Tenant to the
by avoidance death or resignation E. being in the Bishop was removed to Winchester The Bishop that then was certified that E. did not pay his Tenths upon which the Church was void and the Bishop collated I. S. to the Church The Question was if the Queen might now avoid the Incumbent to have her presentment which accrued to her upon the avoidance of the first Incumbent who took a second Benefice without Qualification The Justices at the first doubted it but afterwards this Term it was adjudged for the Queen against the Bishop 390. Three bound themselves in an Obligation by these words Obligamus nos quemlibet nostrum conjunctim the Obligor brought debt against one of them It was the opinion of the Justices it did not lie and that the words Et quemlibet eorum did not make it several 391. The custom of Kent is that the Wife shall be endowed of the Moiety of Gavelkind land and shall lose her Dowry if she marry again It was the opinion of the Justices that she had not Election to be endowed of the third part at the Common Law but was tied to the Custom Stampe and Hutchyns Case 392. It was Resolved That if an Executor gives his own Bond for mony which his Testator was bound to pay by Bond and so redeems the Bond of his Testator that he may retain so much money in his hands as if he had paid the mony in facto Gorges Case 393. One called another Cousening Knave and said He had cousened him Adjudged the words not actionable 394. It was Resolved That if one who hath a Benefice takes a Prebendary that the same is not an avoidance of his first Benefice within 21. H. 8. The Lady Greshams Case 395. Sir Thomas Gresham seised in Fee of the Mannors of M. and C. in the County of N. 12. Eliz. levied a Fine thereof to the use of himself and the Lady Ann his wife To B. and C. with power of Revocation that if Sir Thomas should pay 10. s. to B. and C. or the Heirs of B. then the same to be to the use of Sir Thomas and his Heirs In 13. Eliz. he levied another Fine to the said Conusees of the Mannors of N. and F. to the same uses declared by another pair of Indentures with the like payment of 10. s. B. dyed Sir Thomas paid one Sum of 20. s. to C. in Revocation of the uses raised upon both the Fines and after he raised divers uses and estates of divers Mannors holden in capite without license of Alienation and died It was in this Case amongst other things Resolved That the uses were not revoked but that the revocation was void because two several sums of 10. s. ought to have bin rendred and not one sum of 20. s. for they were several Indentures and several Mannors and could not be satisfied with one Sum for which cause all the Mannors came to the Lady by Survivor and that there was no Fine due to the Queen upon his alienation without License The Queen and Palmors Case 396. In Intrusion the Case was R. Bishop of Chichester having the Wardship of one I. D. 12. E. 2. devised by his Will that his Executor should sell the Wardship and with the money purchase Land with which should be sustained three Priests to sing Mass each to have six Marks and if he could not purchase so much as to find the three Priests then he should find two The Bishop died his Executors purchased Land and gave the same Deo Ecclesiae de Chichester so as he and his Successors should have the Issues and profits thereof for the sustentation of 2. Priests whereof each to have 4. l. per an and the Prebends of the said Church have always made Leases of the Land and sustained the Priests as aforesaid till the Statute of dâ—ssolution of Chaunteries and the Defendant said he was in by the Lease of the Prebends and traversed the Intâ—usion The 1. point was if by the Statute of 1. E. 6. of Chaunteries the stipend of 8. l. given for the sustenance of the Priests or the Land was given to the Queen 2. If by the Proviso of the Statute the Land and the Rent in the Land only or nothing be saved It was said by Anderson Chief Justice that where a Gift is made to sustain poor Men and Mass-Priests without limitting a certain quantity how much to one use and how much to the other use there the Queen should have the whole Land but if the quantity was appointed as to one use and how much to another use there the Land is not forfeited but only so much as is employed to the superfluous uses Qu. The Case was Adjourned and not Resolved Slywight and Pages Case 397. In an Information upon the Statute of 32 H. 8. for buying of Titles The Case was The Plaintiff being Dissisee of Lands made a Lease by Indenture being out of the Land to try his Title It was a doubt if this Lease by Estoppel and not in Interest was within the Statute It was adjudged it was and was Maintenance although the Lease was made to his Brother in Law Fisher and Boyes Case 398. A Colledge in Oxford was incorporated by the Name of Gardiani Schola ium Domus sive Collegii Scholarium de Merton de Vaiver â—tate Oxoniae and they made a Lease of the Lands of Custos Domus sive Collegâ— de Merton Scholâ—res ejuidem Domus in Oxonia It was adjudged that the variance was not material but they did agree in substance and the Lease was good The Countess of Rutlands Case 399. It was holden by the Court in this Case That Executors may have and maintain Trover and Conversion upon a Trover and Conversion in the Life of the Testator but then in the Action the day of the Conversion and the place of the Conversion are to be alledged Bond and Richardsons Case 400. Debt upon Obligation the Condition was If the Defendant pay 20. l. the 7. day of May 1558. at the house of the Defendant in Southwark that then c. It was found by verdict that the Defendant paid the 20. l. before the 7. day of May at the house of the Defendant in Southwark but not solvit in the 7. day of May It was adjudged a good payment Leversage and Cabbells Case 401. Ejectione firme The Case was A. made a Lease to B. C. and D. by Indenture to have and hold to them for their Lives Proviso and it is covenanted and agreed betwixt them That the Second shall not occupy the Lands during the Life of the first and the third not occupy during the Life of the Second The first occupied all and died the third entred and made the Lease It was adjudged That by the Premises of the deed the parties to whom the Land was devised being expressed and in the Habendum the Estate being limitted as the Office of the Habendum is That the Proviso that cometh after should
the Cause and they do award an Erroneous Process or Misaward a Capias by which the party is taken in Execution yet it is a lawfull Execution and the Sheriff is chargeable with the Escape and he is not to examine the Error of the Court in avoiding the Execution Second that the Conviction of the Felony was no discharge of the parties Execution and it was adjudged against the Defendant 412. Debt brought in Co. B. for an Amercement in a Court Baron the Defendant would have waâ—ed his Law the Court doubted of it and some Presidents were shewed as Trin. 6. Eliz. Tindal and Tuckers Case that he might in such Case wage his Law Quare The Queen Bishop of Lincoln and Skiffings Case 413. Quare Imp. The Case was the Countess of Kent had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was adjudged he was Lawful Chaplain for the Patent is not of necessity but only in Case where he hath Cause to shew it and he hath no cause to shew it because her Retainer was good without a Patent Bâ—rd and Adams Case 414. In this Case a Case of a Prohibition to stay a Suit in the Spiritual Court for Tythes of the Rakings of Lands after the Crop of corn was carried away It was holden That the prohibition would not lye but that Tythes should be paid of Rakings But vide 42. Eliz. in B. R. in Gree and Haales Case It was adjudged that by the Custom of the Realm Tythes should not be paid of Rakings Battey and Trevillions Case 415. Replevin The Defendant avowed That I. and A. his Wife were seised in Fee in the right of his Wife and devised the Land in which to I. H and I. his Wife with E. their Daughter for 60. years rendring four Marks Rent Afterwards 38. H. 8. I. and A. his Wife levyed a Fine and the Conusees rendred the Land to A. for Life the remainder to Tho. their Son in tail with remainder over A. died Tho. entred upon the Lessees and made a Feoffment to I. D. and others to perform his Will the Lessees reentred Tho. 7. Eliz. by his Will ordained that his Feoffees should stand seised untill they had levied sufficient to pay his debts and Legacies which were not payed and therefore the Defendant as Bayliff to the Feoffees made conusance and as to the rest he avowed for that Tho. was seised in Fee of the place in which c. and 6 Eliz. devised the same to H. L. and M for Life rendring 30. s. Rent and afterwards entred upon the Leslees and levyed a Fine thereof to the use of himself in Fee and afterwards infeoffed thereof the first Feoffees to the use of his Will the Lessees reentred and he made his Will as above and died and for 3. l. rent for two years he made conusance as Bayliff to the surviving Feoffees The Plantiff to the first Avowry said that Tho. was seised in Tail by the render of the Fine and the tail descended to H. his Son and then E. one oâ— the Lessees who survived to husband the Plaintiff bâ—que hoc that Tho. enfeoffed the Feoffees to such uses as the Defendant hath a ledged and as to the other Conusance the Plaintiff demurred in Law The Jury found the seisin of A. and her Husband and the Lessee for years to the three persons and the Fine and Render to the seisin of Tho. and the Feoffment of Tho. to I. D. and others to perform his Will and they found a Letter of Attorney to persons whereof the said I. H. one of the Lessees was one conjunctim divisim to enter in all the Premises and take possession and deliver the same to the Feoffees or one of them and that after Tho. made his Will as before and that C. one of the Attorneys to one of the Feoffees and D. another of the Attorneys delivered seisin to another of the Feoffees There were divers points in this Case First because the Jury have sound a Devise of Land and no Tenure if the Justices could judge the Tenure to be Knight Service or Soccage this point the Justices said they would not meddle with Second point admit the Land to be holden in Capite and that the Land passed by the Willâ— they held that but two parts of the Land passed by the Devise 3dly When he devised that his Feoffees should stand seised and he had not Feoffees but he himself was in possession the Justices held it was devise of the Land it self 4thly They held where one of the Lessees made Livery as Attorney to the Lessor that he did not thereby extinct or surrender the Term. 5thly When an Authority is to four conjunctim divisim to execute Livery that one might execute Livery in one part and the other in another part 6thly They held when Tenant in tail of Lands in lease for years makes a Feoffment and the Lessee reentred it was a discontinuance 7thly They held when Tenant in Fee simple of a Reversion expectant upon Lease for years deviseth two parts of the Land that no part of the Rent passeth 8thly In this Case because the avowry is made for the whole Rent and it appeareth he hath title but to two parts It was holden he should not have a Return for any part 9thly They held when the Avowant makes title but to two parts of the Rent and the Jury assesse damages for the whole Rent that the Avowant could not have Judgment unlesse he Released the damages 10thly When the Lessor entred upon his Lessee for life and made a Feoffment and the Lessee reentred the Justices doubt if the Rent was revived Keale and Carters Case 416. False Imprisonment the Defendant Justified that he was Constable and that the Plaintiff brought a Child of the age of 2. years and no more into the Church and there left it to the intent it might dye for want of sustenance wherefore he Imprisoned him till he agreed to take away the Child It was the opinion that the Justification of the Defendant was good because the Act of the Constable was but to prevent a felony which he might do by virtue of his Office Fenwick and Mitsorths Case 417. The Case was A. man seised of Lands in Fee Levyed a Fine thereof to the use of Wife for life the remainder to the use of his eldest Son and the Heirs males of his body the remainder to the right Heirs of the Conusor The Conusor made a Lease for 1000. years to B. the eldest Son dyeth without Issue having a daughter the Conusor dyeth the Wife after dyeth the eldest Son Leaseth the Lands to the Plaintiff It was adjudged in this Case it was a Reversion and no Remainder and this limitation to his right Heirs was meerely void Sir Moiâ—e Finch and Throgmortons Case 418. The Case in effect was this The Queen made a Lease for years rendring rent
with a Proviso that if the rent be not paid at a day limited that the Lease should cease without making mention that it should be paid at the Receit and if it should cease before Office was the Question It was Resolved by Manwood Cheif Baron and all the Barons in the Exchequer That ipso facto upon default of payment the Lease was determined according to the purport of the Contract and that immediately without Office For the Proviso shall be taken to be a limitation to determin the estate and not a Condition to undo the estate which cannot be deserted but by an Office in the Case of the Queen Green and Edwards Case 419. A Lease was made by a Man for 80. years if his Wife should so long live and if she dye that the Son should have the Land for the Residue of the Terme then to come It was adjudged void as to the Son for that there is no residue of a Terme which is before determined Hicks and Palingtons Case 420. Complaint was in the Court of Request for average of a Ship spoyled of certain goods shipped from Bristol to Galicia in Spaine The goods were taken by a Pyrat by violence It was decreed Average should be paid because the Merchants had assented to pay it after the Ship was robbed The Queen and Vaughans Case 421. In a Quo Warranto the using of Liberties c. the Defendant pleaded That an Abbot was seised of Waifes and estrayes by prescription and that he used and exrcised to have Catalla fellonum within 3. moneths before the suppression of the Abby but did not shew by what Title Grant or Charter and so by the Statute of 32 H. 8. and by Patent de tot talia tanta Consimilia Libertates he concluded that eo Warranto he claymed the Liberties It was Resolved by the Justices that he ought to shew the grant made to the Abbot and also what estate the Abbot had in them Because the Statute doth not revive other estate in the Liberty but which came to the Crown by the dissolution of the Abby But Resolved that the Conclusion eo Warranto was good because it shall be taken distributive that he used those which might be appurrenant as appurtenant and the other by the other title Smith and Vewes Case 422. Debt upon mutuat as of 5 l. 6 s. 8 d. and because the several summes in the Declaration did not amount to the sum in demand the Judgment given in it was reversed Sherrot and Holloweyes Case 423. Replevin The Case was a Feoffment was made by Indenture rendering 3 l. rent which clause of distresse and the Feoffor Covenanted to make further assurance of the Land the Feoffer levyed a Fine to the Feoffee who rendred 3 l. rent It was Resolved he might avow for the first rent notwithstanding the Fine and that the Remainder is not a grant of a new rent but a Confirmation of the old rent Mead and Cheneys Case 424. A recovery is had in Debt against an Administrator and a Scire facias de bonis of the Intestate upon which a Devastavit was returned It was adjudged that an Elegit lyeth de bonis propriis of the Administrator which he had the day of the Judgment Barton and Andrewes Case 425. Note this Case was the very Case agreeing verbatim with Bennet and Halseys Case which see before Sect. 387. Hil. 33. Eliz. Degoze and Rowes Case 426. Debt against the Desendant as Heir to his Father upon an Obligation the Defendant pleaded his Father was seised in Fee and Covenanted with I. S. and others to stand seised to the use of himself for life the remainder to the Defendant in tail the remainder to his daughter in tail the remainder in Fee to his right Heirs with a Proviso of Perpetuity and that the Father dyed and he entred and so had nothing by discent Upon a special verdict the Case was The Father caused certain Indentures to be written and engrossed comprehending uses betwixt I. S. and one M. and him but would not M. should be acquainted with it till I. S. had agreed to it But he delivered the deed to a Scrivenor to the use of I. S. and M. so as I. S. would agree to it the Scrivenor went with the Deed to the house of I. S. but could not speak with him and after I. S. dyed never having notice of the Deed It was adjudged in this Case that the Father never Covenanted because the agreement of I. S. was a Condition precedent to the essence of the Deed and so there was no Deed to raise the uses and therefore it was adjudged against the Defendant Halme and Jees Case 427. The Case was Grandfather Father and Son the Grandfather Tenant in tail made a Feoffment in Fee rendering rent to him and his Heirs and dyed the Father excepted the rent the Feoffee levyed a Fine with Proclamation and 5. years passed It was adjudged the Son was not barred because the acceptance of the rent was but a Conclusion but did not extinguish the Reight and so the Son was not barred by the Fine and 5. years which encurred in the life of the Father Fulwood and Wards Case 428. Tenant for years determinable upon the Life of the Lord Pagett by deed granted a Rent of 10 l. issuing out of the Land with Clause of distresse the Lord dyed It was Resolved that by his death the Rent was not determined but Election did remain in the grantee to make it either a Rent or Annuity Cornwalls Case 429. He was Indicted that he was Communis publicator secretorum Dominae Reginae and of other persons impannelled with him to enquire for the body of the County de diversis Feloniis against his Oath in that behalf taken and because it was not found that he was sworn to keep secrets nor that the secrets which he discover did touch his Oath the Judgment was adjudged insufficient Langles and Hayres Case 430. Debt upon the Statute of 2 E. 6. for treble damages for not setting forth of Tythes the Declaration recited the Statute to be in 2 and 3 E. 6. which could not be in 2. years of the said King therefore after verdict the Judgment was stayed Welden and Bridgwaters Case 431. It was adjudged in this Case that he who had but Vesturam terrae viz. the Crop at his Lot every 2. or 3d. year might maintain an Action Quare Clausumfregit Ashley and Harrisons Case 432. Debt the Defendant pleadedan Outlawry of the Plaintiff at the Suit of I. S. the Plaintiff pleaded the Pardon of 31 Eliz. It was demurred to because it was not alledged that he was any of the persons excepted out of the Pardon Resolved the Pardon was allowable to make any one to answer the Plaintiffs action but not against the Queen for she is not bound by the allowance of it Sir Francis Englefields Case 433. The Case in effect was this A. seised in Fee by Indenture in
Pat. 30. Jan. 3â— Eliz. had granted to C. and his Wife the said Writing Obligation and sum of 1000 l. in the same contained ita ut praefertur forisfact and that at the suit of C. in the Name of the Queen Judgment was given that the Queen should have Execution of 1000 l. prout per Recordum Judicii c. Now to the intent that C. should have the said Obligation The Queen ex certa scientia c. granted praedict Scriptum Oblig summam 1000 l. totum advantagium Judicii praedict to the said C. and his Wife with power to sue in her Name It was Resolved in this case that the Queen was deceived in her grant because she recites she had granted before the Obligation by her Pat. 33 Eliz. whereas in trueth nothing passed by that Patent for want of true Recital of the Condition Turner and Oldfields Case 588. A Prohibition to the Admiralty because they Libelled in the Admiral Court upon a Charterparty to have the third part of goods taken upon the Sea by Letters of Mart whereas the matter was tryable upon the Land and not in the Admiralty by reason of the Indenture of Charterparty Lutterells Case 589. It was Resolved by the Justices in this Case If one be seised of Lands to which another hath right of Entry and the Tenant in possession levyes a Fine with Proclamation That he who hath right ought to enter in possession or make a special Warrant to one to enter for him and a stranger cannot enter in his name and avoid the Fine Gybon and Bowyers Case 590. Upon Recovery an Ejectione firme in the Court of Ancient Demesne a Writ de Execuâ—â—me Judicii was awarded to the suitors who returned they did not execute the Writ because the Land was Franck Fee as appeared to them by the Transcript of a Fine shewed to them the Return was dissallowed by the Court because the parties allowed the Jurisdiction of the Court at first and that the Lands in Frank Fee ought to have been pleaded so as the other party might answer to them Vicary and Farthings Case 691. The Issue was upon full age and 2 Church bookes were given in evidence whereof one was delivered to the Jury in Court the other was delivered to the Jury by the sollicitor of one of the parties without the Assent of the other and that was endorsed upon the Postea The Court was divided in opinion if the verdict was good or nor Wentworth and Russells Case 592. Two Tenants in Common of a Mannor brought a Parco fracto and it was adjudged maintenable without shewing how they were Tenants in Common Maine and Scots Case 593. A man made a Lease for years by Indenture and Covenanted with the Lessee upon surrender of his Lease to make to him during the Terme a new Lease The Lessor accepted of a Fine sur Conusans dedit come ceo and by that Fine rendred the Land to the Conusee for 80. years It was adjudged that the Lessor had disabled himself to make the Lease and therefore the condition was broken and Covenant did lye without a Surrender Partrrdge and Naylors Case 594. Judgment was against 3. persons in an Action brought against them upon the Statute of 1. and 2. Phil. and Ma. for Impounding a distresse in several Pounds and damages assessed which were trebled by the Court and 5 l. a piece forfeitures because there ought to have been but one 5 l forfeiture because all the 3. Defendants offended in a joynt offence Hollins and Connards Case 595. Debt upon Obligation to performe Covenants which was That the Obligor should make assurance before such a day of Land to the Obligee and his Wife at the Costs of the Obligee but there was no request in the Covenant It was adjudged that in this Case that the Obligor having election what manner of Assurance he will make ought first to give notice to the Obligee that he would make such an Assurance and then the Obligee is to pay the Costs of it Monday and Levices Case 596. In a Prohibition it was adjudged it was not a good prescription that Inhabitants have used to pay Calves and Lambs and 1 d. for every Milch Cow in satisfaction of all Tythes of Lambs Calves Milch Kine and all barren and rother beasts and Agistments Linch and Spencers Case 597. Ejectione firme the Case was Sir R. B. was seised of Lands in Fee and thereof enfeoffed W. and others upon condition that that they should regrant it to him and his Wife in Tail the remainder to the right Heirs of Sir R. B. who regranted it accordingly Sir Robert and his Wife had Issue A. B. Sir Robert dyed A. B. levyed a Fine with Proclamation to Sir G. B. the Lessor to him and his Heirs to the use of him and his Heirs Tha Mother afterwards leâ— the Land to the Defendant for life and dyed Sir G. B. entred upon the Defendant pretending his entry to be Lawfull by the Statute of 11 H. 7. It was Resolved 1. That Sir G. B. was such a person who might enter for the forfeiture within the Statute and that by this Fine Levyed by A. B. in the life of his Mother the estate Tail is barred thereby and the remainder in Fee passed by that Fine to Sir G. B. so as he had the remainder at the time of the discontinuance made and the wronges done to him and then he is within the words and intent of the Statute to take advantage of the forfeiture The Countesse of Northumberlands Case 598. In a Quare Impedit brought by divers the Defendant pleaded the Release of one of them depending the Writ It was Resolved 1. That it should go in Bar against him only 2. Resolved That a presentment alledged in the grantee of the next Avoydance and not in the grantor himself was a good title for the grantor and his Heirs in a Quare Impedit Harvey and Oswalds Case 599. A man let Land rendring rent upon Condition that the Lessee should not demyle it without the assent of the Lessor he demysed part of it the Lessor without Notice accepted the whole rent of the first Lessee It was adjudged he might enter for the condition broken notwithstanding the acceptance because he had not notice of the condition broken contra if he had notice of it although the condition was Collateral Blinco and Marsons Case 600. A Vicar Libelled in the Spiritual Court to have Tythes of the gleab of the Parson and a prohibition was granted for that the gleab shall pay no Tythes Kirton and Hoptons Case 601. In Appeal of Mayhem the Defendant pleaded to the Writ and pleaded over to the Mayhem It was adjudged that he ought not to plead over to the Mayhem but only where life is in Jeopardy wherefore a venire was to try the Issue of Notguilty Coote and Lighworths Case 602. False Imprisonment the Defendant had justified that he had a Warrant to arrest I. D.
life and after to the use of his Son and his Heirs The point was if the same did after the use because the Father afterwards devised the Land to his younger Son this Case was argued only and adjorned Collins and Hardings Case 691. A man seised of Freehold and Copyhold by License made a Lease of both at one entire Rent the Lessee assigned his Terme and afterwards the Lessor Released all demands to the first Lessee Afterwards the Lessor granted and surrendred the Reversion of the whole to a stranger who brought Debt against the Assignee for Rent It was Resolved that the Rent was not determined by the Release because the Release was after the assignment of the Terme in which case it was in the Election of the Lessor to charge the Lessee or Assignee but for Rent due before the Release that was extinct by the Release But whether the whole Rent should issue out of the Freehold or should be apportioned the Justices were divided in opinion Cooper â—nd Langworths Case 692. A man sued forth an Elegit upon a Recognizance in Chancery but nothing was done nor Returned upon it Resolved that he might sue a Fieri fac upon the same Recognization and so if a man hath Recovered debt upon a Obligation he shall have another Action of debt if he hath not sued forth Execution Marsh and Edmonds Case 693. Debt upon an Obligation to be such a day at the Kings head in D. and there to choose two Arbitrators to joyne with others to arbitrate all matters betwixt them The Defendant said he was there at the last instant of the day to make the Choice adjudged no plea for he ought to have been there in such time that they might have chosen Arbitrators Bolls and Smiths Case 694. A man made a Feoffment in Fee to the use of himself and Wife for their lives and after to the use of B. their eldest Son and after his decease to the use of him who should be his eldest Son at the time of his death in Tail the Remainder to C. in Tail the Remainder over in Fee the Feoffor dyed the Wife made a Lease to B. for years who enfeoffed a stranger the Wife dyed C levyed a Fine to the Feoffee with Proclamation afterwards B. dyed having issue a Son at his death who entred the Feoffee having granted a Rent charge the grantee distrained and avowed It was adjudged that the Feoffment of B. and the Fine of C. had prevented the future use to rise in the Son of B. and so it was adjudged in Ards and Terringhams Case Stebbing and Goswells Case 695. By the Custome of the Mannor the Copyholders had used to have the tops and loppings of the Trees upon their Copyhold the Lord cut down all the Trees Adjudged that Trespas did lye by the Copyholder against the Lord. Drove and Shorts Case 696. A Jurour delivered to one of his Companions an Escrowle for Evidence which was not given in Evidence at the Tryal Adjudged no Cause to stay Judgment unlesse it appear he received it from one of the parties which did not appear Hewleys and Brices Case 697. A man devised all his Lands whereas but two parts passed the devisee entred and let the whole for years the Heir without actual entry Levyed a Fine to a stranger of a third part the Conusee made a Lease for life to a stranger the Remainder to the Queen by deed enrolled upon condition to be void upon tender of money to the Tenant for life Resolved in this Case that the entry of the devisee into the whole and his making a Lease of the whole for years was no disseisen to the Heir 2. That the Tender of the money to the stranger should devest the Remainder out of the Queen because the condition was not performable to the Queen but to the Tenant for life Markham and Gomastons Case 698. Action upon the Case Whereas the Plaintiff for the debt of I. S. was bound with I. S. in Recognizance to F. and I. S. and F. his servant became bound to the Plaintiff to save him harmlesse in which the first Bond was recited with a blank for the Christian name and dwelling place of T. the Defendant after the sealing and delivery of the Counter bond and before the Plaintiff agreed to it filled up the blank so as in debt brough against F. he pleaded non est factum and the Plaintiff was compelled to be Nonsuit It was holden that the action did well lye against the Defendant Elston and Brets Case 699. Execution was sued upon a Statute in Chancery and the Liberate executed by the Conusee himself being Sheriff and the proper name was not endorsed but only Vic. It was adjudged erroneous and void Mills and Parsons Case 700. Tenant in Tail for 1000 l. bargained and sold by deed enrolled certain Lands to I. S. and Covenanted in consideration of the said 1000 l. and of a Rent then after to be granted by the bargainee that if he sold any other part of his Lands which he held in Fee that the bargainee should have the offer of them before another and if he attempted to sell without offer and notice to the bargainee then he and his Heirs for those considerations would stand seised to the use of the said I. S. and his Heirs of all he should attempt to alien without notice or offer I. S. dyed K. being his Heir the bargainor sold other Land without notice or offer to another and he sold the Land to one who had notice of the Covenant It was in this Case Resolved that the Consideration to raise the use in the other Land was good although but one of the things was performed viz. the payment of the money 2. If the Heir shall have benefit of the contingent use not Resolved Terrâ—ll and Darcyes Case 701. Accompt against the Defendant as Bailiff of Cloathes the Defendant said for part he was Bailiff to the Plaintiff and a stranger joyntly and for the Residue he was as Bailiff to render accompt It was found he was Bailiff for 16 Cloathes but there was no mention if the 16. were to them joyntly or not It was in Co. B. adjudged for the Plaintiff and upon Error brought the Judgment was affirmed Scrogs and Spencers Case 702 A Distringas to the Coroners was returned by them with subscription of their names but not Coronatores It was adjudged Error for both the Sirnames and names of Office ought to be subscribed Medcalfes Case 703. Two shooting at Butts having both but one shott to winne the game waged 40 l. one with the other for the upshot he who won brought Assumpsit against the other for the 40 l. upon nihil dicit Judgment was for the Plaintiff It was holden the action was maintainable Ardes and Watkins Case 704. A. seised of Land made a Lease for 30. years the Lessee made a Lease for 28. years rendring 30 l. rent and afterwards he Devised 28
especial matter upon the division of the day ought to come on the other side otherwise it shall not be intended Bullock and Bibleys Case 771. A Woman Copyholder in Fee took Husband who without his Wife surrendred to the use of a Stranger who was admitted and surrendred to the use of D. the Defendant who was admitted the Husband died the wife survived and died the Heir before admittance made a Lease to trie the Title It was adjudged that the Surrender of the Husband alone made no discontinuance of the Copy-hold of the wife 2. Resolved that the Lease was good before Admittance otherwise it was of a Surrender before Admittance Gooles and Granes Case 772. An Infant surrendred Land which was Copyhold to the use of a Stranger who was admitted It was adjudged that the Infant at his full age might enter because it was no bar nor discontinuance Ford and Holborns Case 773. A. let the Mannor of D. to H. for 17. years rendring yearly to D. G. 10 l. and he was bound in an Obligee to A. to pay the said Rent to D. G. if she so long lived and the said H. or his Assignes should or might so long enjoy the Premises In Debt by the Executors of A. against H. he pleaded that after the Lease to him he himself surrendred the Lease to A. which he accepted and that till the Surrender no Rent was unpaid It was adjudged for the Plaintiff because the acceptance of the Surrender was no conclusion against the collateral payment to a Stranger and H. but for his own Act might have enjoyed the Land still Savage and Bechams Case 774. In Action upon the case for an Escape against the Prisoner brought by the Plaintiff Sheriff It was Resolved that upon a voluntary escape the Sheriff should not maintain an Action against the Prisoner but otherwise upon a negligent escape West and Blackwells Case 775. A. Outlawed after Judgment was taken upon the Capias utlagatum and afterwards escaped Resolved that he was not in Execution for the party without prayer Williams and Beathles Case 776. Debt upon an Obligation after Verdict and Judgment it was assigned for Error that the Teste of the Original was before the day of payment in the Condition It was holden Error and the Judgment for that cause reversed Wells and Dennyes Case 777. Upon a Recovery in Debt of 400 l. upon 2 Fieri fac 100 l. was levyed and returned Afterwards a Capias ad satisfaciend issued for the whole 400 l. It was the opinion of the Court it ought to issue forth but 300 l. and the Judgment for Execution was reversed May and Middletons Case 778. After Debt brought the Plaintiff attached in London a debt due by another man to the Defendant and had Judgment to recover Adjudged a good bar to the Action for so much Bufkin and Edmonds Case 779. It was adjudged in this Case That a Rent payable off the Land upon Cesser of an Estate ought to be demanded where no entry may be Hughton and Princes Case 780. Resolved Tythes shall not be paid of Turkies nor their Eggs nor of tame Patridges or Pheasants quia ferae naturae Beswick and Cundens Case 781. It was adjudged in this case That the Feoffee shall have Action upon the case for a Nusance continued though it was erected before his time Sharington and Fleetwoods Case 782. It was Resolved if a Parson Libells for Tythes and a Prohibition is granted and after he libelleth for the Tythes of another year the first Suit not being determined an Attachment upon Prohibition lieth against him Hall and Vaughans Case 783. If the Jurors eat and drink at their own proper costs before Verdict after their departure from the Bar it is fineable only but it shall not make their Verdict void Adams and Albons Case 784. Resolved that if a Venire facies bears date the day it is retornable it is amendable by the Roll. Gregory and Blasâ—fields Case 785. An Action upon the Statute of 4. and 5. Philip and Mary for using the Trade of a Clothier not having bin bound an Apprentice for seven years was brought by Plaint in the Court of Ludlow and Judgment there The Judgment was reversed because first it ought to be by Original or Information and Secondly because it ought to be brought in the Courts of Record at Westminster and not in Borough Courts Varrel and Wilsons Case 786. Conspiracy The Defendant pleaded his goods were Feloniously Stollen and he found them in the possession of the Plaintiff for which he Indicted him and gave evidence against him and upon the Tryal the Plaintiff was acquitted and traversed the Conspiracy aliter vel alio modo It was adjudged a good Justification because the finding of the goods in his possession was a sufficient cause of Suspition Marrow and Tarpins Case 787. Debt against two Administrators for Rent behind after the death of the Intestate they pleaded that before the Rent behind one of the Administraters assigned all his Interest to I. S. of which the Plaintiff had notice and accepted of the Rent by the hands of the Assignee before the day in which the Rent in arrear was due It was Resolved that the privity of contract as to the Action of debt was determined by the act of the Lessee and therefore the action of Debt after the Assignment did not lie against the Administrator Smith and Johnsons Case 788. Error of a Judgment in Action upon Assumpsit in the Court of Reding The certificate was Plita c. ad Cur. Dominae Reginae Burgisui de Reding tenend per consuctudinem Libertat Major Burgensibus concess I without saying per consuetudinem ex antiquo usitot or alledging by what person the Liberties were granted and for this cause the Judgment was reversed Corbet and Corbets Case 789. A seised of Lands for real affection covenanted to stand seised to the use of himself for Life and after to the use of R. and the Heirs Males of his Body the Remainder to C. and the Heirs Males of his Body Provided if R. or any Heir Male of his Body shall intend or go about any act to cut off the Estate tail then it shall be lawful for him that is next to enter A. died R. suffered a common Recovery Resolved the Proviso was repugnant to the Estate tail and that the Cesser of the Estate tail as if the party had bin dead was impossible and the going about it such a secret thing that an Issue cannot be upon it Grar Marshal and Marshals Case 790. A. levyed a Fine of five yard Land to the use of himself for Life the Remainder to the use of his eldest Son who was the Plaintiffs husband and the Plaintiff and the Heirs of the Body of the Husband Proviso if the Husband died living A. his Father then G. the Plaintiff his wife should have yard Land and a half for her Life in possession without shewing which Land the Husband died The Wife entred and elected one yard Land and
