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
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
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
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
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
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
The Wife entred and elected one yard Land and 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
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
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
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-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
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
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
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
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
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
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
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
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
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
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
for not paying of Prisage she pleaded she was Libera foemina de London and pleaded the Charteâ— of 1 E. 3. vide the Charter at large put in this case in Buâ—strodes Reports It was after many loâ—g Arguments adjudged in this case that the husband of the Defendant was a compleat citizen in every respect and that those Wines remaining in the hands of his wife were bona civium and so within the discharge to be freed from the payment of Prisage Wheeler and Heydon Case 1056. Debt upon the Statute of 2 E. 6. for not setting forth of Tythes and declared that I. S. was Parson of S. and let him the Rectory for six years if he so long lived and continued Parson there It was found that the Parson made the Lease for six years and the words if he continued Parson there were omitted in the Lease It was the opinion of the Justices that this variance betwixt the Lease and the Declaration and the Lease found is all one in substance and the addition in the Declaration is no more then what the Law tacite implies Heydon Shepherd and others Case 1057. Error in Parliament the case was In Assize brought against the Defendant Judgment was given for the Plaintiff he brought Error in the Kings Bench and there the Judgment was affirmed and upon that Judgment he brought Error in Parliament It was Resolved that a Writ of Error did not lie in Parliament to reverse a Judgment given in the Kings Bench in Error brought there for that there is a double Judgement and the reversal of a Judgment in a Writ of Error given shall not reverse the first Judgment but that execution shall issue upon the first Judgment in the Assize The Case of the Sheriffs of Bristol 1058. The Commissioners upon the Statute of Bankrupts committed a Bankrupt to their custody for refusing to be examined upon Interrogatories and they let him escape whereupon Action upon the case was brought against them It was objected the Action did not lie because he was not committed till satisfaction of the Debt But Resolved the Action did well lie the commitment being only for refusing to be examined upon Interrogatories although it doth not appear what the Interrogatories were so as the Court might judge whether they were lawful or not for they shall be intended lawfull till the contrary be shewed Hill and Hawkes Case 1059. Trover and Conversion of four Bushels of Wheat The Defendant justified that the Bayliffs of L. time out of mind had used to choose one to be Bell-man for keeping the Market-place clean and the Bell-man and his Predecessors had used time out of mind c. to take out of every Sack of Corn which contained more then a Bushel a Quart for the Toll of the corn brought in Sacks to the Market to be sold and that he was chosen Bell-man by the Bayliffs and that the Plaintiff brought a Sack of corn containing four Bushels to be sold and he took a Quart for Toll It was adjudged a good custom although the corn was not sold but only brought there to be sold but without a special custome Toll shall not be paid of Corn brought to sell if it be not sold 1060. Debt upon an Obligation The Defendant pleaded non est factum it was so that the Bond was sealed and delivered by the Defendant but that afterwards viz. Vicecomiti Comitatus Oxon without the privity of the Plaintiff were interlined in a place not material wherefore adjudged it was a good Bond but if it had bin in a place material or with the privity of the Plaintiff the Obligor the Bond had bin void Poole and Godfreys Case 1061. Action upon the case against the Defendant a Sommoner in the Spiritual Court and having a Citation against the Plaintiff he retorned that he had summoned the Plaintiff whereas in truth he never summoned him for which the Plaintiff was excommunicated to his great damage It was adjudged that the Action did lie Mansfields Case 1062. Information against him because he being a Recusant convict went five miles from the place of his confinement he pleaded a License of four Justices of the Peace but because he did not show that he did take the Oath of Allegiance before the License nor that the License was granted by the privity of the Bishop or the Lieutenant the Plea was disallowed Jesson and Bruns Case 1063. Debt in Yarmouth there the Bail was taken The Cause was removed in B. R. and there new Bail found and the same Term a Procedendo was awarded Adjudged the first Bail should stand and was not discharged by removing of the Record but otherwise if the Procedendo had been awarded in another Term. Wrights Case 1064. It was Resolved in this Case That if any English Court holds Plea of a thing whereof Judgment is given at the common Law a Prohibition lies upon the Statute of 27 E. 3. cap. 1 and 4 H. 4. cap. 23. And therefore whereas the Plaintiff brought Trespass in B. R. and Judgment was against him and after he exhibited a Bill in the Court of Dutchy for the same matter a Prohibition was awarded Worrali and Harpers Case 1065. A seised in Fee of the Mannors of G and N. both holden in capite covenanted to stand seised of G. to the use of himself and his wife and the Heirs Males of their two bodies the Remainder over in tail and of N. to the use of himself and his wife for their Lives the remainder to the Heirs of his own body Afterwards he purchased Soccage Lands and devised that they should be sold by his Executors who sold them to the Plaintiff It was Resolved that the Devise was good for two parts of the Soccage Lands only and not void for the whole Soccage Lands for they held that the Reversion expectant upon the Estate tail of the Land holden in capite was a good Impediment to devise more then two parts of the Soccage Lands Glanviles Case 1066. The case was A Jewel of Gold with a Diamond was sold by Glanvile to Courtney It was affirmed by Glanvil to be a good Diamond whereas it was but a Topaz so as Courtney was deceived for the Jewel was sold to him for 300 l whereas in truth it was not worth 30 l. Glanvil got a Judgment in the Kings Bench against Courtney for 800 l. upon non suum informatus by assent of the parties Upon a Bill preferred in Chancery and upon examination of the cause it was decreed that Glanvil should take back the Jewel and should have a 100 l. and should acknowledge satisfaction of the Judgment which he refused to do and for breach of this Decree he was committed and upon an Habtas corpus brought in B. R. he was discharged and it was said a Suit in Chancery after a Judgment at the common Law and to be reversed was not good by the Statute of 27 Ed. 3. and the Statute of 4 H. 4. and divers
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
