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
passed against the Plantiff who thereupon brought an Attaint and alledged that the Jurors to the Attaint had not the view of the Tenements in demand It was the opinion of the Court that after the Verdict given it cannot be alledged that the Jurours had not the View and Judgement was given without the View 177. In Dower the Defendant pleaded That the Husband of the demandant did not dye seised so that she could not have damages and because there were Woods upon the Lands she prayed a Writ of Estrepment Quaere if it doth Lie It was not Resolved Griffiths Case 178. Lessee for years suffered the Banks of the River of Trent which ran by the Lands let to be unrepaired so as the Water brake the Banks and drowned the Lands Adjudged That River was not so violent but that the Lessee by his Industry might repair the Banks and to make the water run in its Current and therefore adjudged it was Wast 179. Debt was against Executors upon an Obligation which was that if the Testator or his Executors at Mich. every year during the life of the Obligee delivered to the Obligee a Load of Dung that then the Defendants pleaded that they and their Testator had performed not shewing how which was found against them It was adjudged that for this false plea of the Executors Judgment should be against them de bonis propriis 180. One was named in the Original in Debt A. B. of C. in the County of Denbigh He appeared upon the Cepi Corpus and said that he was dwelling at D. at the time of the Action brought It was holden it was No plea that he was not dwelling at C. at the time of the Action brought unlesse he say Ne unque puis 181. Lands in London which by the Custom were deviseable came to the King by Escheat who granted them over to I. S. to hold by Knights service It was holden That notwithstanding the Statute the devise of the whole Land was good as it was by the Custome which is not taken away by the Statute 182. The King by his Letters Patents gave authority to his Surveyour to make Leases of certain Lands for life reserving the antient Rent He by Indenture between the King of the one part and I. S. of the other part Quod Dominus Rex dimisit c. and the Surveyour put his own Seal to the Deed. It was adjudged a void Lease for he ought not to have put his Seal to it but the Seal of the King and it cannot be the Lease of the King without his Seal 183. Grandfather Father and Sonne The Grandfather is Tenant for life the Remainder to the Son in tayl the Remainder to the right Heirs of the Grandfather The Grandfather suffers a Recovery and levyes a Fine with Proclamation to I. S. and after the Statute of 27 H. 8. is made and the Grandfather enfeoffeth the Sonne of the Land and dyeth Resolved that the entry of the Father upon the Son was lawful and he shall not be estopped by the warranty of the Grandfather for that the Warranty was gone by the reprisal of the estate and it was holden That although the 5. years were past in the life of the Grandfather yet when the Grandfather dyes the Father shall have other 5. years to make his Entry or clayme and that by the Statute of 4 H. 7. 184. Lessee for years rendering Rent upon Condition if the Rent be behind the Lessor to Reenter a Recovery in Debt is had against the Lessor and the Reversion and Rent extended by Elegit and given in Execution It is a good Execution and the Condition suspended so as if the Rent be behinde the Lessor cannot enter into the other moety 185. Two Tenants in Common of a Wood one Leaseth his part for years who cuts Trees and commits Wast he shall be punished for the moety of the Wast and the Lessor Recover the moety of the Land Wasted 186. The Dean and Canons of Windsor were Incorporated by Act of Parliament by the Name of the Dean and Canons of the Kings Free Chapel of his Castle of Windsor and they made a Lease by the Name of the Dean and Canons of the Kings Majesties Free Chapel of of the Castle of Windsor in the County of Berks. Resolved the Lease was good for although the King in the Act of Parliament call it his Castle yet when another speaks of it it is more apt to call it the Castle and therefore such variance shall not avoid the Lease Newdigates Case 187. Lessee for life and he in the Reversion joyned in a Lease for years Lessee for life dyed the Lessee committed Wast Resolved that during the life of the Lessee for life it was her Lease and the Confirmation of him in the Reversion But when the Tenant for life dyed then it was the Lease of him in the Reversion and that he should have an Action of Wast ex divisione propria 188. A man hath 3. daughters and Covenants with I. S. that he shall have the disposition in marriage of one of them the Election is in the Father of which of the daughters the other shall have the Mariage and he is not to deliver the daughter till request but upon request he is to deliver the daughter to I. S. otherwise he cannot have the effect of the Covenant 189. In a Writ of False Judgment the Sheriff returned Quod accept is secum 4. legalibus Militibus de Com. suo accessint c. Et recordum illud habeo c. coram c. sub sigillo meo sigillis praedict Militum It was adjudged to be no good return nor the Record removed but it ought to be sub sigillis ex his qui Recordo illo intersuerant and not of the 4. Knights 190. It was holden by the Justices that if upon the Exigent the Defendant hath a supersedeas but doth not deliver the same before the 5th County so as he is returned Outlawed yet because the Supersedeas was upon Record the Justices held the Outlawry to be void 191. A Writ of Wast was Quod secit vastationem in the Land and assigned the Wast in cutting down of Trees It was holden that was not good but if he had assigned the Wast in digging of Clay or such other things it had been otherwise for that is Wast in the Land 192. A man devised his Lands to his eldest Son in Tail the remainder to his youngest Son in Tail the remainder to his Daughter in Tail and if they all dyed without Issue that then the Land should be sold by his Executors the eldest entred and dyed without Issue the younger Son entred and suffered a Comon-Recovery and after dyed without Issue and the daughter also dyed without Issue Resolved That the Executors could not now sell the Land 193. Note If an Enfant levy a Fine and take back an Estate for life or in Tail by render he shall not avoid after the Fine by
Error but is without remedy Hawtree and Anger 's Case 194. Debt against A. B. and E. the daughter of C. Coheirs in Gavelkind upon an Obligation of their Father A. and B. were Outlawed and had their pardon E. the daughter of C. who was dead was waive The Plaintiff declared against A. and B. simul cum E. who was waive The Defendants pleaded that E. now one of the Heirs in Gavelkind was within age It was Resolved that the Heir of an Heir should be chargeable with an Obligation simul cum the immediate Heirs and that such Heir should have his age and if he was within age the parol should demur for them all Mich. 7. Eliz. Swann and Searles Case 195. Covenant against A. and B. Executors of I. D. I. D. was Tenant for life the remainder to A. I. D. by Indenture demised the Land to the Plaintiff for years rendering rent by the word dimisit Concessit I. D. dyed A. who was in the remainder entred and avoided the Terme and thereupon the Plaintiff the Lessee for years brought the Action against the Executors of I. D. and it was adjudged that the Action did not lye Mich. 7. Eliz. Worleyes Case 196. An Enfant was bound in a Statute of 600 l. and afterwards was taken in Execution upon it and at full age he brought an Audita Querela to avoid the Execution The Case was argued by the Judges and at length Resolved That the Audita Querela should abate For it was Resolved that if any Enfant acknowledge a Statute or Recognizance or Levyeth a Fine of his Land he shall not reverse it by Error or otherwayes when he is of full age it being matter of Record but if he will avoid it it must be during his Minority 197. One came to an Inn and brought goods with him The Inkeeper said to him There are many resort to this House and I do not know their behaviour therefore here take the Key of such a Chamber and put your goods there for I will not take Charge of them and afterwards the goods were stolen It was the opinion of Wrey Justice that an Action did lye against the Inkeeper for he is by the Law chargeable with all things which come into his Inn and by Law he cannot discharge himself by such words as are in this Case Price and Jones Case 198. Error by A. and B. against I. S. of a Judgment in an Assise of Novel Disseisin given by the Justices of Assise at Monmouth It was demurred unto and Adjudged here in C. B. That a Writ of Error here upon that Judgement did not lye Stakely and Thynns Case 199. In Debt the Plantiff and Defendant both appeared by their Attorneys and day was given to the parties in statu quo tune till 8. Hill at which time the Defendant made defaust Holden the Plantiff should not have Judgment because Dies Datus is as strong as an Imparlance Lucas and Cottons Case 200. Words viz. George Lucas is a false Knave and worthy to stand upon the Pillory The Defendant Justified because the Plantiff swore his debt falsely to be true upon an Attachment according to the Custome of the City of London which by the Court was holden to be a good justification wherefore adjudged against the Plantiff Slisield and Sibills Case 201. Debt by Husband and Wife upon a Lease for years the Defendants said that they had not any thing in the Land at the time of the Lease as to part It was found that they had and did demyse and as to other parts that they did not demyse It was holden the Plantiffs could not have Judgement for any party Arden and Mischells Case 202. Replevin The Defendant avowed as Bayliff to the Countesse of Rutland for Rent The Defendant said that the Abbot of C. 29 H. 8. was feised and made a Lease to I. S. for 60. years rendering Rent viz. 22 s. and expressed the same by such figures viz. 22 s. and that after the making and delivery of the Indenture the Plantiff caused the said 22 s. to be rased into the forme of 5. and after the said 5. caused to be adjoyned the Letter m by which the Indenture was void It was the opinion of the Justices that by such rasure the deed was void Bâ—lfield and Rouse Case 203. Dower The Defendant pleads as to part in abatement that he was not Tenant and as to the Rest he pleads a gift in Fee to the Husband by which he claimed the Land as Brother to the Husband and also pleads a Will by which he was entitled to other parts both which the Plaintiff did Detain Upon Non Detinet it was found for the Plaintiff and she had Judgment for damages from the death of the Husband Watson and Bishop of Cant. Case 104. In a Quare Impedit the Defendants at the Distresse made default and Judgment was given for the Plaintiff against all the Defendants to recover damages because they were supposed all disturbers by their default but the Plaintiff was compelled to make Title Bullock and Bardetts Case 205. The Case was the Bishop of Salesbury in temps R. 2. made a Feoffment in Fee of a Messuage and 3. Roodes of Land in Erbonfield parcel of the Mannor of S. nec non of 17. Acers of Wood in a great Wood containing a 1000. Acres to Bullock and his Heirs and after 5. discents the Land came to the Plaintiff who 6. of the Queen entred into the great Wood and made election of the 17. Acres in a place called Saltors Hill parcel of the said great Wood and distinguished them by Metes and Bounds The Question was if the 17. Acres passed to G. Bullock and whether the election of them by R. Bullock his Heirs in the 5th discent was good or not It was the opinion of the Justices that nothing thereof was vested in G. Bullock the Ancestor and the Election to have the 17. Acers was not given to the Plantiff the Heir for that nothing was in the Ancestors which might discend to him and as a purchasor he could not take for that nothing was given to him Pasc 10 Eliz. The Lord Dacres Case 206. The Lord Dacres and others agreed to enter into a Park and hunt there and to kill those who should resist them They entred and I. S came to one of them and asked one of them what he had to do there and the other killed him the Lord being a quater of a myle distant from the place and knew not of it It was adjuged Murder in him and all his Companions Sir Rich. Mansfields Case 207. Difference being betwixt Sir Rich. and one Herbert for Wreck of the Sea they appointed a Duell Herbert with his Servants came to Sir Richards house to fight with him a Friend to them both perswaded with them to take up the matter One of the Servants of Sir Richard cast a Stone at Herbert and his Servants and perchance therewith killed their Friend It
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
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
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
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
by avoidance death or resignation E. being in the Bishop was removed to Winchester The Bishop that then was certified that E. did not pay his Tenths upon which the Church was void and the Bishop collated I. S. to the Church The Question was if the Queen might now avoid the Incumbent to have her presentment which accrued to her upon the avoidance of the first Incumbent who took a second Benefice without Qualification The Justices at the first doubted it but afterwards this Term it was adjudged for the Queen against the Bishop 390. Three bound themselves in an Obligation by these words Obligamus nos quemlibet nostrum conjunctim the Obligor brought debt against one of them It was the opinion of the Justices it did not lie and that the words Et quemlibet eorum did not make it several 391. The custom of Kent is that the Wife shall be endowed of the Moiety of Gavelkind land and shall lose her Dowry if she marry again It was the opinion of the Justices that she had not Election to be endowed of the third part at the Common Law but was tied to the Custom Stampe and Hutchyns Case 392. It was Resolved That if an Executor gives his own Bond for mony which his Testator was bound to pay by Bond and so redeems the Bond of his Testator that he may retain so much money in his hands as if he had paid the mony in facto Gorges Case 393. One called another Cousening Knave and said He had cousened him Adjudged the words not actionable 394. It was Resolved That if one who hath a Benefice takes a Prebendary that the same is not an avoidance of his first Benefice within 21. H. 8. The Lady Greshams Case 395. Sir Thomas Gresham seised in Fee of the Mannors of M. and C. in the County of N. 12. Eliz. levied a Fine thereof to the use of himself and the Lady Ann his wife To B. and C. with power of Revocation that if Sir Thomas should pay 10. s. to B. and C. or the Heirs of B. then the same to be to the use of Sir Thomas and his Heirs In 13. Eliz. he levied another Fine to the said Conusees of the Mannors of N. and F. to the same uses declared by another pair of Indentures with the like payment of 10. s. B. dyed Sir Thomas paid one Sum of 20. s. to C. in Revocation of the uses raised upon both the Fines and after he raised divers uses and estates of divers Mannors holden in capite without license of Alienation and died It was in this Case amongst other things Resolved That the uses were not revoked but that the revocation was void because two several sums of 10. s. ought to have bin rendred and not one sum of 20. s. for they were several Indentures and several Mannors and could not be satisfied with one Sum for which cause all the Mannors came to the Lady by Survivor and that there was no Fine due to the Queen upon his alienation without License The Queen and Palmors Case 396. In Intrusion the Case was R. Bishop of Chichester having the Wardship of one I. D. 12. E. 2. devised by his Will that his Executor should sell the Wardship and with the money purchase Land with which should be sustained three Priests to sing Mass each to have six Marks and if he could not purchase so much as to find the three Priests then he should find two The Bishop died his Executors purchased Land and gave the same Deo Ecclesiae de Chichester so as he and his Successors should have the Issues and profits thereof for the sustentation of 2. Priests whereof each to have 4. l. per an and the Prebends of the said Church have always made Leases of the Land and sustained the Priests as aforesaid till the Statute of dâ—ssolution of Chaunteries and the Defendant said he was in by the Lease of the Prebends and traversed the Intâ—usion The 1. point was if by the Statute of 1. E. 6. of Chaunteries the stipend of 8. l. given for the sustenance of the Priests or the Land was given to the Queen 2. If by the Proviso of the Statute the Land and the Rent in the Land only or nothing be saved It was said by Anderson Chief Justice that where a Gift is made to sustain poor Men and Mass-Priests without limitting a certain quantity how much to one use and how much to the other use there the Queen should have the whole Land but if the quantity was appointed as to one use and how much to another use there the Land is not forfeited but only so much as is employed to the superfluous uses Qu. The Case was Adjourned and not Resolved Slywight and Pages Case 397. In an Information upon the Statute of 32 H. 8. for buying of Titles The Case was The Plaintiff being Dissisee of Lands made a Lease by Indenture being out of the Land to try his Title It was a doubt if this Lease by Estoppel and not in Interest was within the Statute It was adjudged it was and was Maintenance although the Lease was made to his Brother in Law Fisher and Boyes Case 398. A Colledge in Oxford was incorporated by the Name of Gardiani Schola ium Domus sive Collegii Scholarium de Merton de Vaiver â—tate Oxoniae and they made a Lease of the Lands of Custos Domus sive Collegâ— de Merton Scholâ—res ejuidem Domus in Oxonia It was adjudged that the variance was not material but they did agree in substance and the Lease was good The Countess of Rutlands Case 399. It was holden by the Court in this Case That Executors may have and maintain Trover and Conversion upon a Trover and Conversion in the Life of the Testator but then in the Action the day of the Conversion and the place of the Conversion are to be alledged Bond and Richardsons Case 400. Debt upon Obligation the Condition was If the Defendant pay 20. l. the 7. day of May 1558. at the house of the Defendant in Southwark that then c. It was found by verdict that the Defendant paid the 20. l. before the 7. day of May at the house of the Defendant in Southwark but not solvit in the 7. day of May It was adjudged a good payment Leversage and Cabbells Case 401. Ejectione firme The Case was A. made a Lease to B. C. and D. by Indenture to have and hold to them for their Lives Proviso and it is covenanted and agreed betwixt them That the Second shall not occupy the Lands during the Life of the first and the third not occupy during the Life of the Second The first occupied all and died the third entred and made the Lease It was adjudged That by the Premises of the deed the parties to whom the Land was devised being expressed and in the Habendum the Estate being limitted as the Office of the Habendum is That the Proviso that cometh after should
the Cause and they do award an Erroneous Process or Misaward a Capias by which the party is taken in Execution yet it is a lawfull Execution and the Sheriff is chargeable with the Escape and he is not to examine the Error of the Court in avoiding the Execution Second that the Conviction of the Felony was no discharge of the parties Execution and it was adjudged against the Defendant 412. Debt brought in Co. B. for an Amercement in a Court Baron the Defendant would have waâ—ed his Law the Court doubted of it and some Presidents were shewed as Trin. 6. Eliz. Tindal and Tuckers Case that he might in such Case wage his Law Quare The Queen Bishop of Lincoln and Skiffings Case 413. Quare Imp. The Case was the Countess of Kent had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was adjudged he was Lawful Chaplain for the Patent is not of necessity but only in Case where he hath Cause to shew it and he hath no cause to shew it because her Retainer was good without a Patent Bâ—rd and Adams Case 414. In this Case a Case of a Prohibition to stay a Suit in the Spiritual Court for Tythes of the Rakings of Lands after the Crop of corn was carried away It was holden That the prohibition would not lye but that Tythes should be paid of Rakings But vide 42. Eliz. in B. R. in Gree and Haales Case It was adjudged that by the Custom of the Realm Tythes should not be paid of Rakings Battey and Trevillions Case 415. Replevin The Defendant avowed That I. and A. his Wife were seised in Fee in the right of his Wife and devised the Land in which to I. H and I. his Wife with E. their Daughter for 60. years rendring four Marks Rent Afterwards 38. H. 8. I. and A. his Wife levyed a Fine and the Conusees rendred the Land to A. for Life the remainder to Tho. their Son in tail with remainder over A. died Tho. entred upon the Lessees and made a Feoffment to I. D. and others to perform his Will the Lessees reentred Tho. 7. Eliz. by his Will ordained that his Feoffees should stand seised untill they had levied sufficient to pay his debts and Legacies which were not payed and therefore the Defendant as Bayliff to the Feoffees made conusance and as to the rest he avowed for that Tho. was seised in Fee of the place in which c. and 6 Eliz. devised the same to H. L. and M for Life rendring 30. s. Rent and afterwards entred upon the Leslees and levyed a Fine thereof to the use of himself in Fee and afterwards infeoffed thereof the first Feoffees to the use of his Will the Lessees reentred and he made his Will as above and died and for 3. l. rent for two years he made conusance as Bayliff to the surviving Feoffees The Plantiff to the first Avowry said that Tho. was seised in Tail by the render of the Fine and the tail descended to H. his Son and then E. one oâ— the Lessees who survived to husband the Plaintiff bâ—que hoc that Tho. enfeoffed the Feoffees to such uses as the Defendant hath a ledged and as to the other Conusance the Plaintiff demurred in Law The Jury found the seisin of A. and her Husband and the Lessee for years to the three persons and the Fine and Render to the seisin of Tho. and the Feoffment of Tho. to I. D. and others to perform his Will and they found a Letter of Attorney to persons whereof the said I. H. one of the Lessees was one conjunctim divisim to enter in all the Premises and take possession and deliver the same to the Feoffees or one of them and that after Tho. made his Will as before and that C. one of the Attorneys to one of the Feoffees and D. another of the Attorneys delivered seisin to another of the Feoffees There were divers points in this Case First because the Jury have sound a Devise of Land and no Tenure if the Justices could judge the Tenure to be Knight Service or Soccage this point the Justices said they would not meddle with Second point admit the Land to be holden in Capite and that the Land passed by the Willâ— they held that but two parts of the Land passed by the Devise 3dly When he devised that his Feoffees should stand seised and he had not Feoffees but he himself was in possession the Justices held it was devise of the Land it self 4thly They held where one of the Lessees made Livery as Attorney to the Lessor that he did not thereby extinct or surrender the Term. 5thly When an Authority is to four conjunctim divisim to execute Livery that one might execute Livery in one part and the other in another part 6thly They held when Tenant in tail of Lands in lease for years makes a Feoffment and the Lessee reentred it was a discontinuance 7thly They held when Tenant in Fee simple of a Reversion expectant upon Lease for years deviseth two parts of the Land that no part of the Rent passeth 8thly In this Case because the avowry is made for the whole Rent and it appeareth he hath title but to two parts It was holden he should not have a Return for any part 9thly They held when the Avowant makes title but to two parts of the Rent and the Jury assesse damages for the whole Rent that the Avowant could not have Judgment unlesse he Released the damages 10thly When the Lessor entred upon his Lessee for life and made a Feoffment and the Lessee reentred the Justices doubt if the Rent was revived Keale and Carters Case 416. False Imprisonment the Defendant Justified that he was Constable and that the Plaintiff brought a Child of the age of 2. years and no more into the Church and there left it to the intent it might dye for want of sustenance wherefore he Imprisoned him till he agreed to take away the Child It was the opinion that the Justification of the Defendant was good because the Act of the Constable was but to prevent a felony which he might do by virtue of his Office Fenwick and Mitsorths Case 417. The Case was A. man seised of Lands in Fee Levyed a Fine thereof to the use of Wife for life the remainder to the use of his eldest Son and the Heirs males of his body the remainder to the right Heirs of the Conusor The Conusor made a Lease for 1000. years to B. the eldest Son dyeth without Issue having a daughter the Conusor dyeth the Wife after dyeth the eldest Son Leaseth the Lands to the Plaintiff It was adjudged in this Case it was a Reversion and no Remainder and this limitation to his right Heirs was meerely void Sir Moiâ—e Finch and Throgmortons Case 418. The Case in effect was this The Queen made a Lease for years rendring rent