residue of the years which shall be remaining at the time Resolved 1. That the Wife had not any estate for life by Implication 2. Resolved That the devise of the profits was a devise of the Terme it self 3. Resolved That the Termor could not devise to one for life with the Remainder of the years to another which should be behind at the time of the death of the first devisee But the Court was of opinion That if a Termor devise that after the death of a stranger I. S. shall have the Land for so money years as shall be then to come the same is a good devise because he might have such a demise in his life Swan and Gaterlands Case 825. A Woman had two Sons by two several Husbands the Son of the second Husband being within age the Uncle after the death of the Woman claimed the Gardianship in Socage and also the Brother by the half blood It was adjudged the Gardianship did belong to the Brother of the half blood and not to the Uncle Quaere if the Brother be within the age of 14. years Specket and Shores Case 826. Debt to performe all Covenants in an Indenture of Lease where a Rent was reserved The action will not lye unlesse there be a demand of the Rent otherwise if there be an expresse Covenant to pay the Rent Robins Case 827. Two Executors are in Suit which of them is the true Excecutor Resolved that pendente Lite the Ordinary cannot Commit Administration Cotton and Wales Case 828. Debt upon Obligation the Defendant said the Plaintiff was Sheriff and upon the Arrest of the prisoner took a Bond of the Defendant for his enlargment and said that by the Statute of 32 H. 8. he ought to take Bond of sufficient persons and said he the Defendant was not a sufficent person The Court held the plea not good for the Sheriff is the Judge of the sufficiency and it is to his own damage he being to be amerced if he bring not in the body Mellow and Mays Case 829. Husband and Wife took a Lease for their lives and after by a new Indenture they took a new Lease to them two and their Sons Habend to them three à die datus Indenturae pro termino vitae eorum cujuslibet ipsorum post alterum diutius viventi with a Letter of Attorney for livery the Indenture was sealed and delivered the day of the date and livery was made a Week after the Wife dyed the Son and Husband entred In this Case Resolved that the acceptance of the second Lease to begin à die datus was a surrender 2. That the Lease was good to begin à die datus because livery was executed after the day of the date 3. That the taking of a new Lease of the Woman being Covert was a surrender of her estate during the Coverture 4. That the Lessees took joyntly and not by way of Remainder Chard and Wyats Case 830. The Case was A Copyholder in Fee surrendred to the use of his Will and having a Daughter born and his Wife with child he devised by Will part of the Land to his Son or Daughter with which his Wife went haeredibus suis legitimè procreatis and the residue he devised to his Daughter born to have to her and the fruit of her body and if she dye without fruit of her body the same shall Remain to the Child in the Mothers belly and if both dye without fruit then I. S. should sell the Land and Willed the one Sister to be Heir to the other The Wife of the devisor entred and was admitted and had a Daughter which after dyed The Mother took Husband and they surrendred It was Resolved in this Case that it was a Fee-Tail in the Daughter after born 2. Resolved that one in ventre sa meir could not take an estate in possession by purchase but as this Case she might take a Remainder 3. The point was if the surrender was a Discontinuance In that point the Court was divided in opinion But they agreed that a Copyhold might be entailed by Custom Mâ—nviles Case 831. The Case was the Husband seised in Fee levyed a Fine and afterward 1 Mariae was Out-lawed of Treason the Conusee conveyed the Land to the Crown and afterwards the Daughter of the Husband reversed the Out-lawry now the Wife of M. the person Out-lawed sued to have Dower within the 5. years after the Out-lawry reversed but long time after the Fine levyed In this Case it was Resolved that she was not barred by the 5. years after the Fine but she might have 5. years after the Out-lawry reversed 2. That because no Office was found to entitle the Queen to the Land she having it by Conveyance there and in such Case there need no Office to find her Title of Dower Derick and Kergs Case 832. A. seised of Lands in S. in Com. Midd. and of other Lands in E. in the County of S. made two several Leases for years of them to two several persons reserving upon each Lease 10 l. Rent and and after he made his Will viz. As concerning my Lands I give and bequeath the Rent of 10 l. a year in S. in the parish of E. to my Wife M during her Life and after her decease to my Father and after his decease to my brother G. and if it please God they dye without Issue Then to F. and I. my brethren Item I give to my Wife my house and Tenements in S. The Defendant Married M. and after the years expired claimed the Lands during the life of his Wife It was conceived in this Case that the word Rent was not sufficient to convey Land by the Statute of Wills Quaere for it was said it was afterwards adjudged that it was Arden and Backhouses Case 833. The Case-was an Action of Covenant B. sold Land to the Father of A. and covenanted that he was seised of the Land at the time of the sale whereas King Hen. 8. was seised and had Mortgaged the same to 19 Cottagers with a Proviso that if he and his successors within a year after should pay to them a sum certain or to their Heirs that the grant should be void no place was appointed of payment wherefore because the Mortgagees did not demand the Rent at the Exchequer the King was seised again upon which the Defendant demurred It was the opinion of the Court in this Case that no demand in this Case ought to be made by the Mortgagees because the payment is elegible in the King at his pleasure 1. 2. Resolved whereas the Land lay in the County of Oxon an Office found of not a demand in Midd. was not sufficient to revest the seisin of the Lands in the King but the Office ought to have been in the proper County where the Land lay Evans and Williams Case 834. The Plaintiff brought debt against I. S. for 30 l. who for not appearance was Out lawed the Sheriff
took him upon the Capias Utlegatum and returned Cepi and after suffered him to Escape It was adjudged an action of Escape lay against the Sheriff by the party and that the Jury are to give him the value of his debt and the damages Web and Hargraves Case 835 Debt upon Obligation the condition was where W. was Patron of a Benefice with Cure then void if he presented the Defendant and if the Defendant continued Incumbent for a year and after the year all time within three moneths after Notice and request was ready to resigne and did resigne the Benefice to the Ordinary to be presented thereunto again by W. and should not before Resign that then c. the Defendant pleaded the Statute of 13 and 14 Eliz. that Obligation and Covenants for enjoyage of Lease were void and pleaded that after he was Inducted he made a Lease to the Plaintiff W. of the benefices for 21. years and avered the Obligation was made for the enjoying of the Land by the Lease upon which the Plaintiff demurred It was the opinion of the Court that the plea was good but that the averment was not sufficient It was adjudged against him Williams and Greens Case 136. Debt upon a single Bill the Defendant pleaded he delivered it to the Plaintiff as an Escrowle upon Condition that if he delivered him a horse at such a day it should be his deed otherwise not It was the opinion of the Court that the Plea was not good because a Deed cannot be delivered to the party himself as an Escroale Hungate Mease and Smiths Case 837. Debt upon an Obligation to perform an accord of all Controversies betwixt the parties from the beginning of the World to the 30. of August 4 Eliz. so as the Award be pronounced and delivered utrique parti ante 14. diem Augusti and shewed that he awarded that all Suits should cease and they should be friends and that the Defendant should pay to the Plaintiff 7 l. and that the Award was pronounced to the parties before 14. Augusti upon nihil debet all the said matter was found only that the pronouncing of the Award was to Mease and not to Smith It was adjudged against the Plaintiff because he ought to have pronounced the Award to each of the parties Defendants and also it was void it was but an Award of one part also void that all Suits should cease which could not be without Non-suit Retraxit or discontinuance of the parties Dogett and Vowells Case 838. Assumpsit In consideration the Plaintiff had lent to the Defendant 20 l. the Defendant promised to lend the Plaintiff 10 l. quando requisitus c. It was adjudged no good consideration because consideration of a thing past is not sufficient to ground Assumpsit Parhan and Nortons Case 839. Replevin The Defendant avowed for a Relief by the death of I. S. late Tenant The Plaintiff said the Land discended from I. S. to his two Daughters who enfeoffed the Plaintiff and that the Lord accepted the Rent of him Adjudged that the acceptance of the Rent from a new Tenant was no bar of the Reliefe due by the former Tenant Lord Berkley and Countess of Warwicks Case 840. Before the Statute of West 2. Lands are given to Husband and Wife in Frankmarriage the Remainder to the Heirs of the Husband if it be tail Quaere not adjudged vide 25. Eliz. Webb and Potters Case Guy and Brownes Case 841. A Farmor of the King of a capital Messuage made a Conduit to convey the water to his House over the Land of a Copy-holder of the Mannor afterwards the Mannor is granted to one and the Copyhold to another Resolved the Farmer may amend the Pipes in the Land of the Copyholder without Trespass Worleys Case 842. A. lent B. a 100 l. for a year and took an Obligation of him for 10 l. Interest Interest being then 10 l. per cent payable 5 l. at the half year and 5. l. at the end of the year Adjudged it was not Usury within the Statute Hainsworth and Prettyes Case 843. A seised in Fee having four Sons and a Daughter by Will devised 20 l. to each of his younger Sons and his Daughter to be paid by his eldest Son at their ages of 21. years and if the eldest Son do not pay he devised the Land which he had before devised to his eldest Son and his Heirs to the younger and the Daughter and their Heirs It was Resolved 1. That the eldest Son took by discent and not by the Devise 2. The breach of payment to one of them should give the estate to them all and the eldest Son should lose the Land for not payment of the Fourth and they should have the Lands as Joynt-Tenants 3. That the entrie of one of them in the name of the rest was good because they are Joynt-Tenants More and Morecombs Case 844. The condition of an Obligation was to deliver all the tackle of a ship mentioned in an Inventory under the hands of four men or in default thereof to pay so much mony to the Plaintiff before such a Feast as the four men shall value the tackle at the Defendant said they did not value the tackle Adjudged no Plea because the Defendant had Election to do two things and if he cannot do the one for any default of a Stranger or other he is to do the other and in this case he at his peril is to procure the men to value the tackle Walter and Pigotts Case 845. Debt upon an Obligation de Septingentis Libris The condition was Septuagintis Libris Adjudged he was to pay 400 l. not 70 l. and the Bond good Bibell and Dringhowses Case 846. A. conveyed Lands to the use of himself in tail with divers Remainders in tail with a Proviso it should be lawful for him to make Leases for Life or years afterwards he made a Lease for the Life of D. the Defendant After the death of A. the Plaintiff in the â—ight of his Wife in Remainder entred The points were 1. If the Demise generally made unto was Tenant in tail in Interest and who had Authority by the Proviso to make Leases shall be constâ—ued to be made by his Interest or his Authority without declaring his Election the Court doubted of this point 2. Because the Deed did comprise as well Fee simple Land and Lands in tail if it shall enure by way of Interest for the Fee simple Land only and by Authority for the Land in tail Quaere also But they Resolved the Proviso to make Leases was good 847. Note Upon the Statutes of 13 Eliz. Cap. 4. and 39 Eliz. Cap. 7. upon Sale made by the Queen upon Accomptants and Debtors Lands That if any Officer be Tenant in tail the Remainder over and afterwards the Officer dieth without Issue before any sale made by the Queen and he in the Remainder enters and is in by force of his Remainder which was created before the
Tenant in tail became Officer yet that Land shall be sold by the Queen 2. When an Officer is endebted to the King and his Land subject to be sold by the Act 13. Eliz. and he to prevent the sale of the Queen and to evade out of the Act makes a conveyance of his Lands to his Issues or others of his Blood in consideration of natural affection that such conveyance shall not be good not said to be Bona fide within the Proviso of the Act of 39 Eliz. but that the Queen may sell the Land for so much of her debt as was due before the conveyance 3. If the Officer or Debtor of the Queen after 39 Eliz. be Tenant in tail or hath power of Revocation there the Queen may sell the Land by the Statute of 39 Eliz. and if any such Officer or Debtor before 39. Eliz. and and after 13. Eliz. had made any conveyance to his Issues or Blood without valuable consideration especially if it be with power of Revocation that Land may be sold by the Queen by the Statute of 39. Eliz. Adams and Lamberts Case 848. A man devised Lands to his Brother for Life the Remainder for Life the Remainder in tail upon condition to find a Chaplain for ever to pray for Souls and for the Souls of all Christian people to celebrate Mass Annusaries and other Superstitious uses and if they failed to perform the Uses then he devised the Remainder for eight years to an Hospital and because he doubted the profits of those Lands would not suffice he devised other Lands to supply them upon condition that if they aliened or let the Land to the prejudice of those in the Remainder they should presently enter and to be seised to the said uses It was resolved 1. That the Devise of Land to find a Priest c. was a Superstitious use 2. That although one of the uses was uncertain and no certain Sum limitted to it 3. That although the Devise was for the Sustentation and Maintanance of poor men yet the Limitation to them to pray for Souls was a Superstitious use because they depended upon the Superstitious uses and therefore it was Resolved in this case that all the Lands were given to the King by by the Statute of 1. Eliz. of Chaunteries Salway and Wales Case 849. It was holden by the Justices That if a man makes a Deed of Feoffinent in December and after and before Livery executed the Feoffor sells the Land by good assurance to another and after that the Feoffee takes Livery and Seifin of the Feoffor it is Forgery in the Feffor and the Feoffee So if the Feoffee causeth Livery to be endowed generally upon the Deed without a special day of making the Livery the Indorsement is Forgery Mouse and Weavers Case 850. The case was A. after a Recovery in an Assize in the Court of the Mannor of Isleworth and before Seisin delivered by the Bayliff of the Mannor bought the Copyhold by Surrender It was adjudged maintenance within the Statute of 32. H. 8. But it was holden by the Justices that if one recover Land and be in possession by Writ of Seisin he may sell the same although he nor his Ancestor or other by whom he claims was in possession by the space of a year next before And in this case it was holden by the Justices that a Clerk or Attorney in one Court cannot sollicite a Cause in another Court although it be for the same matter which was in his own Court Pollard and Moretons Case 851. It was Resolved in this case that a Justice of Peace coming to remove a Force may take posse comitatus with him 2. Resolved if one entreth into an house where no man is in the house with armed men or company unusual the same is a forceable entry Whetstone and Mintons Case 852. A. a Citizen of London seised divers Messuages in the Parish of St. Mary Sommerset in Queen-hith London 25 H. 6. devised the same to his two Daughters in tail and for want of such Issue to the Parson and Churchwardens of St. Michael and their Successors they yearly holding and making an Anniversary in the Church for the Soul of him and his Wife paying 6 s. 8 d. yearly amongst the Chaplains and others there and if the Parson and Churchwardens were remisse in holding Anniversary then the Parson and Curchwardens and Successors for that time should pay 20 s. of the Uses of those Lands Nomine poenae to the use of the Chamber of London The Devisor died the Land being of the yearly value of 10 l. 3 s. 4 d. The Daughter 's died without Issue the Parson and Churchwardens entred and took the profits and held the Anniversary and paid yearly the 6 s. 8 d. amongst the Chaplains c. et non ultra The Statute of 1. Ed. 6. of Chaunteries was found The sole Question in this case whether the Land or Annual Rent were given to the Crown by the Statute of 1 Ed. 6. of Chaunteries It was Resolved by the Justices in this Case that only the Annual Rent of 6 s. 4 d. was given to the Crown by the Statute and not the Lands for they said it had bin often adjudged that where a stipend was appointed to an Anniversary Obit Legacy c. there although the Land was given in the Premises the Crown should have but the stipend and in this case the intent of the Devisor was clear that the Parson and Churchwardens should have all the profits over and above the 6 s. 4 d. yearly to their own use Grills and Rigewayes Case 853. The case was A man was in Execution for debt and brake Prison and escaped The Sheriff made fresh Suit and retook him It was adjudged in this case no escape and it was holden that if the Prisoner who escapes be out of his sight yet if the Sheriff or Goaler take him upon Fresh Suit in recenti persecutione he shall be in Execution again 854. Note it was Resolved by the Justices that the breaking of a Dwelling-house in the night to the intent to rob or kill any one is Burglarie although that no person be in the house and if a man have two houses of Habitation which he dwells in by turnes if a Thief in the night breakes the house in which the person is absent it is Burglarie Austin and Twynes Case 155. It was Resolved in this case if two Churches one of the value of 10 l. and the other of 8 l. be within one mile of another the Ordinary may consolidate them and if the Patron and King confirm it the consolidation is good by the common Law and by the Statute pf 37 H. 8. 856. The King made the city of Gloucester a County with a clause of exemption from the County of Gloucester and of the power of the Officers of the County saving to the King and his Heirs Liberty for their Justices of Assize Goal-delivery and keeping Sessions there
Attorney to sue the principal in his name It was adjudged for the Plaintiff in B. R. and upon Error brought the Judgment was reversed because it was an insufficient Consideration Dickenson and Sheres Case 942. Upon the awarding of the Venire facias upon the Roll the day of the return of it was omitted this being assigned after verdict for Error was holden by the Court not to be Error 943. Note it was Resolved by the Justices that an action lyeth for the Rector of a Parsonage against the Parishoners for not seting forth of their Tythes although the Statute of a Edward 6. drâ—h not appoynt who shall have the action English and Bowers Case 944. Covenant upon an Indenture of demyse of the Rectory of S. in the County of O. The Indenture was made at London and the Venire Issued to the Sheriff of O. It was assigned to be Error but the Court held it good because it shall be of the County where the Land lyeth Heley and Rigs Case 945. A Bill was exhibited in the name of Rigs per Johannem Keeling attornaâ— ' suum and the Warrant of Attorny was posuit lcco suo Gulielmum Keeling the same was assigned for Error but the Justices caused it to be amended and affirmed the Judgement Maylard and Kesters Case 946. Assumpsit In Consideration the Plaintiff would sell and deliver to the Defendant pannos laneos pro funer alibus of a Clark he promised to pay him for them cum inde requisitus esset and alledged he sold and delivered divers Cloths to him viz. 31. yards of black Cloth for 19 l. and recited divers other particulars amounting to 160 l. upon Non Assumpsit found for the Plaintiff Error brought in Exchequer Chamber and the Judgment was reversed because Debt properly lay and not Assumpsit Wolley and Mosleys Case 947. Action of Assault and Battery in B. R. upon a demur the Plaintiff had Judgment to recover It was a Warded upon the Roll à Fierifac to enquire of damages returnable die Martis post tres Trinitatis and the Writ was in facto returned die Mercurii post tres Trinitatis which was the very date of the return upon the Roll and the Plaintiff had damages and Costs 40 l. Error was brought and assigned whereas by the Record of the Continuance the Plaintiff appeared by I. P. his Attorney that before that time he was dead The Court held that to be no Error because the Record is to be credited before the allegation of the party 2. Because there was variance between the Roll and the Writ the Court held that was amendable 3. That the Writ is executed the same day of the Return that was holden to be no Error and so it was said it was adjudged Mich. 37. and 38. Eliz. in Gawen and Ludlows Case In the Court of Wards The Queen and Savages Case 948. A. seised of Lands holden in Capity by Knight service by License 27 H. 8. conveyed the same to his Son and Heir apparent and F. and their Heirs in consideration of Marriage betwixt them who intermarried and 2 E. 6. by Fine regranted the Land to the Father who rendred it to the Son and his Wife and to the Heirs of their two bodies begotten the Father dyed the Son haveing Issue three Daughters dyed 5 Mar the eldest Daughter had Issue Fran. Mooâ—e and dyed 25 Eliz. F. took second Husband W. Savage and they 28 Eliz. Leased the Rectory of K. to I. S. for 60. years and after granted the Reversion of the Rectory and Leased the Mannor to A. Savage for the life of F. Afterwards a Common Recovery was had in which S. and his Wife were vouched The Queen prayed to have the Wardship of Fran. Moore and to have the primer seisin and profits of the Land after the death of the Wife W. Savage averred the Recovery was to the use of himself pretending thereby that the Issues in Tail of the Son of Agnes and F. were barred In this Case it was Resolved for the Queen for one moyety and that the first Feoffment by A. to his Son F. before Marriage was not within the Statute of 11 H. 7. but when they Reconveyed back the Land that was a Conveyance of each of them their parts and then the render of the whole to them in special Tail as to the moyety of the Son the gift of the Father to the Son and his Wife within the Statute of 11 H. 7. but as to the gift of the Wife by the Fine was not within the Statute but the Recovery as that should bind the Issue Fishers Case 949. It was found by Office that A. seised in Fee of divers parcells of Lands holden by Knight service in Capite 21. Eliz. by License conveyed them to I. S. and E. his Wife Daughter of the said A. and that afterwards by Indenture he Covenanted for Fatherly love and affection that after the sealing of the said Indenture he would stand seised of the premises to the use of the said I. S. and E. his Wife in Tail Remainder in Fee to a stranger It was not found when the said Indenture was sealed and delivered nor that I. S. and E. his Wife were seised in Tail nor was it found in the Office Sic inde Seisitus did Covenant Notwithstanding these Exceptions it was Resolved that the Office was sufficient wherefore a Travers was to the Office Gervoyes Case 950. A. seised of the Mannor of N. in the County of W. and of Lands called F. in the County of of S. in Consideration of Marrage and for a Jointure for his Wife Covenants that he and his Heirs shall stand seised of the Mannors Lands c. to the use of himself and his Wife for their lives after their deceases to the use of the Heirs of the body of A. The Lands in F. are recovered by verdict from A. only during the Coverture between them A. dyeth his Heir within age It was Resolved in this Case that the Wife should have recompence for the Lands which were Enrolled during the Coverture although she accepted of the Residue of her Joynture after the death of her Hâ—sband Forsters Case 951. The Husband seised of Land in the Right of his Wife which was holden in Knight service the Heir being in Wards committed wast in the Lands Resolved the Husband should be charged to the value of the Lands and lose the possession of the Lands so long as his Wife should live Georges and Stanfields Case 652. Lands by Act of Parliament were assigned to the Countesse of Bindon during her life the Reversion to her Daughter who was in Ward to the Queen the Viscountesse took Husband and she and her Husband committed wast in the Land For the punishing of which a Bill was exhibited in the Court of Wards Resolved that the Court of Wards could not adjudge treble damages for the wast in this Case and therefore the Case was dismissed to Law Bridges Case 953. A. bargained and
sold Lands to B. and C. by Deed enrolled they suffered a Recovery to the use of A. and his Wife who was the Daughter of B. for her Joynture the Remainder over in Tail to their Issues A. dyed his Heirs within age Resolved in this Case it was an Assurance by A. himself for the advancement of his Wife and her Issues within the Statute of 34 H. 8. and the Heir of A. should be in Ward for the third part of the Land The Earl of Bedfords Case 954. The Case was this Francis Earl of Bedford made a Feoffment in Fee of the Mannor of D. to the L. St. John and others to the use of himself for 40. years and after to the use of John his second Son and the Heirs males of his body and for want of such Issue to the use of the right Heirs of the Feoffor Afterward Edward Lord Russell Heir apparent of the Earl dyed without Issue male of his body having issue Eliz. and Anne Daughters Afterward Francis by Indenture between him and I. S. and others for the advancement of the Heirs males of the body of the said Earl and the establishing of his Mannors in his blood Covenanted to stand seised of the said Mannor to the use of himself for life and after his decease to the use of Francis Lord Russell his youngest Son and the Heirs males of his his body with divers Remainders over Afterwards Francis Lord Russell dyed having Issue Edward Lord Russell and after dyed and if the Daughters of the said John Lord Russell or the Earl of Bedford should have the Mannor of D. was the Question in the Court of Wards It was Resolved the Daughters should not have the said Mannor but the Earl because there was no right Heir to take as purchasor when the estate Tail was determined by the death of John Lord Russell without Issue male for the Remainder to the right Heirs cannot be preserved by the mean estate for years for it ought to be a Freehold at least which ought to preserve such a Remainder till there be one to take it by the name of a purchasor as right Heir Andrews and Sheffields Case 955. A. hath Issue three Sons B. C. and D. and seised of Lands in P. by Will deviseth them in this manner viz. I will that all my Lands in P. shall Remain after the death of my Wife to C. my Son and his Heirs and if it fortune that D. liveth untill the said Lands come to C. then I will that C pay to D. 10 l. every year as long as D. liveth A. dyeth C. commeth to the Lands and payeth the Rent hath Issue and dieth It was Resolved that in this Case the devise did enure as a Rent-seck for the life of D. and the Lands in the hands of the Heir or Assignes of C. should be chargeable with the same Wrotesleys Case 956. A. seised in Fee of the Mannors of N. and W. of the Mannor of D. in Tail Covenanted to stand seised to the use of himself and his Wife and to his own right Heirs Afterward he dyed seised of these Mannors and also sole seised of other Lands in Fee The Mannor of D. was holden in Capite It was found that A. dyed his Heirs within age the body and Lands of the Mannor of D. was committed to I. S. and I. D. the committee ousted the Wife of D. It was Resolved that the Wife of A. should have recompence to the value of the said Mannor of D. out of the other Lands of the Heir of which his Ancestors dyed seised Boydell and Walthalls Case 957. The Case was A. seised of Land in Fee an Indenture was made purporting a Feoffment to B. and C. with Waranty There was another Indenture bearing date the same day with the first between the Feoffees and the Feoffor whereby the Feoffer reciting the former Feoffment to them granted that immedâ—atly after the said Feoffees and their Heirs and Assignes have taken and received the profits of the Lands during the Terme of 100 years then it should be Lawfull for A. his Heirs and Assignes to reenter and have the said Lands in their first right and Title It was Resolved by the Justices in this Case that the Intent upon the Livery was that the Feoffor should have the Lands after the 100. years quit possession of the Feoffees and that the use did immediately arise to the Heirs of the Feoffor as soon as the Lands had been enjoyed for 100. years and that by the Statute of 27 H. 8. the Heir of the Feoffor might enter The Earl of Rutlands Case 958. Ed. Earl of R. seised in Fee of and in the Reversion or Remainder of the Mannor of E. expectant upon the death of B. Countesse of B. who held the same for life for the augmentation of the Joynture of I. his Wife Covenanted 21 Eliz. with I. S. and I. D. before the last day of Trinity Term next following by Fine or other assurance to assure the Reversion or Remainder of the said Mannors to them and their Heirs and the parties thereof seised should stand seised of and in the Reversion and Remainder of the said Mannor to the use of the said Earl and the said I. his Wife and the Heirs of the said Earl for ever Afterwards in the same year by another Indenture made between the said Earl the Lord Treasurer and the said I. S. and others of the other part for the advancement of him who should succeed him in the Earldom and the advancement of the Heirs male of T. late Earl of R. his Grandfather to convey the Castle and Honor of B. and the said Mannor of E. amongst other Lands to the said Lord Treasurer and others to the use of the said Earl and the Heirs males of his body and for want of such Issue to the Heirs males of Tho. his Grandfather with divers Remainders over and by the last Indenture further Covenanted that if the said Earl before the Feast of our Lady next should not sufficiently convey all the said Honors Mannors c. in the last Indenture in manner and forme as therein is mentioned that then he and all other persons seised should from thenceforth stand and be seised to the uses in the last Indenture No Fine was levyed of the Mannor of E. before the end of Trinity Term but in Mick Term a Fine was levyed of the said Mannor within the time limited in the last Indenture and another Fine was levyed of other Land but not of the Mannor of E. and after the Earl died The Quest on in this case only was whether I. the wife of the said Earl might during the Life of B. Countess of B trayerse the Office found after the death of the Earl viz. That the Fine levyed of the Mannor of E. was not to the uses limited in the latter Indenture Resolved that the Office was insufficient for the Incertainty where it found the Earl was seised of the Reversion
or the Remainder and therefore no traverse could be to it but they conceived if it was a Reversion a Traverse did presently lie if a Remainder that it did not lie till after the death of the Tenant for Life which was B. Countess of B. Worleys Case 959 A seised in Fee of the Mannor of D holden in capite with 500 l. to be sold having a long intent to sell the same that he might more freely dispose of his other Lands and satisfie a just debt of 60 l. which he owed to I. S. by Deed indented and enrolled in consideration of the said Debt and other considerations viz Vpon trust and confidence that he should pay to W. his Executors or Assigns within one year so much mony above the said 60 l. He bargained and sold the said Mannor of D to I. S. and his Heirs W. within one year died no mony paid his Heir within age It was Resolved his Heir should not be â—n Ward because neither the Land nor Surplusage of the same ought to come to his Heir by the Trust nor be paid to the children or wife oâ— W. Drowâ—s Case 960. A. seised of divers Messuages in the Parish of S. in London made a Lease thereof for 31. years to B. and M. his Wife paying yearly during the Term 60. l. at four Feasts viz. The Nativity c. or within 28 days after each of the said Feasts afterwards he covenanted to stand seised to the use of himself for Life and after to the use of his eldest Son and his Wife and the Heirs of their two Bedâ—es and then for mony he bargained and sold the Land by Deed enrolled to I. S. to hold to him and his Heirs during the Life of the Lessor I. S. dyed seised of that Land and of other Lands holden in capite his Heir within age It was found by Office that A. died after the Feast of the Nativity and within the 28 days next following Resolved the Rent was due to him in the Remainder and that the Wardship of the Land being but a Freehold discendable did not belong to the Queen Digbies Case 961. A Tenant in Tail in the Mannor of C in the County of W. the reversion in the Crown and in Fee of Lands in the County of D. and in C. aforesaid and of Lands in the County of B. by his Will devised that his Lands in D. which he appointed to be a third part of the whole should discend to his Heir the Manner of C. and all his Lands in B. he devised to his Wife in recompence of her Dower for Life so long as she should be Soâ—e and then to his Son and Heir and he charged his Lands in B. with Annuities to his younger Sons and portions to his Daughters Afterwards by a Codicill annexed to his Will he devised to I. S. and I. D. and their Heirs all and singular his Lands in C. whereof himself was then seised to him and his Heirâ— in Fee simple to the use of his Son and Heir so long as he and all claiming under him should suffer his wife and children to enjoy the Lands and Annuities devised to them and he should interrupt or deny it then he devised all his Fee-simple Land to his Wife and his younger Sons A. died his Son and Heir within age It was in this case Resolved that the Qâ—een by reason of the Wardship of the Heir should not have more of the Fee-simple Lands in D then so much as would make the entailed Land to be the third part of the whole Creswâ—lls Case 962. Certain Lands called S. were holden of the Mannor of P. by rent and Suit of Court P. was holden of the Mannor of G by Rent and Suit of Court the Mannor of G. came to the Crown by the Statute of Disâ—olutions The King H. 8. granted the Mannor of G. to I. S. and his Hâ—irs to hold by Knight Service in capite I. D. purchased the Mannor of G and afterwards he purchased the moiety of the Mannor of P. and the Lands called S. I. D. died the Lands purchased by him discended to his Son who purchased the other moiety of P. and afterwards enfeoffed C. of the Lands in S. It was Resolved in this case that I. D. held the Lands called S. by Knight Service in capâ—te by a whole Knights Fee Lâ—mâ—oâ—s Case 963. It was Resolved in this case in the Court of Wards that if the Jâ—ry do not find an Office according to the direction of the Court they shall be committed to the Fleâ—t vide diverse Presidents there accordingly Sir William Knoâ—ts Case 964. The case was A. died seised of Lands purchased by him and discendable to the Heis Males of his Body holden by Knight Service in capite of the value of 140 l. per annum and also of capite Land discendable to his Heirs general of the value of 13 l. per annum and an executed Estate for the advancement of his Sons of Soccage Land in capite to the value oâ— 48 l. B. was his Son and Heir Male and the two Daughters of his eldest Son deceased were his Heirs general It was Resolved that no Livery nor Primer Seisin should be of the Lands executed for advancement because the Queen was satisfied by the discent to the Heirs Males of the Livery and Primer Seisin of more then of a third part of the Lands Strangways and Sir Henry Newtons Case 965. The case is very long put but in effect was this The Father limited divers Mannors and Lands by Indenture to the use of himself and his Heirs untill the marriage of his Son with the Daughter of I. S. and after marriage to the use of the Father for Life only and after to his Sons Wife for Life for her Joynture The Father died before Marriage and afterwards the Marriage took effect The Question was if the use should rise to the first Wife Note That the Father before his death made his Will and thereby devised portions to his Daughters to be raised out of the said Land by his Executors and then died his Heir within age The two chief Justices doubted much this case but they enclined to be of opinion that if there was a devise of the Land that the same had interrupted the raising of the Future use for the Joynture c but they doubted of the Devise because he devised portions out of the Lands but did not devise the Lands themselves Framptons Case 966. A seised in Fee of the Mannors of M. and B. and of the moiety of the Mannor of V. covenanted to levy a Fine to I. S. and others of the said Mannors viz. of all the said Mannors to the use of himself for Life and afterwards of the Mannor of M. to the use of I. his wife for her Life and after to such Heirs of the Body of A. as be should afterwards beget of the Body of her or of any other woman which he should after marry