this case that if S. had died and no other was instituted by the Patron but the Church remained void that the King might Present otherwise it had been if the Patron had presented a new Parson to the Church before the King presented Pym and Gorwins Case 1165. It was Resolved by the Justices in this case that one cannt prescribe for a Seat in the body of the Church for that the Seats there are disposable by the Parson and Churchwardens but for a Seat in an Isle of the Church a man may prescribe because it may be presumed that he or his Ancestors who had house and lands within the Parish had edified and built the said Isle and so it was said it was adjudged in the Lady Grays case Norris and the Hundred of Gawtrys Case 1166. Debt against the Hundred upon a Robbery 9. Octob. 13 Jac. the Teste of the original was 9 Octob. 14 Jac. It was said the Action was not brought within the year for there is but one ninth of October within the year It was the opinion of the Justices that in this case a Fraction of a day should be by devision of time in a day viz. the Robbery committed 9 Oct. 13. post meridiem is within the year of the bringing of the Writ 9 Octob. 14 Jac. in the morning Vide Ludford and Grettons Case Plowd Com. 491. Dawks and Hills Case 1167. Upon an Information upon the Statute of 5 E. 6. an Ingrosser of Chattel justified for a certain number of Chattel and sold upon two several Licenses without distinction how much upon the one and how much upon the other and upon a Demurrer it was adjudged for the Plaintiff Middleton and Lawtes Case 1168. Two Patrons pretended title to present the one presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after there he obtained Institution and Induction by the Arch-Bishop Afterwards the inferior Bishop instituted and inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction for that would determine the Incumbency which is tryable at the Common Law Stewkley and Butlers Case 1169. In Trespass the case was A. seised of the Mannor of D. made a Lease of the Scite and Demeans to the Defendant for three Lives except all Tymber-trees and covenanted that his Lessee should take all Woods Afterwards the Lessor bargained and sold to the Lessee all those the Trees Woods and Under-woods growing within the Mannor viz. within the Grounds called A. B. and C. Habendum una cum omnibus aliis arboribus within the Mannor which may conveniently be spared and the Bargainor covenanted that it should be lawful for the Barganee at all times within five years to enter and cut the Trees and Woods and convert them to their own uses In this case it was Resolved 1. That the Viz. was void for a Viz. may explaine or distribute a thing precedent but not restrain it 2. Resolved that the una cum aliis arboribus in the Habendum should make a new Grant of the other Trees 3. Resolved that the words which followed the una cum cest ' una cum omnibus arboribus within the Mannor which could be spared was void for the uncertainty and there is no means agreed betwixt the parties here to reduce the same to a certainty 4. Resolved that the Covenant of the Bargainor that it should be lawfull for the Bargainee to take the Trees and Woods within five years was not a Condition but a meer Covenant and the difference was taken where one sells all his Trees to be taken within 5 years after there the Vendee shall not take them after 5 years ended but if the time of taking of them be by way of Covenant there it shall not restraine the party to take them at all times as well after the five years as within the five years but the parties are to have their remedy by an Action of Covenant upon the disturbance Yet it was said by Hatton that if one grants his Corn growing and the Grantee doth not take it in convenient time so as the Grantor receive detriment thereby the Grantor shall have Action upon the case against him Hansons Case 1170. He was cast over the Bar because he gave direction in writing to an Under-Sheriff what persons he would have him return upon a Pannel for tryal of an Issue and named others who he would not have to be retorned Kingswell and Crawleys Case 1171. Replevin The Defendant avowed for Rent for that I. S. held of him by Fealty and Rent whose Estate the Plaintiff had The Plaintiff said I. S. enfeoffed I. N. who made a Lease to the Plaintiff for Life absque hoc that he had the estate of I. S. Resolved that the Traverse was void for after the Statute of 21 H. 8. the party is to avow upon the Land and then it is not material what Estate the Tenant had so he occupied the Land but before the said Statute it had bin a good Plea so as the Statute hath changed the Law for the Traverse in pleading although there is not any word of it in the Statute Andrews and the Bishop of Yorks Case 1172. It was Resolved that is a good Plea in an Assize of Darrien Presentment that the Plaintiff hath a Quare Impedit depending the same avoidance 1173. Words viz. He hath stollen my coâ—n out of my Barns Adjudged per curiam the words were actionable Hall and Wingfields Case 1173. The Defendant acknowledged a Recognizance before the Lord Hobart at Serjeants-Inn in Fleet-street London which Recognizance was enrolled in the Court of common Pleas The Plaintiff brought debt upon this Recognizance in the Common Pleas and layed his Action in London Whether it ought to be brought in Middlesex where the Record of the Judgment was or in London was the Question The Justices were divided in several opinions Winâ—h it ought to be in Middlesex where it is enrolled because the Debt is consummate Warberton it may be in any County where the party pleaseth Hutton it lieth where the Record is Hobert if no mention had bin made upon the Inrollment of the Recognizance before the Chief Justice at Serjeants Inn it ought to have bin brought in Middlesex but now it was in the Election of the Plaintiff to bring it either in London or Middlesex vide this case more at large Hob. Reports 195. where the case seems to be Resolved Lea and Pains Case 1175 Debt upon Obligation to stand to an Award The Plaintiffs in January submitted themselves to stand to the award of I. S. for all Quarrels Debates Questions stirred moved or depending I. S. in April made an Accord that the Defendant should pay to the Plaintiff should pay Twenty Nobles in
aliened that the Donor might enter the Donee aliened and afterwards dyed without Issue If the Donor might enter or was put to his Formidon in Reverter Quaere for the Justices were divided in opinion and it was not Resolved 122. The reversion of a Lease for years was granted one moyety to one man and another moyety to another The Lessee committed Wast and then the Lease determined They brought actions of Wast in the Tenant It was the better opinion that they might well joyn in the action because they are not now to recover in the realty which is the Land Wasted but only damages but if the Term had continued it had been otherwise because then the Land was to be recovered 123. An Indenture of Bargain and Sale was Enrolled the last day of the 6. Moneths not accounting the day of the date of the Indenture for part of the 6. Moneths It was Resolved that the Enâ—olment was good for the day of the date shall not be accounted part of the 6. Months limitted by the Statute for the date and the day of the date is all one for the date is all the day And it was said It was not like the Statute of 32 H. 8. of Leases where it is said A Lease made by Tenant in Tail shall be good for 21. years after the making of the Lease for the making may be at one hour of the day and is prefect by the delivery at that time and therefore the Lease shall begin presently And in this Case it was agreed for Law That if a man by Deed Indented Bargaines and Sells his Lands unto another and before the enrollment of the deed he Bargains and Sells to another and the last Deed is first Enrolled and after the first Indenture is Enrolled within the 6. Moneths the first Indenture is the best and shall be preferred before the latter although it was first Enrolled 124. By a Statute made 3. Ma. Cap. 4. Authority was given to Cardinal Poole to dispose order imploy and convert the Benefices appropriate to the increase and augmentation of the Living of the Incumbent He made a Lease for years of a Parsonage appropriate It was holden the Lease was void for he had authority but to the Intents specified in the Statute and he had not the Fee simple given him by any words of the Statute Quaere in whom the Free simple was if in the Queen or it was in Abeyance not Resolved 125. A Fine was Levyed in the time of King John by which the Conusor granted to the Conusee in Tail a Mannor rendring to him a pair of guilt Spurs for all services salvo sorinseco servitio Domino Regi The Mannor was holden of the Lord Stafford The Justices held it was but a Tenure in Socage for the words salvo sorinseco servitio were void to all purposes but to reserve such services by which he