of a Judgment upon a Plaint in Debt in an Inferior Court was assigned because the Defendant had not Addition But the Judgment was affirmed because it is not of necessity to have Addition for the Defendant in a Base Court where Process of Outlawry doth not lie Collins Case 456. Audita Querela was brought by Fraud by A. B. and C. for all Executions being several Suits of divers persons Adjudged it was unduly granted and therefore a Vacat was made thereof upon Record because one Audita Quaerela cannot be upon several Suits Hoâ— and Taylors Case 457. The Lord of a Mannor granted by Copy to one and his Heirs Subboscum in M. Wood and G. Grove annuatim succidendum by four or five Acres at the least and after made a Lease of the Mannor The Lessee cut down certain Wood the Copyholder brought Trespass and the Lessee justified with averment that he had left sufficient for the Copyholder to be cut by four or five Acres yearly Resolved First that Under-wood might be granted by Copy if the Custome permit it Secondly That the whole Wood passed and the word annutim succidendi to be an order only appointed for the cuâ—ing of it not to restrain the Grant Yelding and Fayâ—s Case 458. The custom of a Parish was That the Parson had used to keep within the Parish a common Bull and Boar for the encrease of the Parishioners Chattel and the Defendant being Parson had not kept them for four years together for which the Plaintiff brought action upon the Case the Defendant by Protestation there was no such Custom pleaded Not guilty It was adjudged a good Custom and that the Action did lie and the Plea of Not guilty not good the offence being in non feasance of a thing and the Protestation not good against the Custom Morgan and Wyes Case 459. In Trover and Conversion The Plaintiff put in exception that the Sheriff was his Cosen and prayed a Venire to the Coroners which issued accordingly and at the Nisi prius the Tales de circumstantibus was awarded and found for the Plaintiff and Judgment and upon Error brought this was assigned for Error and it was adjudged Error and the Judgment reversed Downhall and Catesbyes Case 360. In a Formedon in the remainder the Case was A. seized in Fee gave Instructions to one to make his Will in writing and to give the Land to his Son for Life who put the Will in wriing and therein writ the Estate to be in Fee It was Resolved that the Will was void being contrary to the intent of the Devisor Evington and Brimstons Case 461. A man left his Gates open ad nocumentum Inhabitantium for which he was amerced in the Leet and his Chattel distreined for the amercement he brought Trespass It was adjudged That it was an Offence not amerceable in a Leet and the Distress unlawful and the action well brought Eatons Case 462. Debt upon an Obligation The Condition was If the Obligor and his Wife sell the Wives Land then if the Obligor during his Life purchase to the Wife and her Heirs so much Land and of that value as that which should be sold or else shall leave to his Wife so much money or money worth after his death to her own use that then c. The Defendant pleaded the Wife was dead the Plaintiff said the Husband and Wife had aliened the Land and the Husband had not purchased so much other Lands to the Wife and her Heirs It was adjudged against the Plaintiff because the Condition was for the benefit of the Obligor and gave him Election either to purchase Land or leave money of which Election he is prevented by the death of the Wife which is the act of God and so discharged of one part of the Condition and then the whole Condition and Obligation are both discharged Thyn and Cholmlys Case 463. A Lease for years was rendring Rent at Mich. and our Lady with a Nomine poenae of 3 s. 4. d. the Lessee assigned the Term adjudged that the Assignee was chargable with the Nomine poenae incurred after the Assignment not before Carter and Loves Case 464. The Case was A Termor devised his Term to I. S. who made his Wife his Executor and died the Wife entred and proves the Will and afterwards took Husband and the Husband takes a Lease of the Lessor afterwards the Devisee entred and granted his Estate to the Husband and Wife 1. If by this acceptance of the new Lease by the Husband the Term which the Wife had to the use of another viz. the Testator should be determined Resolved It was clear it was a surrender 2. When the Devisee entreth into the Term devised to him without the assent of the Executor and after gâ—ants his right and interest to the Executor if the Grant be good because he hath not any Term in him but only a Right of the Term suspended in the Land It was holden to be a good Grant and that it shall have a protection to enure by way of Grant to pass the Estate of the Devised to the Executor Dell and Higdens Case 465. It was Resolved in this Case That the admittance of Tenant for Life of a Copyhold is the admittance of him in the Remainder because the Fine is entire and no more Fine is due by him in the Remainder but otherwise it is of him in the Reversion 2. Resolved That the surrender of a Copyhold in Tail is not a Discontinuance but a common Recovery without Voucher is a Discontinuance Sams and Pitts Case 466. Assumpsit The Plaintiff and Defendant controversies being betwixt them submitted themselves to Arbitrament and the Plaintiff in consideration of 6. d. given him by the Defendant promised to pay 200 l. to the Defendant if he did not perform the Arbitrament The Defendant also assumed to the Plaintiff in consideration of 6 d. given to him by the Plaintiff that if he did not perform the Arbitrament that he would pay to the Plaintiff 200. l. upon request and alledged in Fact that an Arbitrament was made that the Defendant should be bound to the Plaintiff that the Plaintiff and his Wife should have and enjoy the Land in question without the Let or hindrance of him his Wife or C. their Son and Heir and that the Plaintiff had performed all on his part yet the Defendant did not become bound to the Plaintiff as c. nor paid the 200 l. though requested and because it was not expressed in what Sum the Defendant should become bound to the Plaintiff and because the De-Accord is that the Defendant be bound for Annoyance without Let of the Son of the Defendant which was a Stranger to the Arbitrament It was adjudged against the Plaintiff and that the Arbitrament as to that part was void Dorley and Woods Case 467. In an Action brought the Defendant alledged a Custom of a Copyhold to be demised in Fee Tail or for Life and
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
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
King cannot pardon Murder by pardon of feloniam feloniacam interfectionem without a special non obstante of the Statute 980. Resolved by the Justices that if an Executor pay a Debt due upon a present Obligation it is no Devastavit though there be a Statute or Recognisance broken for not performance of Covenants Ellis and Warâ—es Case 981. Debt The case was W. was endebted to A. 100 l. upon an usurious contract and A. was endebted to E. the Plaintiff 100 l. a just Debt for which W. and A. were bound to E. In Debt brought upon this Obligation W. the Defendant pleaded the Usury betwixt him and A. The Plaintâ—ff said that before that bond upon usury W. was indebted to him and bound for his debt and that he knew not of the usurious Contract betwixt W. and A. It was Resolved the Obligation made by W. the Defendant was a good bond pro vero debâ—to and that it was not usury in the Plaintiff and the usurious Contract betwixt W. and A. should not prejudice the Plaintiff Hall and Trusseâ—ls Case 982. Debt brought against the Defendant the Defendant pleaded an Attainder of himself after the debt due to the Plaintiff adjudged no plea. Oldcot and Levells Case 983. It was Resolved in this Case That a surrender by Tenant in Tail of a Copyhold was not a Discontinuance Also that a surrender by Tenant for life to the use of another in Fee was not a forfeiture 984. Note it was holden by the Court That if one will turn the extent upon the extendors for extending the Lands or goods at too high a Rate he must do it at the first day of the Return or not at all Griffith and Smiths Case 985. A man possessed of a Term for years of a Rectory and Lands devised the profits thereof for so many years as he should live and after he devised the profits to 20. of his poor Kindred and that after the death of his Wife the Rectory should be let by the advice of his over-seers and the Rent distributed to his said poor Kindred and made his Wife his Exâ—cutrix It was Resolved in this Case by all the Justices in the Exchequer Chamber that although a devise of the profits is a devise of the Land it self if there be no other circumstance in the Case yet because in this Case the devisor hath declared that the poor Kindred should not have the property oâ— the Term and he appoints a Lease to be made for Rent and the Rent to be distributed amongst them that the Executors should have the Term upon the Consideration to make the Lease and distribution and that the poor Kindred had only Trust and no Interest in the Term. 986. A man having spent his estate and living in great necessity said to his Wife that he was weary of his life and that he would kill himself The Wife said that then she would dye also with him he prayed her that she would go and buy Ratsbane and they would drink it together which she did and put it in drink and both of them drank of it the Husband dyed but the Wife recovered by vomiting Quâ—re if it was Murder in the Wife Not Resolved Baker and Bacons Case 987. The King having by the Statute of Dissolution all the Tyâ—â—es within St. Edmonds-Bury granted omnes decimaâ— nostras grandrum soem es in Buâ—y Sancti Edmundi Ac omnes alias decimas nostras infra Bury praedict ' quas Eleemosynaâ—â—us monasterii praedicti colligere solebâ—t Resolved that the Tâ—thes passed which the Almoner used to collect and that the Relation is to be expounded to the ac omnes alias decimas and not to the whole sentence 988. Note Tr. 2 Jac. in the Star Chamber It was Resolved by all the Justices of England that the Deprivation of â—uritan Ministers by High Commissioners for their refusal to conforme themselves to the Ceremonies appointed by the late Canons was Lawfull because the King hath the supream Ecclesiastical power which he hath delegated to them by which they had power of the Deprivation by the Canons of the Realm and the Statute of 1 Eliz doth not give them any new power but explaines and declares their ancient power 2. Resolved that the King may without Parliament make Institutions for the Government of the Clergy and may deprive them if they do not obey them and so the Commissioners may deprive them but they cannot make any Institution without the King 3. Resolved that to frame Petitions and to collect hands of multitudes of people to prefer to the King publike causes is an offence finable at discretion and deserves the punishment next to Treason and Fellony because it tends to raise Sedition Rebellion and discontent amongst the people 989. It was Resolved by all the Justices of England That Clergy is not allowable for Piracy upon an Indictment upon the Statute of 28 H. 8. unlesse the Piracy be done in a Creek in which the Common Law before the said Statute had Jurisdiction but not if it be done in alâ—o mari for such is felony by the Civil Law in which no Clergy was allowed 2. Resolved if the King pardon all Felonies by the Common Law or any Statute Felony done super altum mare is not pardoned Adyn and Ayâ—es Case 990. A Fieri sacias went to the Sherâ—ff â—o do Execution he seised certain Wood and after 〈…〉 discharged of his Office he â—old the Wood for satisfying the Execution It was adjudged that the sale was good upon the Statute of 34 H. 6. cap. 5. because he was charged with the value Sheldon and Handburyes Case 991. A Woman in the time she was separated from her Husband got a sum of money and with it bought Lands and took an Assuâ—ance thereof in the name of B. in trust B. lying sick at the request of the Woman made a Lease for 200. years to S. the Plaintiff upon condition he should pay the profits to the said Woman and also if B. lived to the first day of June following and then paid 12 d. to S. the Lease should be void B. lived to the day but did not pay the 12 d. but afterwards for 100 l. he made Lease to the Defendant with Covenants to save the Lessee from all Incumbrances B. dyed S. not having notice before of the Lease made to him entred It was the opinion of the Justices in this Case that the Lease made by B. to S. at the request of the Woman in part of the performance of the Trust was not a fraudulent Lease within the Statute of 27 Eliz to defraude purchasor because he was in Conscience to perform the Trust to one who did not direct any second sale also at the time of the second Lease the power to revoke was void and the first Lease absolute Holder and Farleyes Case 992. Resolved that if a Woman be dowable of a Copyhold by Custome if the Husband after the Marriage make a Lease for years
Jac. before the Lease made acknowledged a Statute to I. S. of 200 l. who died and that his Executors sued execution upon the Statute and that the Plaintiff the Lessor beng Sheriff returned that H. was seised of the Land in Fee at the time of the Statute acknowledged and that the ousted the Defendant and put the Executors in possession of the Land and demanded Judgment if upon this answer so retorned by the Plaintiff himself he should pay the Rent and because he did not shew that an Inquisition issued and was taken for the extent the eviction pleaded of the Lease was not good and Judgment was given for the Plaintiff 1187. A. was possessed of a Ship lying at Anchor at Lym-house I. S. a Merchant of Lyn seised the Ship with the Tackle at Lym-house and sued A. in the Court of Admiralty setting forth that he was possessed of the Ship upon the Sea infra jurisdictionem Curiae Admiralitatis A Prohibition was granted in this case for that it did not appear to the Court that any wrong was done upon the Sea and they agreed that Lyn-house was infra corpus Comitatus and not within the Jurisdiction of the Admiralty Lee and Arrowsmiths Case 1188. Debt for 300 l. and counted upon many Emissets and upon a Simul computasset and that all the particular Sums amount to 300 l. The Jury found Debt for 40 l. only and no debt for the residue there were variances betwixt the original which was 300 l. and the particulars which amount to 29 l. The Court sad it was no default in the Clerk but in the Client himself who did not well instruct him in the particulars but upon the Oath of the Attorney that he instructed the Clerk to declare upon all the Emissets and to make a supply upon the Insimul computaverint of the Residue the Declaratton was amended and Judgment was given for the Plaintiff Loder and Samuels Case 1189. In a Replevin the Defendants avowed for an Amercement of 10 l assessed in a Leet for not repairing of a way which by custom they ought for to repair It being found for the Avowants the Jury assessed costs and damages It was objected that the costs and damages ought not to be given by the Statute of 21 H. 8. which did not extend to Amercements in Turnes or Leets but it was holden the costs and damages were well assessed vide Cook 8. part Greaslys Case and Joyners Case that the Avowment for an Amercement in a Leet should have costs and damages Sir George Sherly and Underhills Case 1190. Quare impedit The Plaintiff declared that he was seised of the Mannor of N. and that the Advouson of the Viccarige was appendant to the Mannor The Defendant made title to the Advowson as appendant to the Rectory impropriate of N. and then it came to the Crown by the Statute of Dissolution and that the Queen granted to him the Rectory with the Advowson of the Vicarige absque hoc that the Advowson of the Viccarige was appendant to the Mannor Resolved that the Advowson of the Viccarige of Common right is Appendant to the Rectory but it may be Appendant to the Mannor as if the Rectory before the appropriation was Appendant to the Mannor the Advowson of the Vicarige may well be reserved to the Patron and so shall be Appendant as the Advowson of the Rectory was Eyre and Bannisters Case 1191. In ejectione firme A challenge was to the array because the Sheriff was chosen by the Lessor it was adjudged it was no principal challenge but a challenge for favour only But it was said in this Case That if the â—ease had been ended to be made for tryall of the Title and that the Action was preferred at the costs of the Lessor then been a principal chalenge but not without such amendment Pauton and Chowles Case 1192. Debt by an Administrator of Elianor upon an Obligation the Defendant said the intestate in her life by the name of Ellen released to him all Debts and demands The Plaintiff replyed Non est factum Elianorae which was so found by verdict It was said that the same being matter in Law ought not to have been found by verdict Resolved that none can make an Obligation or other writing by a contrary name of Baptisme and said that Non est factum was a proper Issue and that the Jury had found according to Law and if the Jury had found the special matter yet it should not be adjudged to Bar the Plaintiff Dibly and Doares Case 1193. Trespass by the Plaintiff against Tho. Doare and Barthol Doare and the Plaintiff declared in Trespass against Tho. Clausum fregit averia cepit imparcavit It being found for the Plaintiff many exceptions were taken in stay of Judgement viz. the Declaration was that Tho. simul cum Bartholmew Clausa fregerunt in the plural number 2. That the Register is curia sua sine rationabili Causa imparcavit which works sine rationabili Causa were omitted in the Declaration 3. One of the Juries names in the venire was written Edrus without any dash and in the distresse was Edwardus all which exceptions were over-ruled by the Court and Judgmene was entred for the Plaintiff Colt and the Bishop of Coventry and Litchfields Case 1194. Quare Impedit The Plaintiffs declared that W. H. was seised of the Advowson of Clision Camvile in Fee and granted the next Avoidance to them and that the Church became void by the death of W. W. for which they presented and the Defendant did disturb them The Defendant said that W. W. was Incumbent and accepted another Benefice of the value of 8 l. by which the first became void and pleaded the Statute of 25 H. 8. of Dispensations to be granted by the Archbishop and that the Archbishop granted to him a Dispensation to hold the Church with his Bishoprick and with one or more Benefices with Cura in commendam of what quality value or dignity with a Proviso and all those taken in commendam did not exceed 200 l. in the Kings Books and pleaded the confirmation of the Dispensation by the King under the Great Seal and that he took this Benefice and traversed that the Church was void by the death of W. W. upon which Plea the Plaintiffs demurred in Law The Case for matter of difficulty was adjourned out of the Common Pleas into the Exchequer Chamber there it was argued by eight of the Judges that Judgment ought to be given for the Plaintiff and that both the Dispensation and the Commendam granted to the Bishop were void in Law and that principally for seven Reasons Vide the Causes and Reasons in the Abridgment of this case out of Hobarts Reports fol. 141. to 164 and Abridgment in my Grand Abridgment in the Title of Appropriations fol. 206 207 208. to which I refer you Cases of Prohibition Morice and Smiths Case 1195. Suit was by Husband and wife in the Ecclesiastical Court