and after to the use of C. in tail and after to D. in tail and after to the right Heirs of A. and of the Mannor of B. immediately after he the said A. should die without Issue of his Body to the use of E. daughter of I. for her Life and afterwards to D in tail and afterwards to C. in tail and to the right Heirs of A. And of the moiety of the Mannor of W. and other the Premises of which no use was before declared to the use of the said A. and such Heirs of his Body and after to the use of the said E for Life the remainder to D. in tail the remainder to C. in tail the Remainder to his right Heirs Provided That if at any time after he should be minded to revoke the said Indenture or any use or estates therein contained or to raise and create any other use or Estate and should declare the same to any person c. in the presence of two Witnesses then the Remainders and all other Estates in the said Indenture to be void and the Conusees of the Fine to stand seised to the use of the said A. and his Heirs Afterwards A. reciting the former Indenture and the Proviso in consideration of a Marâ—iage between I. D. and the said E. did declare to I. N. in the presence of two Witnesses that he did revoke and make void the former Deed and every Article therein concerning the Mannor of B. but as touching the Mannor of M that the same should stand in force and by the last Indenture did covenant with I. D. and E. his Wife that the Conusees of the Fine c. should stand seised of the Mannor of B. and the moiety of the Mannor of V. to the use of the said I. D. and E. his Wife for their Lives and after to the Issue of the Body of the said I. D. and E. as should be then eldest living at the death of the Survivors of them for the Life of such Issue and after to the use of the said A. and of such the Heirs of his Body as he should after beget on the body of I. his Wife or on the Body of any other woman which he should marry and after to â— in tail and after to C. in tail the Remainder to the right Heirs of A. It was found that E. was the Daughter of I. but born before her marriage with A. A and I. his Wife died and found he married no other woman and that F. was Son and Heir of A. and was of full age The Questions in this long case were these 1. Whether all the use and agreements in the first Indenture as to the Mannors of B. and V. were revoked by the second Indenture 2. Whether the new uses limited by the second Indenture and such Revocation of the former uses were effectual to convey any Estate to I. D. and E his Wiâ—e with the Remainder over to take away the immediate discent from the Heir at Law The case was argued in B. R. and the Justices were divided in their opinions and afterwards it was adjourned into the Exchequer Chamber but whether there Resolved or not Quaere Sir Arthur Goâ—ges Case 967. The case was the Lord Viscount Brindon was seised of Lands holden of the Queen in capite he had Issue Douglasse his Daughter and Heir who was married to Sir Arthur Gorge and she by him had Issue Ambrosia Gorge Sir Arthur married his Daughter Ambrosia when she was above the age of eight years and before she was of the age of nine years to Francis Gorge Son and Heir of Sir Thomas Gorge who died before Ambrosia accomplished her age of eleven years The Question upon the whole matter was if the Wardship of the body of Ambâ—osia did belong to the Queen or not It was Resolved in this case amongst other points that the Queen should have the Wardship in regard the Marriage was not a compleat Marriage because the Husband died before the years of consent of Ambrosia Bartons Case 968. A seised of the Mannâ—rs of O. and R. and of Lands called F. in the counry of Lanc. holden in capite 16 Octob. 19 Eliz made a Writing purporting that he did give the said Mannors and Lands to B. C. D. and E. and their Heirs to the several uses and under the agreements contained in a Schedule to the said Deed annexed and by the Schedule he declared the uses to be to himself for Life without Impeachment of wast and afterwards of part of the Lands to M. his Wife for her life and then to the â—ight Heirs of A. with a Proviso that if at any time after his Life during the Life of the said M. the Heirs of â—he said A. or any claiming under his Heirs trouble or disturb the said M. that then the said B. and other the parties should stand seised of the Lands in which she should be disturbed to the use of the said M. and her Heirs for ever Afterwards the said A. made a Lease of the said Mannors and Lands to I. S. for 100 years to begin after the death of M. A. died M entred The Heir of A after his death entred and disturbed M. contrary to the Pâ—oviso it was Resolved by the Justices in this case that the future use was checked by the Lease although it was but interesse termini and that the use to M. and her Heirs could not rise upon her dusturbance but that it was destroyed for ever Vernons Case 969. Margaret Winter Widow the late wife of Henry Vernon seised of Lands in Fee holden in capite enfeoffed thereof I. S. and others to the use of herself for Life and after to B. her younger Son and the Heirs of his body with divers Remainders over with a Proviso if she should be minded to alter the uses and signâ—fie the same under her hand and Seal to her Feoffâ—es and tender to them 10 l. that then all the uses in the Indenture should be voâ—d and hâ—r Feâ—ffees should stand seâ—sed to sâ—ch new uses as should be limited by the said M. M. according â—o the Proviso signified her intent and tendred 10 l. to her Feoffees and then declared that her said Feoffees should stand seised thereof to the use of G. W. for Life the Remainder to the said M. for Life the Remainder to H. Vernon her Son and the Heirs of his Body Henry Vernon died having Issue a Daughter within age and after M. W. died It was holden clearly in the Court of Wards that because there is no mention of any entry by the eldest Son and Heir that the Estate which Henry Vernon had in Tail was not avoided and so by consequence the Daughter of Heary Vernon should be in Ward Sir Robert Remington and Savages Case 970. A levyed a Fine of Lands to the use of himself for Life the Remainder to his Executors for 20. years the Remainder to his Son in tail with diverse Remainders over Afterwards he
discharge of all Quarrels c. It was objected the Award was void because the Submission did not extend but to Quarrells depending at the time of the Submission which was in January and the Award is of all Quarrels c. which shall be intendable at the time of the Award It was adjudged for the Plaintiff for that it doth not appear that there were any new Quarrels risen between the Submission and the Award and if there were any such it ought to have been shewed on the Defendants part Heard and Baskervills Case 1176. Rplevin The Defendant avowed for Rent granted 12 E. 1 and shewed the discent to such an one whose Heir he is but did not shew how he was Heir It was the opinion of the Court that he is not to shew how Heir in the Writ but in the Declaration and the shewing how Heir is but matter of Form because not traversable but Heir or not Heir is only Issuable and therefore upon a general Demurret it is helped by the Statute of 27 Eliz. But not pleading of the Deed of the Rent shewed in Court or hic in curia profert is matter of substance not aided by the Statute Speak and Richards Case 1177. The Plaintiff sued Execution upon a Recognizance of 2000 l. acknowledged to him in Chancery by I. S. and others and upon two Nihils retorned upon two Scire fac in Middlesex a Levari issued to the Sheriff of S. the Defendant who retorned he had levyed 500 l. towards the satisfaction of the Plaintiff and that he had it ready to deliver to the Plaintiff and because upon this Return upon request of the Plaintiff he had not paid it him he brought Debt against the Sheriff The Defendant as to part of the 500 l. viz. 300 l. pleaded nihil debet to the 200 l. he pleaded payment and thewed an Acquittance the Plaintiff demurred Judgment was given for the Plaintiff for the 300 l. and for the 200 l. nihil capiat per breve because the Recept and the Acquittance is confessed by the Demurrer Davison and Barkers Case 1178. Information upon the Statute of 5 Eliz. for using the Trade of a Bakes within the city of Norwich not having been an Apprentice seven years It was said that no penalty did rise to the Informer for a penalty which did accrue within the city of N. by reason of this branch in the Statute viz. All Amercements Fines Issues and Forfeitures which arise within any City or Town corporate shall be levyed gained and received by such persons as shall be appointed thereunto by the Mayor c. to the use of the same Cities The Justices were divided in their opinions vide Croke 1. part 130. and Hob. Reports 183. where this Case seems to be Resolved Rynes and Mophams Case 1179. Action upon the case that he lent the Defendant his Mare at C. to plow the Defendants Land at P. and safely return her two days after and the Defendant overwrought her so that she died The Venire was of C. only where the Mare was delivered and not where she was labored and therefore the Judgment was reversed Harbin and Greers Case 1180. Action upon the case A custom was alledged That all the Inhabitants of certain Messuages holden of the Bishop of S. had used to grind their Corn which they used to spend in their houses or should sell at certain Mills called the Bishops Mill in S. and not elsewhere without the License of the Bishop It was adjudged the custom is void and unreasonable to grind all their Corn which they should sell Dembyn and Browns Case 1181. A Rent was jointly granted to husband and wife the husband died the wife took Administration of his Goods and as Administratrix brought Debt for the Arrearages incurred in the Life of her husband Adjudged the Arrearages were due to her in jure proprio and the naming of her Executrix of her Husband was Surplusage Wolley and Davenants Case 1182. A Scire fac against the Bail he pleaded that the Principal reddidit se Adjudged it shall be tried by the Record and not by the Country and if the party render himself at the Bar and the Attorney of the Plaintiff is not there to pray him to be committed he shall be committed ex officio by the Court. Roberts Case 1183. A man 25 H. 8. seised of an House and Lands made his Will in these words viz. I bequeath to L. my wife my house in P. with all the Lands thereunto belonging during her Life and after her decease I make A. B. C. and D. Feoffees in the said House and Lands to see the house kept in reparations and the rest of the profits of the same Rents after the discretion of the said Feoffees to be bestowed yearly upon the Reparation of the High-ways of W. and the Town The Devisor and his wife being both dead It was a Question the Will being made before the Statute of 32 H. 8. and the Land not in use whether it be an appointed Limitation or Assignment within the Statute of 43 Eliz. of Charitable uses It was Resolved that the said intended Devise was a Limitation or an appointment to a Charitable use to be relieved within the said Statute of 43 Eliz. Sir Tho. Middletons Case 1184. Sir Thomas Middlenon received 3000 l. from Queen Eliz. for the payment of the Soldiers which returned in the voyage made by Sir Francis Drake and Sir John Hawkings The Captains Mariners ane Soldiers made a voluntary constitution that every Mariner and Soldier should abate so much a month out of their pay to be imployed for the relief of the Mariners and Soldiers which were maimed or hurt in that Service of which abatement there was 300 l. in the hands of Sir Thomas Middleton It was Decreed upon a commission upon the Statute of 43 Eliz. that this 300 l. was a charitable use within the Statore and Sir Thomas was decreed to pay the money to the said use Rivers Case 1185. A Copyholder in Fee devised 14 Acres of his Copyhold Lands to his Son and his Heirs upon condition to employ the profits thereof for the Relief of the poor of S. for ever and died no surrender being made to the use of his Will either before or after I. S. purchased this Copyhold Land upon a Commission upon the Statute of 43 Eliz. this charitable Use was found and that the profits had not been employed accordingly It was decreed that the Purchasor having notice of the said charitable use should pay 12 years arrearages according to the value of the Land at 7 l. 10 s. per annum to be paid for ever by the Purchasor and his Heirs for the relief of the Poor and that he and his Heirs should hold and enjoy the Lands for ever Vochel and Dancastels Case 1186. In Debt for Rent upon a Lease for years the Defendant pleaded that the Lease was made to one H. and the Defendant and that H. his Companion 1
Jac. before the Lease made acknowledged a Statute to I. S. of 200 l. who died and that his Executors sued execution upon the Statute and that the Plaintiff the Lessor beng Sheriff returned that H. was seised of the Land in Fee at the time of the Statute acknowledged and that the ousted the Defendant and put the Executors in possession of the Land and demanded Judgment if upon this answer so retorned by the Plaintiff himself he should pay the Rent and because he did not shew that an Inquisition issued and was taken for the extent the eviction pleaded of the Lease was not good and Judgment was given for the Plaintiff 1187. A. was possessed of a Ship lying at Anchor at Lym-house I. S. a Merchant of Lyn seised the Ship with the Tackle at Lym-house and sued A. in the Court of Admiralty setting forth that he was possessed of the Ship upon the Sea infra jurisdictionem Curiae Admiralitatis A Prohibition was granted in this case for that it did not appear to the Court that any wrong was done upon the Sea and they agreed that Lyn-house was infra corpus Comitatus and not within the Jurisdiction of the Admiralty Lee and Arrowsmiths Case 1188. Debt for 300 l. and counted upon many Emissets and upon a Simul computasset and that all the particular Sums amount to 300 l. The Jury found Debt for 40 l. only and no debt for the residue there were variances betwixt the original which was 300 l. and the particulars which amount to 29 l. The Court sad it was no default in the Clerk but in the Client himself who did not well instruct him in the particulars but upon the Oath of the Attorney that he instructed the Clerk to declare upon all the Emissets and to make a supply upon the Insimul computaverint of the Residue the Declaratton was amended and Judgment was given for the Plaintiff Loder and Samuels Case 1189. In a Replevin the Defendants avowed for an Amercement of 10 l assessed in a Leet for not repairing of a way which by custom they ought for to repair It being found for the Avowants the Jury assessed costs and damages It was objected that the costs and damages ought not to be given by the Statute of 21 H. 8. which did not extend to Amercements in Turnes or Leets but it was holden the costs and damages were well assessed vide Cook 8. part Greaslys Case and Joyners Case that the Avowment for an Amercement in a Leet should have costs and damages Sir George Sherly and Underhills Case 1190. Quare impedit The Plaintiff declared that he was seised of the Mannor of N. and that the Advouson of the Viccarige was appendant to the Mannor The Defendant made title to the Advowson as appendant to the Rectory impropriate of N. and then it came to the Crown by the Statute of Dissolution and that the Queen granted to him the Rectory with the Advowson of the Vicarige absque hoc that the Advowson of the Viccarige was appendant to the Mannor Resolved that the Advowson of the Viccarige of Common right is Appendant to the Rectory but it may be Appendant to the Mannor as if the Rectory before the appropriation was Appendant to the Mannor the Advowson of the Vicarige may well be reserved to the Patron and so shall be Appendant as the Advowson of the Rectory was Eyre and Bannisters Case 1191. In ejectione firme A challenge was to the array because the Sheriff was chosen by the Lessor it was adjudged it was no principal challenge but a challenge for favour only But it was said in this Case That if the â—ease had been ended to be made for tryall of the Title and that the Action was preferred at the costs of the Lessor then been a principal chalenge but not without such amendment Pauton and Chowles Case 1192. Debt by an Administrator of Elianor upon an Obligation the Defendant said the intestate in her life by the name of Ellen released to him all Debts and demands The Plaintiff replyed Non est factum Elianorae which was so found by verdict It was said that the same being matter in Law ought not to have been found by verdict Resolved that none can make an Obligation or other writing by a contrary name of Baptisme and said that Non est factum was a proper Issue and that the Jury had found according to Law and if the Jury had found the special matter yet it should not be adjudged to Bar the Plaintiff Dibly and Doares Case 1193. Trespass by the Plaintiff against Tho. Doare and Barthol Doare and the Plaintiff declared in Trespass against Tho. Clausum fregit averia cepit imparcavit It being found for the Plaintiff many exceptions were taken in stay of Judgement viz. the Declaration was that Tho. simul cum Bartholmew Clausa fregerunt in the plural number 2. That the Register is curia sua sine rationabili Causa imparcavit which works sine rationabili Causa were omitted in the Declaration 3. One of the Juries names in the venire was written Edrus without any dash and in the distresse was Edwardus all which exceptions were over-ruled by the Court and Judgmene was entred for the Plaintiff Colt and the Bishop of Coventry and Litchfields Case 1194. Quare Impedit The Plaintiffs declared that W. H. was seised of the Advowson of Clision Camvile in Fee and granted the next Avoidance to them and that the Church became void by the death of W. W. for which they presented and the Defendant did disturb them The Defendant said that W. W. was Incumbent and accepted another Benefice of the value of 8 l. by which the first became void and pleaded the Statute of 25 H. 8. of Dispensations to be granted by the Archbishop and that the Archbishop granted to him a Dispensation to hold the Church with his Bishoprick and with one or more Benefices with Cura in commendam of what quality value or dignity with a Proviso and all those taken in commendam did not exceed 200 l. in the Kings Books and pleaded the confirmation of the Dispensation by the King under the Great Seal and that he took this Benefice and traversed that the Church was void by the death of W. W. upon which Plea the Plaintiffs demurred in Law The Case for matter of difficulty was adjourned out of the Common Pleas into the Exchequer Chamber there it was argued by eight of the Judges that Judgment ought to be given for the Plaintiff and that both the Dispensation and the Commendam granted to the Bishop were void in Law and that principally for seven Reasons Vide the Causes and Reasons in the Abridgment of this case out of Hobarts Reports fol. 141. to 164 and Abridgment in my Grand Abridgment in the Title of Appropriations fol. 206 207 208. to which I refer you Cases of Prohibition Morice and Smiths Case 1195. Suit was by Husband and wife in the Ecclesiastical Court
817 Wells and Fentons case 822 Web and Hargraves case 835 Williams and Greens case 836 Worleys case 842 Walter and Pigotts case 845 Whetstone and Mintons case 852 Webster and Allens case 873 Ward and Lakings case 876 Wilmot and Knowles case 884 Ward and Sudmans case 894 Westby Skinner and Catchers case 902 Wiseman and Jennings case 904 Wilcoks and Hewsons case 920 Wilcocks and Greens case 934 Wood and Bucklâ—ys case 936 Waâ—ley and Mosleys case 947 VVortesleys case 956 Worleys case 959 Williams Vaughans case 1014 Whitlock and Hartwells case 1015 Waltham Mulgars case 1017 Sir Will. Walter and Hangers case 1055 VVheeler and Heydons case 1056 VVrights case 1064 VVorral and Harpers case 1065 Eliz VViimots case 1093 VVhite and Halls case 1097 VVeaver and VVards case 1126 VVindham Kemps case 1134 The VVeavers of Newberries case 1140 VVood and Shirleys case 1149 VVhitlock and Hardings case 1152 VValter and the Dean and Chapter of Norwiches case 1157 VVilkings and Perrotts case 1161 VVatbrooke and Griffiths case 1163 VVinscomb and Pulisons case 1164 VVolley and Davenants case 1182 VVray and Clenches case 1203 Y. YArdley and Prestwoods case 435 Yelverton and Yelvertons case 442 Yelding and Fays case 458 Yotes and Goths case 882 Yelland and Fiches case 1026 Yardley and Ellices case 1107 Z. ZOuch and Bampfields case 382 ☞ THere is newly extant an ABRIDGEMENT of the Three Volumes of the REPORTS of Sir George Croke Kt. of all such Select Cases as were adjudged in the Courts of Kings Bench and Common Bench during the Raigns of Q. Elizabeth King James and King Charles Collected by the Author of this Abridgement AN ABRIDGEMENT OF THE REPORTS OF Sir FRANCIS MOORE Knight Serjeant at Law Mich. 1. Hen. 7. Capell and Churches Case A Writ of Right Patent in the Court of the Castle of Rising of the King was directed Balivis suis de Rising whereas the proceedings were senatoribus Curiae held good because the Paylifs are to make the Sommons and the suitors Justice Capell and Aprices Case 2. Replevin The Defendant avowed That A. and B. held the Mannor of H. and divers Lands of the Bishop of London parcel of the Bishops Castle of S. by Homage Fealty Escuage and by the Rent for Castleguard pro reddit auxil Vic. The Defendant pleaded That the Castle was utterly decayed and as to the auxil Vic. demurred in Law The Plantiff was Nonsuit but the Rents are still paid to the Bishop though the Castle be decayed Cleydon and Spensers Case 3. Resolved That if an Executor with his own proper monies pay a debt due by the Testator he may retain so much of the value of the goods of the Testator in his hands Case of the Sheriffs of London 4. The Custome of London is That if a Villein remaineth in the City by the space of a year and a day without any Claime made of him he may all time during his life live in the City Free 5. Resolved by the Justices That that which is written after the words In cujus rei Testimonium is parcel of the deed aswell as that which is written before it 6. Resolved It is no principal Challenge That a Juror is endebted either to the Plaintiff or Defendant 7. Resolved In a Replevin That one of the Jurors was Steward of the Mannor to the avowant is a principal Challenge 8. Two are bound each to other to stand to the award of Arbitrators They award that the one shall make a Lease for years to the other rendering Rent to the Lessor the Lease is made the Rent is not paid adjudged the Bond is not forfeit because Distresse or Debt are proper remedies for the Rent contr if it be awarded the Lessee should pay the Rent 9. Debt for not performance of an Arbitrament Adjudged It is no plea generally That he hath performed it but he must show how he hath performed it 10. Resolved It is a good Challenge to one of the 4. Knights who come to impannel the Grand Assise that one of them is maried to the Plantiffs daughter and the other 3. shall try it 11. If a submission be de jure titulo possessione of certain Lands The Arbitrators cannot award that one of the parties shall procure the Lord of the Mannor to grant a Copy holdor that a stranger shall release because out of the submission Frances Case 12. Resolved That the King by his Letters Patents cannot grant the Lands of a Lunatique to another to take the profits to his own use because the King himself is not entitled to them for his own use but for the use of the Lunatique his Issues Wife c. Otherwise it is of an Ideot for then the King hath the profits to his own use making allowance to the Idiot for his keeping Levet and Lewknors Case 13. An Executor recovered in Debt and then dies Intestate and the Ordinary commits Administration de bonis non c. Resolved the Administrator shall not have a scire fac upon the Judgement but a new Action of Debt as Administrator to the first Intestate Sir Godfrey Foliambs Case 14. Quare Imp. The Case was A. seased of the Mannor of D. to which Mannor an Advouson was Appendent granted the next Avoydance to B. and D. eorum cuilibet conjunctim divifim haered executor assignis suis The Church voyd B. presents D. to the Church adjudged That the presentment of him was good though he was one of the Granters 15. The Husband is entitled to Land in the Right of his Wife Resolved The Husband alone without joyning the Wife in the Writ shall have an Action upon the Statute of 8. H. 6. because the words of the Statute are Expulit disscisivit 16. A man was indicted for a Robbery done in the Foot way leading from London to Islington Resolved That he should have his Clergy because the Indictment is not of a Robbery in alta via regia nor in the High way but in a Foot way Vaughan and Lord Burghs Case 17. In a Writ of Prohibition there wanted the word Ostensurus Resolved though after Issue joyned that the Writ was amendable by the Statute Baker and Brooks Case 18. A Parson granted an Annuity of 5 l. issuing out of his Rectory pro Consilio impenso to I. S. Habend recipiend to the said I. S. and his Assignes The said I. S. granted it over to I. D. Resolved That the grant of the Annuity was good and the Assigne may have Debt for it 19. Wast was brought against Lessee for years He pleaded in Barre an Accord which was executed Adjudged to be a good plea. 20. Resolved by the Justices That the Master cannot Sollicite Counsel nor give Mony to Counsel in an Action brought against his Servant for his Servant but yet he may give what is due to his Servant for his Wages to Counsel for their Fees and it is not maintenance 21. Resolved That the Lord in Ancient Demesne shall
Attornment and not as a Surrender but if the Lessee be not upon the Land then it is not a Feoffment and when the Lessee enters again he shall have his Term and the Feoffee the Reversion and if the Lessee be upon the Land and denyes the Lessor to make Livery notwithstanding that Livery be made nothing passeth by the Feoffment nor is a grant of the Reversion 42. Lessee for life of a Mannor seizeth an Estray and dyeth before the year and the day passed Resolved the Executors of the Lessee shall have it and not he in the Reversion for although the Lessee had not an absolute propriety in it during his life yet when the year is past the property shall have relation to the time of the Seizure 1 2 Ma. Stapleton and Trewlocks Case 43. Debt by Executors of I. S. against A. Trewlock Administratrix of Rich. Trewlock The Will was That the Testator made the Plaintiff and Rich. Trewlock his Executors but said further in his Will I will my Friend Rich. T. shall pay to my other Executor all such debts as he oweth me before he shall meddle with any thing of this my Will by reason I have made him one of my Executors for the discharge of the said Debt The Defendant averred Trewlock in the Will and Trewlock the Intestate to be one and the same Person and said He in his life had paid to the Executor the debt in demand and all other debts which he owed at the time of the death of the Testator Adjudged that the Dfendants plea was not good because she ought to have pleaded an Acquittance of the said debt for that payment without an Acquittance is no plea and for the other Debts she ought to have shewed them certain and pleaded payment of them and she should have shewed that T. administred with the other Executor Agar and Bishop of Peterborough's Case 44. Quare Imp. And for Title to the Avoidance the Statute of 21 Hen. 8. taking a second Benefice with Cure was pleaded Issue was upon the Induction By which it seemed to be admitted That Admission and Institution did not make the first Benefice void without Induction 45. Resolved That upon an Appeal of Manslaughter the Party may challenge 20. peremptorily as well as upon an Indictment 46. Upon an Habere facias seisinam upon Recovery of Dower of 3. Mannors Resolved The Sheriff cannot give her seisin of one Mannor but he must give her seisin of the third part of every Mannor But if the Recovery be of all Lands viz Meadow c. Pasture the Sheriff may assign her her Dower in the Meadow only The Queen and Deans Case 47. Writ of Disceit by the King and Queen upon a Fine levyed by C. to D. of Lands in antient Demesne who rendred to C. for life reversion to K. D. dyed pendent the Writ Resolved The Writ shall not abate because it is in the nature of a Trespasse which doth not demand the Land but is to punish the Disceit Tuck and Frenchman's Case 48. A. seized of Lands in Fee holden in soccage devised the same to C. F. and the Heirs males of his body and if he dyed without Heirs males of his body the Remainder c. C. F. dyed without Issue male of his body Resolved That C. F. had not general tail but special tail to him and the Heirs males of his body Joslin and Chelstons Case 49. Assumpsit In consideration of a Marriage of the Son of the plaintiff with the Defendants Daughter the Defendant assumed to pay to the Plaintiff 40 l. in 7. years next following by equal portions Found upon Non Assumpsit for the Plaintiff and because one of the 7. years was to come at the time of Action brought the Judgement was stayed 3 4. Ma. Eaton Colledge Case 50. A Lease was made by the Dean and Chapter of the Colledge was of Eaton whereas they were incorporated by the name of Dean and Chapter of the Colledge of St. Maryes of Eaton Resolved the Lease was void for the Misnosmer Stokes and Porters Case 51. Debt upon an Obligation against the Defendant Executor of I. S. who pleaded that he was not Executor nor administred as Executor It was found that he received a Debt of 7 l. which was due to the Testator and made an Acquittance thereof and took possession of other Goods of the Testator and converted them to his own use Adjudged That it was an Administration Hill 2 Eliz. Helior and Okedens Case 52. A Lease was made to I. S. of the Mannor of F. Habend from Mich. last past for 20. years and by the same Deed it was agreed That after hold expiration of the 20 years that the said Lessee his Wife and their Son should have hold and enjoy the Mannor Habend for their lives cuilibet diutius vivent and he made a Letter of Attorney to make Livery secundum formam of the said Grant and Lease Resolved If the Deed was delivered by the Attorney and Livery made at one time it was a good Lease for years with a Remainder for their Lives but if the Deed was first delivered by the Lessor to the Lessee and after Livery and Seisin by the Attorney there the Livery was void Thorn and Rolfes Case 53. Dower The Defendant pleaded that the Husband of the Demandant was alive at Canterbury in Com. Kent The Defendant said her Husband dyed at F. in the Parish of P. in the said County of K. upon which they were at Issue Day given to make Proofs the Plaintiffe examined her Witnesses in Court the Defendant examined no Witnesses Judgement was the Plaintiffe should â—â—cover her Dower Hill 3 Eliz. Corket and Sheldons Case 54. A. in consideration of a Marriage intended betwixt him and B. by Deed covenants with S. to execute an Estate in Fee to the use of the said A. for life and after to the use of the said B. for by and untill the Son or one of the Sons of the said A. of the body of the said B. begotten shall accomplish the age of 21. years The Marriage takes effect A. dyed without Issue between them and before any Issue had Resolved That B. had a good Estate for life before any Issue and in Case there was no Issue But if there had been Issue which had accomplisht 21. years the Estate of B. had been abridged 3 4 Eliz. in C. B. Gower and Andrews Case 55. In Trespass for cutting down of Trees the Case was A. a Woman in her Widdow-hood by Indenture bargained and sold to B. and C. all those Woods Underwoods and Hedgerowes as have accustomedly been used to be fallen and sold standing growing and being in upon and within the Mannor of D. to have and to hold for the life of the said A. B. dyed C. survived and cut down by vertue of the said Bargain the VVoods and Underwoods growing and standing at the time of the making of the said Deed. Resolved upon this Bargain
when the Vendee had once cut down the Woods and Underwoods that he could not cut them again if Woods were standing and growing notwithstanding the words in the Grant viz. To Have c. for the life of the said A. Wilson and Wise Case 56. In Trespass for taking of his Cow The Defendant justified that he was seised and held of I. S. as of his Mannor of C. by Fealty rent suit of Court of I. S. And that within the said Mannor the Custom was That the Lord of the Mannor time out of mind c. after the death of every Tenant of any Messuage or Tenements of the said Mannor dying seised used to seise the best Beast of the Tenants found within the Mannor for an Heriot and if the Tenant had no Beast or if it were esloyned out of the Mannor before the Lord seized it Then the Lord had used to seise the best Beast Levant and Couchant upon the Messuage Lands and Tenements It was demurred upon the Custom and it was adjudged that the Custome was void and unreasonable and Judged for the Plaintiff 57. An Infant by his Prochin Amy brought a Scire facias to execute a Plea by Fine limited to his Grandmother The Defendant prayed that the Attainder might demur Resolved it should not But if the Defendant had pleaded the Deed of the Ancestour of the Infant in Barre there the Plea should have stayed 3 Eliz. Austin and Bakers Case 58. Attaint was brought into the Common Pleas upon the Statute of 23 E. 3. cap. 3. against the Executors of I. S. and the Terre Tenants and adjudged it was well brought although the Statute is that the Attaint shall be between the Parties of the first Judgement 59. A Subsidy is granted by Parliament That every one who expends in Land above 20 s. shall pay A man is assessed and before payment he dyes the Lands in the hands of the Heir shall be charged with it because it is a Duty upon Record and the Land chargeable with it 60. Judgement being against two upon an Avowry in Replevin They brought an Attaint depending which one of them dyed It was adjudged that the Writ should abate and it differs from the Case of Nonsuit for the Nonsuit is the Judgement of the Court that the Heir may proceed in Suit but when one is dead it is not so for then no act is done by the Court. 61. Note It was resolved That after a Verdict given it is no Plea for to say that the Jurors did eat and drink mean between the Court and their Verdict given but such Exception ought to be before the Verdict given 62. A Lease for years the Remainder for Life the Reversion in Fee Lessee for years committed Waste he in Remainder for Life dyed It was holden by the Justices That he in the Reversion in Fee should have an Action of Waste for waste done before the death of him in the Remainder because that the mean Remainder was the Cause that he could not have the Action at the first but when that Estate is ended the Action is maintenable because it was to the dis-inheritance of him in the Remainder in Fee 63. Tenant in Dower had power to cut down the Trees growing upon the Land and she covenanted with him in the Reversion that it should be lawfull for him every year to cut down 20. Trees and afterwards she cut down and destroyed all the Trees It was the opinion of the Justices That an Action of Covenant did lye against her and it was agreed by them That if a Covenant be that it shall be lawfull for the Covenantee to take the Trees and sell them or imploy them to his own use That in that Case the Covenantor cannot cut down the Trees because he hath given a propriety in the Trees to the Covenantee Mich 2 Eliz. 64. Trespass The Case was A man made a Lease for years of Lands a Stranger entred upon the Land let and cut down Trees growing and made them Tymber and carryed unto the Land where the Trespass is supposed and then gave the Timber to the Plaintiff and the Defendant entred into the Land and took the Timber It was the opinion of the Justices That in all Cases where a thing is taken wrongfully and altered in form If yet that which remains is the Principal part of the Substance the Notice of it is not lost and therefore if a man takes Trees and makes Boards of them The Owner may retake them quia major pars substantiae remanet and so in the principal Case But if an House had been made of the Timber there it had been otherwise 65. Father and Son made a Feofment in Fee with VVarranty the Father dyed The Feoffee impleaded brought a Warrantia Chartae against the Son unde Chartam Patris sui habet cujus haeres ipse est and in his Count shewed the Deed was made by them both It was the Opinion of the Justices the Count was agreeable to the VVrit and that the VVarranty against the Son was double the one of his Father the other of himself and that each of them warranted the whole so the Action well brought 66. Resolved by the Justices If Lessee for Life makes a Lease for years and afterwards purchaseth the Reversion and dyeth within the Term the Lease for years is determined But if one who hath nothing in the Lands makes a Lease for years and afterwards purchaseth the Lands and dyes if it be by Indenture his Heir is estopped to avoid the Lease 67. Two Copartners are one grants her Part and warrants that the Grantee shall have and hold it in common without partition It is a void Warranty because it is against Law 68. A Lease was made to Husband and VVife for years Provided that if the possession of the Lands came to the hands of any ther than the Husband and VVife and their Issues then upon tender of 100 l. it shall be lawful for the Lessor to reenter the Husband dyed the Wife took an other Husband the Lessor tendred the 1000 l. It was the greater opinion of the Justices That the Condition was not broken because that the second Husband was not possessed by vertue of the Lease but in the right of his Wife But the Court doubted of it It was adjourned 68. A Capias ad satisfaciend was awarded and an Extent and between the date of the Writ and before the Sheriff took the Inquisition the Defendant sold his Goods It was the Opinion of the Justices That the Sheriff might extend the Goods which were sold and it was said That if the Tenant in a Precipe allien after the date of the Writ and before the Retorn yet he continnes Tenant to the Action 69. Note it was holden by the Justices That if an Infant for Monies by Indentures bargain and sells Lands and afterwards levyes a Fine Sur Conusans de droit with Proclamations the Indenture is not void but voidable and
limitation over was good enough Dyer said If the Remainder be in tayl the Conusee is seised of the Reversion to his own use quod fuit concessum per les Justices 134. A man granted unto another Herbagium Pannagium within his Lands rendring Rent the Lessor cut down the Trees Resolved That Trespass would not lye by the Lessee against the Lessor but he might have an Assize because it is a Profit Apprender in loco certo capiendo 135. An Abbot was Parson imparsonee of the Church where the Abbot and Tythes were the Abby was dissolved The King granted the Monastery to one and the Parsonage and Rectory to another It was the opinion of the Justices That if the Land of the Abby was the Glebe of the Parsonage before the Appropriation that that Land was discharged of Tythes for it remains Glebe notwithstanding the Appropriation and the Glebe cannot be gained by Prescription and the Glebe was never chargeable to pay Tythes And if a Parson doth make a Lease of his Glebe the Lessee shall not pay Tythes But the Demeasnes of the Abby not parcel of the Glebe should be chargeable to pay Tythes if they were not discharged in right by a Composition or unity perpetual 136. A man made a Feoffment in Fee of Lands upon Condition if he paid him 20 l. at the Feast of St. Mich. in St. Pauls Church the Feoffment to be void The Defendant in an Action brought pleaded he paid the Money at the day and place upon which Issue was joyned and gave in Evidence That he paid it before that day at another place Resolved That the Evidence did nâ—t maintain the Issue For although the Party may pay it at another day and place if the other will accept of it yet he is not bound to receive it and in as much as the Partie is restrained to a day and the day is made parcell of the Issue he ought to prove payment at the day or alledge the special matter and plead payment before the day and acceptance thereof as the truth of the Case is 137. If a man be indebted to I. S. 100 l. and the Debtee maketh an Acquittance to him in Writing that he hath received 20. l. of him in satisfaction of the 100 l. of all other Debts Duties and Demands the same is good and amounts to a Release but if it be without Writing then payment of the 20 l. cannot be in satisfaction of the 100 l. by the Opinion of all the Justices 138. A man deviseth his Lands to his Wife de anno in aunum till his Son shall come to the age of 20. and dyes the Wife enters the Son dyeth before he attains 20 years Resolved the Interest of the Wife was determined But if the Devise had been untill the Son should or might come to the age of 20. years there notwithstanding his death the Estate of the VVâ—fe had continued 139. If a Grand Cape issueth where there was no Original before and Judgement be entred upon it Resolvd it is not void but voidable only by Error 140. Ravishment of Ward of two Daughters the Plaintiff declared to his Dammages of 100 l. and upon Nihil dicit had Judgement and upon a VVrit of Enquiry the Jury found the Ravishment of the Eldest and that she was married to the Plaintiffs dammage of 80 l. and of the other two to the value of 60 l. pro raptu abductione 100 l. and the Judgement was entred for the dammages pro raptu abductione conditionally if she was married 141. A man seized of an Advowson in Fee granted to another and his Heirs that when the Church should become void that the Grantee and his Heirs should nominate a Clarke to the Grantor and his Heirs and he and his Heirs should present him to the Ordinary Resolved That if he who hath the Nomination present he which ought to present shall have a Quare Impedit against him â— contra But if an Annuity be brought against a Parson the Aide is grantable onely of him who hath the Presentation for that is in the right and the right is in the Presenter 142. Debt upon a Contract for 10 l. It is no Plea for the Defendant to say that the Contract was for a lesser sum than the sum contained in the VVrit because the Defendant might wage Law of it 143. Copyhold lands are demised to two for Life successive where the Custome is they may cut Trees Resolved It is a forfeiture of his Estate and of the Estate of him in the Remainder Ter. Pasc 5 Eliz. 144. Lands at the Common-law and copyhold-Copyhold-lands are leased by one Indenture rendring rent Resolved that the whole Rent shall issue out of the Lands at the Common-law and not out of the Copyhold But if a man leaseth Lands a part of which he hath by Disseisin rendring Rent there the Rent shall issue out of the whole Land and by the Entry of the Disseisee the Rent shall be apportioned 145. A Composition was betwixt an Abbot and a Parson that in recompence of the Tythes of all the VVoods within the Mannor whereof the Abbot was Owner that he should have to him and his Successor â—0 loads of VVood every year in 20. acres of the said Mannor to burn and spend in his House The Parsonage was appropriate to the Abby and after the Abby was dissolved and the King granted the Parsonage to one and the 20. Acres to another It was was resolved That by the uniâ—y the Estovers were not extinct for if they be Tythes they are not extinct by this unity of Possession for that Tyths run with the Lands and Tythes de jure Divino Canonica Institutione do appertain to the Clergy Eyres Case 146. In Replevin The Case was the Archbishop of York was seized of a Field in B. in the right of his Church and Leases the same by Deed for years rendring rent which was confirmed by the Dean and Chapter In the Indenture there was a Proviso that in the vacancy of the Bishoprick the rent should be paid to the Chapter as in his right the Bishop dyed I. S. was created Bishop and was deprived because he refused to take the Oath of Supremacy I D. was chosen and created Bishop and for Rent behind and not paid to the Chapter in the time of the vacancy he avowed In this Case these these points were resolved 1. That the Proviso was well placed and was a Condition being annexed to the Reservation of the Lease 2ly That the Successor might enter for the Condition broken in the time of his Predecessor 3ly The Bailiff of the Bishop could not enter for the Condition broken without a Special Warranty 4ly That the Condition was repugnant because he appoints the Rent to be paid to the Chapter in the time of the vacancy the Reservation being to the Bshop and his Successors 5ly That no Title was in the Succcessor to enter because the Condition was repugnant