himself held of his Lord next paramount him and not such services which any of the Lords paramount him held over by Knights service 126. It was holden by the Justices If a man find sureties for the Peace before Justices of the Peace in the County yet if the same party come in B. R. and there make Oath that he was afraid he shall be hurt by the said party he may have surety of the Peace there against the party and a Supersedeas to the justices to discharge the bond taken before them for the Peace and behaviour 127. Note for a Rule by the Court That in every case where the Defendent once confesseth a Deed and after would avoid it by matter which makes the Deed defeisible and not void That in such Case he shall not plead Non est factum to it but show the special matter and conclude Judgment of action as if Debt be upon an Obligation against one who was within age He shall not plead Non est factum to it but shew the special matter that he was within age 128. A Lease was made to the Husband and Wife and to a 3d. person to have and hold to the Husband for 80 years if he should so long live and if he dye within the Terme the remainder of the said Term to the Wife and to the 3d. person if he should live so long It was Resolved a good Habendum and that all the Interest was in the Husband and nothing in the others till after his death But it was holden if a Lease be made to 3. of 3. acres Habendum one acre to one for 20. years of another to another for 40. years and of the 3. to the 3d. person for 60. years the limitation is void for he cannot by the Habendum divide the estate in such manner which was joynt before Gascon and Whatleys Case 129. A man seised of Lands in Fee is bound in a Recognizance and afterwards enfeoffes the Recognizee of parcel of the Lands yet the Recognizor is chargeable for the Residue of the Lands to the Executor of the Recognizee and for his body and goods but if the Recognizor dye hâ—s Heirs shall not be charged 130. Cessavit The Tenant said That the demandant nor his Ancestors were never seised of the services within 40. years It was holden by the Justices to be no plea because this Writ is not within the Statute of 31 H. 8. cap. 2. of Limitation and also because the seisin of the services is not materiall nor traversable in a Cessavit Mich. 5. Eliz. 131. Lessee for years Covenants for him and his assignes that he will not lop nor top the Trees during the Terme he dyes Intestate his Adminstrators lopâ— the Trees he is chargeable to the Covenant because he hath the Terme to the use of the Testator The Words in the Lease were Provided It shall not be Lawfull to the Lessee to top the Trees If these words are a Condition or a Restraint only no penalty ensuing upon it Quaere It was not Resolved 132. The Queen by Letters Patents ex câ—rta scientia mero motâ— granted to I. S. the Mannor of D. which she had by the Attainder of Sir Thomas Wyat and in truth she was seised of the Mannor by discent Resolved That the grant was void because the Queen was deceived in her grant Quaere if the same be not helped by the Statute of misrecitalls for when the substance of the thing granted appears certain the Statute helps all other defects but when the certainty of the thing granted doth not appear then perhaps it is not helped by the Statute 133. A Fine was Levyed by Husband and Wife and the Conusee rendred back the same Lands to the Husband and Wife and to the Heirs of the Wife and an Indenture was by which it was recited that the Remainder should be to the use of the Husband and Wife and to the Heirs of the Husband The Justices conceived there is not any use implyed upon a Fine no more than upon a Feoffment wherefore they conceived that the
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
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
not avoid it and therefore Resolved that it was a joynt Estate and that the Proviso should not sever it Hudson and Lees Case 402. In Appeal of Maihem The Defendant pleaded that the Plaintiff had brought an Action of Battery and recovered therein for the same Battery and Wounding upon which the Appeal was brought and it was adjudged a good and sufficient Plea in Bar. Lee and Lees Case 403. A. had three Sons F. I. and G. he devised his Land to I. for 21. years to the intent to perform his Will and pay his Debts and he made him his Executor and if I dyed within the Term then G. to have the like Term as I. had and G. then also should be his Executor and devised the Land to F. in tail the remainder to I. in tail the remainder to G. I. entred F. died without Issue I. had â—ssue P. the Defendant and died within the Term It was the opinion of the Court That if Land be devised for years to one and if he die within the Term that another shall have the residue of the years that no Act of the first can prejudice the Remainder of the second but otherwise if one who hath a Term deviseth his Term with such a Remainder and a difference taken between a devise of the Term and a devise of the Land Beverley and Cornwell 's Case 404. Note in this Case which Case vide before That if any Advowson comes to the Queen for forfeiture by Outlawry and the Church becomes void and the Queen presents and then the Outlawry is reversed for Error yet the Queen shall enjoy the Presentment because it came to the Queen as a profit of the Advowson but if the Church be void at the time of the Outlawry and the Presentment is forfeited as a Chattel principal and distinct and then the Outlawrie is reversed the party shall have restitution of the presentment More and Hales Case 405. The Case was A Vicar let his Viccarage and all his Glebes and Tythes to I. S. for 21. years rendring 22. l. rent to him and his Successors which Lease was confirmed by the Patron Dean and Chapter the Lessee assigned over his Term to the Plaintiff and averred the Rent was the usual Rent The Plaintiff devised the Viccarage to the Defendant rendring 30. l. per an and for not payment of 15. l. half a years Rent brought debt The Defendant pleaded the Statute of 13 Eliz that no Lease of a Benefice with Cure should continue longer then the Lessor should be resident serving the Cure without absence 80. days and averred the Viccarage was a Benefice with Cure and that before the Rent day the Lessor died and that I. R. was made Vicar Whether the Lease was void the Court was now divided in opinion But vide in Cro. 3. part 131. It was Resolved that in this Case the Lease was void by the death of the Lessor Page and Griffiths Case 406. Ejectione firme the Case was Lessee for Life bargained and sold the Land to one and his Heirs and afterwards 14. Eliz he suffered a Recovery thereof to the use of the Bargainer It was adjudged that the suffering of the Recovery was a forfeiture Spitle and Davies Case 407. A man devised Lands to his youngest Sons Proviso If his Sons oâ— any of their Issues devise any of the Lands before their age of 30. years then the others shall have the Estate the eldest Son made a Lease thereof before his age of 30 years the youngest Son entred and before â—he 30. years ended aliened the Land the eldest Son entred Resolved 1. It was a Limitation 2. That when the younger Brother hath once entred for the Alienation then the Land is discharged of the Limitation Vide Owens Rep. 8. the same Case Ever and Asâ—ons Case 408. The Custom of a Mannor was That if any man had a Wife who was a Copyholder in the Fee of the Mannor and had Issue by her that he should be Tenant by the Curtesie of the Land It was found that A. a Copyhold was seised and had â—ssue a Daughter who was married to I. S. who had Issue A. died his Wife entred the Wife died before admittance The points were 1. If Ejectione firme did lie upon a Lease made by Copyholder 2. If by the entry of the Husband without admittance of the Wife he should be Tenant by the Curtesie The Court doubted of the first point but for the second were of opinion that the Husband was well entituled to be Tenant by the Curtesie before admittance of the Wife and the delay of the admittance by the Lord should not prejudice the husband being a third person Bewacorn and Caters Case 409. Sir Ralpâ— Rowlet possessed of a Term of years devised the same to Sir Robert Cutlin Lord Chief Justice during his Life and after to a strarger and made the said Sir Robert with the Lord Keeper and others his