817 Wells and Fentons case 822 Web and Hargraves case 835 Williams and Greens case 836 Worleys case 842 Walter and Pigotts case 845 Whetstone and Mintons case 852 Webster and Allens case 873 Ward and Lakings case 876 Wilmot and Knowles case 884 Ward and Sudmans case 894 Westby Skinner and Catchers case 902 Wiseman and Jennings case 904 Wilcoks and Hewsons case 920 Wilcocks and Greens case 934 Wood and Bucklâ—ys case 936 Waâ—ley and Mosleys case 947 VVortesleys case 956 Worleys case 959 Williams Vaughans case 1014 Whitlock and Hartwells case 1015 Waltham Mulgars case 1017 Sir Will. Walter and Hangers case 1055 VVheeler and Heydons case 1056 VVrights case 1064 VVorral and Harpers case 1065 Eliz VViimots case 1093 VVhite and Halls case 1097 VVeaver and VVards case 1126 VVindham Kemps case 1134 The VVeavers of Newberries case 1140 VVood and Shirleys case 1149 VVhitlock and Hardings case 1152 VValter and the Dean and Chapter of Norwiches case 1157 VVilkings and Perrotts case 1161 VVatbrooke and Griffiths case 1163 VVinscomb and Pulisons case 1164 VVolley and Davenants case 1182 VVray and Clenches case 1203 Y. YArdley and Prestwoods case 435 Yelverton and Yelvertons case 442 Yelding and Fays case 458 Yotes and Goths case 882 Yelland and Fiches case 1026 Yardley and Ellices case 1107 Z. ZOuch and Bampfields case 382 ☞ THere is newly extant an ABRIDGEMENT of the Three Volumes of the REPORTS of Sir George Croke Kt. of all such Select Cases as were adjudged in the Courts of Kings Bench and Common Bench during the Raigns of Q. Elizabeth King James and King Charles Collected by the Author of this Abridgement AN ABRIDGEMENT OF THE REPORTS OF Sir FRANCIS MOORE Knight Serjeant at Law Mich. 1. Hen. 7. Capell and Churches Case A Writ of Right Patent in the Court of the Castle of Rising of the King was directed Balivis suis de Rising whereas the proceedings were senatoribus Curiae held good because the Paylifs are to make the Sommons and the suitors Justice Capell and Aprices Case 2. Replevin The Defendant avowed That A. and B. held the Mannor of H. and divers Lands of the Bishop of London parcel of the Bishops Castle of S. by Homage Fealty Escuage and by the Rent for Castleguard pro reddit auxil Vic. The Defendant pleaded That the Castle was utterly decayed and as to the auxil Vic. demurred in Law The Plantiff was Nonsuit but the Rents are still paid to the Bishop though the Castle be decayed Cleydon and Spensers Case 3. Resolved That if an Executor with his own proper monies pay a debt due by the Testator he may retain so much of the value of the goods of the Testator in his hands Case of the Sheriffs of London 4. The Custome of London is That if a Villein remaineth in the City by the space of a year and a day without any Claime made of him he may all time during his life live in the City Free 5. Resolved by the Justices That that which is written after the words In cujus rei Testimonium is parcel of the deed aswell as that which is written before it 6. Resolved It is no principal Challenge That a Juror is endebted either to the Plaintiff or Defendant 7. Resolved In a Replevin That one of the Jurors was Steward of the Mannor to the avowant is a principal Challenge 8. Two are bound each to other to stand to the award of Arbitrators They award that the one shall make a Lease for years to the other rendering Rent to the Lessor the Lease is made the Rent is not paid adjudged the Bond is not forfeit because Distresse or Debt are proper remedies for the Rent contr if it be awarded the Lessee should pay the Rent 9. Debt for not performance of an Arbitrament Adjudged It is no plea generally That he hath performed it but he must show how he hath performed it 10. Resolved It is a good Challenge to one of the 4. Knights who come to impannel the Grand Assise that one of them is maried to the Plantiffs daughter and the other 3. shall try it 11. If a submission be de jure titulo possessione of certain Lands The Arbitrators cannot award that one of the parties shall procure the Lord of the Mannor to grant a Copy holdor that a stranger shall release because out of the submission Frances Case 12. Resolved That the King by his Letters Patents cannot grant the Lands of a Lunatique to another to take the profits to his own use because the King himself is not entitled to them for his own use but for the use of the Lunatique his Issues Wife c. Otherwise it is of an Ideot for then the King hath the profits to his own use making allowance to the Idiot for his keeping Levet and Lewknors Case 13. An Executor recovered in Debt and then dies Intestate and the Ordinary commits Administration de bonis non c. Resolved the Administrator shall not have a scire fac upon the Judgement but a new Action of Debt as Administrator to the first Intestate Sir Godfrey Foliambs Case 14. Quare Imp. The Case was A. seased of the Mannor of D. to which Mannor an Advouson was Appendent granted the next Avoydance to B. and D. eorum cuilibet conjunctim divifim haered executor assignis suis The Church voyd B. presents D. to the Church adjudged That the presentment of him was good though he was one of the Granters 15. The Husband is entitled to Land in the Right of his Wife Resolved The Husband alone without joyning the Wife in the Writ shall have an Action upon the Statute of 8. H. 6. because the words of the Statute are Expulit disscisivit 16. A man was indicted for a Robbery done in the Foot way leading from London to Islington Resolved That he should have his Clergy because the Indictment is not of a Robbery in alta via regia nor in the High way but in a Foot way Vaughan and Lord Burghs Case 17. In a Writ of Prohibition there wanted the word Ostensurus Resolved though after Issue joyned that the Writ was amendable by the Statute Baker and Brooks Case 18. A Parson granted an Annuity of 5 l. issuing out of his Rectory pro Consilio impenso to I. S. Habend recipiend to the said I. S. and his Assignes The said I. S. granted it over to I. D. Resolved That the grant of the Annuity was good and the Assigne may have Debt for it 19. Wast was brought against Lessee for years He pleaded in Barre an Accord which was executed Adjudged to be a good plea. 20. Resolved by the Justices That the Master cannot Sollicite Counsel nor give Mony to Counsel in an Action brought against his Servant for his Servant but yet he may give what is due to his Servant for his Wages to Counsel for their Fees and it is not maintenance 21. Resolved That the Lord in Ancient Demesne shall
limitation over was good enough Dyer said If the Remainder be in tayl the Conusee is seised of the Reversion to his own use quod fuit concessum per les Justices 134. A man granted unto another Herbagium Pannagium within his Lands rendring Rent the Lessor cut down the Trees Resolved That Trespass would not lye by the Lessee against the Lessor but he might have an Assize because it is a Profit Apprender in loco certo capiendo 135. An Abbot was Parson imparsonee of the Church where the Abbot and Tythes were the Abby was dissolved The King granted the Monastery to one and the Parsonage and Rectory to another It was the opinion of the Justices That if the Land of the Abby was the Glebe of the Parsonage before the Appropriation that that Land was discharged of Tythes for it remains Glebe notwithstanding the Appropriation and the Glebe cannot be gained by Prescription and the Glebe was never chargeable to pay Tythes And if a Parson doth make a Lease of his Glebe the Lessee shall not pay Tythes But the Demeasnes of the Abby not parcel of the Glebe should be chargeable to pay Tythes if they were not discharged in right by a Composition or unity perpetual 136. A man made a Feoffment in Fee of Lands upon Condition if he paid him 20 l. at the Feast of St. Mich. in St. Pauls Church the Feoffment to be void The Defendant in an Action brought pleaded he paid the Money at the day and place upon which Issue was joyned and gave in Evidence That he paid it before that day at another place Resolved That the Evidence did nâ—t maintain the Issue For although the Party may pay it at another day and place if the other will accept of it yet he is not bound to receive it and in as much as the Partie is restrained to a day and the day is made parcell of the Issue he ought to prove payment at the day or alledge the special matter and plead payment before the day and acceptance thereof as the truth of the Case is 137. If a man be indebted to I. S. 100 l. and the Debtee maketh an Acquittance to him in Writing that he hath received 20. l. of him in satisfaction of the 100 l. of all other Debts Duties and Demands the same is good and amounts to a Release but if it be without Writing then payment of the 20 l. cannot be in satisfaction of the 100 l. by the Opinion of all the Justices 138. A man deviseth his Lands to his Wife de anno in aunum till his Son shall come to the age of 20. and dyes the Wife enters the Son dyeth before he attains 20 years Resolved the Interest of the Wife was determined But if the Devise had been untill the Son should or might come to the age of 20. years there notwithstanding his death the Estate of the VVâ—fe had continued 139. If a Grand Cape issueth where there was no Original before and Judgement be entred upon it Resolvd it is not void but voidable only by Error 140. Ravishment of Ward of two Daughters the Plaintiff declared to his Dammages of 100 l. and upon Nihil dicit had Judgement and upon a VVrit of Enquiry the Jury found the Ravishment of the Eldest and that she was married to the Plaintiffs dammage of 80 l. and of the other two to the value of 60 l. pro raptu abductione 100 l. and the Judgement was entred for the dammages pro raptu abductione conditionally if she was married 141. A man seized of an Advowson in Fee granted to another and his Heirs that when the Church should become void that the Grantee and his Heirs should nominate a Clarke to the Grantor and his Heirs and he and his Heirs should present him to the Ordinary Resolved That if he who hath the Nomination present he which ought to present shall have a Quare Impedit against him â— contra But if an Annuity be brought against a Parson the Aide is grantable onely of him who hath the Presentation for that is in the right and the right is in the Presenter 142. Debt upon a Contract for 10 l. It is no Plea for the Defendant to say that the Contract was for a lesser sum than the sum contained in the VVrit because the Defendant might wage Law of it 143. Copyhold lands are demised to two for Life successive where the Custome is they may cut Trees Resolved It is a forfeiture of his Estate and of the Estate of him in the Remainder Ter. Pasc 5 Eliz. 144. Lands at the Common-law and copyhold-Copyhold-lands are leased by one Indenture rendring rent Resolved that the whole Rent shall issue out of the Lands at the Common-law and not out of the Copyhold But if a man leaseth Lands a part of which he hath by Disseisin rendring Rent there the Rent shall issue out of the whole Land and by the Entry of the Disseisee the Rent shall be apportioned 145. A Composition was betwixt an Abbot and a Parson that in recompence of the Tythes of all the VVoods within the Mannor whereof the Abbot was Owner that he should have to him and his Successor â—0 loads of VVood every year in 20. acres of the said Mannor to burn and spend in his House The Parsonage was appropriate to the Abby and after the Abby was dissolved and the King granted the Parsonage to one and the 20. Acres to another It was was resolved That by the uniâ—y the Estovers were not extinct for if they be Tythes they are not extinct by this unity of Possession for that Tyths run with the Lands and Tythes de jure Divino Canonica Institutione do appertain to the Clergy Eyres Case 146. In Replevin The Case was the Archbishop of York was seized of a Field in B. in the right of his Church and Leases the same by Deed for years rendring rent which was confirmed by the Dean and Chapter In the Indenture there was a Proviso that in the vacancy of the Bishoprick the rent should be paid to the Chapter as in his right the Bishop dyed I. S. was created Bishop and was deprived because he refused to take the Oath of Supremacy I D. was chosen and created Bishop and for Rent behind and not paid to the Chapter in the time of the vacancy he avowed In this Case these these points were resolved 1. That the Proviso was well placed and was a Condition being annexed to the Reservation of the Lease 2ly That the Successor might enter for the Condition broken in the time of his Predecessor 3ly The Bailiff of the Bishop could not enter for the Condition broken without a Special Warranty 4ly That the Condition was repugnant because he appoints the Rent to be paid to the Chapter in the time of the vacancy the Reservation being to the Bshop and his Successors 5ly That no Title was in the Succcessor to enter because the Condition was repugnant
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
of the Justices that for want of Certainty no use is created by the said Covenant and Consideration but the same amounts to a Covenant and no more and the words Discend come and remain cannot create an Use but to the Heir apparant only 254. In Trespas the Case was The Custom of a Mannor was Quod quilibet tenens per Copiam poterit dimittere terras suas for life in Fee or alâ—ter and that a Woman Cooperta viro poterit devise her Copyhold Lands to any other or to her Husband by the assent of the Husband The Court held that the custome was not unreasonable but because it was poterit devisorre where it should be usi sunt devisorre and also because it appeared that the Plaintiff was Tenant in Common with the Defendant It was adjudged against the Plaintiff 255. A seised in Fee of a Messuage and of divers Lands time out of minde occupied with it let parcel of the Lands to a stranger for years and afterwards made his Will in this manner viz. I will and bequeath to my Wife my Messuage with all the Lands thereunto belonging in the occupation of the Lessee and after the decease of my Wife I Will that it with all the rest of my Lands shall remain to my Younger Son It was the opinion of the Justices that the Wife should not have the whole but only that which was Leased before and therefore that the remainder thereof could not be in the Younger Son till after the death of the Wife and that till the death of the Wife the Eldest Son Heir at Law should enjoy it 256. A man bound himself in an Obligation that he and his Wife would levy a Fine upon reasonable request of the Obligee he made the Request the Wife being very sick so as she could not travail Resolved that her sicknesse did save the Obligation from being forfeited 257. A Copyholder in Fee by License of the Lord made a Lease for years Rendring Rent and having Issue a Son and a Daughter by one Woman and a Daughter by another dyed his Son within age who before any Rent incurred or any admittance dyed Adjudged The Eldest Daugter should have the Land and that the discent of the Reversion is possessio fratris quae facit sororem esse haeredem Kenrick and Burges Case 258. A Lease in Reversion for years was granted to I. S. who dyed Intestate his Wife assigned it to B. and afterwards took Letters of Adminâ—stâ—ation and made an Assignment of it to the Plaintiff Resolved that the last Assignee should have it Trinit 25. Eliz. in Exchequer The Queen Her Almoner and Coxeheads Case 259. The Case was I. S. Anno 9. of the Queen took the Office of Bayliff of the Hundred of A. and 11. Eliz. became indebted to the Queen by Obligation and 13. Elz. he being seised of Land Covenanted with C. in Consideration of Mariage with his daughter to stand seised to the use of himself for life and after to the use of C. and the Daughter in Tail and afterwards he took the Office of Woodwardship of the Mannor of S. and became indebted for that also and then granted a Rent Chaâ—ge for years out of the Land and then C. and I. S. joyned in a Fine to the use of the said I. S. for life the remainder to C. and afterwards I. S. having purchased the Rent and possâ—ssâ—d of goods and Chattells because Felo de so for which his Lands and goods were seized It was the opinion of the Justices the Almonor had no title to his goods because the Patent did not extend to the goods of a Felo de se against the Queen for her debt because it wanted the Words Licet tanget nos and that the Lands and goods of the said I. S. were chargeable as well for the debts which were due by the Obligation as also upon the accompt aswell before the Conveyance as after Wherefore C. paid the Queen her debts and had the Lands cleered Newtons and Barnardines Case 260. A. had Issue 3. Sons F. R. and G. F. dyed his Wife with Child The Father A. devised in this manner viz. To the Child my Son F. his Wife now goeth with 28 l. yearly to be paid to the use of the Child for 20 years And if my Son R. dyeth before he hath Issue of his body so as my Lands discend to G. before he come of the age of 21. years then my Executors shall occupy it till G. be of the age of 21. years the Father dyeth R. enters a Daughter is born who enters and lets the Land to the Defendant rendering Rent It was adjudged That R. in this Case had an estate Tail by Implication of the words of the Will and that the entry of R. was a Lawfull eviction of the Terme and destroyed the Rent Hâ—dons Case 261. It was Resolved by the Justices in this Case An Abbot made a Lease for 8. years of Lands of the possession of the Abby a Copyhold estate being in esse at the time that it was an estate in being as did make the Lease for years void by the Statute of 31 H. 8. of Monasteries The Case of the Skinners of London 262. In Intrusion the Case was A. a Cittizen and Freeman of London seised of divers Messuages and Tenements of the yearly value and profit of 30 l. 6 s. 8 d. by his Will before the Statute of 1 E. 6. devised the same to the Corporation of Skinners and that 42 s. 8 d. thereof should be imployed upon an Obit and 12. Marks yearly thereof upon the Priest and the Residue to be imployed upon poor men of the Corporation decayed by misfortune who inhabited the said Messuages and Tenements and appointed the said poor men to pray for his soul and further with the profits to repair the Messuages and Tenements and after the Statute of 1 E. 6. of Chauntries was made It was the opinion of the Court 1. That Lay Corporations are Excepted out of the Statute for their Lands which they have to increase their Treasure for the good of the Corporation but not for Lands which they have to imploy to superstitious uses 2. Resolved that all the money which was given for the Obit and the finding of the Priest was a superstitious use and given to the King by the Statute but that which was given for the maintenance of the poor men and although it was appointed them to pray for his soul which was a precept suteable for that time and which was given for the Reparations of the Messuages c. was not given to the Crown by the said Statute and Turnors Case was vouched to be adjudged Where Land was given to the intent that his Feoffees should keep an Obit with so much of the profits of it as they should think fit in their discretions that the Land thereby was not given to the Crown but so much of the yearly Rent as the Feoffees imployed to that purpose
several Writs issued to Certifie one to the Custos Brevium the other to the Chief Justices They both Certified there was not any Warrant of Attorney The Plaintiff alledged Diminution upon a new Writ of Error brought Resolved That he could not alledge Diminution not have a new Writ of Error after the two former Certificats in the first Writ Ive and Tracies Case 281. A man seised of Socage Land and of Lands holden in Capite by Act executed in his life Conveyed the Capite Lands for the Advancement of his Wife Issues and payment of his debts Adjudged he could not after devise the Socage Land Bonncys Case 282. King E 6. seised of the Mannors of R. and B. in the right of his Dutchy of Lanc. made a Lease thereof to B. for years rendering several Rents upon Condition that if the Rent be behind 40. dayes after the Rents payable to reenter It was found by Office that the Rent was behinde after the 40. dayes and by another Office that the Rent was tendered the Last instant of the 40. dayes and that the Queens Officers of the Dutchy accept of the Arrerages and of the Rent at other dayes and Feasts and made accquittances thereof to the Lessee and had accompted for the same in the Dutchy and after that the Queen to defeat the Lease brought the Intrusion The poynts of the Case were 1. If the Queen was bound to demand the Rent 2. If the Tender was sufficient and sufficiently found by the Office 3. If the acceptance of the Rent accrued after the Office should conclude the Queen of the Condition The 4. If the Acquittances of the Officers should conclude the Queen 1. It was Resolved that the Queen ought to have made a Demand of the Rent before Reentry 2. That the Tender found shall be intended a tender made upon the Land which was a sufficient destruction of the Reentry 3. That the acceptance of the Rent at a new day after the Rent found behinde should conclude the Queen and that the Act of her Officer should be the Act of the Queen her self so as she could not enter for the Condition broken and so it was adjudged against the Queen Hunt and Gateleys Case 283. In a Replevin the Case was this Tenant in Tail the remainder over in Tail the remainder over in Fee Tenant in Tail in remainder granted a Rent charge and afterwards Tenant in Tail in possession suffered a Common-Recovery and dyed without Issue The Question was If the Recoverers should hold the Land charged with the Rent It was Resolved that the Recoverers nor any which came in under their estate should be subject to the charge of him in the Remainder because the Recoverers are not of an Estate which they gained under the estate of Tenant in Tail in possession whose estate is not subject to any Charge of him in the Remainder 2. Resolved That no Lease nor Rent nor estate made by him in the Remainder should charge the possession of the Recoverers Brand and Glasses Case 284. Action upon the Case against an Inkeeper of London for goods of the Plaintiff stolen out of his Inn The Defendant pleaded an agreement betwixt them that the Inkeeper should not be charged with any goods brought by the guest but with such only as he should deliver to the Inkeeper himself or to his Wife and that the Plaintiff did not deliver the goods stolen neither to him nor his Wife It was Resolved by the Court it was a good bar of the Action and this Case was put and vouched to be adjudged 7 Eliz. A Clothier came to an Inn with a Wayne of Wool to Lodge at his entry the Inkeeper said to him That if he would that he should take the Charge of his Wayne that he should draw the same into an Inner Court otherwise he would not answer for it The Clothier did not do it and the Wool was stolen The Clothier brought his Action upon the Case against the Inkeeper and upon shewing the special matter the Inkeeper was discharged 185. The Case was Lessee for life Covenanted for himself his Executors and Administrators to build a new Wall during the Terme and after he assigned over his estate It was Resolved that in this Case upon the Statute of 21. H. 8. that the Grantee of the Reversion or the Grantor might have an Action of Covenant against the Assignees for by the acceptance of the possession he had made himself subject to all Covenants concerning the Land and the building of a Wall was a Covenant inherent to the Land with which the Assignee should be Charged though there wanted the word Assignees in the Deed. Mich. 26. 27. Eliz. The Case of Saffron Walden 286. King Henry 8. seised of the Mannor of Saffron Walden parcell of his Dutchy of Lanc. Anno 6. of his Raign granted to the Guild of Walden 2. Mills a Market and the Clarkship of the Market in Fee Farme rendering 10 l. per Ann. and after 31. of his Raign granted the Mannor Rent and Fee Farme to the Lord Audley in Fee 1 E. 6. by the Statute of Chauntries the Guild was dissolved by which the Mills and Markets came again to the King with a alvo of the Rent to the Lord Audley Afterwards the said King E. 6. Anno 3. of his Raign granted the two Mills Market and Clarkship of the Market and also a Fair yearly to be holden there to the Town of Walden in Fee Farme reddendo inde annuatim to the King and his Successors vel tali Capitali Domino vel Dominis feodi illius ad qâ—em vel quos de nostro pertinet vel pertinebit the sum of 10 l. per Ann. upon which Reservation they were charged with 10 l. per Ann. in the Exchequer and upon a scire facias they pleaded in discharge of the said Rent that they had payed 10 l. per Ann. to the Heirs of the Lord Audley The points debated were two 1. That when the King had granted the 2. Mills and Market to the Guild reserving Rent if the said Rent were parcel of the Mannor of Walden as the Mills were or was a Rent in grosse for if it was parcel of the Mannor then it was parcel of the possessions of the Dutchy if it was not parcel then it was a thing given to the King in Capite 2. If by the Reddend in the Patent of E. 6. the Town of Walden was charged to pay 10 l. to the Lord Audley and other 10 l. to the King This Case is very long and Learnedly argued by Walmesby for the Town of Walden and by Popham for the King And it was Resolved by the Justices That the Corporation of Walden should pay both the Rents Vide the Book at Large for the Reasons Sir William Herberts Case 287. Sir Matthew Herbert acknowledged a Recognizance to the King of 3000 l. and afterwards he made several Feoffments and Allienations of divers of his Lands the residue discended to