6ly That the Chapters are not of Capacity to take by Purchase or Guift without the Dean who is their Head 147. A man made his Will in this manner Item I give my Mannor of D. to my second Son Item I give my Mannor of S. to my said Son and to his Heirs It was resolved by the Justices that in the first he had but an Estate for life and the Item seems to be a new Guift to a greater Preferment in the second place for the amendment of the other 148. A man seized in Fee took a Wife and afterwards levyed a Fine of his Lands with Proclamation and 5. years passed in his life he dyed and after other 5. years passed Resolved That the Wife should be barred of her Dower because she did not claim it within the 5. years after the Title of Dower accrued 149. Assise against divers who pleaded Nul tort c. the Assise found that all the Defendants were Disseisors but that one of them did the Desseisin with force It was the opinion of the Justices That the Verdict was good for that the Force and Disseisin was two things for Force is not incident to every Disseisin for it should be enquired by the Assise if they or any of them had done the Disseisin with force and if Lessee for years be re-ousted with force and he in the Reversion bring an Assise and the Disseisin is found with force yet the Force is not punishable for the Force was to the Lessee for years 150. Nota. It was resolved by the Justices That if the Demandant do recover in an Assise he may enter and execute the Judgement without being put in seisin by the view of the Recognitors of the Assise but if he be disseised again he shall not have Re-disseisin but is put to his Writ of Post disseisin 151. Note It was agreed by the Justices That if Tenant in tayl discontinue and dyeth and an Ancestor Collateral in the life of the Tenant in tayle releaseth to the Discontinuee with warranty and dyeth and afterwards the Issue in tayle brings a Foâ—medon and is barred by the Collateral warranty if after that which was a Collateral warranty become a lineal warranty as it may yet he and his Heirs shall never have remedy against that Bar But if an Exchange be between Tenant in tayl and another and the Tenant in tayl dyeth and the Issue enter into the Lands taken in Exchange and afterwards brings a Formedon and is barred and dyeth yet his Issue may enter into the Lands exchanged or recover the same by Action notwithstanding the bar in the first Actâ—on for that is out a warranty in Law which is not so strong as a warranty in fact but he may disagree to the Exchange and enter or bring his Action at his Election 152. A man leaseth a Mannor to another with all the members and appurtenances To have and to hold all the members of the said Mannor to the Lessee for years It was holden It was a good Lease of the Mannor for years for the limitation of the word Member was void and so it was a good Lease of the Premisses without the Habendum Sutton and Robertsons Case 153. In Ravishment of Ward the Case was Lord and Tenant The Tenant enfeoffeth the Lord and another of the Tenancy and they reenfeoffed the Tenant It was resolved by all the Justices That the Seignory was extinct for by the Feoffment to them all the Seignory was suspended in their hands and then when they departed with the Lands discharged of the Seignory it was an Extinguishment of the Seignory and when the Lord joyned with his Companion in the Feoffment all passed by the Feoffment of any of them and if the Lord releaseth all his Right in one Acre of the Lands holden it is an Extingushment of the whole Seignory 154. A man by his Will deviseth his Lands to his Wife to imploy and dispose them upon herself and his Sons at her will and pleasure Resolved It was a good devise in fee to her but the Estate in her was conditional by reason of the words eâ intentione which makes a Condition in a Devise but not in a Feoffment Guift or Grant 155. A man recovered and sued forth a Capias ad satisfaciend to the Sheriff who arrested the Defendant and he after escaped and at the day the Sheriff did not return his Writ A Sicut alias issued to the Sheriff upon which the Sheriff arrested him again and the Defendant brought an Audita Querela Resolved the Writ did well lye for although the Parâ—y himself might have a false Imprisonment against the Sheriff because he had not returned his Writ and so was a Trespassor ab initio yet by the first taking in Execution the Arrest cannot be lost by the not returning of the Writ but having respect to the Party Plaintiff he is in Execution by the first taking presently And in this Case it was said That if a man be condemned in Debt or Trespass and be taken in Execution although he be chosen a Burgesse of Parliament he cannot have the Priviledge of Parliament to discharge him of the Execution Term. Pasc 6 Eliz. Broughton and Conwayes Case 156. Debt upon Obligation The Condition was whereas the Defendant had sold to the Plaintiff a Lease of the Mannor of S. that he should not do nor had done any act to disturb the Plaintiff of the possession of it but that the Plaintiff should hold enjoy it peaceably without the disturbance of the Defendant or any other and assigns a Breach That A. had brought a Writ of Dower against one B. of the said Mannor and had Judgment and Execution and so he was disturbed The Defendant said That the Recovery in the Dower was before the sale made to the Plaintiff Resolved The Plaintiff should be barred because the Defendant is not bound by the words of the Condition to warrant the peaceable possession to the Vendee but only for acts by himself done or to be done and here no act was done by him 157. It was holden by the Justices That in an Action brought upon the Statute De Malefactoribus in parcis That notwithstanding that the Queen pardons the offence yet by the Statutee the Party hath remedy for the Trespass done to him 158. A man made a Feoffment in Fee upon Condition that if the Feoffor paid certain Monyes to the Feoffee before such a day or to his Executors or Assignes then he might enter before the Day the Feoffee made the Feoffor his Executor and by his Will gave all his Goods and Chattels to his Wife and dyed Brown Justice held That by making the Feoffor Executour the Debt was released because the Executor could not pay the Debt to himself But the better opinion was that the Feoffee was to pay the Money being a thing Testamentary to the Wife as an Assignee of the Feoffee Quaere the Case was not resolved to whom the payment should
and if they had imployed nothing that way then nothing was given to the Crown In the principal Case it was adjudged against the Queen and Informer Bossevile and the Corporation of Bridgwaters Case 263. King H. 8. Anno 33. of his Raign made a Lease to the Earl of Bath of the Rectory of Bridgewater and of the Tythes of 2. Hamlets in W. parcell of the said Rectory at the Rent of 10 l. which lease continued till 2. Eliz. in which year Bossevile purchases from the Queen the Rectory of W. of the value of 10 l. yearly and had general Words of the Tythes within the 2. Hamlets but the Lease to the Earl of Bath that was then in esse was not recited and afterwards 3. Eliz. the Queen granted the Rectory of Bridgwater and the Tythes of the 2. Hamlets and all which was in the Earl of Baths Lease to the Corporation of Bridgwater Bossevile by vertue of the Statute of 18. Eliz. of Non Recitals and Misrecitals which had retrospect to the beginning of the Raâ—gn of the said Queen claymed the Tythes within the said 2. Hamlets against the Corporation After a long Argument upon a Reference out of the Court of Wards to the Chief Justices Wray and Anderson it was Resolved by them That the Patent was good without recital to Bossevile against the Queen by relation of the Statute of 18. Eliz. which makes Patents good from 2. November in the first year of the Queen and should binde the Queen her Heirs and Successors but should not be good against the Corporation of Bridgwater and therefore the Case in the Court of Wards was decreed against Bossevile Diggs Case 264. An Annuity was granted in fee at the first day of payment the Annuity was paid to the Grantee and the Grantee made an Acquittance thereof to the Grantor and in the end of the Acquittance he released to the Grantor all Actions and after at the next payment the same was behind and the Grantee brought a VVrit of Annuity against which the Grantor pleaded the Release in Barre It was strongly objected that by the Release the Annuity was determined being a personal thing and a thing in Action But it was resolved by the Court That for an Annuity before the day of payment an Action did not lye and that before it was not therefore resolved by the Release of all Actions before the day of payment and although an Annuity be a Personal thing for which the Grantee hath not any remedy but by way of Action yet it is not a thing in Action It was adjudged for the Plaintiff that the Action was well brought notwithstanding the Release Stantons Case 265. S. at the age of 16. years bound himself an Apprentice in London to I. S. by Indenture containing the ordinary words of every Indenture for Apprentices and afterwards by the command of his Master who was Baily of an Hospital in London and with those Moneys and other Moneys of his Masters he went away and had not discharged his Master against the Hospital for which he brought Covenant upon the Indenture The Defendant pleaded that he was within age in Barre of the Action and also said that upon this Custome the Defendant was impleadâ—â—â—e only in London and not in this Court The Court seemed to be of opinion That the Custome was a good Custome and the Defendant was lyable to the Action within the Custom and that he was impleadable within any place of England as well as in London and therefore that the Action was well brought 266. A Custome in London was set forth to be That if many are bounden in an Obligation as Sureties that if the Principal fail of payment so as that it one of the Sureties be sued upon the Obligation that he might have a VVrit De Contributione facienda against the Sureties and said that such VVrit was brought in London which was removed in C. B. It was remanded into London because the Common Pleas could not doe right upon the Custome Shelleyes Case 267. Upon a Special Verdict in Ejectione firme the Case was Ed. Shelley and Joan his VVife Tenants in special Tayle the Remainder in fee to Ed. had Issue then Hen and Richard Joan dyed Hen. dyed in the life of Ed. having Issue Mary It was found that Ed. by Indenture 1 2 Phil. Mar. covenanted with I. S. and others to suffer a common Recovery to the use of himself for life and after to I. B. for 24. years and after the years expired to the use of the Heirs Males of the Body of the said Ed. and the Heirs Males of the Body of such Heirs Males and for want of such Issue to the use of the Heirs Males of the Body of John Shelly of M. c. and 9. Oct. the first day of the Term Ed. dyed between the hours of 5. and 6. in the morning and afterwards the same day the Recovery passed and that by a VVarrant of Attorney made in the life of Ed. Execution was the 19. day of October by Habere facias seisinam and it was found that 5. December following the wife of Hen. Shelly was delivered of Hen. the now Defendant The Land was also found to be in Lease for years at the time of the Recovery and that Richard Shelley the younger Son of Edward entred and made the Lease to the Plaintiff In this Case there were these points 1. If the Recovery suffered by Ed. the day he dyed was good 2ly If being suffered by him Tenant in tayle it might be executed after his decease upon the Issue 3ly If any use did rise upon the Recovery before Execution 4ly If Richard the youngest Son before the birth of Hen. the Infant took the Land by purchase or by Discent This Case was many times argued at the Barre and afterwards for Difficulty was by the Command of the Queen adjourned into the Exchequer Chamber where it was argued by all the Judges of England and at last it was resolved against the Plaintiff and the reasons of their Judgements were these 1. Because they all agreed that Richard Shelley was in by Discent and not by Purchase after the death of Ed. and before the birth of Hen. the Defendant 2ly That the Recovery was good although that Ed. dyed the same day before the sitting of the Court 3ly That Execution might be sued against the Issue in tayle but that no Seisin was in the Recoverors nor any use raysed till Execution sued 268. A Lease for years was made upon Condition to re-enter for not payment of the Rent A man of ill fame out-lawed in 40. Action at the last instant of the day demanded the rent The Lessee asked him what authority he had to receive it he said he was senr thither by the Lessor but did not shew any warrant from him or that he was his Servant This was the opinion of the Justices that if any one would swear that was true against the Party who demanded
the Rent that the Lessor should not enter which being immediately sworn and the Records of the Outlawries against him produced the Justices dismissed the Lessee and that the Lessor should enter upon him Broughtons Case 269. Broughton a Justice of the Peace brought an Action upon the Case against the Bishop of Coventry and Lichfield because he wrote a Letter to the Earl of Leycester one of the Privy Council wherein he wrote That the Plaintiff was a Vermin in the Common wealth a false and corâ—upt man an Hypocrite in the Church of God a Dissembler He hath used many corrupt practises to work his VVill He procured my Register to be indicted of Extortion He willingly and wilfully hath boulstred out one Greenwood a Convict man of many offences and knowing him to be an Evil man maintaineth him against me without Law Conscience or Honesty Upon Not Guilty it was found for the Plaintiff and 300 l. Dammages It was objected the Action did not lye not being an overt Act but words written in a Letter Resolved the Act on did well lye being writ to a Stranger but otherwise if it had been written to the Party himself and it was also resolved That although but some of the words will bear Action yet the Dammages are well assessed because they are put in to increase the Dammages In this Case it was said if a slanderous Bill be exhibited in the Star Chamber against one the Action doth not lye because it is a Court of Justice and hath Jurisdiction to redress things but to exhibite a slanderous Bill into a Court waich hath not power to redress the thing is scandalous and an Action will lye for it Griffith and Clarks Case 170. A Writ of Disceit by the Lord of the Mannnor upon a Fine levyed of the Land within antient Demeasne The Defendants pleaded that the Lord of the Mannor in the time of E. 2. did release to one who was Tenant of the same Land de omnibus servitiis consuetudinibus salvis servitiis infrascriptis viz. pro una virgat terrae 2 s. rent suit of Court and Releife It was resolved The Custome of the Antient Demesne was extinct by the Release but the Rent Releife and suit of Court remained as parcel of the Seignory by the saving Ivors Keales Case 271. A. seised of Lands in Fee borrowed 20 l. of B. and they are agreed to assure Lands for it They went to the Land and A. there said to B. I am endebted to you 20 l. If I do not pay you at Michaelmas then I bargain and sell this Land to you and if I do pay you I am to have my Land again B. continued upon the Land a little space the Monyes was not paid at Michaelmas Adjudged the Land passed to B. upon a Condition subsequent for payment of the Mony by B. Mildmay and Standiskes Case 272. Action upon the Case for Slandering his Title In which the Defendant justified the Case was A. seised of Lands in fee had Issue 3. Daughters V. G. O. V. dyed without Issue The Father for love and affection and the better maintenance of G. and O. covenanted to stand seised to the use of himself for life the remainder to G. in tale of one Moyety the remainder to O. of the Moyety in Tail Provided it shall be Lawfull for the said A. for the payment of his Debts and Legacies and better preferment of his Servants and other good Considerations to devise the said Lands by his Last VVill and dispose of the same for lives or years and afterwards he devised the said Lands to F. and the said O. his wife for 1000. years and dyed wherefore the Defendant published the said Lands were assured for 1000 years upon which it was demurred It was said that the said V. might at any time determine any of the said uses and induce other Estates at his pleasure and the payment of his Debts and Legacyes with good considerations for the Leases But it was resolved for the Plaintiff because the Proviso was against the Law to enduce an Estate to a Stranger by way of Lease upon Covenant of Considerations to raise uses but such power might be good upon an Estate executed Or a Proviso good which did extend to determine the Estate but not to give another Estate to Lessees Veere and fâ—ofryes Case 273. It was Resolved That if the Metropolitan grant Administration where the Intestate had not bona notabilia indivers diocesses it is voidable only but not void But if a Bishop of a Diocesse grants Administration which belongs to the Metropolitan the same is void Russells Case â—74 Trover and Conversion of goods by the Executors of R. against Husband and Wife of the goods of the Testator which came to the hands of the Wife dum sola fuit The Defendant pleaded a Release of the Plaintiff after the death of the Testator and after the Trover and Conversion The Plaintiff said he was then within age It was adjudged that because there was no Consideration alledged for the Release it should not binde the Executor because it should be a Devastavit in him Twineos Case 275. Grandfather and Grandmother Tenants in special Tail before the Statute of 27 H. 8. the remainder to the right Heirs of the Grandfather The Father by deed enrolled Fine and Proclamation conveyed the Lands to the Queen and her Heirs and Successors in the life time of the Grandmother It was Resolved that by the Statute of 32 H. 8. by the Fine and Proclamation the Issue in Tail was Barred Vâ—ncent and Lees Case 276. It was adjudged in this Case That when a man devised that his Sons in Law should sell the Reversion of his Lands without naming their particular names and that some of them dyed That the Survivors could not sell the Land Sir Peter Carewes Case 277. It was Resolved in this Case That the Lord of a Mannor for life or a particular Tenant having interest in the Mannor might grant Copies in Reversion although they were not executed in the life of the grantor Moris and Franklyns Case 278. The Statute of 27 H. 8. which began 4. Feb. Anno 27. H. 8. and ended 14. April gave Monasteries of Petty value to the King The Abby of T. being of Petty value viz. 100 Marks per Ann. was mean between the 1. day and the last day Surrendred to the King It was holden the King should be in by the Statute and not by the Surrender Thorrowgood and Tarvors Case 279. In Trespasse The Defendent pleaded in bar the Release of the Plaintiff of all his right in the Land The truth was the Plaintiff was a man unlearned and the Release was read unto him only as a Release of the Arrerages of an Annuity It was the opinion of the Justices that he might plead Non est factum to it and it should nor bar him Dorrell and Thyns Case 280. Error was assigned in a Common Recovery That no Warrant of Attorny was
his Heirs A scire fac issued against the Heir and Terre Tenants who made default and Judgment was given against the Heir aswell of his own proper Land as of those which he had by discent It was said by Cook that although the Heir upon default shall be charged above his Assets but that was where a man bound him and his Heirs in the Recognizance but here the Heir should not be charged because the words of the Recognizance are no obligation against the Heir but only upon the Land and therefor he prayed contribution against the other Feoffes The Court refused to grant it and said that one purchasor shall have contribution against another but the Heir shall not have it but shall be in the same degree as his Ancestors was Bantings Case 288. In Trespas the Case was John Banting contracted himself to Agnes A. after Agnes was Maried to F. and Cohabited with him Banting sued Agnes in the Court of Audience and proved the Contracts and sentence was there pronounced that she should Marry the said Banting and Cohabit with him which she did and they had Issue Charles Banting and the Father dyed It was argued by the Civilians that the Marriage betwixt Banting and Agnes was void and that Charles was a Bastard But it was Resolved by the Justices that Charles the Issue of Banting was Legitimate and no Bastard 289. The Case was Lessee for years assigned the Terme to the Wife of the Lessor and a stranger and afterward the Lessor bargained and sold for Mony by deed Inrolled the stranger dyed the the Wife claimed to have the residue of the Terme not expired Whether by the Bargain and sale the Terme of the Wife was extinct or not was the Question it was said it was not but Contrary if the Husband had made a Feoffment in Fee with Livery Quaere the Case was not Resolved Vide Plowdens Commentary Amy Townsends Case Treshams Case 290. Tenant in Capite made gift in tail to I. S. upon condition that if he aliened that it should be Lawfull for him to enter I. S. aliened Tenant in Tale entred for the Condition broken It was adjudged That a Fine for the Alienation of the Tenant in Tail was due to the Queen and that the Queen might charge the Lands in whose hands so ever they came for this Fine and the duty was not discharged by the entry of the Tenant in Tail for the Condition broken but the Tenant of the Land was Chargeable for the same 291. Debt against an Executor for 100 l. in C. B. Afterwards Debt was brought against the same Executor for 100 l. in B. R. in which he confessed the Action and pleaded the same to the first Action and that he had fully administred all but the said 100 l. The Court inclined to be of opinion that the plea was not good but that the Executor was chargeable to the first Judgment Quaere because not Resolved 292. A. for mony sold to B. all the Butter which should be made of his Cowes in a year and when he had made Butter he sold the same to C. C. paid his money and set his mark upon the Barrells and left them in the Custody of A. and afterwards A. delivered them to B. the first vendee C. brought a Replevin and B. claimed the property in the Butter by the first sale It was said that the property of it was in C. for the first Contract betwixt A. and B. was but a Covenant and agreement that A should sell the butter when it should be made for before that he could not sell it and before the making of it there was no property in it and so no contract and the second alienation was a change of the property and so B. hath no remedy for it but his Action upon the Case against A. Quaere not Resolved The Earl of Huntington and Lord Mountjoyes Case 293. The Lord Mountjoy bargained and sold Lands by deed enrolled Proviso that it is Covenanted granted and agreed that it shall be Lawfull for I. S. who was a stranger to dig in the Lands for Mynes It was adjudged in this Case that although the word Proviso absolutely taken be a Condition yet when it is coupled with other Words subsequent It shall be construed to be a Covenant and not a Condition Crocook and Whites Case 294. Debt upon an Obligation the condition was That if the Defendant Warrant and defend an Oxgange of Land to the Plaintiff against I. S. and all others that then c. It was Resolved the word defend shall be taken and shall not imply any other sense but a defense against Lawfull Titles and not against Trespasses and this Case was put by Anderson Chief Justice If one Covenants to make a Lease of all his Lands in D. and in D. he hath aswell Copyhold Land as Freehold Land he is not by the Covenant to make a Lease of the Copyhold Land for that he cannot Lawfully Lease without License and the for the Law shall construe the Covenant to be of Lands dimiseable and not of other Lands Roberts Case 295. The Bishop of Batb and Wells granted to King E. 6. by Deed enrolled all his Farmes and Hereditaments of W. in W. in the County of S. Habend to the King and his Heirs and in W. the Bishop had a Rectory which extended into the County of D. It was holden in this Case that the word Farme did not include the Rectory without a special averment that the same was in Lease before but the word Hereditament was sufficient to passe the Rectory 296. A Statute is Continued during the Will of the King It was Resolved that the Demise of the King had determined his Will 297. Note it was Resolved by the Justices that if Lands are devised to 2. men and to the Child with which the Wife of the Devisor is ensient It is a good Devise and the Child shall take by the Devise but if he shall be Joynt or Tenant in Common with the other Quaere Grises Case 298. A. gave Lands to his Son and his Wife for life the remainder to the Heirs of A. the Son dyed having Issue within age A. dyed Living the Wife It was adjudged that the Issue of the Son should not be in Ward for the Remainder notwithstanding the Statute of 32 H. 8. Wests Case 299. West went beyond Sea and wrote a Letter that his Land should go in such a manner It was adjudged to be a good Will and Devise Cooks Case 300. It was agreed by the Justices in this Case that if Lessee for years during his Terme set up Posts for out-doores and hangs doores upon them by Engines that he cannot take them away at the end of the Terme but otherwise they conceived if it be of Indoors within the house Mollineux Case 301. A. bound himself in an Obligation upon condition that if he did pay to the Obligee the sum of 20 l. within 40. dayes after his personal
c. de Decimis eidem pertinent spectant Habendum dectum scnum cum pertinenciis The question was what estate the Lessee had in the Tythes at Will or for years It was the opinion of Manwood Chief Baron that he had an Estate in them for years and not at Will for where several things are in a Grant and after the Habendum comes to limit the Estate it is superfluous to recite the particular things in the Habendum and the Tythes being particularly recited shall therefore pass by the Habsndum which limits the Estate for years Crops Case 357 A man made a Lease for years reserving Rent at Mich. and the Annunciation and if it be behind by the space of a month to reenter The next day after Mich. the Lessor sent the Rent by his Servant to the house of the Lessor who tendered it to his person and he refused it and afterwards upon the last instant of the day it was demanded upon the Land It was adjudged a good tender and the Lessor could not enter Beverley and the Bishop of Canturburyes Case 348. A seised of an Advowson in gross presented K. who was Inducted the Advowson afterwards desdended to B. and C. Coparceners B married I. S. C. married T. B. and had Issue C. died T. B. the Plantiff being Tenant by the Curtesies the Church became void by the deprivation of K. and because they could not agree in the presentment the Clerk of B. the eldest Sister was received by the Bishop which was since dead so the Plantiff Tenant by the Curtesie presented and being disturbed brought the Writ The Incumbent being presented by the Queen pleaded thae K. being inducted accepted a second Benefice of the value of 8. l. and so the Church was void by the Statute of 21. H. 8. of Pluralities It was adjudged for the Plantiff for that the deprivation of K. and the Plurality of the Clerk of the eldest Sister since dead were not denied after the acceptance of the second Benefice Saunders Case 349. Information upon the Statute of 1. E. 6. for landing of goods at Ratcliff Custom not paid nor agreed for It was pleaded in a Bar A. was seized of the Mannor of S. in Sussex and had wreck of the Sea appertaining to his Mannor by Prescription and that the Mannor Contigue adjâ—câ—t mare altum and said the goods were wreck and cast upon the land of the Lord and that he seized them and so justified Qu. If a good Justification Morris and Wâ—â—bors Case 350. The Case in effect was this A man was divorced Causa â—rigiditatis and afterwards took another wife and had issue It was argued by the Civilians and also by the Justices if the Issue was Bastard or not It was adjudged that the Issue by the second wife was not a Bastard For that by the Divorce the Marriage was dissolved â— vinculo Matrimonii and each of them might marry again But admitt that the second marriage was voidable yet it stands good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue Term. Hill 29. Eliz. Fanshaws Case 351. In Ejâ—ctione firme the Case was shortly thus King Henry the Seventh erected and Founded an Hospital by the name of Mâ—ster and Chaplains of the Hospital of King Henry the Seventh de le Savoy And afterwards in the time of Queen Mary a lease was made of Lands parcel of the Hospital by the name of Master of the Hospital Henrici nuper Regis Angliae septimâ— vocat le Savoy and if it was a good Lease or not was the Question The Case was first argued in the Exchequer and there adjudged that the Lease was void by the Judgment of two Barons Afterwards a Writ of Error was brought in the Exchequer Chamber there the Case 3. Eliz. was argued again but it was not adjudged but afterwards the Case was compounded but the better opinion of the Justices there seemed to be that it was a good Lease and that the words De le Savoy vocat le Savoy were idem sensu Crosman and Reads Case 352. Debt against the Defendant Executrix of T. R. her former husband upon an Obligation of 200. l. The Defendant pleaded fully administred It was found she had Asserts to the value of 80. l. parcel of the 200. l. and that the said T. B. borrowed of F. R. her late Husband 60. l. and that the Defendant being Executrix to T. B. took the said F. R. to Husband who died the Court gave Judgment that the Plantiff should recover the 80. l. and for the residue in misericordia pro falso clamore so as the Court conceive the 60. l. was not Assetts in her hands Rous and Artois Case 353. A man was Tenant for another mans life of a Mannor Cestuy queuse died The Tenant continued possession of the Mannor and held Courts and made voluntary Grants by Copy It was adjudged he should not bind the Lord for he was but Tenant at Sufferance who had not any Interest and so he was a Disseisor of the Mannor Broke and Smiths Case 354. The Case was Lord and Tenant the Tenant levied a Fine to the King who afterwards gave the Land Tenendum of the King by Knights Service The Lord distreined the Patentee for the Rent and Services If the Seignory was revived was the Question It was conceived it was and that it was suspended only for the time in the King Qu. It was not resolved Knowles and Powels Case 355. The Queen seized in Fee made a Lease for years to one who was Out-lawed at the time of the Lease made and afterwards the person was Out-lawed again and before seizure came a generall Pardon of all goods and chattels forfeited In this Case Resolved First that a man Out-lawed was capable of a Lease from the Queen as a Farmer to the Queen and that the Pardon with restitution was sufficient to revive the Term forfeited Secondly That a man Outlawed and Pardoned had property in his goods Bonds Case 356. Bond erected a Pigeon-House upon certain Lands which he held in Lease for years the reversion in the Queen being parcel of her Mannor of F. in the County of S. It was the opinion of Manwood Chief Baron and Gent. That none could erect a Dove-house but the Lord of the Mannor or the Parson and said that in ancient time it was accounted a Common Nusance presentable in the Leet 357. Note by Manwood Chief Baron where it is ordained by the Statute that for doing misdoing or not doing of a thing the Offendor shall forfeit such a Sum not expressing to whom there the forfeiture shall be intended to be to the Queen unless the penalty be assessed for taking Goods Chattels or other things in which the Subject hath a Property and then he which hath the loss shall have the forfeiture Warrams Case 358. A Protection was granted to him by the Queen and it was Quod Praerogativa
extends to Fines ritè Levatis and that a Fine is not ritè Levatus when partes finis nihil habuerunt To all which it was Answered and Resolved That the Issue in tail is not excepted in those Statutes and therefore is bound by the very Letter of the Acts 2. Although the Issue in tail was not bound by any Fine by his Ancestors untill 4. H. 7. yet in such Case he was ousted to add Quod partes finis nihil habuerunt being privy as Heir to him who levyed the Fine first 3. That a Fine may be said ritè Levatus although partes finis nihil habuerunt and it may be ritè Levatus although it be a Fine meerly by Conclusion Elmer and Goales Case 383. In Ejectione firmae the Case was The Abbot of West was seised and let the Lands for 60. years to a Stranger the Abby was dissolved and King Henry 8. united it to the Bishoprick of London The Bishop 12. Eliz made a Lease for three Lives the Lease for 60. being in being for 16. years which Lease was confirmed by the Dean and Chapter the Lease for 60. years expired the Lessees for three Lives entred and were seised untill the Bishop entred upon them and made the Lease upon which the Action was brought The point was if the Lease for three Lives were good It was Resolved it was good and stood good because the Statute of â— Eliz. which made Bishops Leases was not pleaded and the Statute being a private Act of Parliament the Judges were not to take nâ—tice of it if it were not pleaded Butler and Babers Case 384. The Case was A. seised of the Mannor of Toby in Fee and A. and his wife seised of the Mannor of Hinton to them and the Heirs of their bodies the Reversion to A. in Fee Toby amounting to the value of two parts and Hinton to the third part both holden in capite A. by his Will devised the Mannor of Toby to his Wife for life upon consideration that she should not take her former Joynture in Hinton with divers remainders over the Wife in pais disclaimed and waved her Estate in Hinton and agreed to the Mannor of Toby and entred upon it and if the Devise was good for the whole Mannor of Toby or for two parts only was the Question It was Resolved in this Case by the greater part of the Justices upon argument in the Exchequer Chamber that the waving of the Joynture by the Wife made an immediate discent by Relation to the Heir and that the Devisor was not such a person having Lands as could dispose of it according to the Statute and in this Case it was agreed by the Justices That if one deviseth Land in which he hath nothing and afterwards he purchaseth the lands that the same is not a good Devise within the Statute of Wills because he is not a person having c. Priscot and Chamberlains Case 385. In a Replevin the Case was Tenant for Life the Remainder in Tail jâ—yned in a Lease for years afterwards he in the Remainder in the life of Tenant for life suffered a Common Recovery the Recoverers sued execution upon the Lessee for years and afterwards enfeoffed Lincoln Colledge in Oxon to whom the Son and Heir of the Tenant in Tail in the life of his Father released with Warranty the Lessee for years reentred the Tenant for Life and he in the Remainder in Tail both died the Son of the Tenant in Tail had issue who by his Bayliff distreined the Chattel of the Lessse for years as damage Feasants upon the Land and he brought a Replevin The point was if by the common Recovery oâ— the Release of the Issue in tail with Warranty the tail was barred It was agreed by all the Justices that the Issue in tail was not barâ—d by the Recovery nor by the Warranty but whether he should avoid this Recovery in this Action being a possessarie Action or put to a rent Suit was the doubt whâ—ch was not resolved The Case was adjourned Hennage and Curtes Case 386. Trespass for breaking his Close in Hainton The Defendant justified that there was a Foot way leading through the said Close from Haâ—mon to the Foot-way of Horn-Castle for all persons travelling from Hainton to Horn-Castle they were at Issue upon the Prescription and because the Venire was de Hainton only whereas it ought to have bin from Hainton and Horn-Castle It was said that the Tryal was erroneous and the Judgment was reversed Bonnet Halsey and others 387. The Plaintiff was taken in Execution at the Defendants Suit by the Sheriff of B. and by an Habeas Corpus he was brought to Smithfield by the Goaler of B. and there at Eight of the Clock of night the Prisoner went into Southwark and there continued all night and the next morning he returned to Smithfield to his Keeper and there continued with him till the return of the Writ at which day he brought him to the Lord Chief Justices Chamber at Serjeants-Inn and he returned his Writ and the Chief Justice committed him to the Marshalsey It was judged it was no Escape in the Sheriff and adjudged upon an Audita Querela brought by the Plaintiff for the Defendants Wray Street and Coopers Case 388. The Prior of M. was seised of three Messuages in the Borough of Southwark and held them of the Bishop of Canterbury as of his Borough of Southwark The Priory came to King Henry 8. by surrender Afterwards the Bishop gave the Burgage to the King which Gift was confirmed by the Dean and Chapter The King anno 36. gave the said three Messuages and others to C. and D. Tenendum libero Burgagio by Fealty only and not in Capite and C. and D. gave the Messuages to W. and his Wife W. died his Wife survived King Edward 6. gave Totam Burgagiam de Southwark to the Mayor and Burgesses of London In the time of Queen Mary the Wife W. dyed by which the Messuages escheated Queen Mary gave them to one who gave them to A. who gave them to the Defendants The Mayor and Burgesses of London entred The Question was if the Tenure should be in Capite or in Burgage and if they passed to the Mayor and Burgesses by the Grant of Edw. 6. of Totam Burgagiam de Southwark It was adjudged against the Mayor and Burgesses of London because there could not be several Tenure foâ— these parcels Tenendum ut de Burgo and another Tenure for the Residue of the Lands in other places which could not be holden de Burgo and also because the Patent having two intents the besâ— shall be taken for the King Pasch 30. Eliz. The Queen and Bishop of Lincolns Case 389. Quare Imp. The Case was The Bish of Lincoln Patron and Ordinary collated to a Benefice in 8. Eliz. The Incumbent took another Benefice without Qualification by which the first was void The Successor Bishop 18. Eliz. presented one E. but non constat if