Executors and died The Executors writ their Letter and annexed the Will unto it to Doctor Dlae praying that because they could not attend the Execution of the Will that he would condition the Administration to I. S. which he did so reciting in his Register Quia Executores distulerunt adhuc differunt executionem Testamenti Afterwards Sir Robert without assent of the Administration entred into the Term and devised it The point was if the Letters so written was a Refusal of the Executorship It was Resolved by the Justices after the Case had been argued by the Civilians in Court that it was a Refusal of the Executorship Osborn and Gameones Case 410. The Case was I. levyed a Fine of 48 â— 8. d. Rent charged in W. to I. S. and his Heirs and the use was to such persons as I. S. should declare who afterwards declared the use to I. D. and his Heirs and the Defendant in a Replevin avowed as Bayliff of I. D. It was demurred unto because he did not shew any Attornment The Question was If Cestuy que use of a Rent in esse grant a Rent by Fine after 27. H. 8. might avow without attornment Quaere not Resolved Ognell and Pastons Case 411. In Debt in the Exchequer The Case was W. and F. acknowledged a Recognisance of 200. l. in the Chancery to the Plaintiff for payment of mony at a day to come they failing upon two Scire facias issued and nibil returned a Levari fac issued to the Sheriff of N. and afterwards a Capias ad satisfaciendum to the Defendant the Sheriff who arrested W. the said W. being then in his Custody upon an Indictment of Felony who after upon his arraignment was found Guilty of the Felony and afterwards he escaped being let at large The points were First if a Capias did lie upon a Recognisance in Chancery Second if it did not lie yet if it was void or voidable Third if the Conviction of Felony had discharged the Execution Resolved That if the Chancery had consideration of
the Cause and they do award an Erroneous Process or Misaward a Capias by which the party is taken in Execution yet it is a lawfull Execution and the Sheriff is chargeable with the Escape and he is not to examine the Error of the Court in avoiding the Execution Second that the Conviction of the Felony was no discharge of the parties Execution and it was adjudged against the Defendant 412. Debt brought in Co. B. for an Amercement in a Court Baron the Defendant would have waâ—ed his Law the Court doubted of it and some Presidents were shewed as Trin. 6. Eliz. Tindal and Tuckers Case that he might in such Case wage his Law Quare The Queen Bishop of Lincoln and Skiffings Case 413. Quare Imp. The Case was the Countess of Kent had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was adjudged he was Lawful Chaplain for the Patent is not of necessity but only in Case where he hath Cause to shew it and he hath no cause to shew it because her Retainer was good without a Patent Bâ—rd and Adams Case 414. In this Case a Case of a Prohibition to stay a Suit in the Spiritual Court for Tythes of the Rakings of Lands after the Crop of corn was carried away It was holden That the prohibition would not lye but that Tythes should be paid of Rakings But vide 42. Eliz. in B. R. in Gree and Haales Case It was adjudged that by the Custom of the Realm Tythes should not be paid of Rakings Battey and Trevillions Case 415. Replevin The Defendant avowed That I. and A. his Wife were seised in Fee in the right of his Wife and devised the Land in which to I. H and I. his Wife with E. their Daughter for 60. years rendring four Marks Rent Afterwards 38. H. 8. I. and A. his Wife levyed a Fine and the Conusees rendred the Land to A. for Life the remainder to Tho. their Son in tail with remainder over A. died Tho. entred upon the Lessees and made a Feoffment to I. D. and others to perform his Will the Lessees reentred Tho. 7. Eliz. by his Will ordained that his Feoffees should stand seised untill they had levied sufficient to pay his debts and Legacies which were not payed and therefore the Defendant as Bayliff to the Feoffees made conusance and as to the rest he avowed for that Tho. was seised in Fee of the place in which c. and 6 Eliz. devised the same to H. L. and M for Life rendring 30. s. Rent and afterwards entred upon the Leslees and levyed a Fine thereof to the use of himself in Fee and afterwards infeoffed thereof the first Feoffees to the use of his Will the Lessees reentred and he made his Will as above and died and for 3. l. rent for two years he made conusance as Bayliff to the surviving Feoffees The Plantiff to the first Avowry said that Tho. was seised in Tail by the render of the Fine and the tail descended to H. his Son and then E. one oâ— the Lessees who survived to husband the Plaintiff bâ—que hoc that Tho. enfeoffed the Feoffees to such uses as the Defendant hath a ledged and as to the other Conusance the Plaintiff demurred in Law The Jury found the seisin of A. and her Husband and the Lessee for years to the three persons and the Fine and Render to the seisin of Tho. and the Feoffment of Tho. to I. D. and others to perform his Will and they found a Letter of Attorney to persons whereof the said I. H. one of the Lessees was one conjunctim divisim to enter in all the Premises and take possession and deliver the same to the Feoffees or one of them and that after Tho. made his Will as before and that C. one of the Attorneys to one of the Feoffees and D. another of the Attorneys delivered seisin to another of the Feoffees There were divers points in this Case First because the Jury have sound a Devise of Land and no Tenure if the Justices could judge the Tenure to be Knight Service or Soccage this point the Justices said they would not meddle with Second point admit the Land to be holden in Capite and that the Land passed by the Willâ— they held that but two parts of the Land passed by the Devise 3dly When he devised that his Feoffees should stand seised and he had not Feoffees but he himself was in possession the Justices held it was devise of the Land it self 4thly They held where one of the Lessees made Livery as Attorney to the Lessor that he did not thereby extinct or surrender the Term. 5thly When an Authority is to four conjunctim divisim to execute Livery that one might execute Livery in one part and the other in another part 6thly They held when Tenant in tail of Lands in lease for years makes a Feoffment and the Lessee reentred it was a discontinuance 7thly They held when Tenant in Fee simple of a Reversion expectant upon Lease for years deviseth two parts of the Land that no part of the Rent passeth 8thly In this Case because the avowry is made for the whole Rent and it appeareth he hath title but to two parts It was holden he should not have a Return for any part 9thly They held when the Avowant makes title but to two parts of the Rent and the Jury assesse damages for the whole Rent that the Avowant could not have Judgment unlesse he Released the damages 10thly When the Lessor entred upon his Lessee for life and made a Feoffment and the Lessee reentred the Justices doubt if the Rent was revived Keale and Carters Case 416. False Imprisonment the Defendant Justified that he was Constable and that the Plaintiff brought a Child of the age of 2. years and no more into the Church and there left it to the intent it might dye for want of sustenance wherefore he Imprisoned him till he agreed to take away the Child It was the opinion that the Justification of the Defendant was good because the Act of the Constable was but to prevent a felony which he might do by virtue of his Office Fenwick and Mitsorths Case 417. The Case was A. man seised of Lands in Fee Levyed a Fine thereof to the use of Wife for life the remainder to the use of his eldest Son and the Heirs males of his body the remainder to the right Heirs of the Conusor The Conusor made a Lease for 1000. years to B. the eldest Son dyeth without Issue having a daughter the Conusor dyeth the Wife after dyeth the eldest Son Leaseth the Lands to the Plaintiff It was adjudged in this Case it was a Reversion and no Remainder and this limitation to his right Heirs was meerely void Sir Moiâ—e Finch and Throgmortons Case 418. The Case in effect was this The Queen made a Lease for years rendring rent
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
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.