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
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
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
one saith he hath Title or Interest to anothers Land an action doth not lye although he hath no Title but when he saith that another hath Title he cannot salve the same by applying the same to himself for his Justification Shaw and Thompsons Case 536. A Woman recovered Dower of a Copyhold within the Mannor and 40 l. damages because her Husband dyed seised and she brought Debt for the damages in B. R. adjudged it did not lye because the Court Baron could not hold plea not award Execution of 40 l. damages although the damages were there well assessed Huntbage and Shepheards Case 537. The Issue in an Ejectione firme was if Jemet the Wife of the Defendant was alive at the time The Jury found Julian the Wife of the Defendant was alive It was the opinnion of the Justices they cannot be intended one person without finding that by the Custome of the Country Weomen baptized by the name of Julian had been called Jemet Stile and Buts Case 538. Trespas for carrying away Clay the Defendant Justified by a Prescription as a Tenant of the Mannor but because the Clay was digged by another and not by the Tenant the Justification was ruled not to be good Doggerell and Pokâ—s Case 539. Covenant upon an Apprentiship the Defendant pleaded a By-law in London where he was Apprentice by the Common Councell That if any Freeman takes to Apprentice the Son of an Alien the Bonds and Covenants should be void It was adjudged no plea for that the Common Councel cannot make the Bonds and Covenants void but may Impose a Fine upon the Master for taking such an Apprentice Bab and Clerks Case 540. False Imprisonment the Defendat Justified That the Borough of St. Albans had authority by Charter to make By-lawes and they made a By-law That if any Burgesses give opprobrious words to the Major he should be Imprisoned of the Major at his pleasure and that he being Major sent an Officer to the Defendant being a Burgesse to come to the Common Hall for the affairs of the Town and he sent him this Answer Let the Major come to me if he will for I will not come to him Adjudged the Justification was not good that the By-law was not Lawfull and that the words were not opprobrious words Reynold and Purchowes Case 541. Assumpsit where the Plaintiff had recovered 4 l. against the Defendant in Consideration the Plaintiff had given him 3 l. he promised to acknowledge satisfaction and had not done it It was said it was no Consideration to pay that to him which is due The Court held the Consideration good because speedy payment will excuse and prevent travail and expense of Suit Gregory and Blasfields Case 542. Error of a Judgment in Ludlow upon the Statute of 4 and 5 Mar. for weaving of wollen Cloathes It was assigned that the Statute of 5 Eliz. had abrogated that Statute The Court said the Statute of 5 Eliz. had not abrogated it but encreased the penalty But because the Suit was there by Bill or plaint but ought not to be but by Writ or Information the Judgment there was Erroneous 543. The Custome of a Mannor was layed to be That if a Copyholder hath 2. Sons and a Wife and dyes and the eldest Son hath Issue and dyeth in the life of the Wife the younger Son shall have the Land The Issue being upon the Custome The Jury found the Custome That the younger Son shall have the Land unlesse the eldest was admitted in his life and paid the Lords Fine The Court held the verdict to be insufficient to prove the Issue Walter and Dawes Case 544. Assumpsit upon a promise to pay 20 l. yearly for 10. years to the Testator of the Plaintiff in consideration the Testator had granted him the Office of the Clerk of the Fines in the Counties of B. C. and Glamorgan The Defendant pleaded he did not exercise the said Office and the Venire was awarded in the County of Worcester It was adjudged against the Plaintiff because there they cannot take Notice of the Issue Necton and the Wardens of Wexchandlers Case 545. The Plaintiff sued a Prohibition against the Defendant upon Libell exhibited by them for a Legacy given to them by the Testator of the Plaintiff The Plaintiff surmised that there were divers Obligations for monies depending and Suits But in Conclusion the Defendants had a Consultation upon security to repay the Legacies to be there recovered by them if any things were Recovered by the Excecutors upon the Obligations Vide this case more largely Reported in Cr. 3. part 467. Wright and Major and Commonalty of Wickhams Case 546. Error was brought to reverse a Fine viz. that the Ancestor dyed mean between the Teste and the Return of the Writ of Covenant The Defendant pleaded that after the death of the Father the Plaintiff entred into parcell of the Land and made a Feoffment It was the opinion of the Court that he was barred by his entry and Feoffment of part upon the difference If a man hath an Action to Land if he suspend or extinguish it in part it is extinct in the whole but if he hath right to Land he may Release or suspend it in part and remain good for the Residue and upon this point the Judgment was reversed Welshes Case 547. Note It is the same case with the case of Attonwood Reported at Large in Cook 1. p. of his Reports upon the points there more largely debated and adjudged and therefore I have forborn here to abridge it I shall mention this case put by Pirriam Justice viz. If Tenant in tail be the remainder in tail the remainder to the Queen and Tenant in tail commits Treason and the Queen makes a Lease and the Tenant in tail dyeth without Issue and afterwards he in the Remainder dyeth without Issue that this Lease shall continue good upon the Reversion Lord Darcies Case 548. Quo Warranto for using a liberty to be exempt of Purveyance The Defendant pleaded that King Edward 4 granted to the Dean and Cannons of St. Pauls and their successors the said liberty within all their Lands and averres that they were seised of the Land in which at the time of the Grant and that afterwards the said Lands came to Edw. 6. who granted the same to his Grandfather and his Heirs with a Clause de tanta talia consimilia libertates c. quae quot qualia quanta the Dean and Canons or their predecessors ever had by reason of any Charter Grant of any of the Progenitors of the said King with a general non obstante aliquo Statuto c. It was Replyed that 27 H. 8. it was enacted by Parliament that the Kings Purveyors should execute their Commission in all places aswell within Liberties as without any Charter c. notwithstanding The Court was of opinion for the Queen because at the time of the Grant of tot tanta talia libertates the
levied a Fine Come Ceo c. he in the Remainder entred In this Case it was Resolved first that the Grant to C. was void for that an Estate of Freehold cannot begin at a day to come 2. That the Grant being void at the beginning the attornment afterwards cannot make it good 3. When C. entred by color of the Grant he was a Disseisor 4 If the Fine had been levied to the Disseisor himself he who had the right to the Remainder might have entred for the forfeiture 5. That the Fine levyed to the Tenant at Will was a forfeiture and he in the Remainder entring upon it had purged the Diseisin 6. It was Resolved in this case that if the Diseisee levieth a Fine to a Stranger the Diseisor shall retain the Land for ever for that the Diseisee against his own Fine cannot claim but by the Fine the Right is extinct of which the Diseisor shall take advantage Abraham and Twiggs Case 569. A seised of Land in Fee by his Will in writing devised 40. l. annuity to I. S. for Life with clause of distress payable at Mich. and our Lady-day and died The Rent was behind at our Lady-day 35 Eliz. I. S. distrained a Replevin was brought and the Plaintiff in the Replevin said â—hat before A. was seised that B. was seised in Fee and enfeoffed divers persons to the use of himself and the Heirs of his Body the Remainder to the use of G. Et haeredum masculorum suorum legitimè procreatorum pro defectu talis exitus ad usum I. D. et haeredum masculorum suorum legitimè procreat pro defectu talis exitus ad opus usum rect haered dicti G. imperpeâ—uum B. died without Issue G. had Issue A. the Devisor The principal point in the Case was If the Limitation to the use of G. and his Heirs Males lawfully begotten and for want of such Issue ut supra without the words Heirs Males of his Body was an Estate tail or a Fee simple in G. for if tail then the Devisor his his Son was seised in tail and his Will of the Rent void It was Resolved he was seised in Fee-simple and not in tail for default of the words Heirs of his body in the limitation of the use Wrights Case 570. In a Prohibition in this case it was holden by the Court that the Bishop of Winchester might prescribe that he and his Praedecessors Farmers and Tenants of Temporal Lands had held their Lands discharged from the payment of Tythes and so might any other spiritual person but Temporal persons could not prescribe in non Decimando but in modo Decimando they might prescribe Marsh and Curties Case 571. Ejectione firme The case was A seised in Fee let a Messuage and 20. acres of Land for years rendring Rent Provided the Lessee shall not parcel out any of the Lands from the House The Lessee devised the house and 10. acres for half a year reserving the other 10. acres the Lessor at the next day accepted of the Rent and notwithstanding entred upon the Land the Lease not being expired It was Resolved That the words in the Proviso were a condition 2. That the condition was broken by the Devise of the House with parcell of the Land as well as if he had devised the whole Land But some of the Justices were of opinion that the acceptance of the Rent after the condition was broken had dispensed with the condition and had barred them of his entry for the condition broken especially if the Lessor had notice of the Condition broken at the time of the acceptance of the Rent Quaere The Lord Norris and Barretts Case 572. Debt for an Amercement in a Leet The case was The Abbot of A. was seised of the Hundred of H. in Com. B. and of Leet appendant to it to be holden by prescription once in the year at Easter The Dissolution of the Abby was found and that the Towns of C. and N. with 20. other Towvs were in the Hundred King Edward the Sixt granted to L. divers Lands in N. which was parcel of the possessions of the Abby and also granted to him Omnes omnimodas Curias Leetas Perquisitiones proficua Curiarum Leetarum fines amerciamenta in N. seu in eorum aliqua seu alicui inde parcellae modo spectant sive pertinent With a further Clause that L. and his heirs should have tot talia tanta hujusmodi consimilia curias Leetas fines amerciament quaecunque prout Abbas c. Infra Messuagia terras tenementa caetera praemissa quamlibet inde parcellam Afterwards Ed. 6. granted the Hundred and the Leet to I. B. and I. D. which by mean conveyances came to the Plaintiff L. conveyed the Land to his second Son under whom the Defendant claims It was the opinion of the Justices That L. had not any Leet by the Grant nor any Amercement nor was discharged from the general Leet because the first clause of the Patent is restrained to Leets and Amercements belonging or appertaining to the Land granted and the Leet which the Abbot and King had was appertaining to the Hundred and not to Land 2. That L. could not have the like Leet as the Abbot for when eadem may be had and the Plaintiff hath words to have eadem if he fail of eadem he shall not have Consimile for eadem remains in the King and if the King hath a Leet none other can have a Leet in the same place because two Leets cannot be in one place simul semel Laughton and Gardiners Case 573. In Action upon the Case Upon a Latitat the Sheriff returned a Cepi habeo Corpus paratum which he had not and the Defendant did demur to it Adjudged the Action did lie because by his demur the Defendant hath confessed his false Retorn but if he had pleaded the Statute of 23. H. 6. and shewed he had taken Bail the Action would not lie Nicholas and Badgers Case 574. The Defendant in an Action upon the case for words by his Council gave in evidence That one I. S. had stollen certain Sheep and that by compart betwixt the Plaintiff and I. S. the Plaintiff did take a Lease of a Close of I. S. in D. to help him to cloak and to keep him from the Felony and that he said He would affirm all to be true that the Council had said It was adjudged that for these words a new Action did lie for although they do not accuse him as an accessary to the Felony but for misprision of Felony which is not Fineable yet it is a great-scandal of any man to say That he cloaks Felony Note in this Case It was Resolved that an Action upon the Case doth not lie against a Counsellor for delivering slanderous words in evidence Boneham and Springs Case 575. Assumpsit in London The Defendant pleaded a Concord in another County for all Matters in any County except London
Pat. 30. Jan. 3â— Eliz. had granted to C. and his Wife the said Writing Obligation and sum of 1000 l. in the same contained ita ut praefertur forisfact and that at the suit of C. in the Name of the Queen Judgment was given that the Queen should have Execution of 1000 l. prout per Recordum Judicii c. Now to the intent that C. should have the said Obligation The Queen ex certa scientia c. granted praedict Scriptum Oblig summam 1000 l. totum advantagium Judicii praedict to the said C. and his Wife with power to sue in her Name It was Resolved in this case that the Queen was deceived in her grant because she recites she had granted before the Obligation by her Pat. 33 Eliz. whereas in trueth nothing passed by that Patent for want of true Recital of the Condition Turner and Oldfields Case 588. A Prohibition to the Admiralty because they Libelled in the Admiral Court upon a Charterparty to have the third part of goods taken upon the Sea by Letters of Mart whereas the matter was tryable upon the Land and not in the Admiralty by reason of the Indenture of Charterparty Lutterells Case 589. It was Resolved by the Justices in this Case If one be seised of Lands to which another hath right of Entry and the Tenant in possession levyes a Fine with Proclamation That he who hath right ought to enter in possession or make a special Warrant to one to enter for him and a stranger cannot enter in his name and avoid the Fine Gybon and Bowyers Case 590. Upon Recovery an Ejectione firme in the Court of Ancient Demesne a Writ de Execuâ—â—me Judicii was awarded to the suitors who returned they did not execute the Writ because the Land was Franck Fee as appeared to them by the Transcript of a Fine shewed to them the Return was dissallowed by the Court because the parties allowed the Jurisdiction of the Court at first and that the Lands in Frank Fee ought to have been pleaded so as the other party might answer to them Vicary and Farthings Case 691. The Issue was upon full age and 2 Church bookes were given in evidence whereof one was delivered to the Jury in Court the other was delivered to the Jury by the sollicitor of one of the parties without the Assent of the other and that was endorsed upon the Postea The Court was divided in opinion if the verdict was good or nor Wentworth and Russells Case 592. Two Tenants in Common of a Mannor brought a Parco fracto and it was adjudged maintenable without shewing how they were Tenants in Common Maine and Scots Case 593. A man made a Lease for years by Indenture and Covenanted with the Lessee upon surrender of his Lease to make to him during the Terme a new Lease The Lessor accepted of a Fine sur Conusans dedit come ceo and by that Fine rendred the Land to the Conusee for 80. years It was adjudged that the Lessor had disabled himself to make the Lease and therefore the condition was broken and Covenant did lye without a Surrender Partrrdge and Naylors Case 594. Judgment was against 3. persons in an Action brought against them upon the Statute of 1. and 2. Phil. and Ma. for Impounding a distresse in several Pounds and damages assessed which were trebled by the Court and 5 l. a piece forfeitures because there ought to have been but one 5 l forfeiture because all the 3. Defendants offended in a joynt offence Hollins and Connards Case 595. Debt upon Obligation to performe Covenants which was That the Obligor should make assurance before such a day of Land to the Obligee and his Wife at the Costs of the Obligee but there was no request in the Covenant It was adjudged that in this Case that the Obligor having election what manner of Assurance he will make ought first to give notice to the Obligee that he would make such an Assurance and then the Obligee is to pay the Costs of it Monday and Levices Case 596. In a Prohibition it was adjudged it was not a good prescription that Inhabitants have used to pay Calves and Lambs and 1 d. for every Milch Cow in satisfaction of all Tythes of Lambs Calves Milch Kine and all barren and rother beasts and Agistments Linch and Spencers Case 597. Ejectione firme the Case was Sir R. B. was seised of Lands in Fee and thereof enfeoffed W. and others upon condition that that they should regrant it to him and his Wife in Tail the remainder to the right Heirs of Sir R. B. who regranted it accordingly Sir Robert and his Wife had Issue A. B. Sir Robert dyed A. B. levyed a Fine with Proclamation to Sir G. B. the Lessor to him and his Heirs to the use of him and his Heirs Tha Mother afterwards leâ— the Land to the Defendant for life and dyed Sir G. B. entred upon the Defendant pretending his entry to be Lawfull by the Statute of 11 H. 7. It was Resolved 1. That Sir G. B. was such a person who might enter for the forfeiture within the Statute and that by this Fine Levyed by A. B. in the life of his Mother the estate Tail is barred thereby and the remainder in Fee passed by that Fine to Sir G. B. so as he had the remainder at the time of the discontinuance made and the wronges done to him and then he is within the words and intent of the Statute to take advantage of the forfeiture The Countesse of Northumberlands Case 598. In a Quare Impedit brought by divers the Defendant pleaded the Release of one of them depending the Writ It was Resolved 1. That it should go in Bar against him only 2. Resolved That a presentment alledged in the grantee of the next Avoydance and not in the grantor himself was a good title for the grantor and his Heirs in a Quare Impedit Harvey and Oswalds Case 599. A man let Land rendring rent upon Condition that the Lessee should not demyle it without the assent of the Lessor he demysed part of it the Lessor without Notice accepted the whole rent of the first Lessee It was adjudged he might enter for the condition broken notwithstanding the acceptance because he had not notice of the condition broken contra if he had notice of it although the condition was Collateral Blinco and Marsons Case 600. A Vicar Libelled in the Spiritual Court to have Tythes of the gleab of the Parson and a prohibition was granted for that the gleab shall pay no Tythes Kirton and Hoptons Case 601. In Appeal of Mayhem the Defendant pleaded to the Writ and pleaded over to the Mayhem It was adjudged that he ought not to plead over to the Mayhem but only where life is in Jeopardy wherefore a venire was to try the Issue of Notguilty Coote and Lighworths Case 602. False Imprisonment the Defendant had justified that he had a Warrant to arrest I. D.