not avoid it and therefore Resolved that it was a joynt Estate and that the Proviso should not sever it Hudson and Lees Case 402. In Appeal of Maihem The Defendant pleaded that the Plaintiff had brought an Action of Battery and recovered therein for the same Battery and Wounding upon which the Appeal was brought and it was adjudged a good and sufficient Plea in Bar. Lee and Lees Case 403. A. had three Sons F. I. and G. he devised his Land to I. for 21. years to the intent to perform his Will and pay his Debts and he made him his Executor and if I dyed within the Term then G. to have the like Term as I. had and G. then also should be his Executor and devised the Land to F. in tail the remainder to I. in tail the remainder to G. I. entred F. died without Issue I. had â—ssue P. the Defendant and died within the Term It was the opinion of the Court That if Land be devised for years to one and if he die within the Term that another shall have the residue of the years that no Act of the first can prejudice the Remainder of the second but otherwise if one who hath a Term deviseth his Term with such a Remainder and a difference taken between a devise of the Term and a devise of the Land Beverley and Cornwell 's Case 404. Note in this Case which Case vide before That if any Advowson comes to the Queen for forfeiture by Outlawry and the Church becomes void and the Queen presents and then the Outlawry is reversed for Error yet the Queen shall enjoy the Presentment because it came to the Queen as a profit of the Advowson but if the Church be void at the time of the Outlawry and the Presentment is forfeited as a Chattel principal and distinct and then the Outlawrie is reversed the party shall have restitution of the presentment More and Hales Case 405. The Case was A Vicar let his Viccarage and all his Glebes and Tythes to I. S. for 21. years rendring 22. l. rent to him and his Successors which Lease was confirmed by the Patron Dean and Chapter the Lessee assigned over his Term to the Plaintiff and averred the Rent was the usual Rent The Plaintiff devised the Viccarage to the Defendant rendring 30. l. per an and for not payment of 15. l. half a years Rent brought debt The Defendant pleaded the Statute of 13 Eliz that no Lease of a Benefice with Cure should continue longer then the Lessor should be resident serving the Cure without absence 80. days and averred the Viccarage was a Benefice with Cure and that before the Rent day the Lessor died and that I. R. was made Vicar Whether the Lease was void the Court was now divided in opinion But vide in Cro. 3. part 131. It was Resolved that in this Case the Lease was void by the death of the Lessor Page and Griffiths Case 406. Ejectione firme the Case was Lessee for Life bargained and sold the Land to one and his Heirs and afterwards 14. Eliz he suffered a Recovery thereof to the use of the Bargainer It was adjudged that the suffering of the Recovery was a forfeiture Spitle and Davies Case 407. A man devised Lands to his youngest Sons Proviso If his Sons oâ— any of their Issues devise any of the Lands before their age of 30. years then the others shall have the Estate the eldest Son made a Lease thereof before his age of 30 years the youngest Son entred and before â—he 30. years ended aliened the Land the eldest Son entred Resolved 1. It was a Limitation 2. That when the younger Brother hath once entred for the Alienation then the Land is discharged of the Limitation Vide Owens Rep. 8. the same Case Ever and Asâ—ons Case 408. The Custom of a Mannor was That if any man had a Wife who was a Copyholder in the Fee of the Mannor and had Issue by her that he should be Tenant by the Curtesie of the Land It was found that A. a Copyhold was seised and had â—ssue a Daughter who was married to I. S. who had Issue A. died his Wife entred the Wife died before admittance The points were 1. If Ejectione firme did lie upon a Lease made by Copyholder 2. If by the entry of the Husband without admittance of the Wife he should be Tenant by the Curtesie The Court doubted of the first point but for the second were of opinion that the Husband was well entituled to be Tenant by the Curtesie before admittance of the Wife and the delay of the admittance by the Lord should not prejudice the husband being a third person Bewacorn and Caters Case 409. Sir Ralpâ— Rowlet possessed of a Term of years devised the same to Sir Robert Cutlin Lord Chief Justice during his Life and after to a strarger and made the said Sir Robert with the Lord Keeper and others his Executors and died The Executors writ their Letter and annexed the Will unto it to Doctor Dlae praying that because they could not attend the Execution of the Will that he would condition the Administration to I. S. which he did so reciting in his Register Quia Executores distulerunt adhuc differunt executionem Testamenti Afterwards Sir Robert without assent of the Administration entred into the Term and devised it The point was if the Letters so written was a Refusal of the Executorship It was Resolved by the Justices after the Case had been argued by the Civilians in Court that it was a Refusal of the Executorship Osborn and Gameones Case 410. The Case was I. levyed a Fine of 48 â— 8. d. Rent charged in W. to I. S. and his Heirs and the use was to such persons as I. S. should declare who afterwards declared the use to I. D. and his Heirs and the Defendant in a Replevin avowed as Bayliff of I. D. It was demurred unto because he did not shew any Attornment The Question was If Cestuy que use of a Rent in esse grant a Rent by Fine after 27. H. 8. might avow without attornment Quaere not Resolved Ognell and Pastons Case 411. In Debt in the Exchequer The Case was W. and F. acknowledged a Recognisance of 200. l. in the Chancery to the Plaintiff for payment of mony at a day to come they failing upon two Scire facias issued and nibil returned a Levari fac issued to the Sheriff of N. and afterwards a Capias ad satisfaciendum to the Defendant the Sheriff who arrested W. the said W. being then in his Custody upon an Indictment of Felony who after upon his arraignment was found Guilty of the Felony and afterwards he escaped being let at large The points were First if a Capias did lie upon a Recognisance in Chancery Second if it did not lie yet if it was void or voidable Third if the Conviction of Felony had discharged the Execution Resolved That if the Chancery had consideration of
Consideration of Blood Covenants with B. his brother to stand seised to the use of himself for life and after the use of B. in tail the remainder to the right Heirs of B. Provided that if A. by himself or by any other during his Natural life tender to B. a Gold ring to the intent to make void the said use that then the said uses should be void Afterwards A. 26 Eliz. is attainted of Treason and Outlawed for it and the King makes a Lease of the Lands to C. and D. for 40 years The attainder is confirmed by Act of Parliament and Enacted That the said Act shall not extend to make any Lease void made by the K. after the said Treason Also Enacted that all persons which claim an estate or interest in Land not enrolled since 18 Eliz. shall within 2. years after the Session of that Parliament shew and bring into the Court of Exchequer his or their Grant or assurance to be void The King reciting the Proviso and benefit thereof given him by Act of Parliament authorizeth E. to deliver the Gold ring to B. to the Intent to make void the uses he reads the Patent to B. and makes a tender to him which he refuseth to accept of E. certifies the same into the Exchequer This Case was very largely and Learnedly Argued by all the Serjeants and others at the â—arre which vide in the Book at Large afterwards it was argued by all the Barons in the Exchequer and there amongst other things it was Resolved by them That the Condition in the principal Case viz. the tender of the Gold ring was not annexed to â—he person of A. but that any one might make the tender and thaâ— it was given to the King by the Act of Parliament and when a Statute gives a Condition to the King the performance of it which is the substance and which is not inseparably annexed to the person is given to the King 2. That the Tender and Certificate of it was good without Office found 3. That presently by the tender the uses were determined and the Land vested in the King by force of the Act of Parliament The Earl of Northumberlands Case 434. A. 15 June 22 Eliz. bargained and sold the Mannor of D. to the Earl of Northumberland and his Heirs who because the Land was holden in Capite 3. Sept. the same year purchased a License of Alienation in Octob. the same year a Fine was Levyed for further assurance and in Novemb. the same year the Deed was enrolled The Queen seised the Lands for a Fine for Alienation without License It was adjudged the Queens hands should be removed from the Land because the bargainee was now in by the Fine and not by the bargaines and sale and also because the Licence did precede the Fine the Alienation was not made without License Yardley and Prestwood and others Case 435. In a Quare Impedit It was holden by the Justices in this Case That a double usurpation upon the Queen did put her out of possession of Advowson and put her to her Writ of Right of Advowson But the Law hath been taken since that time and so adjudged that a double usurpation did not put the Queen out of possession of her Advowson Vide 33 Eliz. Hassies Case Tr. 4. Jac. The King and Champians Case accordingly Isabell Mordants Case 436. An Enfant Levyed a Fine to the Queen The Queen granted the Lands to Bowes Treasurer of Barwick Error brought to reverse the Fine Bowes pleaded in Barre the Statute of 18 Eliz. It was Resolved that notwithstanding that Statute the Writ of Error did lye for that Statute did not extend to make grants good of such persons who could not make grants by the Common Law as Enfants persons of Non sane Memorie c. Sir Mayle Finch and Hen. Finches Case 437. The Mother of Sir Moyle Finch and the Defendant in her Widdowhood levyed a Fine to the use of her self for life and after her death to the use of her Executors for 5. years and after to Sir Moyle in Tail with divers remainders over and afterwards she maried I. S. and she with I. S. granted the Terme of 5. years to Sir Moyle and after that she and her Husband levyed a Fine to Sir Moyle and I. D. and after that the Wife with her Husbands assent made her Will and made the Defendant her sole Excecutor and dyed the Defendant entred It was agreed by the Justices 1. That the use limited to the Excecutors was good 2. That the Wife could not grant it in her life time 3. That it was extinguishable in the Wife by a Fine come ceo c. but not by a Release 4. That the Fine sur Conusans de droit c. had extinguished the Terme and the said Fine had made such a disturbance of the possession that the use being future at the instant of her death in the Excecutors could never rise 5. That a Feme Covert with the assent of her Husband might make a Will but not thereby to dispose of Legacies 6. It was adjudged for the Plaintiff because the Wife who had the estate for her life had levyed a fine sur Conusans de Droit c. 438. Action upon Indebitatus Assumpsit solvere It was Resolved the Plaintiff could not give in evidence matter of specialty to prove his debt but he might give in Evidence matter of Contract Fitzherberts Case 439. He was Arrested in Execution by the Sheriff of Derby the 3. day of Feb. at 7. of the Clock in the Morning and the same day at 10. of the Clock he was elected a Burgesse of Parliament for the Borrough of New Castle It was agreed in Parliament because he was arrested before he was chosen Burgesse he could not have the Priviledge of the House Hunger and Freys Case 440. A man had recovered in Debt and had Judgment and an Elegit and had an extent delivered him and Nihil as to goods Afterwards he suggested the Defendant had more Lands goods and chattells in the same County and had a New Elegit and upon that he had a Lease for years in Execution and no other Land was found It was adjudged that the sale of the Lease for years by the Sheriff and delivery in Execution was good Townsend and Walleys Case 441. A man had 6 l. Land in possession and Lands in Peversion upon an estate for life and by his Will he deviseth all his Lands to his Excecutors for 10. years to pay his Debts and perform his Will and after the 10. years ended that his Executors or one of them or the Executors of his Excecutors or any of them should sell his Lands and he made diverse Excecutors and gave 40 l. Legacies by his Will and dyed After the 10. years 2. of the Executors sold the Land 1. Resolved that the Land in reversion might be sold as well as the Land in possession 2. That the sale by the 2. Executors was
a good sale by the intent of the Will 3. Resolved that the devise that his Excecutors might sell was a good sale within the Statute of Wills though the words of the Statute are That a man having Lands holden in socage might devise two parts of it and that by the Equity of the Statute Yelverton and Yelvertons Case 442. A man seised of Lands Covenanted to stand seised thereof to the use of his eldest Son and also of all the other Land which he after should purchase he Covenanted that he and his Heirs would stand seised to the use of his eldest Son Afterwards he purchased Lands to him and his Heirs by bargain and sale Adjudged that the purchase could not be intended to other use then to him and his Heirs Sir Hugh Cholmeleys Case 443. The Case is very long but is this in effect viz. Tenant in Tail the remainder in Tail he in the Remainder bargained and sold his Remainder to A. for the life of the Tenant in Tail and after his death the remainder to the Queen in Fee Tenant in Tail in possession suffered a Common Recovery The Queen granted her remainder to Tenant in Tail and his Heirs Afterwards he in the remainder bargained and sold his remainder to B. the remainder to the Queen upon Condition another Recovery was had Tenant in Tail dyed without Issue It was Resolved in this Case that he in the Remainder and all Claiming under him were barred by the Recovery 2. That the Common Recovery did bar the Tenant in Tail and the estate of A. in the remainder although the Remainder was in the Queen 3. That the grant of the Queen to the Tenant in Tail and his Heirs was a good grant Corbett and Marshes Case 444. Error brought upon a Recovery in Dower because the Tenant was not summoned by 15. dayes nor Proclamation made thereof at the Church door Because the party had remedy against the Sheriff the Court would not allow of the Error Crispe and Fryers Case 445. Copyholder in Fee rendring Rent at Mich. and our Lady-day The Lord at the last instant of the day of payment demands the Rent upon the Land and the Copyholder is not there to pay it Qu. If it be a forfeiture the better opinion of the Justices was that it was a forfeiture Paramour and Verwolds Case 446. False Imprisonment the Defendant justified by a Recovery in Debt in Warda de F. London and a Writ of Execution in Sandwich in Kent absque hoc that he was culpable in London The Plaintiff said that he was culpable at London absque hoc that there is tale Recordum in Sandwich Adjudge the Yraverse upon the Traverse was good because the place is material Pannell and Fens Case 447. A man seised of Lands and possessed of a Term devised all his Lands and Tenements to his Executors untill they had paid all his Debts and Legacies and levied all charges which they should expend against I. S. or others in Execution of his Will and made two Executors and died the Executors entred generally into the Land and Term and one of them sold the Term to one man and the other sold it to another It was adjudged they took the Term as Executors and not as Devisees and yet they took the Freehold as Devisees and they said that the words of the Will as to the Term was no more then the Law gave and that they should have it as Executors Blackwell and Eyres case 448. Issue was joyned betwixt the Lessee of the Plaintiff and the Defendant in an Ejectione firme which was to be tryed at the Assizes The Defendant in consideration the Plaintiff and his Lessee should forbear to enforce their Title and give slender evidence against the Defendants promised to pay a certain Sum of money to the Plaintiff Vpon Non assumpsit it was found there were two Issues joyned in the Suit and the Defendants had not joyned but one of them had pleaded the general Issue and the other a special Plea It was adjudged for the Plaintiffs because the common Speech is the Parties have joyned issue Walker and Harris Case 449. It was adjudged in this Case That although Lessee for years assignes over his Term yet Debt lyeth against himself for the Rent by the Lessor or his year Moss and Packs Case 450. A Recoverie was had against the Executor of I. D. of debt and damages And Fire fac issued de bonis testatoris si si non damna de bonis propriis the Executor dyed the Sheriff did execution of the Goods of the Testator before the Return of the Writ and adjudged good Portman and Willis Case 451. It was adjudged in the Case that by a Devise of omnia bona a Lease for years did pass if there be not other circumstances to guide the intent of the Devilor 2. Resolved That if a Copyholder for life or years surrender to an use that the surrender is good and the use void as a surrender rendring Rent with Warranty shall be a good Surrender and the Rent and Warranty void Beswick and Combdens Case 452. Action upon the Case for not keeping a Bank by reason of which the River drowned his Land It appeared upon the evidence that it was levyed and kept before by one who enfeoffed the Defendant Yet it was adjudged that the Action did lye against the Feoffee for the continuance of it Fuller and Fullers Case 453. The Case was A man had four Sons and devised his Land to his youngest Son named R. and the Heirs Males of his Body with the Remainder successively to the other three and the Heirs Males of their Bodies the first Devise dyed in the life of his Father having Issue Male After which the Father said I will that my Will stand good to the Children of R. as if he had over lived me but the words were not put in writing The point was If the Children did take by the devise or by discent Quaere The Court was divided in opinion The Dean and Canons of St. Pauls and others Case 454. King Edward the Fourth by his Letters Patent granted to the Dean and Canons and their Successors that they should be discharged of Purveyance the Charter was confirmed by King Henry the Seventh and also by King Henry the Eight The Statute of 27. H. 8. was made That Purveyors assigned by the Kings Commission for provision for him his Queen and Children might provide all Victual Corn c. as well within Liberties as without any Grants or Allowances to the contrary Queen Mary granted that no Purveyance should be taken of the Dean and Canons and their Successors against their Wills notwithstanding the Statute of 27. H. 8. and Queen Elizabeth reciting all the Patents granted to the Dean and Canons doth confirm them It was Resolved That the Charter granted to them was good Wherefore that they should be discharged from all Composition for Provisions for the Queen Preston and Hinds Case 455. Error
made Title by a Demise in Fee to himself the Plaintiff traversed the Custome and the Custom was found to demise in Fee or for Life but not in Tail It was adjudged that the Issue was found for the Defendant because the substance was found for him and the tail was but Inducement Ewer and Heydons Case 468. A. seised of three Houses and other Lands Pastures and Meadows in W. in the County of H. and of Land in the County of O. devised in this manner viz. I give my Capital Messuage in the County of O. and all other my Lands and Meadows and Pastures in the Parish of W. That the Houses passed by the Devise for that Land comprehends Houses The Bishop of Worcesters Case 469. The Bishop presented a Felon at the Sessions at Newgate who had stollen a Bason and Ewer from him for which the person was attainted and a Writ of Restitution awarded to the Bishop In Bar of the Restitution a Scrivener of London a Freeman came and said That every Shop in London is a Market overt and that he bought the Bason and Ewer in his Shop being a Scriveners Shop Adjudged the sale of it in the Scriveners shop did not alter the propriety of the Plate for it was not a Market overt for such things And it was said That any Shop in London by Custom was a Market overt for the buying of all things It was Resolved that such a Custom was an unreasonable Custome The Lord Norths Case 470. Christ Church in Oxon is incorporated by the Name of Dean and Chapter Ecclesiae Cathedralis Christi de Oxon and they made a Lease by the name of Dean and Chapter Ecclesiae Cathedralis Christi in Academia de Oxon and the Liberties de Accademia did extend further then the Liberties of the City yet it was adjudged a good Lease because the substance of the Corporation was inserted in the words of the Lease Bullen and Bullens Case 471. The case was S. B. being Cestuy que use before the Statute 27. H 8. devised to his Wife certain Lands for her Life and that after her decease R. B. his eldest Son shall have the Land 10 l. under the sum or price it cost and if he died without Issue F. â— his Second Son should have the Land 10. l. under the price it cost and if he died without Issue of his Body then his two Daughters A. and E. shall have the Land paying the value thereof to the Executors of his Wife The Question was if R. B. the Devisee had an Estate Tail or not It was argued it was an Estate tail and it was compared to Frenchams case 2. Eliz. Dyer where a man devised Lands to his Wife for use the Remainder to C. F. and the Heirs Males of his Body and if he die without Heirs of his Body the Remainder over and it was clearly taken that the general Limitation if he die without Heirs of his Body shall not alter the especial Tail On the other side it was said that the Estate was Fee-simple for that the words are That he shall have the Land 10. l. under the price and so the word paying implies a Fee-simple The Court enclined to be of opinion It should be a Fee-simple But the Case was not Resolved but Adjourned Germin and Ascotts Case 472. A. seised of Lands â—n Fee devised the same to his eldest Son and the Heirs males of his body the remainder to his second Son and the Heirs males the like remainder to his third Son the remainder to his Daughter in Tail with remainder over Proviso That if any of the Devisees or their Issues shall go about to alien discontinue and incumber the premisses that then and from the time they shall go about to alien discontinue c. their estate shall cease as if they were naturally dead and from thenceforth it should be Lawfull for him in the next remainder to enter and hold for the life of him who shall so alien c. and presently after his death the Land shall go to his Issue the Devisor dyeth the eldest Son and all the other but the second Son levy a Fine the second Son claimes the said Land by the Devisor It was Resolved in this Case by all the Justices that the Proviso of ceasing of the estates upon an attempt to alien or upon an Alienation was repugnant to the estate Tail and that remainder which was limited to the second Son upon such attempt was void in Law St. Johns Case 473. A. Capias ad satisfaciend was directed to the Sheriff who made a Warrant to a special Bayliff to execute it who arrested the party after a new Sheriff was elected but had not received his Writ of discharge adjudged the Writ was executed well but otherwise if the party had been arrested upon the Warrant after his Writ of discharge was delivered Godwin and Ishams Case 474. Error of a Judgment in debt upon an Oblation to perform Covenant in an Indenture The Covenant was That if the Plantiff pay the Defendant 100 l. at Mich. then the Defendant would pay him 10 l. yearly after during his life and it was alledged that the Defendant did not pay him the 10 l. yearly but did not mention the payment of the 100 l. by him which was assigned for Error It was adjudged No Error because the Defendant by pleading Conditions performed which he did plead had confessed the payment of the 100 l. to him by the Plaintiff The Judgement was affirmed Woodlife and Vaughans Case 475. Words viz. He hath forsworne himself and I will prove him perjured or else I will pay his charges Adjudged the words are actionable notwithstanding the Disjunctive or else I will pay his charges Barton and Lever and Brownloes Case 476. Tenant in tail upon a Recovery had came in as Vouchee It was Resolved that in such Case he had barred his Issue from any Writ of Error to reverse the Fine and it was said That it was adjudged Mich. 32 Eliz. in Carringtons Case That if Tenant in Tail levyeth an Erronious Fine and afterwards levyeth another Fine the Issue in Tail was barred of his Writ of Error upon the first Fine Rolls and Germins Case 477. It was Resolved in this Case where the Testator retained an Attorney of the Common Pleas to prosecute a Suite in that Court That an Action will lye for his Fees which be due to him in that Suit against the Executor of the Testator because the Testator in such Case could not wage his Law but for monies expended in Suites in other Courts by the Attorney the Action will not lye Welcombs Case 478. Debt brought to answer to Tho. Welcomb Excecutor of Joh. Welcomb The Judgment was Quod praedict Johis recuperet where it should have been Quod praedict Tho. recuperet Resolved it was not amendable because no default in the Judgment is amendable being the Act of the Judges and not of the Clarks 479. The Bargainee Covenanted
was deceived in her grant 2ly That the Patent a die Consectionis for life was void 3. Resolved That the Lessee for years could not be an Occupant against the Queen Banks and Whetstones Case 487. A Recovery and Judgment was in a base Court in a Plaint in detinue of 4 l. of mony the Judgment was Reversed because that Action nor a Replevin doth not lye of money Hawle and Vaughans Case 488. In a Writ of Entry in the Quibus brought in Wales the Defendant pleaded Non disseissivit pendant which plea the general pardon 35 Eliz. was made by which all Fines Amercements and Contracts were produced It was Objected the Defendant ought to have been Amerced because the general pardon did not discharge the Amercement Resolved the Original Cause of the Amercement was the Tort and contempt that he did not render the Land to the demandant and the Original Cause being pardoned the Amercement which is the Consequent of it is pardoned Oland and Burdwicks Case 489. A Woman who had her Widdowes estate of Copyhold Land sowed the Land and before severance took Husband The Lord took the Emblements and adjudged Lawfull because the estate of the Woman determined by her own Act. Short Tucker and others Case 490. In Replevin the Defendants avowed as Bayliffs of the Queen for an Amercement and then one of them dyed Adjudged the sute should not abate Harbin and Bartons Case 491. Two Joynt tenants in Fee one made a Lease for years to begin after his decease and dyed Resolved it was a good Lease against the survivor Vide Sharpner and Hardenhams Case adjudged in the Dutchy Chamber accordingly Gramminham and Ewres Case 492. The Condition of an Obligation was whereas the Obligee is bound in certain Obligations the Obligor is to deliver them to the Obligee before Mich. or else if the Obligor seal an acquittance to the Obligee such as the Councel of the Oblige shall devise then the Obligation to be void Resolved that the first part of the Condition was a Condition the 2d part of it gave an Election to the Obligor but if there be not any such devise of Acquitance yet the Obligor is to performe the first part if there be such devise of an Acquittance the Obligor hath his election but if the Councel devise no Acquittance it is no discharge of the whole Condition Castleman and Hobbs Case 493. Words viz. Thou hast stolen half an Acre of Corn innuendo Corne severed adjudged the words not actionable But if he had said he had stolen so many Loads or Bushels there the innuendo shall be intended Corn severed Wilson and Patemans Case 494. The next of blood sued to repeal Letters of Administration granted to a stranger pendant which the stranger sold the goods and afterwards the Administration was Repealed and granted to the Plaintiff It was Resolved that in this Action the Defendant was not Chargeable though he Converted the goods The Action was Trover and Conversion and the fale good for any thing appeareth in the Case Watsons Case 495. Debt against Executor who pleaded fully administred the case was the Wife of the Defendant was made Executrix and she by fraud to deceive the Creditors made a gift of the goods before her mariage with the Defendant and yet she kept them and took Husband the Defendant and dyed and the Husband had in his hands so much of the goods as were sufficient to pay the Creditors It was adjudged against the Defendant because he had confessed himself Executor by his plea of fully Administred and the property of the goods did not passe from the Wife by the grant the same being by fraud Richardson and Yardleys Case 496. A man devised Lands to his Wife for life and after to his Son and if he shall dye without Issue to the Child which his Wife goeth with she being great with Child and its issues in Tail And if my Wife dye and my Children without Issue of my Children living then Land to remain to I. S. and his Wife and after their death to the their Children The point was if I. S. had an estate Tail or an estate for life the remainder in Tail to his Children The Court was divided in opinion but the better opinion seemed to be that he had an estate Tail Quaere Reynolds and Claytons Case 497. Debt upon Obligation of 60 l. The Case was it was agreed between the Plaintiff and Defendant 14 December that the Plaintiff should lend the Defendant 30 l. to be repayed the first of June following and that the Plaintiff should have 3 l. for the forbearance if the Plaintiffs Son should be then living and if he died then to repay but 26. l. of the principal money It was Resolved that it was an Usurious contract within the Statute of 13. Eliz. of Vsury Roos and Awdwicks Case 498. In Ejectione firme the case was A. seised of Lands made a Lease to I. S. Habendum to him and his Assignes for his own Life and for the lives of two of his Sons the Lessee made a Lease at Will and died he in the Reversion entred upon the Tenants at Will Resolved It was a good Lease for three Lives against the Lessor and if the Lessee made an Assignment of it it shall be good for the three Lives but if he do not the Occupant shall have it for the two Lives after the death of the Lessee himself Wrights Case 499. Quare Impedit It was Resolved in this Case That if a Church become void by Cession viz. by making the Incumbent Bishop that the Queen shall have the Presentation and not the Patron Hide and the Dean and Canons of Windsors Case 500. Covenant The case was Lessee for years covenanted Reparare sustentare domus c. ad omnia tempora necessaria durante Termino and did not covenant for him and Assignes Upon Issue joyned it was found for the Plaintiff Error brought because the Issue is non permisit essem de casu and the Covenant is Reparare The Court held it no Error because non reparare is all one with permittere esse in decasu 2. It was Resolved that the Covenant did lie against the Assignee though Assignees were not named in it because it was a Covenant inherent to the Land Marshall and Vincents Case 501. In a Scire facias against the Bail he pleaded that the Plaintiff had arrested the party who was condemned in Execution in the Staâ—nary Court so as he could not render his Body Adjudged no Plea because he might remove his Body with a Corpus cum causa and so bring him into this Court. Sawyer and Hardys Case 502. A Lease was made to a Widdow for 40. years upon this Condition Si tamdiu vixerit vidna inhabitaret supra praemissa She died within the Term being a Widdow Adjudged the Term was not determined but should go to her Executors Otherwise if the Lease is made for 40. years if she shall so
abate upon the Plaintiffs own suing Strowde and Willis Case 521. Debt upon an Obligation The Condition was If the Obligor shall pay the Rent of 37 l. yearly at two Feasts according to the intent of certain Articles of Agreement made between the Obligor and Obligee during the Term that then c. The Defendant pleaded the Articles did contain That the Obligor Dimisit ad forman tradidit to the Defendant omnia talia domus tenementa terras in Parochia de Y. in quibus the Obligee had an Estate for Life by Copy according to the custom of the Mannor Habendum for 21. years if the Obligee should so long live rendring to the Obligee during the Term 37. l. to be paid at the Castle of C. and further pleaded That at the time of the making of the Articles the Obligee had not any Estate in any Lands Houses c. in Y. for term of Life by Copy upon which Plea the Plaintiff demurred There were two points in the case 1. If nothing passed by the Articles and so the Reservation of the Rent is vod 2. If the Obligation for payment of the Rent was void It was Resolved upon the first point That no Rent is reserved for the Lease did never begin and therefore the Rent should not For the second point the Court differed in opinion Fenner Justice held the Condition of the Bond is to pay the Rent according to the Articles which is That if the Lessee have not the Land the Lessor shall not have the Rent Papham cont That the Obligor is bound to pay it although nothing was dimised to him for that by the Bond he hath made it a Sum in gross and it is altered from the nature of a Rent and he is bound to pay the Rent or Sum and if this be either of them he must pay it Qu. There is no Judgment in the Case upon that point Alsop and Claydons Case 522. Assumpsit That the Defendant upon good consideration promised to pay the Plaintiff 5 l. when he should be required The Jury found that the Defendant promised to pay but found no Request wherefore it was adjudged against the Plaintiff Perin and Corbets Case 523. In an Appeal the Defendant was acquitted of the Murder and found guilty of Man-slaughter It was agreed in that case that the Plaintiff could not be Nonsuit Brown and Brinckleys Case 524. The Plaintiff declared that he was produced for a Witness the Defendant said he was disproved before the Justices of Assize by the Oath of K. innuendo that he was disproved in his Oath Adjudged that the Action did not lie for the innuendo cannot supply such intendment Adderby and Bouthbyes Case 525. Assumpsit in consideration the Plaintiff would be Bail for one F. in a Plaint that Adderby had brought in London against F. the Defendant did promise to save the Plaintiff harmless touching the Bail and shewed a Recovery was against F. and 2. Cap. returned non est inventus upon which Process issued against the Bail who paid the money and the Defendant had not saved him harmless It was found upon Non assumpsit the first Action was entred by the name of Adderby and the Bail accordingly and that the Decleration was by the name of Adderley It was adjudged that although the Jury found the Assumpsit yet the special matter proves the Plaintiff had no cause of Action for he was not damnified by reason of the Bail at the Suit of Adderby for which the Assumpsit was but he was wrongfully taken if he was Bail for Adderley against whom the Recovery was had whereas in truth he was not Bail for him wherefore it was judged against the Plaintiff Austin and Twins Case 526. The Patronages of two Churches adjoyning within one mile were belonging to one Parson and both being void and of the value of 7 l. in the Queens Books the Ordinary made an union of them at the request of the Patron which was afterwards confirmed by the Patron and the Queen Qu. If a good union Tusking and Edmonds Case 527. A Lease was made of Tythes rendring Rent at a place out of the Parish with clause to be void upon non payment Adjudged the Lessor is to make his demand of the Rent at the place and for not payment the Lease is void Broughton and Mulshoes Case 528. False Imprisonment The Defendant justified that he was Constable and the Plaintiff being in the presence of a Justice of Peace not having opportunity to examine him commanded he Dedant to take the Plaintiff into his custody till the next day which he did accordingly It was adjudged a good Justification though not alledged what cause the Justice had to imprison the Plaintiff Megs and Griffins Case 529. Words viz. I. S. told me that he heard say That thou didst poyson thy first Husband and that he died of that poyson with an averment that I. S. near told the Defendant so Yet adjudged that neither words nor the averment of them were sufficient to maintain the Action Brokes Case 530. Words spoken of a Merchant viz. He is a false man and I will prove it and be keepeth a false Debt-book for he charged me with a Piece of three Piled Velvet which I never had Adjudged the Action did not lie without saying That by disswasion of Customers or other they did not deal with him nor that they would not trust him The Lord de la Ware and Pawlets Case 531. Words spoken of the Plaintiff in open Sessions viz. You have perverted Justice and to your shame and dishonour I will prove it adjudged the words actionable Weekes and Taylors Case 532. Words viz. he hath laid in wait to rob and was one of them that would have robbed me adjudged actionable though he was not robbed Carters Case 533. Words viz. Carter is a proging pilfring Merchant and hath pilfred away my coâ—n from my Wife and my Servants and this I will stand to adjudged the words are not actionable Bowyer and Jenkins Case 534. Action upon the case for words spoken at B. in the County of S. the Defendant justified that he spake the worda at C. at a Tryal there being produced as a Witnesse by Subpoena and sworn The Plaintiff said de injuria sua propria and found for the Plaintiff and because the venire was from B. whereas it ought to have been from C. where the Justification was It was adjudged Error Penniman and Rawbanks Case 535. Action for slandring his Title That the Plaintiff was seised of Land and put it to sale and the Defendant said I wish not any man to deal with the Land for I know one that hath a good Title to it and the parties will not depart with their interest for any reason The Defendant Justified that he had a Lease in Reversion of it and at will of other part It was replied de injuria sua propria and found for the Plaintiff Resolved by the Justices If