Eliz. assigned the same to C. for 14. years rendring yearly three Bushels of Mesâ—yn and one Bushel of Wheat in name of a Rent every Saturday and if it fortune the weekly Rent to be unpaid or undelivered then the Lease to cease B. entred and C. possessed of the Reversion by Deed Poll granted the Reversion totum interesse sui to D. to whom B. attorned R. demanded the Rent Corn upon a Saturday which was not paid for which he entered It was Resolved 1. that the Rent reserved by the first Lessee upon demise of the Will for a less Rent was incident to the Reversion of the ancient Term and shall pass by the words of all his Estate and by totum interesse the Rent divided from the Reversion will pass and the Reversion by the words totum statum 2. That the Assignee de toto statu shall take advantage of the cesser of the Term in esse and make the demand of the Rent if the Grant de toto statu be by writing with attornment 3. That by the Statute of 32. H. 8. the Grantee of the Reversion shall have benefit of a Condition annexed to a lesser Term divised out of the first Term There was another point It the demand of the Rent was good or void which was not Resolved Coulter and Irelands Case 664. It was Resolved in this Case by all the Justices of England That an Executor of his own wrong could not pay himself a Debt or a Legacy Chambers and and Handbarges Case 665. In case of a Prohibition It was suggested that the Queen and all those whose Estates she had had used to pay to the Rector of D. 2 s. 4 d. yearly in full satisfaction of the Tythes of Land in C. Issue was upon the Prescription It appeared that the Abbot of K. was owner of the Land and Rectory which afterwards came to the Queen who was seised as the Abbot was Resolved that the Unity was not a perpetual discharge of the Tythes nor of the Recompence for them Brougton and Randals Case 666. A Tales was awarded upon the Return of a Distringas where none of the principal Pannel appeared yet holden it was good But a Tales is not grantable upon the Return of the Venire if none of the principal Pannel do appear Benton and Trotts Case 667. In case of a Prohibition It was Resolved in this Case that unity of the Estate and not in occupation of the Land and Rectory at the day of dissolution of the Abby was not a discharge of payment of Tythes by the Statute of 32. H. 8. But if the Abbot held the Land at the time of the dissolution in Fee and the Rectory also those Lands were always discharged but if the Lands were in Lease for years although but for a small Term of years the Lands should pay Tythes and so it was said it was adjudged in Knighth and Spencers case and in Green and Bufkyns case and vide to that purpose Coo. 11. par Pridle aâ—d Nappers case Verey Carew and Gibsons Case 668. A seised of Lands in Middlesex and in London acknowledged a Statute to Carew and afterwards conveyed the Land in Middlesex to one which came to the Plaintiff by purchase and the Land in London he conveyed to G. the Defendant and died The Administrator of Carew sued a Scire fac against the Conusor in Middlesex who was retorned mortuus upon which he had a Scire fac to the Terre-Tenants in Middlesex generally and Verey the Plaintiff was returned Terre-Tenant and made default upon which Judgment was given for execution and that a Moiety of the Land in Middlesex should be extended upon which he brought a Scire fac in the nature of an Audita Querela against the Administrator and Gibson Tenant of the Lands in London to shew cause wherefore the moiety of the Lands in London should not be extended It was the opinion of Popham Chief Justice that he might have a Writ wherefore the Lands restitui non debent but not an Audita Querela but the other Justices held that that was the most beneficial way for him who was grieved by the former extent but if he will not pray restitution of what is past but only a contribution for an equal extent to satisfie what did remaine they saw no cause but that he might have it for the foundation of the Writ is equal extent and it was said that the Book of 39 E. 3. 7. and 39 was that it was in Election of the Conusee to take his Audita Querela for restitution or for future contribution Wild and Coopmans Case 669. Words viz. Thou art a false forsworn man thou wast forsworn at the Leet of R. and didst procure others to be forsworn The Defendant justified because that the Plaintiff was one of the Jury and presented that to be a Nusance which was no Nusance Adjudged the Justification was not good and that the Action did lie for the words Parry and Woodwards Case 670. Debt upon a Bill which was Be it known that I do owe to Parry 14. l. to be paid at the Feasts of c. together with 6. l. which I owe him upon Bill and Recognizance subscribed under my hand The Plaintiff brought debt for 20 l. and adjudged against him because the Bill made him Debtor for no more then 14 l. Vaughans Case 671. Intrusion The Queen by her Letters Patent ex certa scientia gratia speciali mero motu granted to I. S. which were late parcel of the Priory of L. and came to the Crown by dissolution of the Premises or any part thereof or the issue or profits thereof were before the first of April 14. Eliz. concealed substrained or unjustly detained from her Father Brother Sister and so remained at the date of the Letters Patent untill they were revealed by the Patentee and it was found by a Commission in 8. Eliz. issued forth to enquire of the Reparations of the King granted and how much money would repaire it and that the Queen was allowed the value of the Stone and Lead expended in the Reparations This was adjudged to be no concealed Land and therefore the Patent void Michel and Longs Case 672. If a Battery be laid in D. in the County of N. with a Continuando in Middiesex and Issue be upon it the Venire shall be of both Counties Thompson and Gardiners Case 673. The Plaintiff had a 100 l. delivered to him to pay over to I. S. and the Defendant came to him and affirmed he was I. S. to whom he delivered the 100 l. and in truth he was not I. S. Adjudged that an Action of Deceit lay against him Shorhorne and Lewis Case 674. The Hospital of Donnington was incorporated by the name of Minister Dei pauperis domus de Donnington confratres ejusdem and they made a Lease by the name of Minister pauperis Domus Dei de Donnington elemosynarii confratres ejusdem The Justices were divided
in opinion if it was a good Lease Rosse and Mores Case 675. Assumpsit In consideration that the Plaintiff would relinquish a Suit which he had against a Stranger the Defendant promised to save the Defendant harmless from all actions concerning such a Lease It was adjudged no good Consideration because he may afterwards prosecute the Suit again when he pleaseth Bannister and Lillyes Case 676. Debt for Rent upon a Lease for years The Defendant said I. S. was seised and died and his Heir entred and the Plaintiff disseised him and made the Lease and the Son reentred before the Rent day The Plaintiff said I. S. was not seised nor died seized and that he did not disseise the Son The point was if the disseisin or discent was traversable adjudged the Disseisin Stoner and Gibsons Case 677. It was adjudged in this Case that the Lessee for years of a Copyholder might maintain Ejectione firmae Digby and Vernans Case 678. Resolved It is a good Plea in abatement of an Ejectione firme that the Plaintiff hath an other Ejectione firme depending of the same Land Waston and Ridges Case 679. It was Resolved in this Case That upon an Information exhibited in the Spiritual Court for laying of violent hands upon a Clerk and costs there given against the Defendant for which he was excommunicate for not paying them a Prohibition should issue forth because it was not at the Suit of the party and costs are not grantable there upon an Information Butler and Goodales Case 680. Upon an Information upon the Statute of 21 H. 8. of Non-Residence It was Resolved That the Parson ought to dwell upon the Parsonage house and not upon another house although it be within the Parish both for serving the Cure and maintaining of Hospitality v. Coo. 6. par the same case Odiham and Smiths Case 681. Error of a Judgment in C. B. for Trespas there for taking of an Ox the