life and after to the use of his Son and his Heirs The point was if the same did after the use because the Father afterwards devised the Land to his younger Son this Case was argued only and adjorned Collins and Hardings Case 691. A man seised of Freehold and Copyhold by License made a Lease of both at one entire Rent the Lessee assigned his Terme and afterwards the Lessor Released all demands to the first Lessee Afterwards the Lessor granted and surrendred the Reversion of the whole to a stranger who brought Debt against the Assignee for Rent It was Resolved that the Rent was not determined by the Release because the Release was after the assignment of the Terme in which case it was in the Election of the Lessor to charge the Lessee or Assignee but for Rent due before the Release that was extinct by the Release But whether the whole Rent should issue out of the Freehold or should be apportioned the Justices were divided in opinion Cooper â—nd Langworths Case 692. A man sued forth an Elegit upon a Recognizance in Chancery but nothing was done nor Returned upon it Resolved that he might sue a Fieri fac upon the same Recognization and so if a man hath Recovered debt upon a Obligation he shall have another Action of debt if he hath not sued forth Execution Marsh and Edmonds Case 693. Debt upon an Obligation to be such a day at the Kings head in D. and there to choose two Arbitrators to joyne with others to arbitrate all matters betwixt them The Defendant said he was there at the last instant of the day to make the Choice adjudged no plea for he ought to have been there in such time that they might have chosen Arbitrators Bolls and Smiths Case 694. A man made a Feoffment in Fee to the use of himself and Wife for their lives and after to the use of B. their eldest Son and after his decease to the use of him who should be his eldest Son at the time of his death in Tail the Remainder to C. in Tail the Remainder over in Fee the Feoffor dyed the Wife made a Lease to B. for years who enfeoffed a stranger the Wife dyed C levyed a Fine to the Feoffee with Proclamation afterwards B. dyed having issue a Son at his death who entred the Feoffee having granted a Rent charge the grantee distrained and avowed It was adjudged that the Feoffment of B. and the Fine of C. had prevented the future use to rise in the Son of B. and so it was adjudged in Ards and Terringhams Case Stebbing and Goswells Case 695. By the Custome of the Mannor the Copyholders had used to have the tops and loppings of the Trees upon their Copyhold the Lord cut down all the Trees Adjudged that Trespas did lye by the Copyholder against the Lord. Drove and Shorts Case 696. A Jurour delivered to one of his Companions an Escrowle for Evidence which was not given in Evidence at the Tryal Adjudged no Cause to stay Judgment unlesse it appear he received it from one of the parties which did not appear Hewleys and Brices Case 697. A man devised all his Lands whereas but two parts passed the devisee entred and let the whole for years the Heir without actual entry Levyed a Fine to a stranger of a third part the Conusee made a Lease for life to a stranger the Remainder to the Queen by deed enrolled upon condition to be void upon tender of money to the Tenant for life Resolved in this Case that the entry of the devisee into the whole and his making a Lease of the whole for years was no disseisen to the Heir 2. That the Tender of the money to the stranger should devest the Remainder out of the Queen because the condition was not performable to the Queen but to the Tenant for life Markham and Gomastons Case 698. Action upon the Case Whereas the Plaintiff for the debt of I. S. was bound with I. S. in Recognizance to F. and I. S. and F. his servant became bound to the Plaintiff to save him harmlesse in which the first Bond was recited with a blank for the Christian name and dwelling place of T. the Defendant after the sealing and delivery of the Counter bond and before the Plaintiff agreed to it filled up the blank so as in debt brough against F. he pleaded non est factum and the Plaintiff was compelled to be Nonsuit It was holden that the action did well lye against the Defendant Elston and Brets Case 699. Execution was sued upon a Statute in Chancery and the Liberate executed by the Conusee himself being Sheriff and the proper name was not endorsed but only Vic. It was adjudged erroneous and void Mills and Parsons Case 700. Tenant in Tail for 1000 l. bargained and sold by deed enrolled certain Lands to I. S. and Covenanted in consideration of the said 1000 l. and of a Rent then after to be granted by the bargainee that if he sold any other part of his Lands which he held in Fee that the bargainee should have the offer of them before another and if he attempted to sell without offer and notice to the bargainee then he and his Heirs for those considerations would stand seised to the use of the said I. S. and his Heirs of all he should attempt to alien without notice or offer I. S. dyed K. being his Heir the bargainor sold other Land without notice or offer to another and he sold the Land to one who had notice of the Covenant It was in this Case Resolved that the Consideration to raise the use in the other Land was good although but one of the things was performed viz. the payment of the money 2. If the Heir shall have benefit of the contingent use not Resolved Terrâ—ll and Darcyes Case 701. Accompt against the Defendant as Bailiff of Cloathes the Defendant said for part he was Bailiff to the Plaintiff and a stranger joyntly and for the Residue he was as Bailiff to render accompt It was found he was Bailiff for 16 Cloathes but there was no mention if the 16. were to them joyntly or not It was in Co. B. adjudged for the Plaintiff and upon Error brought the Judgment was affirmed Scrogs and Spencers Case 702 A Distringas to the Coroners was returned by them with subscription of their names but not Coronatores It was adjudged Error for both the Sirnames and names of Office ought to be subscribed Medcalfes Case 703. Two shooting at Butts having both but one shott to winne the game waged 40 l. one with the other for the upshot he who won brought Assumpsit against the other for the 40 l. upon nihil dicit Judgment was for the Plaintiff It was holden the action was maintainable Ardes and Watkins Case 704. A. seised of Land made a Lease for 30. years the Lessee made a Lease for 28. years rendring 30 l. rent and afterwards he Devised 28
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
residue of the years which shall be remaining at the time Resolved 1. That the Wife had not any estate for life by Implication 2. Resolved That the devise of the profits was a devise of the Terme it self 3. Resolved That the Termor could not devise to one for life with the Remainder of the years to another which should be behind at the time of the death of the first devisee But the Court was of opinion That if a Termor devise that after the death of a stranger I. S. shall have the Land for so money years as shall be then to come the same is a good devise because he might have such a demise in his life Swan and Gaterlands Case 825. A Woman had two Sons by two several Husbands the Son of the second Husband being within age the Uncle after the death of the Woman claimed the Gardianship in Socage and also the Brother by the half blood It was adjudged the Gardianship did belong to the Brother of the half blood and not to the Uncle Quaere if the Brother be within the age of 14. years Specket and Shores Case 826. Debt to performe all Covenants in an Indenture of Lease where a Rent was reserved The action will not lye unlesse there be a demand of the Rent otherwise if there be an expresse Covenant to pay the Rent Robins Case 827. Two Executors are in Suit which of them is the true Excecutor Resolved that pendente Lite the Ordinary cannot Commit Administration Cotton and Wales Case 828. Debt upon Obligation the Defendant said the Plaintiff was Sheriff and upon the Arrest of the prisoner took a Bond of the Defendant for his enlargment and said that by the Statute of 32 H. 8. he ought to take Bond of sufficient persons and said he the Defendant was not a sufficent person The Court held the plea not good for the Sheriff is the Judge of the sufficiency and it is to his own damage he being to be amerced if he bring not in the body Mellow and Mays Case 829. Husband and Wife took a Lease for their lives and after by a new Indenture they took a new Lease to them two and their Sons Habend to them three à die datus Indenturae pro termino vitae eorum cujuslibet ipsorum post alterum diutius viventi with a Letter of Attorney for livery the Indenture was sealed and delivered the day of the date and livery was made a Week after the Wife dyed the Son and Husband entred In this Case Resolved that the acceptance of the second Lease to begin à die datus was a surrender 2. That the Lease was good to begin à die datus because livery was executed after the day of the date 3. That the taking of a new Lease of the Woman being Covert was a surrender of her estate during the Coverture 4. That the Lessees took joyntly and not by way of Remainder Chard and Wyats Case 830. The Case was A Copyholder in Fee surrendred to the use of his Will and having a Daughter born and his Wife with child he devised by Will part of the Land to his Son or Daughter with which his Wife went haeredibus suis legitimè procreatis and the residue he devised to his Daughter born to have to her and the fruit of her body and if she dye without fruit of her body the same shall Remain to the Child in the Mothers belly and if both dye without fruit then I. S. should sell the Land and Willed the one Sister to be Heir to the other The Wife of the devisor entred and was admitted and had a Daughter which after dyed The Mother took Husband and they surrendred It was Resolved in this Case that it was a Fee-Tail in the Daughter after born 2. Resolved that one in ventre sa meir could not take an estate in possession by purchase but as this Case she might take a Remainder 3. The point was if the surrender was a Discontinuance In that point the Court was divided in opinion But they agreed that a Copyhold might be entailed by Custom Mâ—nviles Case 831. The Case was the Husband seised in Fee levyed a Fine and afterward 1 Mariae was Out-lawed of Treason the Conusee conveyed the Land to the Crown and afterwards the Daughter of the Husband reversed the Out-lawry now the Wife of M. the person Out-lawed sued to have Dower within the 5. years after the Out-lawry reversed but long time after the Fine levyed In this Case it was Resolved that she was not barred by the 5. years after the Fine but she might have 5. years after the Out-lawry reversed 2. That because no Office was found to entitle the Queen to the Land she having it by Conveyance there and in such Case there need no Office to find her Title of Dower Derick and Kergs Case 832. A. seised of Lands in S. in Com. Midd. and of other Lands in E. in the County of S. made two several Leases for years of them to two several persons reserving upon each Lease 10 l. Rent and and after he made his Will viz. As concerning my Lands I give and bequeath the Rent of 10 l. a year in S. in the parish of E. to my Wife M during her Life and after her decease to my Father and after his decease to my brother G. and if it please God they dye without Issue Then to F. and I. my brethren Item I give to my Wife my house and Tenements in S. The Defendant Married M. and after the years expired claimed the Lands during the life of his Wife It was conceived in this Case that the word Rent was not sufficient to convey Land by the Statute of Wills Quaere for it was said it was afterwards adjudged that it was Arden and Backhouses Case 833. The Case-was an Action of Covenant B. sold Land to the Father of A. and covenanted that he was seised of the Land at the time of the sale whereas King Hen. 8. was seised and had Mortgaged the same to 19 Cottagers with a Proviso that if he and his successors within a year after should pay to them a sum certain or to their Heirs that the grant should be void no place was appointed of payment wherefore because the Mortgagees did not demand the Rent at the Exchequer the King was seised again upon which the Defendant demurred It was the opinion of the Court in this Case that no demand in this Case ought to be made by the Mortgagees because the payment is elegible in the King at his pleasure 1. 2. Resolved whereas the Land lay in the County of Oxon an Office found of not a demand in Midd. was not sufficient to revest the seisin of the Lands in the King but the Office ought to have been in the proper County where the Land lay Evans and Williams Case 834. The Plaintiff brought debt against I. S. for 30 l. who for not appearance was Out lawed the Sheriff
Tenant in tail became Officer yet that Land shall be sold by the Queen 2. When an Officer is endebted to the King and his Land subject to be sold by the Act 13. Eliz. and he to prevent the sale of the Queen and to evade out of the Act makes a conveyance of his Lands to his Issues or others of his Blood in consideration of natural affection that such conveyance shall not be good not said to be Bona fide within the Proviso of the Act of 39 Eliz. but that the Queen may sell the Land for so much of her debt as was due before the conveyance 3. If the Officer or Debtor of the Queen after 39 Eliz. be Tenant in tail or hath power of Revocation there the Queen may sell the Land by the Statute of 39 Eliz. and if any such Officer or Debtor before 39. Eliz. and and after 13. Eliz. had made any conveyance to his Issues or Blood without valuable consideration especially if it be with power of Revocation that Land may be sold by the Queen by the Statute of 39. Eliz. Adams and Lamberts Case 848. A man devised Lands to his Brother for Life the Remainder for Life the Remainder in tail upon condition to find a Chaplain for ever to pray for Souls and for the Souls of all Christian people to celebrate Mass Annusaries and other Superstitious uses and if they failed to perform the Uses then he devised the Remainder for eight years to an Hospital and because he doubted the profits of those Lands would not suffice he devised other Lands to supply them upon condition that if they aliened or let the Land to the prejudice of those in the Remainder they should presently enter and to be seised to the said uses It was resolved 1. That the Devise of Land to find a Priest c. was a Superstitious use 2. That although one of the uses was uncertain and no certain Sum limitted to it 3. That although the Devise was for the Sustentation and Maintanance of poor men yet the Limitation to them to pray for Souls was a Superstitious use because they depended upon the Superstitious uses and therefore it was Resolved in this case that all the Lands were given to the King by by the Statute of 1. Eliz. of Chaunteries Salway and Wales Case 849. It was holden by the Justices That if a man makes a Deed of Feoffinent in December and after and before Livery executed the Feoffor sells the Land by good assurance to another and after that the Feoffee takes Livery and Seifin of the Feoffor it is Forgery in the Feffor and the Feoffee So if the Feoffee causeth Livery to be endowed generally upon the Deed without a special day of making the Livery the Indorsement is Forgery Mouse and Weavers Case 850. The case was A. after a Recovery in an Assize in the Court of the Mannor of Isleworth and before Seisin delivered by the Bayliff of the Mannor bought the Copyhold by Surrender It was adjudged maintenance within the Statute of 32. H. 8. But it was holden by the Justices that if one recover Land and be in possession by Writ of Seisin he may sell the same although he nor his Ancestor or other by whom he claims was in possession by the space of a year next before And in this case it was holden by the Justices that a Clerk or Attorney in one Court cannot sollicite a Cause in another Court although it be for the same matter which was in his own Court Pollard and Moretons Case 851. It was Resolved in this case that a Justice of Peace coming to remove a Force may take posse comitatus with him 2. Resolved if one entreth into an house where no man is in the house with armed men or company unusual the same is a forceable entry Whetstone and Mintons Case 852. A. a Citizen of London seised divers Messuages in the Parish of St. Mary Sommerset in Queen-hith London 25 H. 6. devised the same to his two Daughters in tail and for want of such Issue to the Parson and Churchwardens of St. Michael and their Successors they yearly holding and making an Anniversary in the Church for the Soul of him and his Wife paying 6 s. 8 d. yearly amongst the Chaplains and others there and if the Parson and Churchwardens were remisse in holding Anniversary then the Parson and Curchwardens and Successors for that time should pay 20 s. of the Uses of those Lands Nomine poenae to the use of the Chamber of London The Devisor died the Land being of the yearly value of 10 l. 3 s. 4 d. The Daughter 's died without Issue the Parson and Churchwardens entred and took the profits and held the Anniversary and paid yearly the 6 s. 8 d. amongst the Chaplains c. et non ultra The Statute of 1. Ed. 6. of Chaunteries was found The sole Question in this case whether the Land or Annual Rent were given to the Crown by the Statute of 1 Ed. 6. of Chaunteries It was Resolved by the Justices in this Case that only the Annual Rent of 6 s. 4 d. was given to the Crown by the Statute and not the Lands for they said it had bin often adjudged that where a stipend was appointed to an Anniversary Obit Legacy c. there although the Land was given in the Premises the Crown should have but the stipend and in this case the intent of the Devisor was clear that the Parson and Churchwardens should have all the profits over and above the 6 s. 4 d. yearly to their own use Grills and Rigewayes Case 853. The case was A man was in Execution for debt and brake Prison and escaped The Sheriff made fresh Suit and retook him It was adjudged in this case no escape and it was holden that if the Prisoner who escapes be out of his sight yet if the Sheriff or Goaler take him upon Fresh Suit in recenti persecutione he shall be in Execution again 854. Note it was Resolved by the Justices that the breaking of a Dwelling-house in the night to the intent to rob or kill any one is Burglarie although that no person be in the house and if a man have two houses of Habitation which he dwells in by turnes if a Thief in the night breakes the house in which the person is absent it is Burglarie Austin and Twynes Case 155. It was Resolved in this case if two Churches one of the value of 10 l. and the other of 8 l. be within one mile of another the Ordinary may consolidate them and if the Patron and King confirm it the consolidation is good by the common Law and by the Statute pf 37 H. 8. 856. The King made the city of Gloucester a County with a clause of exemption from the County of Gloucester and of the power of the Officers of the County saving to the King and his Heirs Liberty for their Justices of Assize Goal-delivery and keeping Sessions there
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