one saith he hath Title or Interest to anothers Land an action doth not lye although he hath no Title but when he saith that another hath Title he cannot salve the same by applying the same to himself for his Justification Shaw and Thompsons Case 536. A Woman recovered Dower of a Copyhold within the Mannor and 40 l. damages because her Husband dyed seised and she brought Debt for the damages in B. R. adjudged it did not lye because the Court Baron could not hold plea not award Execution of 40 l. damages although the damages were there well assessed Huntbage and Shepheards Case 537. The Issue in an Ejectione firme was if Jemet the Wife of the Defendant was alive at the time The Jury found Julian the Wife of the Defendant was alive It was the opinnion of the Justices they cannot be intended one person without finding that by the Custome of the Country Weomen baptized by the name of Julian had been called Jemet Stile and Buts Case 538. Trespas for carrying away Clay the Defendant Justified by a Prescription as a Tenant of the Mannor but because the Clay was digged by another and not by the Tenant the Justification was ruled not to be good Doggerell and Pokâ—s Case 539. Covenant upon an Apprentiship the Defendant pleaded a By-law in London where he was Apprentice by the Common Councell That if any Freeman takes to Apprentice the Son of an Alien the Bonds and Covenants should be void It was adjudged no plea for that the Common Councel cannot make the Bonds and Covenants void but may Impose a Fine upon the Master for taking such an Apprentice Bab and Clerks Case 540. False Imprisonment the Defendat Justified That the Borough of St. Albans had authority by Charter to make By-lawes and they made a By-law That if any Burgesses give opprobrious words to the Major he should be Imprisoned of the Major at his pleasure and that he being Major sent an Officer to the Defendant being a Burgesse to come to the Common Hall for the affairs of the Town and he sent him this Answer Let the Major come to me if he will for I will not come to him Adjudged the Justification was not good that the By-law was not Lawfull and that the words were not opprobrious words Reynold and Purchowes Case 541. Assumpsit where the Plaintiff had recovered 4 l. against the Defendant in Consideration the Plaintiff had given him 3 l. he promised to acknowledge satisfaction and had not done it It was said it was no Consideration to pay that to him which is due The Court held the Consideration good because speedy payment will excuse and prevent travail and expense of Suit Gregory and Blasfields Case 542. Error of a Judgment in Ludlow upon the Statute of 4 and 5 Mar. for weaving of wollen Cloathes It was assigned that the Statute of 5 Eliz. had abrogated that Statute The Court said the Statute of 5 Eliz. had not abrogated it but encreased the penalty But because the Suit was there by Bill or plaint but ought not to be but by Writ or Information the Judgment there was Erroneous 543. The Custome of a Mannor was layed to be That if a Copyholder hath 2. Sons and a Wife and dyes and the eldest Son hath Issue and dyeth in the life of the Wife the younger Son shall have the Land The Issue being upon the Custome The Jury found the Custome That the younger Son shall have the Land unlesse the eldest was admitted in his life and paid the Lords Fine The Court held the verdict to be insufficient to prove the Issue Walter and Dawes Case 544. Assumpsit upon a promise to pay 20 l. yearly for 10. years to the Testator of the Plaintiff in consideration the Testator had granted him the Office of the Clerk of the Fines in the Counties of B. C. and Glamorgan The Defendant pleaded he did not exercise the said Office and the Venire was awarded in the County of Worcester It was adjudged against the Plaintiff because there they cannot take Notice of the Issue Necton and the Wardens of Wexchandlers Case 545. The Plaintiff sued a Prohibition against the Defendant upon Libell exhibited by them for a Legacy given to them by the Testator of the Plaintiff The Plaintiff surmised that there were divers Obligations for monies depending and Suits But in Conclusion the Defendants had a Consultation upon security to repay the Legacies to be there recovered by them if any things were Recovered by the Excecutors upon the Obligations Vide this case more largely Reported in Cr. 3. part 467. Wright and Major and Commonalty of Wickhams Case 546. Error was brought to reverse a Fine viz. that the Ancestor dyed mean between the Teste and the Return of the Writ of Covenant The Defendant pleaded that after the death of the Father the Plaintiff entred into parcell of the Land and made a Feoffment It was the opinion of the Court that he was barred by his entry and Feoffment of part upon the difference If a man hath an Action to Land if he suspend or extinguish it in part it is extinct in the whole but if he hath right to Land he may Release or suspend it in part and remain good for the Residue and upon this point the Judgment was reversed Welshes Case 547. Note It is the same case with the case of Attonwood Reported at Large in Cook 1. p. of his Reports upon the points there more largely debated and adjudged and therefore I have forborn here to abridge it I shall mention this case put by Pirriam Justice viz. If Tenant in tail be the remainder in tail the remainder to the Queen and Tenant in tail commits Treason and the Queen makes a Lease and the Tenant in tail dyeth without Issue and afterwards he in the Remainder dyeth without Issue that this Lease shall continue good upon the Reversion Lord Darcies Case 548. Quo Warranto for using a liberty to be exempt of Purveyance The Defendant pleaded that King Edward 4 granted to the Dean and Cannons of St. Pauls and their successors the said liberty within all their Lands and averres that they were seised of the Land in which at the time of the Grant and that afterwards the said Lands came to Edw. 6. who granted the same to his Grandfather and his Heirs with a Clause de tanta talia consimilia libertates c. quae quot qualia quanta the Dean and Canons or their predecessors ever had by reason of any Charter Grant of any of the Progenitors of the said King with a general non obstante aliquo Statuto c. It was Replyed that 27 H. 8. it was enacted by Parliament that the Kings Purveyors should execute their Commission in all places aswell within Liberties as without any Charter c. notwithstanding The Court was of opinion for the Queen because at the time of the Grant of tot tanta talia libertates the
liberty of Exemption was extinct by the Act of Parliament and the Kings intent was not to grant such a Liberty as was excinct and as to the non obstante it was not sufficient being general but if the Grant or non obstante had been particular there the Grant should have been good Matthew and Woods Case 449. Judgement was given in B. R. in an Action upon the case for words the Plaintiff there brought another Action in C. B. for the same words and had Judgment to recover Error was brough upon the Judgment in B. R. the Court was of opinion to confirme the Judgment in B. R. but they in discretion would not grant execution upon it but only upon the Judgment in their own Court Thimblethorps Case 550. Words viz. when wilt thou bring home my Husbands sheep which thou hast stollen adjudged actionable and the damages to be paid by the Husband Hilliard and Constables Case 551. Words spoken of the Plaintiff a Justice of Peace and Vice President of York viz. He is a blood-sucker and thirsteth after blood but if any man will give him a couple of Capons or a score of Weathers he will take them It was adjudged the words were not Actionable because he may thirst for blood in care of Justice Wheeler and Collyers Case 552. Assumpsit against an Administrator whereas the Intestate was in his life endebted to him 17 l. in consideration the Plaintiff would deliver to the Administrator 6. barrells of Beere he promised to pay the whole 20 l. being found for the Plaintiff Judgment was stayed because the action did not lye joynt for two sums of money Colmans Case 553. In consideration of 4 d. one promised to pay 10 l. upon non Assumpsit Damage shall be given to 10 l. and not to 4 d. adjudged Awder and Nokes Case 554. Lessee for years assigned over his Terme by deed to I. S. and Covenanted that I. S. and his assignes should enjoy the Land during the Terme without Interruption of any After I. S. assigned over his Terme by word and the Assigne being disturbed brought Covenant adjudged it did lye although the Assignement was but by word because there was privity of estate Paramoure and Darings Case 555. The Condition of an Obligation was to pay all Legacies which I. S. had bequeathed by his Will Adjudged the Defendant shall be estopped to say I. S. made no Will but he may plead he gave not any Legacies by his Will Grene and Bufkyns Case 556. The Statute of 31 H. 8. gave all Colledges dissolved to the Crown in which there is a Clause that the King and his Pattentees should hold discharged of Tythes as the Abbots held Afterwards the Statute of 1 Edw. 6. gave all Colledges to the Crown but there is in it no Clause of Discharge of Tythes The Parson Libelled in the spiritual Court and the Farmor of the Lands of the Colledge of Maidston in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of opinion that the King had the Lands of the Colledge by the Statute of 1 E. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands comming to the King by that Statute whether they should be discharged of Tythes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Edw. 6. for dicharge of Tythes but it was Resolved by the Justices that unity without Composition or Prescription was a sufficient discharge of Tythes by the Statute of 31 H. 8. 557. Action upon the case for that the Defendant made a Conigree in his own Lands and that the Conies entred into the Plaintiffs Land and destroyed his Corne Resolved that the Action did not lye because they were not the Defendants Conies when they were out of his Warren But in that case it was holden that the Erection of a Conigree or a Dove Cote was presentable in a Leet and finable there 558. Note Resolved in the Court of Common Pleas by the Justices there That an Information doth not lye upon the Statute for Tanning of Leather but only in the Courts of Record at Westminster and not in any other Inferior Courts The Queen and Hussies Case 559. Tenant in Tail of an Advowson the reversion to the King in 32 H. 8. granted it to the King and his Heirs the King granted the Advowson to the party presented Tenant in Tail dyed without Issue the Church became void Resolved that the Advowson did passe out of the Kings Reversion after the estate Tail was determined and that a Quare Impedit brought by the Queen did not lye But in this case it was Resolved That a double presentation would not put the Queen out of possession if she had had Right Nevill and Barringtons Case 560. After Issue joyned in an Ejectione firme and the Jury at the barre ready to try the Issue A Writ was brought to the Justices not to proceed Regina inconsulta in the Nature of Aide and after great debate the same was allowed by the Court Vide aide in personal actions 2 R. 313. Fennor and Plasketts Case 561. It was Resolved in this case That if the Husband distrain for Rent due to the Wife dum sola fuit and Rescous be made he alone may have a Writ of Rescous or at his Election joyne his Wife with him in the Writ 562. A Rescous was returned without shewing the place where Rescous was and the party was discharged Hinson and Baradges Case 563. If the Jury challenge the Sheriff and the challenge be confessed although the Jury be removed and a new Sheriff chosen Yet Resolved The proces shall go to the Coroners 564. It was Resolved in this case that Ejectione firme doth not lye de pecea terrae Hollman and Collins Case 565. A Judgment in the Court of Plimouth was reversed because the stile of the Court was Placita coram I. Majori c. and did not say secundum Consuetudinem villae nec per litter as Patentes c. Kelsick and Nicholsons Case 566. Two Executors were and one of them gave the Obligation to a Stranger for the payment of his own Debt and died The survivor brought Detinue It was adjudged the Action did not lie Sowel and Garrets Case 567. A devise was made to the Son and if he die without Issue or before his age of 21 years it shall remain to another the Son had Issue but dyed before 21. years Adjudged the Son should have the Land and not he in the Remainder and in that Case Ou was construed for Et. Buckler and Harvyes Case 568. The case is very long but this in effect Tenant for Life the Remainder in Fee Tenant for life made a Lease for years the Lessee entred Tenant for Life granted the Tenements to C. Habendum the Tenements from the Feast of Mich following for Life the Lessee for years attornes C. enters and makes a Lease at Will to whom the Tenant for Life
levied a Fine Come Ceo c. he in the Remainder entred In this Case it was Resolved first that the Grant to C. was void for that an Estate of Freehold cannot begin at a day to come 2. That the Grant being void at the beginning the attornment afterwards cannot make it good 3. When C. entred by color of the Grant he was a Disseisor 4 If the Fine had been levied to the Disseisor himself he who had the right to the Remainder might have entred for the forfeiture 5. That the Fine levyed to the Tenant at Will was a forfeiture and he in the Remainder entring upon it had purged the Diseisin 6. It was Resolved in this case that if the Diseisee levieth a Fine to a Stranger the Diseisor shall retain the Land for ever for that the Diseisee against his own Fine cannot claim but by the Fine the Right is extinct of which the Diseisor shall take advantage Abraham and Twiggs Case 569. A seised of Land in Fee by his Will in writing devised 40. l. annuity to I. S. for Life with clause of distress payable at Mich. and our Lady-day and died The Rent was behind at our Lady-day 35 Eliz. I. S. distrained a Replevin was brought and the Plaintiff in the Replevin said â—hat before A. was seised that B. was seised in Fee and enfeoffed divers persons to the use of himself and the Heirs of his Body the Remainder to the use of G. Et haeredum masculorum suorum legitimè procreatorum pro defectu talis exitus ad usum I. D. et haeredum masculorum suorum legitimè procreat pro defectu talis exitus ad opus usum rect haered dicti G. imperpeâ—uum B. died without Issue G. had Issue A. the Devisor The principal point in the Case was If the Limitation to the use of G. and his Heirs Males lawfully begotten and for want of such Issue ut supra without the words Heirs Males of his Body was an Estate tail or a Fee simple in G. for if tail then the Devisor his his Son was seised in tail and his Will of the Rent void It was Resolved he was seised in Fee-simple and not in tail for default of the words Heirs of his body in the limitation of the use Wrights Case 570. In a Prohibition in this case it was holden by the Court that the Bishop of Winchester might prescribe that he and his Praedecessors Farmers and Tenants of Temporal Lands had held their Lands discharged from the payment of Tythes and so might any other spiritual person but Temporal persons could not prescribe in non Decimando but in modo Decimando they might prescribe Marsh and Curties Case 571. Ejectione firme The case was A seised in Fee let a Messuage and 20. acres of Land for years rendring Rent Provided the Lessee shall not parcel out any of the Lands from the House The Lessee devised the house and 10. acres for half a year reserving the other 10. acres the Lessor at the next day accepted of the Rent and notwithstanding entred upon the Land the Lease not being expired It was Resolved That the words in the Proviso were a condition 2. That the condition was broken by the Devise of the House with parcell of the Land as well as if he had devised the whole Land But some of the Justices were of opinion that the acceptance of the Rent after the condition was broken had dispensed with the condition and had barred them of his entry for the condition broken especially if the Lessor had notice of the Condition broken at the time of the acceptance of the Rent Quaere The Lord Norris and Barretts Case 572. Debt for an Amercement in a Leet The case was The Abbot of A. was seised of the Hundred of H. in Com. B. and of Leet appendant to it to be holden by prescription once in the year at Easter The Dissolution of the Abby was found and that the Towns of C. and N. with 20. other Towvs were in the Hundred King Edward the Sixt granted to L. divers Lands in N. which was parcel of the possessions of the Abby and also granted to him Omnes omnimodas Curias Leetas Perquisitiones proficua Curiarum Leetarum fines amerciamenta in N. seu in eorum aliqua seu alicui inde parcellae modo spectant sive pertinent With a further Clause that L. and his heirs should have tot talia tanta hujusmodi consimilia curias Leetas fines amerciament quaecunque prout Abbas c. Infra Messuagia terras tenementa caetera praemissa quamlibet inde parcellam Afterwards Ed. 6. granted the Hundred and the Leet to I. B. and I. D. which by mean conveyances came to the Plaintiff L. conveyed the Land to his second Son under whom the Defendant claims It was the opinion of the Justices That L. had not any Leet by the Grant nor any Amercement nor was discharged from the general Leet because the first clause of the Patent is restrained to Leets and Amercements belonging or appertaining to the Land granted and the Leet which the Abbot and King had was appertaining to the Hundred and not to Land 2. That L. could not have the like Leet as the Abbot for when eadem may be had and the Plaintiff hath words to have eadem if he fail of eadem he shall not have Consimile for eadem remains in the King and if the King hath a Leet none other can have a Leet in the same place because two Leets cannot be in one place simul semel Laughton and Gardiners Case 573. In Action upon the Case Upon a Latitat the Sheriff returned a Cepi habeo Corpus paratum which he had not and the Defendant did demur to it Adjudged the Action did lie because by his demur the Defendant hath confessed his false Retorn but if he had pleaded the Statute of 23. H. 6. and shewed he had taken Bail the Action would not lie Nicholas and Badgers Case 574. The Defendant in an Action upon the case for words by his Council gave in evidence That one I. S. had stollen certain Sheep and that by compart betwixt the Plaintiff and I. S. the Plaintiff did take a Lease of a Close of I. S. in D. to help him to cloak and to keep him from the Felony and that he said He would affirm all to be true that the Council had said It was adjudged that for these words a new Action did lie for although they do not accuse him as an accessary to the Felony but for misprision of Felony which is not Fineable yet it is a great-scandal of any man to say That he cloaks Felony Note in this Case It was Resolved that an Action upon the Case doth not lie against a Counsellor for delivering slanderous words in evidence Boneham and Springs Case 575. Assumpsit in London The Defendant pleaded a Concord in another County for all Matters in any County except London
the Lands in question without mentioning of any estate after the death of his Wife and paying 10 l. a peece to his daughter when they enter and if any of the Sons marry and have Issue male of their bodies and dyeth before his enty in the Land then that issue to have his part D. takes a Wife and hath Issue male in the life of the Devisor and the Wife of the Devisor dyeth and he enters and pays the portion of 10 l. a year to the Daughters and after dyes B. the eldest brother enters upon the Issue male of D. It was adjudged in this case That D. had but an estate for life and not in Tail for there were three things precedent to the Tail the Mariâ—ge the having Issue male his death before his entry and when it appeareth he did not dye before his entry therefore he had no â—ail and by the word paying 10 l. to the Daughters he had not a Fee simple but that is intended to be for the estate which he had Grey and Willougbyes Case 626. The Venire bore date in December which was out of Terme but retornable at a day in the next Terme and the Issue upon distresse was afterwards tryed It was held the same was but a misconveying of proces which was helped by the Statute of Jeofailes but if the Agard upon the Roll had been had at a day out of the Terme then the Court held the same to be Error Tiping and Bunnings Case 627. Note It was adjudged that if a Copyhold be granted for life the remainder to another in Fee the admittance of the Tenant for life is the admittance of him in the Remainder because the Lord is not to have a new Fine upon the death of the Tenant for life Cheney and Hawes Case 628. Assumpsit to deliver to the Plaintiff in London certain monies when he delivers to the Defendant certain broad Cloathes there the Defendant pleaded Non Assumpsit The opinion of the Court was that the Defendant ought to have said by way of Answer that the Assumpsit was special have traversed the general Assumpsit in the Declaration Stowels Case 629. If there be two Joynt Tenants and one sole brings Trespas against a stranger who pleads Notguilty Resolved the defendant cannot give in evidence the Joynt Tenancy but he ought to have pleaded it Core and Hadgills Case 630. After Execution awarded supersedias issued quia improvidè emanavit executio but no cause of Restitution was in the supersedeas for which it was said that Execution was done before the supersedeas awarded The Court awarded a non supersedeas with a clause of Restitution in it Coles Case 631. He was Indicted of Burglary the Indictment was quod burglarit ' domum cujusdam Richardi fregit without naming his Sirname and the Judgment holden good Saundleys and Oliffs Case 632. A man was seised of a Messuage and granted the Messuage with all Commons appurtenant and in Trespas the Defendant did prescribe for Common and did aver that all the Farmors of the said Messuage in the place where c. and because it did appear that there was unity of possession of the Messuage and Land in which the Common was claimed the Common was extinct but if the grant had been all Commons usually occupied with the Messuage it would have passed the like Common and so it was adjudged Lewes and Bennets Case 633. The next Avoydance was granted to 2. the one Released to the other who brought a Quare impedit in his own name It was adjudged maintenable because it was before the Church was void Dover and Stratfields Case 634. King H. 7. gave Land in Tail to I. S. his Issue was disseised a stranger being in possession levyed a Fine with Proclamation and 5 years passed the Reversion remaining in the Crown It was holden that the Issue of him was only bound in whose time the Fine was Levyed and no other Issues and that by the Statute of 32 and 34 H. 8. 635. Action upon the case because for money he sold to him Tythes sciâ—ns that he had not any right in them Adjudged the Action did lye by the sciens though there was no direct saying that he had not any right in them Beamounts Case 636. He was taken upon an Excommunicato capiendo and the significavit did not mention that he was commorant within the Diocesse of the Bishop at the time of the Excommunication and for that cause the party was discharged Collins and Willies Case 637. The Father promised 10 l. in mariage with his Daughter the Daughter in consideration thereof promised to pay the 10 l. to the Father upon which promise action upon the case was brought against the Husband It was Resolved that ex rigore juris the Action was maintainable but if the Defendant had pleaded the Covin betwixt the Father and Daughter Popham said the action would have destroyed the Action However the Judgment for the practice was stayed Suliard and Stamps Case 638. Assumpsit that if he being Sheriff would execute a Writ of Execution that he would pay him his Fees due per leges Statuta Angliae and the Plaintiff shewed his Fee was 3 l. the Execution being 60 l. found for the Plaintiff Ir was moved in stay of Judgment that the Plaintiff ought to have shewed the Statute upon which the Fees are due but it was dissallowed because the Action is not an Action upon the Statute so as the Statute ought to be snewed Popworth and Arches Case 639. It was holden in an Accompt that the Defendant cannot wage his Law in accompt for the profits of 14. acres of Land for 6. years Hoe and Beltons Case 640. A Scire fac to have Execution of Damages The Defendant said that the Plaintiff had assigned the damages to the Queen and that the Sheriff by Process out of the Exchequer had extended his Lands for them It was adjudged a good Bar though the Sheriff had not retorned his Writ Hoe and Marshals Case 641. The Defendant was Bail for one F. at the Suit of the Plaintiff F. did not pay the money nor render his Body in a Scire facias against the Defendant the Bail he pleaded that the Plaintiff had released to him all actions after the Bail and before the Judgment It was adjudged the Release did not bar the Plaintiff because the Release was before any duty was due for no duty was by the Bail before the Judgment Coo. 1. part Griffin Lawrence and others Case 642. In Ejectione firme two of the Defendants were guilty and the other not he who was found not guilty died Resolved That the Plaintiff should have Judgment against the others for this Action is but in the nature of Trespass in which the death of one shall not abate the Action Garraway and Braybridges Case Ejectione firme the case was A had Issue F. his eldest Son and B. the Defendant his youngest and conveyed the Lands to the use
Devisees took their estates respectively by the Will or by the Feoffment if by the Will it was void for a third part and a Tenancy in common If by the Feoffment it was good for the whole 2. point when the use of the Feoffment is expressed to such persons as should be declared by the Will and he deviseth the Land if the same shall be said to be a limitation of the use according to the Authority The case not Resolved because the Justices were divided in their opinions It was adjourned Prat and Phanners Case 652. Debt upon Obligation The condition was Whereas Suits have bin brought prosecuted betwixt the Defendant and A his Wife which controversies are now finally to be ended betwixt them if the Defendant do not from henceforth commence and prosecute any Suit or Action in any Court or Courts Spiritual or Temporal against the said A. his Wife for any matter precedent or cause from the beginning of the World but shall from henceforth during the natural Lives of him the Defendant and A. his Wife account of use and maintaine the said A. as his lawful wife to all intents c. then c. The Defendant pleaded he had not brought any Action in any Court against the said A. after the said Obligation and that before A. was married to him she was married to I. S. who is yet alive for which cause he cannot accept of and maintain the said A. as his lawfull wife according to the Form of the Condition upon which it was demurred It was Resolved that the material part of the Condition did consist in the first part of the Condition if he do not prosecute any Suit and the Defendant having pleaded an Issuable Plea to that it is not material if he plead to the latter part of it or not and if his Justification be insufficient the Plaintiff ought not to have demurred upon it But the Court held his Justification to be good because the Condition as to that part is against the Law of God and so the Obligation void And whereas it was objected that he is estopped to plead the special matter of her former Marriage because in the Condition she is called A. his wife The Court said he was not estopped by it because he may confess and avoid it for she may be his Wife as to some purposes but as to use her as a lawfull wife she is not his wife Lloyd and Wilkingsons Case 653. In Ejectione firme the case was A. Rector of C. by Indenture between him of the one part and E. R. W. and T. of the other part devised the same to E. for 80. years if she should so long live and should not alien the premises and if she should die within the Term or should alien that then her Estate should cease and that then the same should remain to R. pro durant ' residuo praedicti termini praedict ' 80. annorum and if he should alien c. ut supra then his Estate should cease and then the same should remain to W. pro durant ' tot annis praedict termini 80. annorum si c. and if he should alien ut supra then his Estate should cease and then the said A. concessit praemissa durante tot annis praedict ' 80. annorum quod ad tunc continuarent remanerent in expiratis to T. his Executors and Assignes A. died F. died E. and R. died The Administrator of F. entred and assigned over the same In this Case it was Resolved That the Demise to R. and W. were void because that the Estate which E. had was not for 80. years absolutely but sub modo under a condition and then the Demise to them pro tot annis quot remanerent after the death of the said E. pro durante residuo termini praedict ' 80. annorum was void for there could not be a residue of the said Term because that determined by the death of E. 2. Resolved That the Lease and Limitation to F. was void for the uncertainty for it was uncertain at the making of the Lease how many years should be behind at the time of the death of E. 3. Resolved That the Demise and Limitation to T. was not good because that R. and W. survived F. which was against the express Limitation for his Estate was limited upon two Contingents Pigot and Hearns Case 654. In Trover and Conversion the case was this The Lord of the Mannor of B. in the Parish of D. did prescribe that he and his Ancestors and all those whose Estate c. had used from time to time whereof c. to pay to the Parson of D. the now Plaintiff and his Predecessors 6 l. per an for all manner of Tythes growing within the said Parish and that by reason thereof he and all those whose Estates c. Lords of the said Mannors had used time whereof c. to have Decimam garbam decimum cumulum garbarum of all of his Tenements within the said Mannor It was in this case Resolved that it was a good Prescription and that a Modus decimandi by the Lord for himself and all the Tenants of his Mannor from barring the Parson to demand tythes in kind is a good Prescription because it might have a lawful commencement 2. It was Resolved That it was a good Prescription to have Decimam garbam in or Decimum cumulum garbarum or gramorum or the tenth Shock for he hath it as a profit appender and not as Tythes 3. Resolved in this case that if the Queen be Lady of the Mannor she might prescribe to have Tythes for that she is capable of them she being Persona mixta capax Spiritualis Jurisdictionis Holcrofts Case 655. A seised of Lands in Fee levyed a Fine thereof to the use of himself for Life the Remainder to B. his Son for the Term of his Life only so long and untill he attempt to alien and then to the use of C. and the Heirs Males of his Body during the Life of B. and immediately after his death to the use of the first begotten Son of B. then after to be begotten and the Heirs Males of his Body and so successively to his Second Third or Fourth Son to be begotten in lawful Marriage and if it fortune the Fourth Son to die without Heir Male of his Body then to the use of C. and the Heirs Male of his Body with diverse Remainders over in tail the remainders to the right Heirs of A. A. dyed B. having only one Son born after the Indenture and Fine which dyed without Issue Male joyned in a Fine with C. to I. S. and I. D. who rendred the Land to B. for 80. years next following if the said B. so long lived and immediately after his Decease to the first begotten Son of the said B. or which afterwards he should beget and the Heirs Males of his Body and so successively to the Second or Third
Sons the Remainder to C. and his Heirs B. never had any Son afterwards but dyed having Issue a Daughter his sole Daughter and Heir Afterwards C. dyed having Issue It was Resolved in this case that it shall be intended in the Limitation of the use that after the death of B. without Issue Male that C. should have the Land as well where no attempt is to alien as where there is an attempt because the words are and immediately after his decease then to the first Son c. by which they conceived that the use which should rise upon the attempt to alien is only restrained to the use of B. for Life 2. Resolved that by the words If it fortune the Fourth Son to die without Issue then to C. and in truth B. never had a Son that the use should rise to C. 3. Reâ—olved when the render was made to B. for 80. years if he should so long live and after his Decease to his first Son c. with the Remainder to C. that all the Remainders were void because the Estate of the Freehold during the Life of B. did not pass by the Render out of the Conusees but the Inheritance compleat did remain in the Conusees 4. Resolved That the Conusance of the Fine is of necessity to be intended to the use of the Conusees because they otherwise could not render by the Fine but if the Render had bin void in all as it is in part then they conceived the use should go according to the Render but not in this case because the Render for 80. years was good and so the use remains in the Conusees The Lord Buckhursts Case 656. The case it self is very long being upon several Conveyances Settlements of very many great Mannors Lands in several Counties within the Realm of England and by her last Will to several persons or to their uses or to her Executors for the performance of her last Will upon which diverse matters of Law did arise which were very largely and Learnedly argued by Council but not Resolved some points in Law were agreed upon and Resolved which vide in Coo. 1. Reports in rhe Lord Buckhursts Case and were these in Substance viz. 1. If a man grant Land for him and his Heirs to another and his Heirs that is a general Warranty because it is not restrained to any person certain 2. If a man seised in Fee-simple hath diverse Evidences some containing Warranty and some not and convey the Land to another without Warranty upon which he may be vouched the Purchaser shall have all the Charters and Evidences as well those which contain the Warranty as the other for in as much as the Feoffor hath conveyed his Estate absolutely and is not bound to Warranty it is reason that the Feoffee for his better assurance have all his Charters as incidents to the Land although they are not granted to him by express words 3. If the Feoffee in the case aforesaid make a Feoffment with Warranty so as he is bound to render in value in such case without express Grant the Feoffee shall not have any Charters which comprehend Warranty upon which the Feoffor may have his Waranty paramount for the Feoffee hath not taken upon him to defend the Title but the Feoffee shall have the Evidences which do concern the possession 4. If A. enfeoff B. with Warranty to him his Heirs and Assignes and B. enfeoff C. with Warranty although that C. may vouch A. as Assignee yet he shall not have the first Deed for B. hath made a Warranty to him and may be vouched and therefore he shall have the first Deed. 5. If A. be seised of a Seignory Rent Advowson or any thing which lies in Grant and grants the same over to B. with Warranty and B. grants the same over to C. with VVarranty C. shall have the Charter although that B. is bound to VVarranty for that it is for his necessity to make his Title and without it he cannot make any defence against A. or any claiming by him 6. If a man maketh a Feoffment in Fee with VVarranty and dieth the Heir of the Feoffee shall have all the Charters which the Feoffor himself may have although the Heir hath nothing by discent for the possibility of discent after Barker and Bornes Case 657. Debt against the Heir upon an Obligation of his Father and Judgment is given against him upon nihil dicit the Judgments shall be general and not only of the Lands special which discend but extend to his own Lands Thompson and Butlers Case 658. An Annuity is granted to a woman for Life she takes Husband the Husband during the Coverture by express words releases the Annuity Resolved that the Release of the Husband doth not extinct the Annuity but that if the VVife survive she shall have it 659. It was Resolved by all the Justices That if the Clerk of the Market do take a Fee of a peny for view only of Vessels which are not defective and doth not Seal them or if he Seal them he take 2 d. upon every Vessel the same iâ— extortion 660. Resolved upon the Statute of 33. H. 8. 28. 23. Eliz. That if Tenant in tail become Recusant is convict but not by Judgment upon Tryal or Confession and dieth and his Lands seized that the Issue shall avoid it because it is not a debt by Judgment as the Statute of 33. H. 8. requires The Lady Willoughbyes Case 661. Sir Francis Willoughby died his VVife with Child P. W. who had married the Daughter of Sir Francis and had a great part of the Possessions setled upon him for want of Issue Male of Sir Francis attempted to suffer a Common Recovery to the intent to bar the Issue Male of Sir Francis and disinherit this Issue in ventre of his VVife to stop the Recovery she pretended she was with Child P. W. prayed a VVrit de Ventre inspiciendo which was granted and the Sheriff of London came to the Ladies House and brought a Jury of women whereof two were Midwives and they searched the Lady and the Sheriff returned that she was with Child Clark and Hardwicks Case 662. Scire fac upon Recognizance in Chancery acknowledged by H. to M. of 200 l. The VVrit was brought by the Plaintiffs Executors of M. the Sheriff returned Mortuus whereupon a new scire fac issued against the Heir and Terrae-Tenants The Sheriff returned K. Terre-Tenant of certain Lands and C. Terre-Tenant of the Mannor of D. K. made default C. appeared and pleaded a Joynt-tenancy with two other who were alive not named in the Writ nor Returned It was adjudged that upon this Return and Plea of Joynt-Tenancy that the Scire facias should abate and a new Scire facias was awarded Davy Matthew and Binfields Case 663. 3 â— Eliz. Ejectione firme The Case was Husband and wife seised for the Life of the wife made a Lease of a Mill to B. the Defendant for 17. years who 34.