Plaintiff there assigned the Trespass generally in D. the Defendant justified the taking of the Ox damage Feasants the Plaintiff made a new Assignment upon which the Defendant justified for Heriot Service and the Judgment there passed against the Defendant because he could not varie from his former Justification but should be estopped by it It was the clear opinion of all the Justices that he might well varie in his Justification upon the new Assignment and therefore the Judgment was reversed Reyner and Parkers Case 682. An Apparator came to the Church of a Parson and said to him he is to pay Tenths to such an one at such a place four miles distant from the Church to whom the Parson did not pay them and thereupon the Bishop certified that he refused to pay them according to the Statute of 26. H. 8. It was Resolved the demand was not according to that Statute and the Summons to pay them not according to the Statute for the demand ought to have been by one who hath authority to receive them which the Summoner had not and they held the demand not good although the Bishop certified it was duly made 683. One who exhibited an Information upon a penal Law died It was Resolved That notwithstanding the death of the Informer yet the Queens Attorney might repay and prosecute the Information for that neither death nor the Release of the Informing party could bar the Queen from the moiety Holliday and Lees Case 684. In a Prohibition It was Resolved that Tythes should not be paid of Beeches although above twenty years growth Cartwright and Dalesworths Case 685. Debt upon an Obligation taken by the Plaintiff Sheriff of the Detendant his Clerk upon condition to pay the Queens Silver into the Exchequer within 14. days after hereceived it The Defendant pleaded he Statute of 23 H. 8. c. 10. and averred it was taken colore Officii Upon demur it was adjudged for the Plaintiff for the Statute doth not intend such Obligations taken of them which are not to appear nor are in custody 686. It was holden by the Justices that if the Sheriff takes goods in Execution upon a Scire fac and hath the goods in his hands and a Supersedeas comes to him yet he shall not thereupon redeliver the goods but may proceed and sell them upon the Execution Armiger and Hollands Case 687. In case of a Prohibition It was Resolved that by the Common Law before the Statute of 21. H. 8. the first Benefice was void without a Sentence Declarative so as the Patron might present without notice 2. That the Statute of 21 H. 8. of Pluralities is a general Law of which the Judges are to take notice without pleading of it 3. That the Queen might grant Dispensations as the Pope might in case where the Arch-Bishop had not Authority by the Statute of 25. H. 8. to grant Dispensations because all the Authority of the Pope was given to the Crown by the Statute but yet the Statute as to those Dispensations which the Arch-Bishop is to grant hath Negative words and the Bishop shall make the Instrument under his Seal Mosley and Fossets Case 688. In Action upon the Case the Plaintiff declared that the Defendant took the Plaintiffs Gelding to pasture for 2 s. the Week and the Defendant was to keep it safe and redeliver it upon Request and that the Defendant kept it so negligently that it was taken away by persons unknown The Court was divided in opinion if the action lay without alledging a Request for delivery of it But it was agreed by them all that without a speciall Assumpsit the action did not lye against the Defendant Sharington and Minors Case 689. A man devised Lands in Tail with diverse Remainders over and with this Clause viz My minde is that if any of the said persons afore entailed to my said Lands or their Heirs do unlawfully vex disquiet or trouble any other of them for the same Or do Mortgage pledge or sell the same or any part thereof or his interest possibility or title therein or do hurt fully dismember or waste the same c. That then every such person and his and their Heirs shall forthwith be cleerly discharged excluded and dismissed as touching the said entail of mine and the conveyance by words forgoing of the entail of my said Lands to be of no force to him or them but the same immediatly to discend and come to the party next in Tail to him or them effectually as if such disordered person had never been minded of in thiâ— my Will B. having this Land by the forfeiture of the former estate she and her Husband levyed a Fine of it he in the next Remainder entred It was holden by the Justices that the estate of each of them in the Remainder was subject to the limitation to cease by alienation and that the next in the Remainder might enter Corbens Case 690. In Consideration of Marriage the Father agreed by word to stand seised of Land to the use of himself for
any essence and also because the possibility of the Wife was included in the Fine Ferry and Redings Case 718. Two were bound in a Statute to make such assurance as should to devised by the Conusee or his Councell upon Notice Assurance was devised and notice thereof given to one of them who refused but no Notice was given to the other It was Resolved that by the Refusal of one of them the Statute was forfeited and should bind both of them Strangewayes and Hicks Case 719. The Defendant knowing that the Plaintiff was an Enfant within age procured him to enter into a Recognizance of Debt to him for wares bought of him and for this the Defendant was fined in Star Chamber 100 l. and Imprisoned Lewes Case 720. He being Clark of the Assises in the County of S. and hearing his Deputy reading an Indictment of Murther the 31. day of June whereas June hath but 30. dayes and because he did not discover the same to the Justices of Assise before the Tryal of the person for that cause he was fined in the Starre Chamber 40 l. and the Judgment and execution of the party respited Rosses Case 721. A. levyed a Fine to the use of himself for life the remainder to his Excecutors untill they have levyed 300 l. for the performance of his Will and dyes The Executors permit a stranger to enter who receives greater profits then will pay the 300 l. afterwards the Excecutors enter and make a Lease for years Resolved that the estate of the Excecutors was determined by their own negligence and although the words of the Will are they shall have Levyed It is intended untill they might conveniently have Levyed the 300 l. 722. King Hen. the 8. Mortgaged certain Lands to Citizens of London upon condition of Redemption by payment of the money by the King to them They did not demand the money at the Receit of the Exchequer which was so found by Office It was the opinion of the Justices that the King might enter upon the Land Wherefore the Mortgagees and their Heirs were compelled to compound de Novo with the Queen for the Land and paid ten years purchase and took new grants from the Queen of the Lands Townsend and Kingsmills Case 723. Ejectione firme The Defendants pleaded that the Dean and Canons of Windsor was seised and made a Lease for years and the Lessee assigned the Terme to the Defendant who was possessed till the Lessor of the Plaintiff ousted him and disseised the Dean and Canons and made the Lease to the Plaintiff The Plaintiff Replyed and confessed the seisn and Lease of the Dean and Canons and made title to the Terme by the assignment made by the Lessee to his Lessor before the assignment to the Defendant and Traversed the disseisin It was the opinion of the Justices that the Traverse was not good because he confessed and avoyded and also Traversed Vide Helyors Case before pl. 709. Barres Case 724. Information in the Exchequer against divers Merchants some Aliens some English After issue the Aliens prayed tryal per medietatem Linguae It was denyed by the Court because the English who were Defendants could not have that tryal Lewen and Coxes Case 725. A. seised of Lands in Fee devised them to his 2. Sons equally and their Heirs If it was a joynt estate in them or they were Tenants in Common was the Question It was said the words equally had 2. significations in the one it referreth to the estate in the other to the quantity of the Land It was said in a Devise of Lands to 2. equally they were joynts But if a Devise