discharge of all Quarrels c. It was objected the Award was void because the Submission did not extend but to Quarrells depending at the time of the Submission which was in January and the Award is of all Quarrels c. which shall be intendable at the time of the Award It was adjudged for the Plaintiff for that it doth not appear that there were any new Quarrels risen between the Submission and the Award and if there were any such it ought to have been shewed on the Defendants part Heard and Baskervills Case 1176. Rplevin The Defendant avowed for Rent granted 12 E. 1 and shewed the discent to such an one whose Heir he is but did not shew how he was Heir It was the opinion of the Court that he is not to shew how Heir in the Writ but in the Declaration and the shewing how Heir is but matter of Form because not traversable but Heir or not Heir is only Issuable and therefore upon a general Demurret it is helped by the Statute of 27 Eliz. But not pleading of the Deed of the Rent shewed in Court or hic in curia profert is matter of substance not aided by the Statute Speak and Richards Case 1177. The Plaintiff sued Execution upon a Recognizance of 2000 l. acknowledged to him in Chancery by I. S. and others and upon two Nihils retorned upon two Scire fac in Middlesex a Levari issued to the Sheriff of S. the Defendant who retorned he had levyed 500 l. towards the satisfaction of the Plaintiff and that he had it ready to deliver to the Plaintiff and because upon this Return upon request of the Plaintiff he had not paid it him he brought Debt against the Sheriff The Defendant as to part of the 500 l. viz. 300 l. pleaded nihil debet to the 200 l. he pleaded payment and thewed an Acquittance the Plaintiff demurred Judgment was given for the Plaintiff for the 300 l. and for the 200 l. nihil capiat per breve because the Recept and the Acquittance is confessed by the Demurrer Davison and Barkers Case 1178. Information upon the Statute of 5 Eliz. for using the Trade of a Bakes within the city of Norwich not having been an Apprentice seven years It was said that no penalty did rise to the Informer for a penalty which did accrue within the city of N. by reason of this branch in the Statute viz. All Amercements Fines Issues and Forfeitures which arise within any City or Town corporate shall be levyed gained and received by such persons as shall be appointed thereunto by the Mayor c. to the use of the same Cities The Justices were divided in their opinions vide Croke 1. part 130. and Hob. Reports 183. where this Case seems to be Resolved Rynes and Mophams Case 1179. Action upon the case that he lent the Defendant his Mare at C. to plow the Defendants Land at P. and safely return her two days after and the Defendant overwrought her so that she died The Venire was of C. only where the Mare was delivered and not where she was labored and therefore the Judgment was reversed Harbin and Greers Case 1180. Action upon the case A custom was alledged That all the Inhabitants of certain Messuages holden of the Bishop of S. had used to grind their Corn which they used to spend in their houses or should sell at certain Mills called the Bishops Mill in S. and not elsewhere without the License of the Bishop It was adjudged the custom is void and unreasonable to grind all their Corn which they should sell Dembyn and Browns Case 1181. A Rent was jointly granted to husband and wife the husband died the wife took Administration of his Goods and as Administratrix brought Debt for the Arrearages incurred in the Life of her husband Adjudged the Arrearages were due to her in jure proprio and the naming of her Executrix of her Husband was Surplusage Wolley and Davenants Case 1182. A Scire fac against the Bail he pleaded that the Principal reddidit se Adjudged it shall be tried by the Record and not by the Country and if the party render himself at the Bar and the Attorney of the Plaintiff is not there to pray him to be committed he shall be committed ex officio by the Court. Roberts Case 1183. A man 25 H. 8. seised of an House and Lands made his Will in these words viz. I bequeath to L. my wife my house in P. with all the Lands thereunto belonging during her Life and after her decease I make A. B. C. and D. Feoffees in the said House and Lands to see the house kept in reparations and the rest of the profits of the same Rents after the discretion of the said Feoffees to be bestowed yearly upon the Reparation of the High-ways of W. and the Town The Devisor and his wife being both dead It was a Question the Will being made before the Statute of 32 H. 8. and the Land not in use whether it be an appointed Limitation or Assignment within the Statute of 43 Eliz. of Charitable uses It was Resolved that the said intended Devise was a Limitation or an appointment to a Charitable use to be relieved within the said Statute of 43 Eliz. Sir Tho. Middletons Case 1184. Sir Thomas Middlenon received 3000 l. from Queen Eliz. for the payment of the Soldiers which returned in the voyage made by Sir Francis Drake and Sir John Hawkings The Captains Mariners ane Soldiers made a voluntary constitution that every Mariner and Soldier should abate so much a month out of their pay to be imployed for the relief of the Mariners and Soldiers which were maimed or hurt in that Service of which abatement there was 300 l. in the hands of Sir Thomas Middleton It was Decreed upon a commission upon the Statute of 43 Eliz. that this 300 l. was a charitable use within the Statore and Sir Thomas was decreed to pay the money to the said use Rivers Case 1185. A Copyholder in Fee devised 14 Acres of his Copyhold Lands to his Son and his Heirs upon condition to employ the profits thereof for the Relief of the poor of S. for ever and died no surrender being made to the use of his Will either before or after I. S. purchased this Copyhold Land upon a Commission upon the Statute of 43 Eliz. this charitable Use was found and that the profits had not been employed accordingly It was decreed that the Purchasor having notice of the said charitable use should pay 12 years arrearages according to the value of the Land at 7 l. 10 s. per annum to be paid for ever by the Purchasor and his Heirs for the relief of the Poor and that he and his Heirs should hold and enjoy the Lands for ever Vochel and Dancastels Case 1186. In Debt for Rent upon a Lease for years the Defendant pleaded that the Lease was made to one H. and the Defendant and that H. his Companion 1
day and at the time of the delivery there was not any Day written in the Deed but a space for it and that after the Delivery the Plaintiff put in a Day and so Non est factum It was conceived the Plea had been better to have set forth the special matter per quod scriptum praedict perdidit effectum and Judgement if Action 85. Lands were given to Husband and VVife in tayle The Husband by Fine and Deed inrolled aliened the Land and dyed Resolved That the VVife might enter by the Statute of 32 H. 8. although the words are Of Tenements being the Inheritance or Freehold of the Wife And it was holden That by the Entry of the VVife the Inheritance of the Heir should thereby be recontinued 86. A man made a Feoffment to divers persons that they should infeoffe the Son of the Feoffor and his Wife in tail the remaynder to the right Heirs of the Feoffor who made the estate accordingly and the Son dyed It was Resolved the same was a Joynture within the Statute of 27 H. 3. cap. 10. for although she did not clayme it by the Ancestor himself but by his Feoffâ—rs yet because the Feoffes derive their Estate from the Ancestors of the Husband it is within the Statute But if he had bargained and sold the same upon trust to make the Joynture it had not been within the Statute 87. Resolved That an Action upon the Case doth not lye for calling one Adulterer because that is not punishable at the Common Law but in the Spiritual Court 88. Two Joynt tenants make partition by word and for equality of the partition one assignes to the other a Rent It is void if he hath not a Deed of it 89. In a Praecipe quod reddat at the Nisi Prius the Tenant made default and Petit Cap. returned at which day he in the Reversion prayed to be Received and was so received by the Rule of the Court notwithstanding he did not require it at the Nisi Prius 2. By the Equity of the Statute of West 2. he in the remainder shall be received upon the default of the Tenant for life although the words of the Statutes be ad quos spectat reversio 90. Resolved by the Justices That the Coroner super visum Corporis cannot enquire of an Accessary after the Murder 91. Two were joyntly and severally bound in an Obligation in Debt brought the Defendent said the Plantiff recovered against the other the same Debt and had Execution and adjudged a good plea notwithstanding it was not shewed by what proces he had Execution because the Execution is on Record and shall be tryed by the Record but if he paid the monies in pais to the Plantiff and not in Court It is not an Execution of the Judgement 92. A Recordare was to remove a Plaint in Curia nostra and the plaint was in Curia Mariae Resolved that for this variance the Record was not removed for it could not be the plaint whereof c. 93. It was said If the Defendant will plead to the Writ matter apparent within the Writ he must begin his plea with Petit Judicium of the Writ but if he plead matter de hors as Joyntenancy or Nontenure c. he shall make the conclusion in such manner only and not the beginning 94. Ejectione firme Of a Lease made by the Prebendary Ecclesiae Beatae Mariae whereof the foundation was Ecclesiae Beatae Mariae de Thornton and Thornton being omitted the Leaser to make it agree entertayned the words de Thornton It was the opinion of the Justices That non est factum is no proper plea because it was once his deed but he is to shew the special matter and demand Judgment of Action vide before 95. A Rent was granted to I. S. for life the remainder to I. D. in Fee I. S. dyed the Rent was behind he in the Remainder destraind and avowd for the Rent and good for the grant was good to him in the remainder which took effect with the particular estate and so adjudged 96. One made his Will in this manner I have made a Lease for 21. years to I. S. paying but 10 s. Rent adjudged a good Lease at Will and the word I have shall be taken in the present tence 97. Replevin The Defendant avowed for a Rent charge granted to him but did not alledge any seisin of it within the years according to the Statute of 32 H. 8. Cap. 2. and yet holden good for the Statute is to be intended where seisin ought to have been alledged before at the Common Law 98. Dower The Case was The Husband made his Will thereby devised all his Lands to his Wife the now demandment during her Widdowhood and dyed the Wife entred by force of the Will and after took Husband It was the opinion of the Justices that this estate devised being as great an Estate for her life and her acceptance of it she not being Compellable to Marry was in the nature of a Joynter to her and a good barre of her Dower 99. Note by the Justices If a man seised of a Rent charge be bounden in a Statute and Execution be sued upon it the Rent shall be extended in Execution and yet the Statute de Mercatoribus speaks only of the Goods and Lands of the debtour and doth not speak of Tenements or other things 100. I. S. Tenant in tail by Indenture upon Consideration of Marriage Covenants to stand seised to his own use for life and after his death to the use of his Son and heir apparant Resolved there is no change of the use but only during the life of the Tenant in tail 101. A man seised of Land in the right of his Wife makes a Lease for life the remainder in Fee and afterwards he and his Wife recovers the same Land in a Writ of Entry against the Tenant for life Dyer held the Wife should be remitted and no act shall be adjudged in the Wife for the bringing the Writ shall be adjudged the sole act of the Husband and not of the Wife Quaere if she shall not be estopped by the Record 102. Note by the Justices That a Writ of Curia Claudenda lyeth of a Close which lyeth in a Field aswell as where there are 2. Messuages Courts oâ— Gardens adjoyning But after Imparlance in this Writ the Defendant shall not have the view 103. In a Quid juris Clamat after Issue joyned upon Ne dona pass at the Nisi Prius the Jury gave a privy verdict the Court being risen for the Defendant and had License to eat and drink and at another day when the Court was sitting they returned and gave an open Verdict for the Plantiff Resolved That Judgement should be entred for the Plantiff for the last Verdict which is given openly in Court is the Verdict in fact and not the first and the eating and drinking of the Jurours before the second Verdict given doth not
was adjudged Murder for the Malice which he had to Herbert 208. A man made a Lease for years upon Condition if the Rent was behind the Lease to be void the Rent is behind the Lessee continued possession for 3. years after the Lessor brought debt for the Rent for all the time Quaere if it doth lye the Justices were divided in opinion Moreton and Hopkins Case 209. In a second Deliverance by A. against H. the Defendant he made Conusance as Bayliff to I. S. and M. his Wife The Case was the Plainâ—iff 17 Octob. 4. 5. Mar. by deed granted a Rent of 10 l. to B. and to E. and W. the younger Son of the said A. Habend for the life of E. to the use of E. and gave seisin of it W. and E. so seised W. dyed E. took Husband I. S. who for 5 l. Rent arrere avowed The Plaintiff said That the said I. S. Z October 7. Eliz. acknowledged that he had received 5 l. of the Plaintiff of the said Rent It was adjudged that the said receipt and acquittance of I. S. the Husband was a good barre of the Conusans Howse and the Bishop of Elys Case 210. In Debt the Plantiff declared that the predecessor of the Bishop granted to him the Office of keeping the Mansion House of D. of the Bishop for the Term of his life with the Fee of 2 d. per diem to be issuing and paid out of the profits of the said Rents and Farme of D. by the Receiver of the Bishop and also an yearly Robe which grant was confirmed by the Dean and Chapter the Bishop dyed the Annuity and Robe was not paid for which the Plaintiff brought his Action against the Successor Bishop who pleaded that the Plaintiff did not exercise the said Office and because D. was within the Isle of Ely where the Kings Writ did not run a Venire was to the Sheriff of Cambridge from S. next adjoyning to D. in the said â—sle of Ely who found for the Plaintiff and he had Judgment to recover the Annuity and the Arerages and the Robe and that the grant did binde the Successor Luken and Eves Case 211. In Replevin The Defendant avowed for that A. was seised of the Mannor of D. in Fee and had a Leet within the Mannor to be holden in the Feast of c. and let the Mannor to the Defendant for years And that the Defendant held the Court Leet such a Feast and that the Plaintiff was an Inhabitant within the Leet at the time and being Summoned to appear at the said Leet did not appear which being presented by the Homage he was Amerced 5 s. which was afferred and for the Amercement the Defendant did destrain The Defendent pleaded that he was not a Resient within the Leet at the time which was found against him wherefore the Defendant was adjudged to have a Return of the Cattel and his damages Stephens and Clarks Case 212. Quare Imp. King Henry 8 seised of the Mannor of D. and the Advouson Appendent presented I. S. the Mannor with the Advouson by Discent came to the Queen who granted it to the Lord Stafford and his Wife and the Heirs of the body of the Lord the Lord Stafford dyed His Wife and eldest Son granted the Mannor and Advouson to I. D. and his Wife for their lives The Incumbent dyed who during the Avoydance granted the Advouson to the Plaintiff It was Resolved That the grant of the next Avoidance to the Plaintiff during the Avoidance was void in Law Playn and Crouches Case 213. A Villein was Regardant to a Mannor the Lord of the Mannor had not seisin of the Villein nor any of his Ancestors from 1. H. 7. to this time but they had seisin of the Mannor to which the Villein was Regardant and if seisin of the Mannor was seisin of the Villein was the Question The Issue in an Assise being upon the seisin Quaere It was not Resolved It was Conceived that in favore Libertatis the Lord could not now seise the Villein No Judgment was in the Case 214. If the Husband be seised of Land in the Right of his Wife the Husband makes a gift in Tail of it rendering Rent and afterward the Husband and Wife grant the Reversion by Fine It was holden it should bar the Wife of the whole but if they had granted the Rent only then the Wife after the death of the Husband might enter into the Land 215. A man Leaseth a Mannor for years rendring Rent with a Reentry a stranger recovers in Debt against the Lessor and hath Elegit upon the Judgment Resolved he shall have the moyety of the Reversion and the moyety of the Rent in Execution and the Condition is suspended for the whole vide before 216. Tenant in Tail makes a Lease for 21 years and afterwards makes a Feoffment in Fee with a Letter of Attorney to make Livery who enters and ousts the Lessee and make Livery Adjudged It was a discontinuance And it was said That it was adjudged in the Earl of Warwicks Case A man made a Lease for life and afterwards made a Feoffment in Fee and a Letter of Attorney to make Liver who ousted the Lessee and made Livery That it was a good Feoffment and if the Lessee for life reentred the Reversion remainder in the Feoffee 217. A maid Servant conspires with her Lover to rob her Mistrisse the Man comes in the night the Maid hides him and after the Man kills the Mistresse Adjudged Murder in the Man and Petty Treason in the Maid Servant Symonds Case 218 A. 24. H. 8. Covenants with I. S. that all persons who were Feoffees of Certain of his Land should be seised thereof to the use of the said A. for life and after his decease to the use of W. his Son and M. S. and the Heirs of their bodies begotten and for want of such Issue the remainder to the Right Heir of A. and after he makes a Feoffment to those uses W. and M. S. intermary A. dyeth After 27. H. 8. the Husband aliens the whole and dyeth his Wife enters into the whole Adjudged her entry into the whole was not Lawfull but only for a moyety and it was agreed that several moyeties may be of an Estate tail aswell as of a Fee simple between Husband and Wife 219. A man made a Feoffment to the use of a Woman for â—â—fe who was a Feme sole at the time the remainder to the right Heirs of their two bodies the remainder to his right Heirs in Fee after they intermarried and the Husband having Tenants at Will of the Lands Devised that the Wife should have the Reversion in Fee so as she pay his debts and Legacies and performe his Will and by his Will deviseth his Tenant should have the Tenements for life and dyeth the Wife takes another Husband who ousts the Tenants at Will It was Resolved the same was no forfeitute of her remainder But if the Will