Large At last it was Resolved That that Ordinance although it had the Warrant of a Charter was against the Common Law because it was against the Liberty of the subject for every subject by the Law hath Freedom and Liberty to put his Cloth to be dressed by what Clotheworker he pleases and cannot be restrained to any persons for that in effect would be a Monopoly Creswell and Holms Case 756. Debt upon Obligation the Condition was If the Obligee his Heirs and assignes shall and may Lawfully hold and enjoy a Messuage c. without the let c. of the Obligor or his Heirs or of every other person discharged or upon reasonable request saved harmlesse by the said Obligor from all former guifts c. the Defendant said no request was made to save him harmlesse It was adjudged for the Plaintiff because the Defendant hath not answered to all the Condition viz. to the enjoying of the Land and there were 2. Conditions viz. the enjoying and the saving harmlesse Chowley and Humbles Case 757. A Covenanted to make a Feoffment within a year to the use of himself for life the Remainder to H. his younger Son and the Heirs males of his body which remain over and if he did not make the Feoffment he Covenanted for those uses for the Continuance of the Land in his name and Blood Proviso if H. or any Heir male make a Feoffment or Levy a Fine his estate to cease as if he were dead and then the Feoffees to stand seised to the use of such person to whom the Land should Remain No Feoffment was made within the year A. dyed H. the Son levyed a Fine to the Defendant Resolved 1. That the Proviso to cease the estate was repugnant upon his estate for life 2. That his estate could not cease when he had levyed a Fine because then he had no estate 3. That the Feoffees and their Heirs could not stand seised to the use of the person next in discent or Remainder because no Feoffment was ever made Nevil and Sydenhams Case 758. In valore Moritagii The opinion of the Justices seemed to be That a tender was not material but that the value of the mariage was due withot a Tender Atkins Case 759. The Father devised his Land to his Son and the Heirs of his body and further I will that after the decease of my Son John the Land shall remain to G. Son of John Adjudged John had Tail and his Wife should be endowed Carter and Cleypales Case 760. All-Soules Colledge made avoid Lease by the Statute of 13 Eliz. because no Rent was reserved It was a Lease only to try title and Judgment Error was brought and assigned after that the Lease was void The Judgment was affirmed because the party did not plead the Statute for otherwise the Judges are not to take Notice of it Clarke and Dayes Case 761. A man devised Lands to his daughter for life And if she marry after my death and have issue of her body then I will that her Heir after my Daughters death shall have the Land and to the Heirs of their bodies begotten the Remainder in Fee to a Stranger It was adjudged she had not tail but only for Life and the Inheritance in his Heir by purchase and therefore in this case it was Resolved the Husband of the wife could not be Tenant by the Curtesie Deacon and Marshes Case 762. A seised in Fee of a house and possessed of Goods Devised in these words The rest of my Goods Lands and Moveables after my Debts paid c. To my three children B. C. and D. equally to be divided amongst them Adjudged they had but an Estate for Life in the House and that they were Tenants in Common of it and not Joynt-Tenants Smith and Mills Case 763. Adjudged that a Sale made of his goods by a Bankrupt after a Commission of Bankrupt is awarded is utterly void Gibons and Marltiwards Case 764. A. devised certain Land to B. and C. his wife who was the daughter of A. upon condition that they within 10. years should give so much of the Land as was of the value of 100 l. per an to F. F. and that he should find a Preacher in such a place and if they failed their Estate to cease and that then his Executors should have the Land to them and their Heirs upon trust and confidence that they should stand seised to the same uses B. within the 10. years made a writing of Gift Grant and Confirmation but no Livery nor Enrolment of it till after the 10. years The Executors refused to take upon them the Execution of the Will yet it was adjudged they should take the Land by the Devise and that the words upon Trust and Confidence made not a condition to their Estates Arrundells Case 765. In Indictment of Murder the Murder was alledged to be apud Civitatem Westm in Com. Middl. in Parochia St. Margaret and for Tryal a Jury was retorned de Vicineto Civitate Westm Resolved the Tryal not good for the Visne ought to have bin of the Parish and not of the city for a Parish is to be intended more certain then a city and when a Parish is alledged to be in a city the Visne shall come out of the Parish Alderion and Mans Case 766. Assumpsit In consideration the Plaintiff would give his good Will and furtherance to the Marriage the Defendant promised after the Marriage had to give him 20 l. he alledged he had given his good Will and that he did further it but did not show particularly how yet the Court held it to be a good consideration and adjudged the Action did lie Savage and Brookes Case 767. Upon an Indictment of Murder It was Resolved by the Justices that the Queen could not challenge Peremptorilie without shewing cause of her challenge 768. Note It was Resolved by the Justices That if a man buy Corn and converts it to meal and afterwards sells it it is not an ingrossing within the Statute of 5. E. 6. Staffords Case 769. Debt upon Obligation the Condition to make such further assurance as the Council of the Obligee shall Devise The Obligor comes to the Obligee and shews his Council had advised him to make to the Obligee a Lease for years which he required him to do and he refused It was adjudged the Obligation was forfeited otherwife if it were to make such assurance as the Council should devise for then the Council ought to draw and engross it ready to be sealed Plaine and Binds Case 770. Assumpsit 11. Septemb. to deliver certain goods to him if no claime be made to them before 14. September and alledged no claime was made post 11. diem usque 14. Septemb. It was said in stay of Judgment that the Declaration ought to have been that no claim was made after the Assumpsit until the 14. day and not post 11. diem The Court adjudged the Declaration good because the
a half A. entred upon her Resolved that the use for the Life of the Father did cease in it without entry into the Land of the Wife and that she should haue the Election The Lady Burghs Case 791. A seised of Land bargained and sold the same to B. and C. with power of Revocation by tender of 20. s. to them or one of them in the Hall of the Dean and Chapter of Westminster in Westminster A. tendred the 20. s. in the Hall none of the Bargainees being present nor having any notice of it Afterwards A. covenanted to stand seised to the use of I. S. her Nephew It was Resolved in this Case that the tender of the 20 s. was no performance of the Condition to avoid the Estate 2. That the conveyance by Covenant to stand Seisor for consanguinity should make void the former Conveyance containing the power of Revocation wherefore it was adjudged for the Plaintiff Paramour and Veralls Case 792. The Town of Sandwich did prescribe that if any Goods of any Freeman of that Town came to the hands of a Freeman and citizen of London the Mayor of Sandwich c. had used to write to the Mayor c of London to take good order for restitution and it they refused and did not return the Answer to the Mayor of Sandwich c. and did not make Restitution within 15. days then they of S. used to detain the Body of any Londoner which they should find there till restitution was made It was Resolved by all the Justices that such a Prescription was not good Diggs Case 793. The case is very long but this in effect A man seised of Lands in Fee for diverse considerations covenanted to stand seised thereof to the use of himself for Life and after to the use of his Son in tail Provided that at any time during his Life with consent of divers by Deed indented to be enrolled in any Court of the King to revoke the said uses and estates and to limit new uses and afterwards by Deed indented enrolled in the Chancery he revokes the uses in part of the Land and limits the same to him and his Heirs and afterwards by another Deed he declares that from the time of the enrollment of the Deed in the Chancery that all the first uses in the first Indenture shall be void and that the Land shall be to the use of himself in Fee and after he levyes a Fine of all the Land and after the Deed is enrolled in the Chancery In this case these points were Resolved 1. That he might revoke part at one time and part at another time but he could revoke one part but once 2. That where the Revocation is to be by Deed Indented to be enrolled it is as much as to say by Deed Indented Enrolled for it is no Revocation till enrollment 3. That there was not a compleat and perfect Revocation till the Deed was enrolled in the Chancery 4. That the Fine before the Enrollment had extinguished the power of Revocation 5. If the Fine had not been levyed then by the Revocation the ancient Uses had bin destroyed without entry or claim because he himself was Tenant for Life and he could not enter and Acts of Revocation are as strong as a claime 6. That by the same conveyance the ancient Uses might be recovered their Uses might be limitted Costard and Wingates Case 794. A Lay-man presented to a Benefice before the Statute of 13. Eliz. made a Lease for 60. years which was confirmed by the Patron and Ordinary After the Statute his Successor became bound in an Obligation that the Lessee should enjoy the Term and after he was absent from his Living 80. days It was adjudged the Obligation was not void by the Statute of 14. Eliz. because the Lease for years was good and the Bond for enjoyning it which the Successor cannot avoid 795. Resolved by the Justices of the Kings Bench that if the Sheriff hath a capias against one to find Sureties for the good behaviour he may break the House and enter and arrest the party as well as he may do upon a capias utlagatum Talbots Case 796. He was indicted for Recusancy That being of the age of 16. years and more non accessit ad Ecclesiam c. by the space of 6. months It was said the Indictment was not good for Existens aetatis 16. annorum shall be referred to the time of absence from the Church and not to the time of the Indictment but the Court held the Indictment to be good Lovegraves Case 797. A man sued in the Spiritual Court for calling him Goose Woodcock he being a Clerk A Prohibition was awarded and in this case it was said the High Commissioners could not hold Plea for slanderous words spoken of a Clerk but for laying of violent hands on him they might Binghams Case 798. The case was this Grand-father Father and Son the Grand-father held the Mannor of D. of B. as of his Mannor of S. by Knight-Service and levyed a Fine thereof to the use of himself for Life the remainder to the use of the Father in tail and after to the use of the Right Heirs of the Grand-father the Father died his Son within age B. the Lord suffered a Recovery of his Mannor of S. unto the use of himself and his Wife in tail the Remainder to the use of C. and his wife in tail the Remainder to the Right Heirs of B. B. and his Wife died without Issue C. entred into that Mannor the Grand-father died his Wife died the Son entred and made a Lease for years It was Resolved in this case that as long as the Grand-father lived no Wardship of the body or Land was due because the Reversion remained in himself and the mean man could not be in ward during the Life of the particular Tenant for Life and in case of a Subject as long as the Reversion remained in the Donor or his Heir the Issue in tail should not be in ward to the Lord Paramount when the Son in remainder in tail died his Heir within age â— 2. Resolved that a man shall never have the Wardship of the Heir when the Land was never in his Fee or Seignory of him or any of his Ancestors at the time of the death of the Tenant Bullock and Thornes Case 799. The case upon the matter was shortly this A man conveyed Land to the use of himself for Life and after to the use of divers of his blood with a future power of Revocation as after such a Feast and afterwards and before the power of Revocation began he for valuable consideration sold the Land to one and his Heirs It was Resolved that this bargaine and sale is within the Remedy of the Statute of 27. Eliz. of Fraudulent Conveyances for the Act will not that such voluntary conveyance originally subject to a power of Revocation should stand
A. granted a Rent to B. and his Heirs for the Life of I. S. B. devised the Rent to I. D. The Rent was behind I. S. died I. D. avowed for the Rent It was Resolved in this Case that by the Common Law such a Rent was not deviseable but by the Statute of 32 and 34 H. 8. it was though but a Freehold discendable 2. Agreed that no general Occupant could be of it and they held that if it be deviseable by Custome the devise did prevent the Occupancy Web and Webs Case 814. It was Decreed in Chancery in this Case That the Terre-Tenant should be compelled to pay a Rent seck devised by Will out of Land notwithstanding no seisin was had of it Sir Charles Rawleighs Case 815. A. seised of Curson Park executed an estate of it to the use of himself for Life and to the use of D. his Wife for life so long as she should be effectually ready to demise it to his Heir at 50 l. Rent when she should not dwell on ir her self and for so long as she should not dwell upon it A. dyed B. his Son entred because D. did not dwell upon it but removed with Sir Charles Rawleigh her Husband into Darset sheet and did not demise the Park to him 50 l. Rent There were many points in this Case but none of them particularly Resolved 1. If the Husband D. had taken was bound to performe the demise 2. If her taking of Husband had disabled her to make the demise 3. If she being a Feme Covert had made the demise which was void in Law if she had performed the Condition 4. If the Husband and Wife had joyned in a demise if that had been a performance of the Condition the words extending to her alone 5. If the Heir B. ought to demand the demise or D. the Wife ought to offer it 6. If the demand ought to be by word or by tender of a Writing with a Reservation of 50 l. Rent Agars Case 816. It was agreed in this Case That the Queens Attorny might have an Information in the Star Chamber against a Receiver of the Queens Rent for a perjury supposed in advantage of the Queen and so might any other person assigne perjury in an Oath for the advantage of the Queen if he be greived by it 2. That perjury is assignable at an Inquest of Office as a Misdemeanor but not upon the Statute of 5 Eliz. Wants Case 817. It was holden in Star Chamber in this Case by the Justices That a Libeller is punishable there although that the matter of the Libell be true and so is he who disperseth Libells although he doth not know the effect of them nor ever heard them read 818. Note it was said and agreed That if one exhibits an Information in the Star Chamber but as a Common Informer for a Misdemeanor although he hath not any particular grief and dyeth his Executor or administrator shall not Revive it by a Bill of Reviver but the Kings Attorney may Revive the Bill Carewes Case 819. A Justice of Peace was censured in the Star Chamber because he going to a place to view Riotors and to remove the force and the offenders being gone before his comming he was requested to go to the House where they were and he refused to do it Gellibrand and Habards Case 820. Gellibrand was sentenced in the Star Chamber for levying a Fine by the name of Gellibrand who was then beyond the Seas affirming himself to be the same person and the sentence of the Court further was that the Fine so levyed by him should be vacated upon Record 821. The Case was King Hen. 3. Anno. 41. of his Raign by Letters Patents did recite whereas R. N. held of him by money Rent Corne Cheese and Soccage Tenure he granted to him that from thence forth he should hold by 4 s. Rent and by Knights service for all services The point was if this acceptance of the Patent should make a Tenure by Knight service It was the opinion of the Justices that it did not unlesse the estate of the Land was then in the King because the King might discharge the services either in part or in all by his Patent but could not reserve services of a new nature where he did not give the Land Anthony Mildmay and Mildmays Case 822. Sir Walter Mildmay the Father in consideration of Love and Affâ—ction Covenanted to stand seised of Lands to the use of himself for life without impeachment of wast the remainder to A. his Son and the Heirs males of his body the remainder to H. and the Heirs males of his body Provided if any of the said partes shall go about to resolve determine or devise to do any act or shall consent to any act whereby the estates of them in remainder shall be aliened discontinued barred c. then his remainder shall cease as if he were naturally dead The Father dyed A. entred and suffered a Common Recovery Resolved that the Proviso was against Law and an estate Tail could not cease as if Tenant in Tail were naturally dead Wells and Fentons Case 822. A. seised in Fee executed an estate to the use of himself and his Wife for life the remainder to such Woman as he should afterward marry which should survive him the remainder to B. his Son in Tail his Wife dyed he took another Wife and they both reciting the former Conveyance granted the Lands to I. S. for 40. years by Fine if A. and his Wife or any of them should so long live Afterwards A. dyed the Wife entred It was the opinion of the Court That the Wife was barred of the possibility by Estopel and yet they agreed the Case that if a Lease be made for life the remainder to the right Heir of I. S. and the Heir Levies a fine in the life of his Father the same shall not bar the possibility Peck and Channells Case 823. A. seised in Fee devised the same to a Woman for life the Remainder in Tail to B. his Cosen the Remainder to his right Heirs the Woman and B. entermarried and levyed a Fine with Proclamation with a Render to them and the Heirs of the body of the Husband and after they suffered a Common Recovery of the Husband and his Heirs who enfeoffed the Defendant and dyed without Issue Resolved the Fine did not make any discontinuance because the Conusor was not seised in Tail in possession but in the right of his Wife and the Recovery did not bar the Issue in Tail nor the Remainder because the Tenant was in of another estate to whom the recompence was and not of the estate Tail anciently devised Rayman and Golds Case 824. A man possessed of a Terme for 80. years devised that after the death of his Wife who he made his Executrix his two Sons B. and C. shall have the whole profit of my Farm and the longest liver of them shall appoint who shall have the
Resolved it was a good Saving and that all Justices in their Sessions to be holden within the city might hear and determine Offences committed in the County but no offence done within the city though in the time of the Sessions Heydon Smith and others Case 857. Audita Querela The case was A. and B. seised of Capite Lands and P. seised of Soccage Lands they all three acknowledged a Statute of 8000 l. to R. A. and B. levyed two several Fines of their moyeties to C. and W. to the use of themselves and their heirs until default of payment was of certain Annuities and then to the use of C and W. they after default of payment sold the Lands to H. and D. H. released to D. who devised the Land in tail and died the Devisee in tail died without Issue the Wives of the Plaintiff were Heirs to D. to whom the third part of the Capire Land discended R. had extended the Lands upon Statute before the default of payment of the Annuities and before the Bargain and Sale and although he sued the extent against A. and B. and also P. yet the Sheriff extended the Lands of A. and B. and to defeat the extent and to have Restitution because the Land of P. was not extended the Audita Querela was brought The principal point in this case was if the Bargainee and those which claim under him should have no Audita Querela for the extent made before his time Another point was if the Coheirs should have an Audita Querela without the owner of the two parts all of them being Tenants in common and equally grieved with the extent The case is very learnedly argued pro con but not Resolved Salter and Botelers Case 858. A Rent was granted to A. his Executors and Assignes for the Life of B. out of Bl. acree A. died living a Cestuy que use The Executors of A. distreined for the Rent and averred the Life of B. It was adjudged the Distress was not lawfull because by the death of the Grantee the Rent was determined but if the Rent had been granted to the Grantee and his Heirs the Heir of the Grantee should have bin a special Occupant and he might distrein for the Rent Ewer and Moiles Case 859. In a Replevin by E. in the Kings Bench against M. M. being an Infant appeared there by Artorney also an Imparlance was entred Petit licentiam interloquendi usque and no day was named and Judgment being there given for these Errors the Judgment was reversed Boulton and Bastards Case 860. A. and his Wife seised in the Right of the Husband of the Mannor I. exchanged the same with S. and D. for the fourth part of the Mannor of S. A. died the Wife entred into I. and evicted it for her Life It was adjudged it was a defeating of the Exchange for ever because the exchange was of Land in possession and yet the Justices held that a Reversion might be exchanged for Lands in possession and Note It was said that unequall value or quantity in the one more then the other should not avoid the exchange but otherwise it is of unequality of Estate Stephen and Tots Case 861. T. and his Wife being divorced in the spiritual Court à thoro mensa The Father of the Wife devised a Legacy to her for which she sued the Plaintiff his Executor in the Spiritual Court he there pleaded the Release of the Husband which the Spiritual Judges would not allow of It was the opinion of the Justices in this Case that the Release of the Husband was good notwithstanding this Divorce Sparke and Sparkes Case 862. A man made a Lease for life and after made a Lease for 99. years after the death of Tenant for life if the Lessee for 99. years should so long live and if he dyed within the Terme the Lessor granted that the Land should Remain to his Excecutors and Assignes for 21. years after the death of the Survivor of both the Lessees The Lessee for 99. years granted the Lease for 21. years rendring Rent and dyed Intestate having survived the Lessee for life the Administrator brought Debt against the Assignee of the Terme for 21. years for the Rent It was adjudged that the action did not lye because the Contingent foe 21. years never vested in the Lessee for 99. years the Intestate nor ever was in him to dispose or grant Bridge and Atkins Case 863. Words viz. Thou art an old perjured Knave and that is to be proved by a stake between the ground of such and such adjudged that for these words the Action did not lye Bothes Case 864. He was arraigned of Felony for a second forgery after Cónviction of a former forgery in the Star Chamber upon the Statute of 5 Eliz. of writings concerning the Lands of I. S. In this Case Resolved that no Accessary can be in Forgery but all one principally 2. Resolved that for Felony the Kings Bench might commit one to the Fleet or unto any other Prison and also that a Prisoner who is condemned to perpetual Imprisonment was not Baileable nor Removeable Shaw and Norwoods Case 865. A man by his Will devised 40 l. to two Infants equally the Executrix delivered the money to one to whom the Defendant was Executor who made a Bill testifing he had received the 40 l. to the use of the Infants one of the Infants dyed Intestate his Administrator brought Debt against the Defendant the Executor of the Baylee It was adjudged the Action was maintainable and the specialty although it was not made to the Infants yet it was a sufficient Testimony of the debt Fort and Wards Case 866. A Copyholder had Common of Estovors in the Lords Woods appurtenant to his Copyhold and he purchased the Freehold of Inheritance in the Copyhold and had words in his deed of purchase of all Commons appertaining to the said Messuage Yet it was adjudged that the Common which he had to the Copy estate was extinct but if there had been special words in the Grant of the like Common as he had in the Copyhold before the surrender it had been good and as a new grant of Common Morgan and Slades Case 867. It was Resolved by all the Justices of England that an action upon the Case upon Assumpsit lyeth upon every contract Executory as well as an Action of Debt Seymayne and Greshams Case 868. G. and B. were Joynt Tenants of a house in Lond wherein they had several goods B. acknowledges a Statute and dyed a Writ of Execution came to the Sheriff of Lond. who came to the house with a Jury to extend the goods of B. G. seeing them and knowing the Cause of their comming to the intent to frustrate the Execution shut the Door of the house so as the Sheriff could not do Execution For which the Plaintiff brought his Action upon the Case and layd it to be to his damage of 2000 l. It was adjudged against the
condition that if there should be default made of Reparations upon Warning given within 6. Months the Lessor to reenter Resolved the warning in this Case must be given to the person and not at the place and both to the person of the Lessee as the person of his Assignee Wilmot and Knowles Case 884. A. and his Wife seised of Land to them and the Heirs of the Husband bargained and sold them to I. S. upon Condition if they or any of them or the Heirs or Assignes of the Husband pay 500 l. at such a day to I. S. it shall be Lawfull for the Husband and Wife and the Heirs of the Husband to enter and to hold in their former estate and that after the payment all Fines and Assurances should be to the use of the Husband and his Heirs and to no other use A Fine was Levyed before the enrollment of the Deed the Husband dyed having a daughter married to I. D. who in the right of his Wife payed the money and entred The Defendant in the Right of the Wife of A. entred It was adjudged his entry was Lawfull because upon the point the use was revested in the Wife as it was before the Fine and the last part of the Fine declaring the use to the Husband and his Heirs was void Atkins and Longviles Case 885. King H. 8. Anno. 33. of his Raign bargained and sold Land to the Ancestor of the Defendant without any words of grant It was adjudged it was good enough by the Expresse words within the Statute of 31 H. 8. of Monasteries which makes all Patents Indentures and writings made by the King after 4. Feb. Anno 27. of Monastery Land to be made within 3. years after the Act to be good 886. In Trespas the Record of Nisi Prius was of a Trespas 12 Jan. 25 Eliz. whereas the Declaration was of a Trespas 12 Jan. 45 Eliz. found for the Plaintiff I was adjudged the Plaintiff could not have Judgment nor the Record of Nisi Prius amendable by reason of this variance Fitzwilliams Case 887. A. suffered a Recovery to the use of himself and his Wife with a Remainder to their Son Provided it shall be Lawfull for him and his Wife by their joynt Deed sealed and delivered before three Credible Witnesses to alter change revoke determine and make void any use estate or estates limited in the said Deed and to limit new uses and from thence forth the Recovery shall be to the new uses A. and his Wife made a Deed and by the same declare That it was their intent to alter change and determine revoke and avoid all the former uses to their Son and thereupon without more words they limited new uses It was adjudged it was a good revocation of the old uses and a good limitation of the new uses Vide Cook 6. part 33. Brown and Nichols Case 188. It was Resolved in this Case that a Conduit to carry Water to an house shall passe with the house by the word Appertenant and the owner may come upon the Land of another to mend it so it be done at a convenient time and that without either Prescription or Grant Pudsey and Neusons Case 889. The Condition of an Obligation was that if the Obligor make all reasonable acts c. which shall be for assurance c. to be required by the Obligee before sueh a day c. Adjudged a general request is sufficient and the Obligor at his perill is to make it otherwise if it had been to be devised by the Obligee or his Councell there he must shew that he had required such a particular Assurance viz. a Fine or a Feoffment c. Milliner and Robinsons Case 890. Ejectione firme A Lease was made by two Coparteners the Declaration was Quod demiserunt ruled not good because it is a several Lease of each of them or his part The Case further was A. devised his Land to his brother I. and if he dyed having no Son that the Land should Remain to W. for life and if he dyed having no Son to Remain to the right Heirs of the Devisor Resolved I. had an estate Tail but W. had it but for life or at least to his Heirs Females for having no Son is meer Contingent Frewwater and Rois Case 891. Tenant in Tail the Remainder in Tail Remainder to the right Heirs of Tenant in Tail Tenant in Tail Covenanted to stand seised to the use of himself and his Heirs untill marriage and after to the use of himself for life the Remainder to his Wife for life with divers Remainders over in Tail and after he suffered a Recovery and dyed It was adjudged it was a bar of the Ancient Tail because by the Covenant to stand seised there was not any alteration of the estate of the Tenant in Tail 892. A Parson sued for Tythes of Fodder the Parishioners prescribed in Non decimando because the Fodder was for their Cattell which manured their Land It was holden no good Prescription but it was agreed Tythes should not be paid for Agistments nor for Wood for hedgwood to enclose the Corne nor for Fewell Rye and Fuliambs Case 893. A. was divorced from his Wife for Incontinency he after took another Wife living the first Wife Adjudged the second Marriage was void because the Divorce was but à Mensa Thoro and not à Vinculo Matrimonii Ward and Sudmans Case 894. The Case was The Bishop of Exeter in Consideration of service and other Considerations gave Lands to T. his Servant and to S. his Kinswoman in Tail Quaere if it was a Joynture within 11 H. 7. because no Consideration was expressed but service and the Consanguinity is but a Consideration implyed The Court doubted of it The Case was not Resolved Errors Short and Hellyars 895. Trespas Quare clausum fregit blada tritici ad valent ' 40 l. messuit conculcavit consumpsit nec non herbam ad valent ' centum solid ' pedibus ambulando conculcavit Consumpsit found for the Plaintiff Error assigned 1. Because the Venire facias was returned upon Sunday which was not dies juridicas 2. Because he supposed the Continuance of the Trespas inâ—depasturatione herbae whereas the Trespas is not supposed in the pasturing but only in conculcatione consumptione herbae pedibus ambulando The Court held the first was amendable by the Statute of 18 Eliz and for the second they said it was but surplusage Sir George Hennage and Curtis Case 896. Trespas for Trespas done in his Close in H. the Defendant justified and prescribed by reason there was a Common Foot way from H. thorow the said Close unto another Foot way from H. to K. in the same County Issue was upon the Prescription the Venire facias was only of H. whereas it ought to have been of H. and K. and for that cause the Judgment was reversed Holt and Tilcocks Case 897. Assumpsit against the Defendant
Administratrix of W T. her Husband and that W. T. by his Bill such a day c. promised for him and his Executor to deliver to the Plaintiff 5000. Tyles before the Feast of All-Saints and to pay to the Plaintiff tantum quantum incrementuÌ„ and gaines which the Defendant should receive of the said Tyles for a year and averred the said W. T. received of the gaines 8 l. and that the Defendant in consideration the Plaintiff would suffer the Defendant to take and have the sole and only Administration of the goods of her Husband and give her day for the payment as well of the 8 l. as of the 5000. Tyles promised to pay the mony and deliver the Tyles upon request all which the Plaintiff did and yet the Defendant had not performed her promise Judgment upon Nihil dicit against the Defendant Error was brought it was adjudged that the consideration was insufficient because by the Law the Administration was to be counted to the Wife and it doth not appear that the Plaintiff had any Administration committed to him or that he exhibited any Caveat into the Spiritual Cour to hinder the Wife of the Administration and as to the giving day of payment that was not good because the Defendant was not his debtor nor chargeable in Law to pay him and for these causes the Judgment was reversed Hog and Blocks Case 898. Assumpsit The Defendant was indebted to the Plaintiff 10 l. and in consideration the Plaintiff would not sue him for the said 10 l. he promised to deliver to the Plaintiff 14. Quarters of Barley upon request Issue was joyned the Clerk of the Assizes returned the Postea and therein put John Puckering before a Serjeant which was omitted which was assigned for Error but the Court held it no Error and the Judgment was affirmed Levine Vanvive and Michael Vanvies Case 899. Debt upon Obligation to perform the award of A. and B. of for and upon all Actions and other Demands whatsoever had stirred depending having been between the parties till the date of the Obligation The Arbitrators awarded the Defendant should deliver to the Plaintiff before the last day of June next six Kentish cloaths which were battered by I. S. for the thred of the said Levine Issue was upon the deliver of the cloaths and found for the Plaintiff Error brought and assigned the arbitrament was of a thing out of the Submission It was adjudged it was within the Submission and the party was tied to the performance of it The Judgment was affirmed The Lord Mordant and Bridges Case 900. Action upon the case for these words viz. The Lord Mordant did know that Proud robbed Shotbolt and at such time as Proue should be arraignes therefore be willed Bridges to compound with Shotbolt for the same Robbery and told Bridges he would see him satisfied therefore if it cost him 100 l. It was found for the Plaintiff and damages a 1000 l. and the Lord Mordant had Execution by elegiâ— of the Lands of Bridges Bridges died the Administrator broughâ— Error in the Exchequer Chamber the Lord pleaded in abatement oâ— the Writ of Error his Execution by elegit and so the Administraton could not have Error Resolved the Writ of Error did lie for the Administrator because it might be the Land might be evicted and then the Plaintiff might resort to the Goods 2. It was assigned foâ— Error that words were not actionable in themselves for it waâ— said that one may compound for a Robbery knowing of it but noâ— for the Felony and the words are not to compound for the Felony Also it was said that it doth not appear in the Declaration that thâ— Lord was a Justice of Peace at the time of these words spoken tâ— Bridges although he was at the time that Bridges spake the words oâ— him in the Declaration upon the Writ of Error it doth not appeâ—â— if the words were actionable or not for it doth not appear in the boâ—â— that the Judgment in B. R. which was given for the Lord was affirmed or Reversed ideo quaere Callard and Callards Case 801. Ejectione firmae in B. R. The Case was E. C. seised of Lands in Fee in consideration of Marriage of Eustace his Son and Heir apparent being upon the Land spake these words to Eustace viz. Stand forth Eustace I do here reserving an Estate for my own and my Wives Life give unto thee and to thine Heirs for ever these my Lands and Barton of S. And afterwards he enfeoffed R. his younger Son in Fee with Warranty and died Eustace entred and demised to the Plaintiff It was there holden that the words did amount to a Feoffment and Livery being spoken upon the Land and the use to be to the Feoffor and his wife for their Lives and after to Eustace and his Heirs upon that Judgment Error was brought in the Exchequer Chamber and there the former Judgment was reversed for that the greater part of the Justices agreed that it was not any Feoffment executed because the intent was repugnant to Law to pass an Estate Eustace reserving any particular estate to himself and his wife and an use it could not be for the purpose was not to raise but use but by an Estate executed which took not effect and they all agreed if it was an use it could not rise upon natural affection without a Deed. The Judgment was reversed Westby Skinner and Catchers Case 902 A. was in Execution severally under the Sheriffs of London at the Suits of B. and C. the old Sheriffs delivered the body of A. by Indenture in which the Execution of B. was only mentioned and the other was omitted A. in the time of the new Sheriffs escaped It was adjudged in B. R. that the old Sheriffs should be charged in an Action for the Escape They brought Error in the Exchequer Chamber and the Judgment was affirmed because it was not found that the new Sheriffs were Sheriffs at the time of the delivery of A. to them and because they did not give notice to the new Sheriffs of all the Executions which were against A. Sacksord and Phillips Case 903. Assumpsit A. was endebted to the Plaintiff 460 l. the Defendant in consideration the Plaintiff would forbear to sue A. for the said Debt promised to the Plaintiff to pay it before Michaelmas next Upon non assumpsit it was found for the Plaintiff But in the postea the Verdict was not certified that the Plaintiff sustained damage by reason of the not performance of the promise for 460 l. for which the Plaintiff had judgment That was assigned for Error and also because the Declaration did not mention the forbearance of Suit at the Defendants request the Court ordered the postea to be amended and affirmed the Judgment Wiseman and Jennings Case 904. The case upon the matter in Law was this Tenant for Life the Remainder in tail the Remainder in Fee Tenant for Life suffered a common Recovery