were to 2. and their Heirs equally or part and part like it is a Tenancy in Common At last after long debate it was adjudged it was a Tenancy in Common and so it was affirmed in a Writ of Error in the Exchequer Chamber upon the opinion of 4. Judges against 3. of them Lovedon and Windsors Case 726. Quare Impedit the Case was L. had 2. Presentations and W. the 3. of Inheritance perpetual L. presented P. who was Institute and Inducted and afterwards in the time of Queen Mary was deprived because a Married man wherefore he again presented D. who was Inducted Afterwards P. was restored with Declaration that he had good Title Afterwards P dyed W. presented H. L. brought the Quare Impedit It was adjudged for the Plaintiff because the sentence declaratory for the restitution made a nullity in the deprivation of P. and upon that P. was restored without new Presentation and so avoyded the Incumbency of D. and so L. had good Title to present as his second Turne and W. had no title to present as yet 727. Upon the Statute of 39 Eliz. Cap. 6. Of Charirable uses these poynts were Resolved by the Justices 1. That although the Bishop of the Diocesse be a Commissioner by the expresse words of the Act yet it is not necessary that he be present at the execution of the Commission but if it be directed to him and others they may proceed in it without the Bishop but it must be directed to the Bishop else it is void 2. If it be directed sede vacante the Metropolitan is not to be named in it because he is not Bishop of the Diocesse and if a Bishop be made before the Execution of the Commission the same doth not take away the force of the Commission 3. If the Commissioners decree a Lease or Feoffment to be void it is void in interest and estate and if the Lord Chancellor c. after decree the estate good it is again good in interest but the Chancellor cannot make any decree in it if the former decree of the Commissioners be not against equity 4. If a Lease be made in deceit of the Charitable uses which is assigned to one who hath not notice of it for good and valueable Consideration The Commissioners have power to decree the Assignment void 5. The Commissioners may decree the mean profits long time before taken to be repaid by the party his Excecutors or Administrators and had received the and misimployed them as well as they may the profits which are to come 6. The Commissioners cannot by decree estabblish a Corporation of Churchwardens or others to take for Charitable uses but they may Decree Land to a capable body Politique without danger of Mortmain be the Land holden in Capite or not because the Queen is bound by the Statute Yet afterward the Justices altred their opinion in one of the poynts viz. That they could not decree the Lease or estate void of one who came in without Notice and upon good Consideration Druries Case 728. The Case shortly put was this A Countesse being a Widdow retained two Chaplins and afterwards she retained a third Chaplain which third Chaplain purchased a Dispensation to have two benefices with Cure his first benefice being of the value of 8 l. per an It was Resolved after long Argument that
he was not a person Qualified to take two benefices within the Statute of 21 H. 8. of Pluralities It was agreed that a Countesse a Widdow had power to retain two Chaplains who might purchase Dispensation for plurality But when she had once retained two she could not retain a third Chaplin who might purchase Dispensation within the Statute and therefore in the principal Case the Retainer of Priory being the third Chaplain was not good nor his dispensation good and so the Queen for want of Presentation of the Patron and Ordinary had good title to present Oldbery and Grogonds Case 729. Debt upon an Obligation for payment of certain money at a day certain The Defendant pleaded that the same was agreed to be paid for the Resignation of a Parson of his Benefices to the intent another might be presented unto it and so upon a Symoniacal agreement The Court held it no plea for that an averment shall not be that it was to be paid for other cause then the Obligation expresseth Agor and Candishes Case 730. An information was brought in the Exchequer by an Informer tam pro Domina Regina quam prose ipso upon the Statute of 8 E. 4. cap. 2. of Retainers and Judgment was there given the Informer to have one Moyety of the forfeiture and the Queen the other Moyety Error was brought upon the Judgment and assigned for Error that the Statute limits the party to sue in the Kings Kings Bench and divers other Courts but speaks not of the Exchequer It was the opinnion of the Justices that for that cause the Judgment was erroneous as to the Informer only Then it was moved that the Judgment might be and stand good for the whole forfeiture to the Queen for it was said that a Judgment might be reversed in part and stand for the other part and divers Presidents vouched to that purpose But the Court was of opinion because the first Judgment gave but a Moyery to the Queen this Court had not power to give more nor encrease it but only had power to affirme the Judgement Boddy and Hargraves Case 731. Debt upon a Lease for years was brought against the Administrator in the Debet detinet It was adjudged well brought because the Rent was encreased in the time of the Administrator himself But it was said That in all Cases where the Executor or Administrator brings an Action for a duty Testamentary it ought to be only in the Detinâ—t because the duty demanded ought to be Assets Layton and Garnonces Case 732. A man recovered Debt in Co. B. and had Judgment and he took forth Processe and the party was taken upon a Capias utlagatum within the year after the Judgment upon Processe continued without any discontinuance against him It was adjudged in this Case that he should be in Execution at the suit of the party without prayer because the processe was continued Parker and Sir Ed. cleeves Case 733. The Case was A. seised of three acres of equall value conveyed by act executed two of them for the Joynture of his Wife and the third he conveyed by act executed to the use of such persons and of such estates as he should declare by his last Will afterwards he devised the Land to one under whom the Plaintiff claimed In this Case it was amongst other poynts Resolved that he could not devise the Land because he had Conveyed two parts before by act executed in his life time Sydnam and Courtneys Case 734. Sir George Sydnam possessed of divers Leases for years gave them to his Daughter who was the Wife of C and to the Heirs of her body and if she dyed withot Issue that they should remain to such person of Combe Sydnam which Combe Sydnam he devised to his Cosen and his Heirs males in default of the Issue of the body of his daughter There was a Clause in the Will that his daughter should not alter the Leases but that they should remain according to the Will and made his Daughter his Executrix and dyed C. caused the Daughter to enter upon the Leases as Executrix and so waive the Legacy and afterwards the Daughter dyed without Issue Then C. caused an Administration to be taken of the goods of Sir George Sydenham which was at the Costs of C. and then to convey over the Leases to C. The Heir of Sir Geoâ—ge complained in Chancery and the Leases decreed unto him for the two fraudes which were used by C. in the Obliging of the Leases because the Daughter had them upon special trust and although it was said in this Case that the entail of the Leases was not good yet because there was a trust in the Daughter and expressed in the Will It was said the parties were compellable to execute the Trust and the Lord Chancellour resembled it to the Case where an Assignment was made of a Lease upon an expresse Trust to one and the Heirs of his body and afterwards to another and the Heirs of his body and the Assignes were Compelled to execute the Trust and to suffer the Issues in Tail to take the profits of the Lands The Countesse of Waâ—wicks Case 735. The Case was A. seised in Fee enfeoffed I. S. who dyed without Issue having Issue M. his Sister and Heir of the whole blood and T. of the half blood their Father being long before attainted of Felony dyed seised M. entred and