had been upon condition that his last Will should be performed It had been otherwise 220. A man made a Lease for 30. years The Lessor Covenanted to Repair the House The Lesse granted parcel of the Term for 10 years It was holden that his Grantee should not have an Action of Covenant by the Statute of 32. H. 8. of Conditions for he is not Tenant to the first Lessor But if the Lessor ganteth his Reversion for years his Grantee shall have Covenant or benefit of the Condition with which the Lessee is charged for he is an Assignee within the Statute because the Lessee holdeth of him 221. If the Ancestor of the Husband Covenant to stand seised of Certain Lands to the use of the Husband and Wife in Consideration of Marriage and also for a Certain Sum of Mony If the Wife alien that Land after the death of the Husband It was said that the Heir of the Husband might enter by the Statute of 11. H. 7. for the Consideration of Marriage shall be preferred before the Consideration of Mony and then it shall be said the gift of the Ancestors of the Husband and within the Statute as it was said it was adjudged in Villiers Case The Lord Treasurer and Bartons Case 222. A man made a Lease for 100 years The Lessee made a Lease for 20. years rendering Rent with clause of Reentry the first Lessor granted the Reversion in Fee attonement was had the grantee purchased the Reversion of the Term It was holden and adjudged that he should not have the Rent not the reentry for that the Rent which was incident to the Reversion was extinct by the purchase of the Reversion in Fee 223. A man was Tenant by the Curtesie of a Mannor a Copy-hold came to his hands by forfeiture Afterwards he was bound in a Statute and afterwards demised the Copyhold Land again It was holden this Copyhold should be lyable to the Statute because it was once annexed to the Freehold of the Lord and bound in his hands Pasch 12. Eliz. 224. If the Lord grant to his Copyholder the Trees growing upon the Land and which afterwards shall grow and that it shall be Lawfull for the Tenant to cut and carry them away It was holden to be No forfeiture of his Copyhold because he hath dispensed with the forfeiture by his grant but he cannot cut the Trees which shall after grow for as to them the grant is void Brabrokes Case 225. I. D. 19. H. 8. gave the Mannor of N. to I. S. and A. and the Heirs of the body of the said I. S. on the body of A. remainder to a stranger in Tail the remainder in Fee I. S. Maried A. and after 26. H. 8. he suffered a Common Recovery with single voucher to the use of him and his Heirs the Statute of 27. H. 8. was made and after he in the remainder in Tail was attainted of Treason and 28. H. 8. It was Enacted in Parliament that all his Lands and hereditaments which he had or ought to have should be forfeited the Recovery was without any Original Afterwards I. S. gave the Mannor to I. D. and his Heirs who made a Joynture thereof to M. his Wife for life after the death of I. D. M. took to Husband the Plaintiff against whom Intrusion was brought It was adjudged against the Plaintiff for one moyety Hil. 14. Eliz. 226. The Earl of Oxon. Tenant for life of certain Mannors made a Copy in reversion to I. S. for life and dyed the Copyholder in possession dyed The Heir of the Earl demised the same by Copy to I. S. It was the opinion of all the Justices that the Copy in Reversion was not good But it was agreed If it come in possession during the Tenant for life then it is good 227. Two Acres discend to two Coparceners one of them before Partition grants a Rent Charge out of one of the Acres and upon Partition the Acre charged is allotted to the other Sister It was adjudged she should hold it discharged of the Rent Pledall and Pledalls Case 228. It was Adjudged in this Case That the Jurours are not to to take Notice of matters of Estoppel which are given in Evidence between the parties upon pain of Attaint for they are strangers to the Conclusions of the parties Evans Case 229. A man had issue two Sons and devised Lands to his youngest Son in Tail and dyed the eldest having Issue a Son the younger Son aliened the Land in Fee with Warranty and went beyond Sea and there dyed without Issue the Son of the eldest being within age It was the opinion of the Justices the same was a Collateral Warranty and without asserts was a bar to the Issue of the eldest Son notwithstanding his Nonage Muttons Case 330. A man seised of Land levyed a Fine to the use of himself and such Woman as he should after Marry and after their decease to the use of I. his daughter and the Heirs of her body afterwards he Married A. and dyed who entred It was the opinion of the Justices to A. for her life Appowel and Monnoux Case 231. A. seised of the Mannors and Rectories of B. G. and D. let the same except the scite of the Mannor of B. to I. S. for 25. years Reserving for the Mannor of B. 76 l. for the Mannor and Reversion of B. 30 l. for the Rectory of B. 14 l. and for the Rectory of D. and the Lands to it belonging â—3 l. payable yearly at â— Feasts in the Church of F. not parcel of the Premisses upon Condition if the said Rents or any of them were behind for the space of 7. Weeks it should be Lawfull for him his Heirs and Assignes to Reenter on all the premises and afterwards he bargained and sold the Scite of the Mannor of B. and the Reversion of all the Mannors and Rectories to I. D. and his Heirs who enfeoffed certain persons and granted the Reversion of all the Mannors and Rectory to have and hold the Scite of the Mannor of B. and the Reversion of the Rectory of D. to the use of himself and Eliz his Wife for their lives and the life of the Survivour of them the remainder to W. his Son and his Heirs for ever And to have the Reversion of all the other Mannors and the Rectories of B. and C. to the use of himself for life the Remainder to the said W. his Son and his Heirs I. S. the Lessee attorned I. D. dyed Eliz. his Wife held the Scite of B. and the Reversion of the Rectory of D. by Survivour W. seised of all the Mannors and Rectories as aforesaid granted the Reversion of a Messuage parcell of the Mannor of B. to W. D. and his Heirs to which grant I S. attorned and afterwards by Bargain and sale enrolled granted the Reversion of all the said Mannors and Rectories to H. I. and K. and their Heirs half a years Rent reserved for the Mannor
and if they had imployed nothing that way then nothing was given to the Crown In the principal Case it was adjudged against the Queen and Informer Bossevile and the Corporation of Bridgwaters Case 263. King H. 8. Anno 33. of his Raign made a Lease to the Earl of Bath of the Rectory of Bridgewater and of the Tythes of 2. Hamlets in W. parcell of the said Rectory at the Rent of 10 l. which lease continued till 2. Eliz. in which year Bossevile purchases from the Queen the Rectory of W. of the value of 10 l. yearly and had general Words of the Tythes within the 2. Hamlets but the Lease to the Earl of Bath that was then in esse was not recited and afterwards 3. Eliz. the Queen granted the Rectory of Bridgwater and the Tythes of the 2. Hamlets and all which was in the Earl of Baths Lease to the Corporation of Bridgwater Bossevile by vertue of the Statute of 18. Eliz. of Non Recitals and Misrecitals which had retrospect to the beginning of the Raâ—gn of the said Queen claymed the Tythes within the said 2. Hamlets against the Corporation After a long Argument upon a Reference out of the Court of Wards to the Chief Justices Wray and Anderson it was Resolved by them That the Patent was good without recital to Bossevile against the Queen by relation of the Statute of 18. Eliz. which makes Patents good from 2. November in the first year of the Queen and should binde the Queen her Heirs and Successors but should not be good against the Corporation of Bridgwater and therefore the Case in the Court of Wards was decreed against Bossevile Diggs Case 264. An Annuity was granted in fee at the first day of payment the Annuity was paid to the Grantee and the Grantee made an Acquittance thereof to the Grantor and in the end of the Acquittance he released to the Grantor all Actions and after at the next payment the same was behind and the Grantee brought a VVrit of Annuity against which the Grantor pleaded the Release in Barre It was strongly objected that by the Release the Annuity was determined being a personal thing and a thing in Action But it was resolved by the Court That for an Annuity before the day of payment an Action did not lye and that before it was not therefore resolved by the Release of all Actions before the day of payment and although an Annuity be a Personal thing for which the Grantee hath not any remedy but by way of Action yet it is not a thing in Action It was adjudged for the Plaintiff that the Action was well brought notwithstanding the Release Stantons Case 265. S. at the age of 16. years bound himself an Apprentice in London to I. S. by Indenture containing the ordinary words of every Indenture for Apprentices and afterwards by the command of his Master who was Baily of an Hospital in London and with those Moneys and other Moneys of his Masters he went away and had not discharged his Master against the Hospital for which he brought Covenant upon the Indenture The Defendant pleaded that he was within age in Barre of the Action and also said that upon this Custome the Defendant was impleadâ—â—â—e only in London and not in this Court The Court seemed to be of opinion That the Custome was a good Custome and the Defendant was lyable to the Action within the Custom and that he was impleadable within any place of England as well as in London and therefore that the Action was well brought 266. A Custome in London was set forth to be That if many are bounden in an Obligation as Sureties that if the Principal fail of payment so as that it one of the Sureties be sued upon the Obligation that he might have a VVrit De Contributione facienda against the Sureties and said that such VVrit was brought in London which was removed in C. B. It was remanded into London because the Common Pleas could not doe right upon the Custome Shelleyes Case 267. Upon a Special Verdict in Ejectione firme the Case was Ed. Shelley and Joan his VVife Tenants in special Tayle the Remainder in fee to Ed. had Issue then Hen and Richard Joan dyed Hen. dyed in the life of Ed. having Issue Mary It was found that Ed. by Indenture 1 2 Phil. Mar. covenanted with I. S. and others to suffer a common Recovery to the use of himself for life and after to I. B. for 24. years and after the years expired to the use of the Heirs Males of the Body of the said Ed. and the Heirs Males of the Body of such Heirs Males and for want of such Issue to the use of the Heirs Males of the Body of John Shelly of M. c. and 9. Oct. the first day of the Term Ed. dyed between the hours of 5. and 6. in the morning and afterwards the same day the Recovery passed and that by a VVarrant of Attorney made in the life of Ed. Execution was the 19. day of October by Habere facias seisinam and it was found that 5. December following the wife of Hen. Shelly was delivered of Hen. the now Defendant The Land was also found to be in Lease for years at the time of the Recovery and that Richard Shelley the younger Son of Edward entred and made the Lease to the Plaintiff In this Case there were these points 1. If the Recovery suffered by Ed. the day he dyed was good 2ly If being suffered by him Tenant in tayle it might be executed after his decease upon the Issue 3ly If any use did rise upon the Recovery before Execution 4ly If Richard the youngest Son before the birth of Hen. the Infant took the Land by purchase or by Discent This Case was many times argued at the Barre and afterwards for Difficulty was by the Command of the Queen adjourned into the Exchequer Chamber where it was argued by all the Judges of England and at last it was resolved against the Plaintiff and the reasons of their Judgements were these 1. Because they all agreed that Richard Shelley was in by Discent and not by Purchase after the death of Ed. and before the birth of Hen. the Defendant 2ly That the Recovery was good although that Ed. dyed the same day before the sitting of the Court 3ly That Execution might be sued against the Issue in tayle but that no Seisin was in the Recoverors nor any use raysed till Execution sued 268. A Lease for years was made upon Condition to re-enter for not payment of the Rent A man of ill fame out-lawed in 40. Action at the last instant of the day demanded the rent The Lessee asked him what authority he had to receive it he said he was senr thither by the Lessor but did not shew any warrant from him or that he was his Servant This was the opinion of the Justices that if any one would swear that was true against the Party who demanded
the Rent that the Lessor should not enter which being immediately sworn and the Records of the Outlawries against him produced the Justices dismissed the Lessee and that the Lessor should enter upon him Broughtons Case 269. Broughton a Justice of the Peace brought an Action upon the Case against the Bishop of Coventry and Lichfield because he wrote a Letter to the Earl of Leycester one of the Privy Council wherein he wrote That the Plaintiff was a Vermin in the Common wealth a false and corâ—upt man an Hypocrite in the Church of God a Dissembler He hath used many corrupt practises to work his VVill He procured my Register to be indicted of Extortion He willingly and wilfully hath boulstred out one Greenwood a Convict man of many offences and knowing him to be an Evil man maintaineth him against me without Law Conscience or Honesty Upon Not Guilty it was found for the Plaintiff and 300 l. Dammages It was objected the Action did not lye not being an overt Act but words written in a Letter Resolved the Act on did well lye being writ to a Stranger but otherwise if it had been written to the Party himself and it was also resolved That although but some of the words will bear Action yet the Dammages are well assessed because they are put in to increase the Dammages In this Case it was said if a slanderous Bill be exhibited in the Star Chamber against one the Action doth not lye because it is a Court of Justice and hath Jurisdiction to redress things but to exhibite a slanderous Bill into a Court waich hath not power to redress the thing is scandalous and an Action will lye for it Griffith and Clarks Case 170. A Writ of Disceit by the Lord of the Mannnor upon a Fine levyed of the Land within antient Demeasne The Defendants pleaded that the Lord of the Mannor in the time of E. 2. did release to one who was Tenant of the same Land de omnibus servitiis consuetudinibus salvis servitiis infrascriptis viz. pro una virgat terrae 2 s. rent suit of Court and Releife It was resolved The Custome of the Antient Demesne was extinct by the Release but the Rent Releife and suit of Court remained as parcel of the Seignory by the saving Ivors Keales Case 271. A. seised of Lands in Fee borrowed 20 l. of B. and they are agreed to assure Lands for it They went to the Land and A. there said to B. I am endebted to you 20 l. If I do not pay you at Michaelmas then I bargain and sell this Land to you and if I do pay you I am to have my Land again B. continued upon the Land a little space the Monyes was not paid at Michaelmas Adjudged the Land passed to B. upon a Condition subsequent for payment of the Mony by B. Mildmay and Standiskes Case 272. Action upon the Case for Slandering his Title In which the Defendant justified the Case was A. seised of Lands in fee had Issue 3. Daughters V. G. O. V. dyed without Issue The Father for love and affection and the better maintenance of G. and O. covenanted to stand seised to the use of himself for life the remainder to G. in tale of one Moyety the remainder to O. of the Moyety in Tail Provided it shall be Lawfull for the said A. for the payment of his Debts and Legacies and better preferment of his Servants and other good Considerations to devise the said Lands by his Last VVill and dispose of the same for lives or years and afterwards he devised the said Lands to F. and the said O. his wife for 1000. years and dyed wherefore the Defendant published the said Lands were assured for 1000 years upon which it was demurred It was said that the said V. might at any time determine any of the said uses and induce other Estates at his pleasure and the payment of his Debts and Legacyes with good considerations for the Leases But it was resolved for the Plaintiff because the Proviso was against the Law to enduce an Estate to a Stranger by way of Lease upon Covenant of Considerations to raise uses but such power might be good upon an Estate executed Or a Proviso good which did extend to determine the Estate but not to give another Estate to Lessees Veere and fâ—ofryes Case 273. It was Resolved That if the Metropolitan grant Administration where the Intestate had not bona notabilia indivers diocesses it is voidable only but not void But if a Bishop of a Diocesse grants Administration which belongs to the Metropolitan the same is void Russells Case â—74 Trover and Conversion of goods by the Executors of R. against Husband and Wife of the goods of the Testator which came to the hands of the Wife dum sola fuit The Defendant pleaded a Release of the Plaintiff after the death of the Testator and after the Trover and Conversion The Plaintiff said he was then within age It was adjudged that because there was no Consideration alledged for the Release it should not binde the Executor because it should be a Devastavit in him Twineos Case 275. Grandfather and Grandmother Tenants in special Tail before the Statute of 27 H. 8. the remainder to the right Heirs of the Grandfather The Father by deed enrolled Fine and Proclamation conveyed the Lands to the Queen and her Heirs and Successors in the life time of the Grandmother It was Resolved that by the Statute of 32 H. 8. by the Fine and Proclamation the Issue in Tail was Barred Vâ—ncent and Lees Case 276. It was adjudged in this Case That when a man devised that his Sons in Law should sell the Reversion of his Lands without naming their particular names and that some of them dyed That the Survivors could not sell the Land Sir Peter Carewes Case 277. It was Resolved in this Case That the Lord of a Mannor for life or a particular Tenant having interest in the Mannor might grant Copies in Reversion although they were not executed in the life of the grantor Moris and Franklyns Case 278. The Statute of 27 H. 8. which began 4. Feb. Anno 27. H. 8. and ended 14. April gave Monasteries of Petty value to the King The Abby of T. being of Petty value viz. 100 Marks per Ann. was mean between the 1. day and the last day Surrendred to the King It was holden the King should be in by the Statute and not by the Surrender Thorrowgood and Tarvors Case 279. In Trespasse The Defendent pleaded in bar the Release of the Plaintiff of all his right in the Land The truth was the Plaintiff was a man unlearned and the Release was read unto him only as a Release of the Arrerages of an Annuity It was the opinion of the Justices that he might plead Non est factum to it and it should nor bar him Dorrell and Thyns Case 280. Error was assigned in a Common Recovery That no Warrant of Attorny was