levyed another Fine to all the said uses but only the Estate for 20. years to his Executors and made his wife his Executrix the wife married Sir Robert Remington It was adjudged in this case that by the second Fine the Lease for 20 years to his Executors was extinct Littletons Case 971. A seised of Lands holden in copite in consideration of a Marriage of M. his Daughter with W. L. Son of Sir John and of 1300 l paid by Sir John the Father of W. levyed a Fine of part of the Lands to the use of himself for Life the Remainder to W. and M. and the Heirs of the Body of W. upon the Body of M. the Remainder to the right Heirs of W. and the residue to the use of himself for Life the Remainder to his first Son in Tail the Remainder to the right Heirs of W. with power to make a Joynture â—o his second Wife and to make Leases for Twenty one years or three Lives The marriage took effect A. took a wife and had Issue by her I. and died I. his Son and Heir within age W. died without Issue G. L. being his Brother and Heir the second wife of A. living and also M living It was upon â— Melius Inquirend found that M. was the Daughter of A. It was Resolved in this case that the Queen should have the Wardship of the third part of the whole Land during the minority of I. the Son of A. Also it was Resolved by them that although money was paid and so the consideration of the Marriage was a mixt consideration yet â—hat should not alter the Law for the duty to the Crown 1. and one Ciffias case was cited to have been so adjudged The Lord Ross and the Earl of Rutlands Case 972. H. Earl of Rutland 2 Elâ—z levyed a Fine with Proclamation to the use of himself and B. his Wife and the Heirs of his own Body and died B. married the Earl of Bedford they covenanted with Edward Earl of Rutland Son of H. Earl of Rutland to levy a Fine which Fine was levyed with Proclamation sur concâ—ssit of the said Mannors and Lands by the said Edward Earl to the said B. for Life Afterward Edward Earl of Rutland 29 Eliz. covenanted with the Lord Burâ—eigh and others to stand seised of the said Mannors to the use of himself and the Heirs Males of his Body the Remainder to the Heirs Males of the Body of Thomas Earl of Rutland his Grandfather Edward Earl 29 Eliz. died without Issue Male having a Daughter which was the Lady Roâ—s the Mother of the Lord Ross the plaintiff B. died the entail made by the Earl of Rutland and the discent to the Lord Ross the Plaintiff was found by Office It was Resolved by the Justices in this case That the Mannors did belong to the Plaintiff the Lord Ross as Issue in tail of Henry Earl of Rutland notwithstanding the Fine levyed by Edward Earl of Rutland because the Fine being sur concessit the same remained a Bar no longer then during the Life of B. Also they held the taking of the Fine by B. to be a surrender of her Estate but to be no discontinuance because not seised of the Tail at the time 3. Resolved the Lands should be in the King during the Minority of the Lord Ross Anno 1. Jacobi 973. It was Resolved by the Justices that Informations for the Queen alone in any Latin Court should not abate by the Demise of the Queen and so like of Informations tam pro the party quam for the Queen and so also it was of Informations in English Courts they were not discontinued by the Demise of the Queen Handall and his Wife and Browns Case in Chancery 974. The case was A. possessed of a Term for years had Issue a Son and two Daughters and by Will he devised his Term to John his Son and if he died to his two Daughters and if they died to his Wife he made his Son his whole Executor who entred claiming by the Will and after Probate he died Intestate his Wife took Letters of Administration and for mony sold the Term to Brown the Defendant It was the opinion of the Justices that the Assignee of the Administrator should have the Term and not the two Daughters and Decreed in Chancery accordingly 975. Upon the cases of claims at the Coronation of the King these points were Resolved by the Justices 1. That where a Barony or a Mannor or Land holden by grand Serjeanty to do special Service at the Coronation is come to many hands by purchase there each Tenant is chargable with the whole Service but the King may appoint which of them shall do the Service and he which doth the Service shall alone have the Fee but if the Division be by Copartners there the eldest is only to do the Service and the other shall contribute to the charge and the eldâ—st shall have the Fees but if each Sister sell her part the Feoffee of the eldest shall not have the preheminence 2. Resolved where Grand Serjeanty is to be done at the Coronation by Tenure and the Lands come to an ignoble person who is unmeet to do the Service the Lord Steward may appoint a Noble or meet person to do the Service as Deputy to the Tenant of the Land 3. Resolved where Land is given to hold as to be Hostiarius Câ—merae Regis or the like In such Case the Tenants are to make their claims yet they are not to be admitted to the said Services by the Commissioners for claims or the Lord Steward but they are to be referred to the King himself their Tenure being perpetual and continuing Leigh and Helyers Case 976. A man supposing he had Title to certain Lands which were in the possession of I. S. contracted to sell them to I. D. and sealed a Lease for years to a third person to the use of I. D. with whom the contract made and the year and day long before expired Resolved it was maintenance by the Common Law but not within the Statute of 32. H. 8. Foster and Kings Case 977. A man made his Will and gave diverse Legacies and devised that the rest and residue of his Goods after his Debts and Legacies paid to his wife and after in the same Will he devised that his Overseers should enter into the Lands and cut down so much of the Woods as would suffice to pay his Debts Quere in this case if the Debts and Legacies shall be paid of the Woods if the Goods be not sufficient to pay them Skipwiths Case 978. Tenant in tail and he in the Reversion bargaineth and sells the Lands to the King and before enrollment Tenant in tail suffers a common Recovery Quere if the Issue in tail be barred by the Recovery not Resolved Lucas Case 979 Resolved in this case that before the Statute of 13 R. 2â— Murder was pardonable by the name of Felony but since that Statute the
King cannot pardon Murder by pardon of feloniam feloniacam interfectionem without a special non obstante of the Statute 980. Resolved by the Justices that if an Executor pay a Debt due upon a present Obligation it is no Devastavit though there be a Statute or Recognisance broken for not performance of Covenants Ellis and Warâ—es Case 981. Debt The case was W. was endebted to A. 100 l. upon an usurious contract and A. was endebted to E. the Plaintiff 100 l. a just Debt for which W. and A. were bound to E. In Debt brought upon this Obligation W. the Defendant pleaded the Usury betwixt him and A. The Plaintâ—ff said that before that bond upon usury W. was indebted to him and bound for his debt and that he knew not of the usurious Contract betwixt W. and A. It was Resolved the Obligation made by W. the Defendant was a good bond pro vero debâ—to and that it was not usury in the Plaintiff and the usurious Contract betwixt W. and A. should not prejudice the Plaintiff Hall and Trusseâ—ls Case 982. Debt brought against the Defendant the Defendant pleaded an Attainder of himself after the debt due to the Plaintiff adjudged no plea. Oldcot and Levells Case 983. It was Resolved in this Case That a surrender by Tenant in Tail of a Copyhold was not a Discontinuance Also that a surrender by Tenant for life to the use of another in Fee was not a forfeiture 984. Note it was holden by the Court That if one will turn the extent upon the extendors for extending the Lands or goods at too high a Rate he must do it at the first day of the Return or not at all Griffith and Smiths Case 985. A man possessed of a Term for years of a Rectory and Lands devised the profits thereof for so many years as he should live and after he devised the profits to 20. of his poor Kindred and that after the death of his Wife the Rectory should be let by the advice of his over-seers and the Rent distributed to his said poor Kindred and made his Wife his Exâ—cutrix It was Resolved in this Case by all the Justices in the Exchequer Chamber that although a devise of the profits is a devise of the Land it self if there be no other circumstance in the Case yet because in this Case the devisor hath declared that the poor Kindred should not have the property oâ— the Term and he appoints a Lease to be made for Rent and the Rent to be distributed amongst them that the Executors should have the Term upon the Consideration to make the Lease and distribution and that the poor Kindred had only Trust and no Interest in the Term. 986. A man having spent his estate and living in great necessity said to his Wife that he was weary of his life and that he would kill himself The Wife said that then she would dye also with him he prayed her that she would go and buy Ratsbane and they would drink it together which she did and put it in drink and both of them drank of it the Husband dyed but the Wife recovered by vomiting Quâ—re if it was Murder in the Wife Not Resolved Baker and Bacons Case 987. The King having by the Statute of Dissolution all the Tyâ—â—es within St. Edmonds-Bury granted omnes decimaâ— nostras grandrum soem es in Buâ—y Sancti Edmundi Ac omnes alias decimas nostras infra Bury praedict ' quas Eleemosynaâ—â—us monasterii praedicti colligere solebâ—t Resolved that the Tâ—thes passed which the Almoner used to collect and that the Relation is to be expounded to the ac omnes alias decimas and not to the whole sentence 988. Note Tr. 2 Jac. in the Star Chamber It was Resolved by all the Justices of England that the Deprivation of â—uritan Ministers by High Commissioners for their refusal to conforme themselves to the Ceremonies appointed by the late Canons was Lawfull because the King hath the supream Ecclesiastical power which he hath delegated to them by which they had power of the Deprivation by the Canons of the Realm and the Statute of 1 Eliz doth not give them any new power but explaines and declares their ancient power 2. Resolved that the King may without Parliament make Institutions for the Government of the Clergy and may deprive them if they do not obey them and so the Commissioners may deprive them but they cannot make any Institution without the King 3. Resolved that to frame Petitions and to collect hands of multitudes of people to prefer to the King publike causes is an offence finable at discretion and deserves the punishment next to Treason and Fellony because it tends to raise Sedition Rebellion and discontent amongst the people 989. It was Resolved by all the Justices of England That Clergy is not allowable for Piracy upon an Indictment upon the Statute of 28 H. 8. unlesse the Piracy be done in a Creek in which the Common Law before the said Statute had Jurisdiction but not if it be done in alâ—o mari for such is felony by the Civil Law in which no Clergy was allowed 2. Resolved if the King pardon all Felonies by the Common Law or any Statute Felony done super altum mare is not pardoned Adyn and Ayâ—es Case 990. A Fieri sacias went to the Sherâ—ff â—o do Execution he seised certain Wood and after 〈…〉 discharged of his Office he â—old the Wood for satisfying the Execution It was adjudged that the sale was good upon the Statute of 34 H. 6. cap. 5. because he was charged with the value Sheldon and Handburyes Case 991. A Woman in the time she was separated from her Husband got a sum of money and with it bought Lands and took an Assuâ—ance thereof in the name of B. in trust B. lying sick at the request of the Woman made a Lease for 200. years to S. the Plaintiff upon condition he should pay the profits to the said Woman and also if B. lived to the first day of June following and then paid 12 d. to S. the Lease should be void B. lived to the day but did not pay the 12 d. but afterwards for 100 l. he made Lease to the Defendant with Covenants to save the Lessee from all Incumbrances B. dyed S. not having notice before of the Lease made to him entred It was the opinion of the Justices in this Case that the Lease made by B. to S. at the request of the Woman in part of the performance of the Trust was not a fraudulent Lease within the Statute of 27 Eliz to defraude purchasor because he was in Conscience to perform the Trust to one who did not direct any second sale also at the time of the second Lease the power to revoke was void and the first Lease absolute Holder and Farleyes Case 992. Resolved that if a Woman be dowable of a Copyhold by Custome if the Husband after the Marriage make a Lease for years
it was Resolved that upon such Writ the Sheriff or his Officer might without any Offence by a Warrant arrest the person of the Countesse for he is not to dispute the authority of the Coâ—rt in awarding the proces but he is to execute the Writ to him directed But because the Defendants did arrest the Countesse upon a feined action of their own heads without Warrant They were fined and sentenced by the Court. Dag and Penkevells Case 1007. A bill was exhibited in the Star Chamber against the Defendant and divers others for several Offences The Defendant for that he inserted the name of a special Bailiff in a Warrant which was made by the Sheriff with blanks without privity or direction of the Sheriff Note in this Case it was holden that where there are several Defendants and one only is sentenced the other shall have Costs because not charged with the offence for which the sentence was but with other Offences of which they were acquitted 2. It was holden in this Case that a Defendant shall not have benefit of a general pardon at hearing of the Cause unlesse he prayes the same upon his answer put into Court Clerks Case 1008. Note in this Case being the Case of a Purveyor who was sentenced in the Star Chamber for several Offences in executing his Office of Purveyor It was said there were 7. properties incident to every Purveyor 1. He ought to be sufficient to answer the King and the party 2. He is to do his service in person and not by Deputy because it is an Office of Tâ—â—st 3. He is to be sworn in Chancery before he execute his Office for he ought to have authority under the great Seal with blank Labells to insert what he takes 5. His Authority is to continue but six moneths without renewing 6. He ought to take where is plenty and in Convenient time and no more then is sufficient 7. He is to take the things in kind and not money for them Lovice and Goddards Case 1009. The Case was A. the Grandfather had Issue two Sons T. and W. and by his Will devised to T. all his Mannors Lands c. within the Counties of D. and C. viz. to T. and the Heirs males of his body after his decease for 500. years Provided if T. or any Issue male of his body give grant c. the premises or any parcel thereof oâ—herwise then to Lease and demise the same for any term or number of years as may or shall be determinable upon the deaths of aâ—y 2. persons c. to be made in the Leases c. then all the premises for default of such Issues males of the said T to be begotten c. immediatly upon such alâ—â—nation gift grant c. shall remain and come to W. and to the Heirs males of his body c. The devisor dyed T. entred and made a Lease for 1000. years to I. S. who never entred T. dyed without Issue male I. being his Daughter and Heir W. dyed having Issue the Plaintiff who entred upon whom I. entred In this Case it was Resolved in C. B. that the devise to T. and the Heirs males was an estate Tail and the limitation for years void 2. Resolved that there ought to be a concurrence of death without Issue male and also of alienation before the rising of the Remainder 3. That the Remainder should never rise because the particular estate was destroyed by the alienation before the Remainder could commence 4. That the Lease for 1000. years made to I. S. was not an alientation within the Proviso upon which the estate might rise to W. when T. was dead without Issue male because that T. who made the Lease was but Tenant in Tail and then the Lease was determined upon his death It was the opinion of all the Justices in C. B. that the Judgment should be for the Defendant upon which Judgment the Plaintiff brought a Writ of Error in B R. and there by all the Justices upon the matter in Law the Judgment was reversed Mich 3. Jan. Cargenter and Collins Case 1010. In Debt for Rent the Case was A. had a Son and a Daughter and devised that his Son should have his Land at his age of 24. years and gave 40 l. to his Daughter to be paid at her age of 22. years and appointed that C. should be his Excecutor and should have the oversight and dealing of his Lands and goods till his Children should come to the ages aforesaid and dyed C. the Plaintiff made a Lease to the Defendant at Will rendering Rent at Mich. and our Lady-day the Daughter entred upon the Tenant at Will the Tenant attorned to her the Son dyed within the age of 24 years the Defendant did not pay the Rent for which C. brought Debt against him It was adjudged against the Plaintiff Resolved 1. The word Oversight and dealâ—ng with his Lands and goods did not give any Interest to C. the Excecutor but an authority only and that the estate discended to the Son 2. That by the death of the Son the Interest of the Executor was determined for it was noâ— the intent of the devisor to bar the Heir of the Son untill the Son should come to the age of 24 years if he lived 3. That the Tenury at Will was determined by the entry of the Daughter because she entred by Title i. e. as Heir to her Brother Lord Aburgavenny and Edwards Case 1011. An Excommengement was pleaded in Bar and the Certificate of the Bishop of Lâ—ndaph shewed of it but doth not mention by what Bishop the party was Excommenge wherefore it was adjudged void Rastoll and Drapers Case 1012. Debt upon an Obligation for payment of so much Flemish mony the Plaintiff declared for so much English money and it was holden good by the Court. Doyly and Drakes Case 1013. A man had two Closes adjoyning time out of mind and sold one of them who should make the Inclosure the Purchasor or the vendor the Court was divided in opinion Vide 21 Eliz. Diâ—r 372. Williams and Vaughans Case 1014 Scire facias by the Plaintiff against the Defendant who was bail in Debt for I. S. who did not render his body nor pay the Debt the Defendant demurred 1. Because no Capias was sued against the principal and also because the Principal was dead before the Scire facias brought but both points overruled because the Condition of the bail was broken before Whitâ—ock and Harâ—wells Case 1015. A. and B. Sisters Joynt Tenant A. Covenanted with a stranger that he should enjoy the moyety which she held with her Sister in Joynture for 60. years from the death of her Sister if she the said A. should so long live and demised to him the other moyety from her own death for 60. years if her Sister so long lived Adjudged the Lease was void for both moyeties â—he one because of her moyety after the death of her Companion and the other is
Issues and Profits thereof upon poor Scholles in Oxon and Cambridge or elsewhere such as shall intend to study Dâ—vinity and enter into Holy Orders according to the intent and true meaning of the said A. It was the opinion of the Lord Chancellor in the Chancery and of the Judges Assistants upon the hearing of this Cause and so Resolved and Decreed That the said conveyance made upon the hopes trusts confidences and meanings aforesaid were pernitious and dangerous to the State of the Commonwealth and if the profits of the Lands should be imployed according to the hopes trusts and meanings before mentioned the same would be bestowed upon Traitors Jesuits and Seminary Priests and others Enemies to the Crown and Dignity of this Kingdom and therefore it was Adjudged and so afterwards Decreed that all the before mentioned confidences hopes trusts and meanings were unlawfull and meerly void The Lady Russel and the Earl of Nottinghams Case 1025. The Lady Russel having the Office of the custody of the Castle of D. for her Life by Grant from the Queen Eliz. and the Earl having the Inheritance thereof by Grant also from the Queen the Earl sent his Servants with stuff to the said Castle and with Housholdstuff and Furniture to prepare for his Lodging there the Lady Russel Servants denied them to enter pretending the Lady was to have the use and disposing of it during her Life and shut the Doors thereof The Servants of the Earl opened the Doors with Iron Barrs and afterwards entred The Question was if the entry was a Riot in the Servants of the Earl It was Resolved it was no Riot because the Castle did belong to the Earl in Propriety and the Lady having but the custody of it with a Sallary the Earl was always in possession and when the Servants broke open the Doors with force they were but Trespassors to their Master and not to the Lady And in this case it was holden by the Justices That if one hath the custody of a castle or house for Life and he denies the owner to enter into the Castle and shut the Doors against him that it is a forfeiture of the custody of the castle or house Yelland and Fiâ—his Case 1026. A. covenanted to stand seised to the use of himself for life with divers Remainders over to others to some for Life and to others in tail the Reversion to himself in Fee Afterwards he made a Lease for years to a Stranger and afterwards during the Term he revoked The Court was divided in opinion if his power of Revocation was not suspended during the Term It was the opinion of Coke Chief Justice he might revoke all the uses but the Term. The Lord Greys Case 1027. The Lord being Lord of the Mannor of B. the Tenants joyned in a Petition to the King for the custom of the Mannor which custom they set forth to be that after the death of the Tenant for Life of a Copyhold the Lord is compellable to make an Estate to the elest Son for Life and if he hath no Son to the daughter They subscribed their name to a Blank giving power to B. one of them to write what Petition he pleased and they agreed in bearing of the charge of it raâ—eably It was holden by the Justices in this case That the joyning in the Suit and in the raâ—eable charge was lawful but for subscribing the Blank it was conceâ—ved by them it was censurable in the Star-chamber because it was an illegal combination although the â—â—mplaint be not censurable But for the custom the Justices were of opinion that the same was against Law The Dean and Canons of Windsor and Pâ—nâ—ins Case 1028. The Dean and Canons made an agreement betwixt them by Lotts to have an assurance of a Lease to 〈◊〉 of them of certain Possessions of the Church the Lotts being cast so as each knew his Lease They made the assurance in this manner viz. The Corporation entred into a Bond of 500 l. to the Canon who was to have the Lease and the Canon entred into an Obligation of the same Sum to pay to the Colledge 5â—0 l. The intent of the agreement was that the one 500 l. should be estopped for the other 500 l. and the Corporation was to have only the 10 l. for the Lease This Case being in Chancery it was Decreed by the Lord Chancellor That the Obligation of 500 l. made by the Dean and Canons to each Canon was void by the Statute of 18 Eliz. which speaks of Bonds and Covenants to be void for making a Lease contrary to the Statute of 13 Eliz. Hussies Case 1029. Hussey a Bastard purchased a Mannor of the Queen and made his Will by which he devised the Mannor Afterwards he made a Feoffment of the Mannor to the use of such persons and for such Estate as he had declared by his Will It was adjudged that the Feoffment was a countermand of the Will and yet the Will was sufficient to declare the use of the Feoffment Shâ—te and Mallorys Case 1030. Lessee for 40 years of the Queen made a Lease for 21. years rendring Rent and afterwards granted totum statum suum to the Plaintiff to whom the Lessee for 21 years refused to attorn or pay the Rent It was decreed in Chancery that he should attorn and pay the Rent because the Plaintiff had no means to compel the Attornment and yet without Attornment the Reversion to which the Rent was incident was in the Grantee and in this case it was said that where a Rent was devised without distress the Chancellor had power to coâ—pel the Tenant to pay it and yet the Rent is in the Devise by the Devise Cole and Moores Case 1031. A. possessed of a Lease for years devised in this manner viz. I give and bequeath all the years to come after my decease in my Farms c. to J. M. to enjoy and receive the profits thereof during his Life paying such Rentâ— I am bound to pay and all such Annuities as I have given and such Estates as I do give by my Will and if be die before the years to come in my Farms bâ— fully expired I give and assign the rest of my years to come to my Soâ—â— P. C. and the said P. C. shall then pay yearly to A. M. 26 l. during her Life and if she die before her Husband J. M. then I give to E. M. 60 l. 13 s. 4 d. out of my Farms to be paid â—er during six years and made J. M. her Executor and died J. M. prâ—ved the Will and had Asâ—etts 3000 l. P. C. made his Will in the Life of J. M. and there did bequeath to R. C. his Son all the Lands leased and all his Term of years Estate Life Interest to come and enduring R. C. preferred his Bill in Chancery against J. M. for endeavâ—â—ing to defraud the possibility by conveying the Term away to Friends in trust for his own use J. M.
Negatives that he hath not broken them and to the Covenants in the Affirmative that he hath performed them 2. When the Covenants Negative are against Laws and the Affirmative Lawfull there he may plead performance generally and the Court is to take notice that the Covenants in the Negative were void and against Law 3. That the Covenants that he would not do any Execution nor Execute any Writs here as venire fac were against Law 4. When some Covenants are void by the Common Law and others not void an Obligation taken for the performance of Covenants stands good for those that are good and not for the other Gresley and Luthers Case 1110. Assumpsit The Defendant was a Suitor for Marriage of the Daughter of I. S. the Mother of the Daughter was sollicited by the Defendant for her assent and furtherance of the Marriage and the Defendant promised that if she would agree that her Daughter should Marry the Defendant that he would give to the Mother 100l she gave her assent and the Marriage took effect It was Resolved that the Agreement of the Mother was a sufficient consideration to ground the Assumpsit upon Fosters and Jacksons Case 1111. Scire fac Against an Executor to have Execution of a Judgement against the Testator the Defendant pleaded that the Testator was taken in Execution for the same Debt and dyed in Execution It was Resolved that was a discharge of the Debt vide Laud and Williams Case Pasch 44. Eliz adjudged accordingly Harecote and Wrenhams Case 1112. The Case was The Father in his life time had conveyed a Lease in Trust to F. and made his Son his Executor who recvered 100l in Chancary against F. which he had and came to his hands as Executor The Question was if this 1000l should be Assetts in the Executors hands Resolved it should be Assetts Selby and Chutes Case 1113. The Lessor Covenanted that the Lessee should enjoy the Land without the disturbance Let or hindrance c. of the Lessee The Lessor sued the Lessee in Chancery suggesting the Lease was made to him in trust to try a Tittle onely In Covenant brought the Lessee assigned this in breach of the Covenant Adjudging no breach because it was a Suite in Equity and not at Common Law Sir Henry Rolls and Sir Robert Osborn and his wives Case 1114. Warrantia Charta against Husband and Wife that the husband and wife levied a Fine 2 Jac. to the Defendant and his Heirs with Warranty the Defendant pleaded that the same Term a common Recovery was had by a Stranger in a Writ of entry against the Plaintiff who vouched the husband only which Recovery was to the use of the Plaintiff for part of the Land for his Life with divers Remainders in tail with the Remainders in Fee to the Plaintiff and his Heirs In this case these points were Resolved 1. the wife one of the Defendants died pendant the Writ that the Writ should not abate because the Warranty was by the Husband and Wife so as by the death of the wife the Warranty as to her was determined and it stood for the Husband and his Heirs 2. Resolved that the Warranty was determined by the Severance and Division of the Land 3. Resolved that if the Plaintiff be impleaded in which he might vouch if he did not vouch that he might have Warrantia Charta 4. Resolved that because it appeared by the Plea in Bar that the use of the Recovery was to the Plaintiff but for Life so as the Plaintiff is in of another estate that he could not have a Warrantia Charta to recover upon a Warranty in Fee It was adjudged against the Plaintiff Cownden and Clarks Case 1115. In Ejectione firme the case was A seised of Lands in Fee in Soccage had Issue I. his Son and E. his daughter who was married to I. D. by whom she had Issue two daughters M. and F. he made his Will and devised out of his Lands Annuities to his Grand-children M. and F. and gave a Legacy to G. his brother of 20 l. and his Lands he devised thus My meaning is that my Land I now stand seised of and that of right I have shall discend to J. my Son but my Executors shall take the profits of it till his age of 24. years Provided If the said J. die without Issue of his body thâ—n the Land go to the right Heirs of my name and posterity equally to be divided part and part like and then to the said M. and F. I. died without Issue G. his brother entred and made the Lease It was Resolved in this case that the Devise to the right Heirs of his name and posterity was void and by consequence the Reversion in Fee discended to I his Son and from him to his two Daughters as his general Heirs and that appeared to be the intent of the Devisor for he did not intend his brother should have the Land for the words be part and part like and he did not intend his two daughters should have the Lands because he devised them Annuities Rowrth and the Bishop of Chesters Case 1116. It was Resolved in this case that after an Induction an Institution is not to be examined in the Spiritual Court but by a Quare Impedit only But yet the Justices if they see causa may write to the Bishop to certifie concerning the Institution Tisilate and Sir William Esex Case 1117. Covenant was brought upon the words Covenant Premise and Agree that the Lessee should quietly occupy and enjoy the Lands demised for during the term of Seven years and the Plaintiff shewed that a Stranger entred upon the Land but did not shew that he entred by title and for that cause it was adjudged against the Plaintiff and the difference was taken betwixt a Covenant implied as here it was in the words demise c. but upon a Covenant expressed there the Lessor is to gard the Land against every person Harrington and Deans Case 1118. Accompt A. was endebted to the Plaintiff 200 l. The Plaintiff required the Defendant to receive it of A and prayed the Defendant to borrow so much for him and pay it to the Plaintiff the Defendant did borrow 200 l. of I. S. and A. was bound for the repayment of it It was adjudged that the Defendant should account for this mony for that he had a Warrant from the Plaintiff to receive the mony of A. and by the direction of A. he received it of I. S. for A. therefore he was to account for it The Earl of Cumberland and Countesse of Cumberlands Case 1119. Waste in 3. Several Townes A. B. C. There were 29. Issues joyned and tryed 14. for the Plantiff and 14. for the Defendant One was if certaine Oakes cut down were imployed in reparation of the Castle of A. which Issue was tryed with the Defendant It was moved in stay of Judgement that the Visne was of the Town of A. where it ought to