enfeoffed the Countesse The point was if the Corruption of the blood of the Father had disabled the Course of discent and Inheritance between the Brother and Sister Quaere not Resolved Sprakes Case 736. A Copyholder makes a Lease for years Resolved that the Lessee may maintain Ejectione firme though the Lease be not warranted by the Custom Fisher and Smiths Case 737. Note It was Resolved in this Case That if a man plead a Bargain and Sale in which no consideration of mony is expressed there it must be averred that it was for mony and the words for divers considerations will not imply mony but if the deed be for a Competent sum of mony though the certainty of the sum be not expressed it is good enough Worsloy and Charnocks Case 738. A Statute Merchant was by Mâ—ttimus removed out of the Chancery in C. B. an execution awarded there super tenorem Recordi Resolved 1. That Error lyes in B. R. although the Original be in the Chancery and the Execution in C. B. 2. Resolved that in that Case the Conusor cannot alledge for Error that the Statute wants one of the Seales that ought to be to it because he hath admitted the same in C. B. 739. Debt in B. R. upon Mutuatas for 50 l. the Defendant pleaded an Attachment in London and had found pledges and because the pledges were not put in at the day of the last default but at another day it was holden No plea and Judgment was for the Plaintiff Washington and Burgons Case 740. It was holden by the
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
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
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
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
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
estate Comyn and Brandlyns Case 1150. A Term for years upon an Elegit was apprized at 100l and delivered in Execution to that value A. scire fac brought to have restitution of the Term because the Plaintiff had levyed the 100l of the profits of the Lands Resolved he should not have restitution but if at the time of the Apprisement and before the delivery he had tendred the money either in Court or in paire he might have Audita Querela Girryes Case 1151. A sentence was given definitive in the spiritual Court in a suit there for Tythes pro triplici valore A Prohibition was prayed A speciall Prohibition was awarded That they should not proceed to the Execution of the Sentence as to the treble value because that Court is not to give the treble value but the double value onely Whitlock and Hardings Case 1152. A man devised his Lands for 99. years and after in the Will were these words viz. Item I give to A. my Daughter all my Lands of inheritance if the Law will permit It was adjudged that A. had a Fee-simple in the Lands although there wanted the word Heirs and the words shall go to the Lands and not to the estate in Construction and it cannot be intended an estate for life which is of no value after 99. years Sir Tho. Simonds Case 1153. The wife libelled against the Husband for Alimony because he beat her so as she could not live with him a Prohibition was prayed but denyed by the Court and it was holden in this Case that the Wife might have the peace against her Husband for unreasonable correction Guy and Sedgwicks Case 1154. A Prohibition was awarded to the Counsell of York because they held plea there by English Bill of a Debt due upon an Obligation which is against the Law and Liberty of the Subject and the King in such case loseth his fine The King and Bishop of Lincolne and Kings Case 1155. The King seised of an Advowson in the right of his Dutchy of Lanc. presented to it under the Great Seal and not under the Seal of the Dutchy And Resolved that the presentation was good for the presentation is but a fruit fallen from the tree and the King may present by word because a presentation is but a commendation of the Clark to the Ordinary Case of the Coheirs of Sir William Rider 1156. Resolved by the two Chief Justices and Chief Baron in the Court of Wards That if a man makes his Will in writing and saies then he will adde to it or alter it it is not his Will because not compleat nor published for his Will But if a man makes his Will and publisheth it and after it comes in his mind to adde to it or alter it and sayes he will so do but dyeth before any addition or alteration of it the first Will shall stand Walter the Dean and Chapter of Norwiches Case 1157. The Case was the Dean Chapter 37. H. 8. made a Lease for 50. years 8. Eliz they made a Lease to I. S. for 99. years to begin after the determination of the Lease for 50 years which expired 38. Eliz. In 42. Eliz. they made a Lease to the Plaintiff for 3. lives reserving rent and a Letter of Atturney to make Livery and Covenanted the Plaintiff should enjoy the Lands against the Lease made to I. S. and all claiming under him Livery was made by the Atturney after 3. Rent dayes encurred Resolved that the Lease was good and the Livery well executed by the Atturney who is not confined to any time to make it 2. Resolved that the Lease for 3. lives was not void by the Statute of 13. Eliz. because the Dean and Chapter who made the Lease for 3. lives were alive and in being and therefore they being evicted by a Judgment upon the Lease made to I. S. Covenant brought by the Plaintiff against the Defendant did well lie and Judgment was for the Plaintiff Adams and Curwins Case 1158. Lessee for years died Intestate the Lessor entred and made a Feoffment Administration was granted to I. S. who entred It was adjudged a good Attornment though at the time of the Feoffment there was no Administrator in esse Hill and Hills Case 1159. The Husband made a Lease for years rendring rent during his Life and the Life of his Wife It was adjudged a good Reservation and shall be during the Life of the Survivor of them 1160. Words spoken of a Jury-man sworn upon Life and Death viz. Thou art a Jury man amd hast been the overthrow of a 100. men by thy subtile and false means It was adjudged that the words were actionable Wilkins and Perrotts Case 1161. A Rent was granted to A. and his Heirs Habendum to him and his Heirs to the use of him and his Heirs during the Life of I. S. It was adjudged but an estate for Life discendable and not a Fee-simple Chaworth and Phillips Case 1162. It was Resolved in this case that if a Lease be made upon condition to be void if 10 l. be not paid at a certain day that the Grantee of the Reversion shall not enter for such a condition because it is collateral 2. If Lessee for Twenty years makes a Lease for Ten years upon condition and the Lessee for Twenty years surrenders to him in the Reversion he in the Reversion shall not take advantage of the condition because he is in of another Estate Watbrooke and Griffiths Case 1163. Action upon the case against an In-keeper he pleaded that it was the custom of the Realm that if a man put his horse to Livery to an Hostler and the horse staid there so long that his meat amounted to the value of the horse that he might call four of his Neighbors and value the horse and if they conceived the meat did amount to the value of the horse that he might detain the horse as his own It was adjudged against the Defendant because there is no such general custom within the Realm but only in London and Exeter Winscomb and Pulisons Case 1364. Quare Impedit The case was the Incumbent lying sick of a dangerous Disease and in apparent perill of death it was corruptly and by Symonie agreed betwixt the Patron and S. that for 90 l. the Patron should present S after the death of the Incumbent or should cause him to be presented the 90 l. was paid and for the Security of the Presentation the Patron granted the next Avoidance to I. S. a person nominated in trust for S. I. S. presented S. who was Instituted and Inducted The King presented the Defendant by reason of the Statute of 31 Eliz. which made the Presentation upon the Symonaical contract void It was adjudged that the Presentation of the King of the Defendant was good by the Statute and that the Grant of the next Avoydance was but in pursuance of the Symonaical agreement I. S. being nominated in trust for S. 2. It was holden in
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