his Heirs A scire fac issued against the Heir and Terre Tenants who made default and Judgment was given against the Heir aswell of his own proper Land as of those which he had by discent It was said by Cook that although the Heir upon default shall be charged above his Assets but that was where a man bound him and his Heirs in the Recognizance but here the Heir should not be charged because the words of the Recognizance are no obligation against the Heir but only upon the Land and therefor he prayed contribution against the other Feoffes The Court refused to grant it and said that one purchasor shall have contribution against another but the Heir shall not have it but shall be in the same degree as his Ancestors was Bantings Case 288. In Trespas the Case was John Banting contracted himself to Agnes A. after Agnes was Maried to F. and Cohabited with him Banting sued Agnes in the Court of Audience and proved the Contracts and sentence was there pronounced that she should Marry the said Banting and Cohabit with him which she did and they had Issue Charles Banting and the Father dyed It was argued by the Civilians that the Marriage betwixt Banting and Agnes was void and that Charles was a Bastard But it was Resolved by the Justices that Charles the Issue of Banting was Legitimate and no Bastard 289. The Case was Lessee for years assigned the Terme to the Wife of the Lessor and a stranger and afterward the Lessor bargained and sold for Mony by deed Inrolled the stranger dyed the the Wife claimed to have the residue of the Terme not expired Whether by the Bargain and sale the Terme of the Wife was extinct or not was the Question it was said it was not but Contrary if the Husband had made a Feoffment in Fee with Livery Quaere the Case was not Resolved Vide Plowdens Commentary Amy Townsends Case Treshams Case 290. Tenant in Capite made gift in tail to I. S. upon condition that if he aliened that it should be Lawfull for him to enter I. S. aliened Tenant in Tale entred for the Condition broken It was adjudged That a Fine for the Alienation of the Tenant in Tail was due to the Queen and that the Queen might charge the Lands in whose hands so ever they came for this Fine and the duty was not discharged by the entry of the Tenant in Tail for the Condition broken but the Tenant of the Land was Chargeable for the same 291. Debt against an Executor for 100 l. in C. B. Afterwards Debt was brought against the same Executor for 100 l. in B. R. in which he confessed the Action and pleaded the same to the first Action and that he had fully administred all but the said 100 l. The Court inclined to be of opinion that the plea was not good but that the Executor was chargeable to the first Judgment Quaere because not Resolved 292. A. for mony sold to B. all the Butter which should be made of his Cowes in a year and when he had made Butter he sold the same to C. C. paid his money and set his mark upon the Barrells and left them in the Custody of A. and afterwards A. delivered them to B. the first vendee C. brought a Replevin and B. claimed the property in the Butter by the first sale It was said that the property of it was in C. for the first Contract betwixt A. and B. was but a Covenant and agreement that A should sell the butter when it should be made for before that he could not sell it and before the making of it there was no property in it and so no contract and the second alienation was a change of the property and so B. hath no remedy for it but his Action upon the Case against A. Quaere not Resolved The Earl of Huntington and Lord Mountjoyes Case 293. The Lord Mountjoy bargained and sold Lands by deed enrolled Proviso that it is Covenanted granted and agreed that it shall be Lawfull for I. S. who was a stranger to dig in the Lands for Mynes It was adjudged in this Case that although the word Proviso absolutely taken be a Condition yet when it is coupled with other Words subsequent It shall be construed to be a Covenant and not a Condition Crocook and Whites Case 294. Debt upon an Obligation the condition was That if the Defendant Warrant and defend an Oxgange of Land to the Plaintiff against I. S. and all others that then c. It was Resolved the word defend shall be taken and shall not imply any other sense but a defense against Lawfull Titles and not against Trespasses and this Case was put by Anderson Chief Justice If one Covenants to make a Lease of all his Lands in D. and in D. he hath aswell Copyhold Land as Freehold Land he is not by the Covenant to make a Lease of the Copyhold Land for that he cannot Lawfully Lease without License and the for the Law shall construe the Covenant to be of Lands dimiseable and not of other Lands Roberts Case 295. The Bishop of Batb and Wells granted to King E. 6. by Deed enrolled all his Farmes and Hereditaments of W. in W. in the County of S. Habend to the King and his Heirs and in W. the Bishop had a Rectory which extended into the County of D. It was holden in this Case that the word Farme did not include the Rectory without a special averment that the same was in Lease before but the word Hereditament was sufficient to passe the Rectory 296. A Statute is Continued during the Will of the King It was Resolved that the Demise of the King had determined his Will 297. Note it was Resolved by the Justices that if Lands are devised to 2. men and to the Child with which the Wife of the Devisor is ensient It is a good Devise and the Child shall take by the Devise but if he shall be Joynt or Tenant in Common with the other Quaere Grises Case 298. A. gave Lands to his Son and his Wife for life the remainder to the Heirs of A. the Son dyed having Issue within age A. dyed Living the Wife It was adjudged that the Issue of the Son should not be in Ward for the Remainder notwithstanding the Statute of 32 H. 8. Wests Case 299. West went beyond Sea and wrote a Letter that his Land should go in such a manner It was adjudged to be a good Will and Devise Cooks Case 300. It was agreed by the Justices in this Case that if Lessee for years during his Terme set up Posts for out-doores and hangs doores upon them by Engines that he cannot take them away at the end of the Terme but otherwise they conceived if it be of Indoors within the house Mollineux Case 301. A. bound himself in an Obligation upon condition that if he did pay to the Obligee the sum of 20 l. within 40. dayes after his personal
c. de Decimis eidem pertinent spectant Habendum dectum scnum cum pertinenciis The question was what estate the Lessee had in the Tythes at Will or for years It was the opinion of Manwood Chief Baron that he had an Estate in them for years and not at Will for where several things are in a Grant and after the Habendum comes to limit the Estate it is superfluous to recite the particular things in the Habendum and the Tythes being particularly recited shall therefore pass by the Habsndum which limits the Estate for years Crops Case 357 A man made a Lease for years reserving Rent at Mich. and the Annunciation and if it be behind by the space of a month to reenter The next day after Mich. the Lessor sent the Rent by his Servant to the house of the Lessor who tendered it to his person and he refused it and afterwards upon the last instant of the day it was demanded upon the Land It was adjudged a good tender and the Lessor could not enter Beverley and the Bishop of Canturburyes Case 348. A seised of an Advowson in gross presented K. who was Inducted the Advowson afterwards desdended to B. and C. Coparceners B married I. S. C. married T. B. and had Issue C. died T. B. the Plantiff being Tenant by the Curtesies the Church became void by the deprivation of K. and because they could not agree in the presentment the Clerk of B. the eldest Sister was received by the Bishop which was since dead so the Plantiff Tenant by the Curtesie presented and being disturbed brought the Writ The Incumbent being presented by the Queen pleaded thae K. being inducted accepted a second Benefice of the value of 8. l. and so the Church was void by the Statute of 21. H. 8. of Pluralities It was adjudged for the Plantiff for that the deprivation of K. and the Plurality of the Clerk of the eldest Sister since dead were not denied after the acceptance of the second Benefice Saunders Case 349. Information upon the Statute of 1. E. 6. for landing of goods at Ratcliff Custom not paid nor agreed for It was pleaded in a Bar A. was seized of the Mannor of S. in Sussex and had wreck of the Sea appertaining to his Mannor by Prescription and that the Mannor Contigue adjâ—câ—t mare altum and said the goods were wreck and cast upon the land of the Lord and that he seized them and so justified Qu. If a good Justification Morris and Wâ—â—bors Case 350. The Case in effect was this A man was divorced Causa â—rigiditatis and afterwards took another wife and had issue It was argued by the Civilians and also by the Justices if the Issue was Bastard or not It was adjudged that the Issue by the second wife was not a Bastard For that by the Divorce the Marriage was dissolved â— vinculo Matrimonii and each of them might marry again But admitt that the second marriage was voidable yet it stands good till it be dissolved and so by consequence the Issue born during the Coverture is a lawful Issue Term. Hill 29. Eliz. Fanshaws Case 351. In Ejâ—ctione firme the Case was shortly thus King Henry the Seventh erected and Founded an Hospital by the name of Mâ—ster and Chaplains of the Hospital of King Henry the Seventh de le Savoy And afterwards in the time of Queen Mary a lease was made of Lands parcel of the Hospital by the name of Master of the Hospital Henrici nuper Regis Angliae septimâ— vocat le Savoy and if it was a good Lease or not was the Question The Case was first argued in the Exchequer and there adjudged that the Lease was void by the Judgment of two Barons Afterwards a Writ of Error was brought in the Exchequer Chamber there the Case 3. Eliz. was argued again but it was not adjudged but afterwards the Case was compounded but the better opinion of the Justices there seemed to be that it was a good Lease and that the words De le Savoy vocat le Savoy were idem sensu Crosman and Reads Case 352. Debt against the Defendant Executrix of T. R. her former husband upon an Obligation of 200. l. The Defendant pleaded fully administred It was found she had Asserts to the value of 80. l. parcel of the 200. l. and that the said T. B. borrowed of F. R. her late Husband 60. l. and that the Defendant being Executrix to T. B. took the said F. R. to Husband who died the Court gave Judgment that the Plantiff should recover the 80. l. and for the residue in misericordia pro falso clamore so as the Court conceive the 60. l. was not Assetts in her hands Rous and Artois Case 353. A man was Tenant for another mans life of a Mannor Cestuy queuse died The Tenant continued possession of the Mannor and held Courts and made voluntary Grants by Copy It was adjudged he should not bind the Lord for he was but Tenant at Sufferance who had not any Interest and so he was a Disseisor of the Mannor Broke and Smiths Case 354. The Case was Lord and Tenant the Tenant levied a Fine to the King who afterwards gave the Land Tenendum of the King by Knights Service The Lord distreined the Patentee for the Rent and Services If the Seignory was revived was the Question It was conceived it was and that it was suspended only for the time in the King Qu. It was not resolved Knowles and Powels Case 355. The Queen seized in Fee made a Lease for years to one who was Out-lawed at the time of the Lease made and afterwards the person was Out-lawed again and before seizure came a generall Pardon of all goods and chattels forfeited In this Case Resolved First that a man Out-lawed was capable of a Lease from the Queen as a Farmer to the Queen and that the Pardon with restitution was sufficient to revive the Term forfeited Secondly That a man Outlawed and Pardoned had property in his goods Bonds Case 356. Bond erected a Pigeon-House upon certain Lands which he held in Lease for years the reversion in the Queen being parcel of her Mannor of F. in the County of S. It was the opinion of Manwood Chief Baron and Gent. That none could erect a Dove-house but the Lord of the Mannor or the Parson and said that in ancient time it was accounted a Common Nusance presentable in the Leet 357. Note by Manwood Chief Baron where it is ordained by the Statute that for doing misdoing or not doing of a thing the Offendor shall forfeit such a Sum not expressing to whom there the forfeiture shall be intended to be to the Queen unless the penalty be assessed for taking Goods Chattels or other things in which the Subject hath a Property and then he which hath the loss shall have the forfeiture Warrams Case 358. A Protection was granted to him by the Queen and it was Quod Praerogativa
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
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
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
a good sale by the intent of the Will 3. Resolved that the devise that his Excecutors might sell was a good sale within the Statute of Wills though the words of the Statute are That a man having Lands holden in socage might devise two parts of it and that by the Equity of the Statute Yelverton and Yelvertons Case 442. A man seised of Lands Covenanted to stand seised thereof to the use of his eldest Son and also of all the other Land which he after should purchase he Covenanted that he and his Heirs would stand seised to the use of his eldest Son Afterwards he purchased Lands to him and his Heirs by bargain and sale Adjudged that the purchase could not be intended to other use then to him and his Heirs Sir Hugh Cholmeleys Case 443. The Case is very long but is this in effect viz. Tenant in Tail the remainder in Tail he in the Remainder bargained and sold his Remainder to A. for the life of the Tenant in Tail and after his death the remainder to the Queen in Fee Tenant in Tail in possession suffered a Common Recovery The Queen granted her remainder to Tenant in Tail and his Heirs Afterwards he in the remainder bargained and sold his remainder to B. the remainder to the Queen upon Condition another Recovery was had Tenant in Tail dyed without Issue It was Resolved in this Case that he in the Remainder and all Claiming under him were barred by the Recovery 2. That the Common Recovery did bar the Tenant in Tail and the estate of A. in the remainder although the Remainder was in the Queen 3. That the grant of the Queen to the Tenant in Tail and his Heirs was a good grant Corbett and Marshes Case 444. Error brought upon a Recovery in Dower because the Tenant was not summoned by 15. dayes nor Proclamation made thereof at the Church door Because the party had remedy against the Sheriff the Court would not allow of the Error Crispe and Fryers Case 445. Copyholder in Fee rendring Rent at Mich. and our Lady-day The Lord at the last instant of the day of payment demands the Rent upon the Land and the Copyholder is not there to pay it Qu. If it be a forfeiture the better opinion of the Justices was that it was a forfeiture Paramour and Verwolds Case 446. False Imprisonment the Defendant justified by a Recovery in Debt in Warda de F. London and a Writ of Execution in Sandwich in Kent absque hoc that he was culpable in London The Plaintiff said that he was culpable at London absque hoc that there is tale Recordum in Sandwich Adjudge the Yraverse upon the Traverse was good because the place is material Pannell and Fens Case 447. A man seised of Lands and possessed of a Term devised all his Lands and Tenements to his Executors untill they had paid all his Debts and Legacies and levied all charges which they should expend against I. S. or others in Execution of his Will and made two Executors and died the Executors entred generally into the Land and Term and one of them sold the Term to one man and the other sold it to another It was adjudged they took the Term as Executors and not as Devisees and yet they took the Freehold as Devisees and they said that the words of the Will as to the Term was no more then the Law gave and that they should have it as Executors Blackwell and Eyres case 448. Issue was joyned betwixt the Lessee of the Plaintiff and the Defendant in an Ejectione firme which was to be tryed at the Assizes The Defendant in consideration the Plaintiff and his Lessee should forbear to enforce their Title and give slender evidence against the Defendants promised to pay a certain Sum of money to the Plaintiff Vpon Non assumpsit it was found there were two Issues joyned in the Suit and the Defendants had not joyned but one of them had pleaded the general Issue and the other a special Plea It was adjudged for the Plaintiffs because the common Speech is the Parties have joyned issue Walker and Harris Case 449. It was adjudged in this Case That although Lessee for years assignes over his Term yet Debt lyeth against himself for the Rent by the Lessor or his year Moss and Packs Case 450. A Recoverie was had against the Executor of I. D. of debt and damages And Fire fac issued de bonis testatoris si si non damna de bonis propriis the Executor dyed the Sheriff did execution of the Goods of the Testator before the Return of the Writ and adjudged good Portman and Willis Case 451. It was adjudged in the Case that by a Devise of omnia bona a Lease for years did pass if there be not other circumstances to guide the intent of the Devilor 2. Resolved That if a Copyholder for life or years surrender to an use that the surrender is good and the use void as a surrender rendring Rent with Warranty shall be a good Surrender and the Rent and Warranty void Beswick and Combdens Case 452. Action upon the Case for not keeping a Bank by reason of which the River drowned his Land It appeared upon the evidence that it was levyed and kept before by one who enfeoffed the Defendant Yet it was adjudged that the Action did lye against the Feoffee for the continuance of it Fuller and Fullers Case 453. The Case was A man had four Sons and devised his Land to his youngest Son named R. and the Heirs Males of his Body with the Remainder successively to the other three and the Heirs Males of their Bodies the first Devise dyed in the life of his Father having Issue Male After which the Father said I will that my Will stand good to the Children of R. as if he had over lived me but the words were not put in writing The point was If the Children did take by the devise or by discent Quaere The Court was divided in opinion The Dean and Canons of St. Pauls and others Case 454. King Edward the Fourth by his Letters Patent granted to the Dean and Canons and their Successors that they should be discharged of Purveyance the Charter was confirmed by King Henry the Seventh and also by King Henry the Eight The Statute of 27. H. 8. was made That Purveyors assigned by the Kings Commission for provision for him his Queen and Children might provide all Victual Corn c. as well within Liberties as without any Grants or Allowances to the contrary Queen Mary granted that no Purveyance should be taken of the Dean and Canons and their Successors against their Wills notwithstanding the Statute of 27. H. 8. and Queen Elizabeth reciting all the Patents granted to the Dean and Canons doth confirm them It was Resolved That the Charter granted to them was good Wherefore that they should be discharged from all Composition for Provisions for the Queen Preston and Hinds Case 455. Error
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
absque hoc that he promised in London the Plaintiff said he promised in London absque hoc that there is any such Accord although this was a Traverse upon a Traverse yet it was adjudged good Montague and Jeoffries Case A seised in Fee of the Mannor of M. and of Lands called G. expectant upon a Lease for years by his Will he devised the Mannor and G. to the Defendant and afterwards he covenanted with I. S. to make a Feoffment to the use of himself and E. the daughter of I. S. whom he did intend to marry which was by Letter of Attorney executed in the Mannor not in G. nor any Atonement of the Tenant of it He married E. and afterwards in the Will with his own hand where he had made M. his Daughter his Executor he added these words viz. E. my Wife and then died It was the opinion of the Justices in this case that the Feoffment did countermand the whole Will but they doubted whether the writing of the new words in the Will was a new publication of it The Lady Greshams Case 577. Scire facias to execute a Recognizance acknowledged in Chancery accordingly B. the Defendant pleaded in abatement of it that B. was seised of three Acres at the time of the Recognizance whereof I. S. was now seised not named in the Writ they were at Issue upon the Seisin and it was found that B. and another were jointly seised and enfeoffed I. S. It was said that although the moyetie of the Land was extendable yet the Writ as brought should abate Corbet and Downings Case 578. An Obligation was taken by the Sheriff for an appearance at Westminster and the Term was adjourned to St. Albans and the party appeared there adjudged he had not forfeited his Obligation Qu. If the word Westminster in the condition did not make the Bond void because by the Statute of 22. H. 6. there is not any such name in the Writ Blodwell and Edwards Case 579. The case was B. made a Feoffment in Fee to the use of himself for Life and after to the use of such Issue of the Body of M. from eldest to eldest as were reputed to be begotten by the said B. whether it be lawfull or unlawful It was adjudged in this Case That it was a good Remainder limitted to a Bastard for a Son in reputation is sufficient to make him a Purchaser 580. It was Resolved by the Justices that Fenny ground dreined should pay Tythes and was not barren Land within the Statute to be discharged of Tythes for seven years Mounson and Wests Case 581. In Assise The parties were at Issue upon the Seisin and Diseisin the Jury found West Tenant and that he disseised the Demandant Nisi such words in a Will give the Tenant a Title It was said the Verdict was imperfect because of the words nisi c but the Court held the Verdict good enough for the finding of the Disseisin implies a Seisin also Walford and Mashams Case 582. Resolved that an Alien borne under the Obedience of an Enemy of the King may have Debt upon an Obligation for personal things Palmer and Porters Case 583. Action upon the case against the Bailiff of N. for that upon a fieri fac directed to the Sheriff of N. return Octob. Mich. he sent his Warrant to the Defendant being Bailiff of N. to execute it who returned Nulla bona c. before Mich. and at Mich. they were removed from their Office and new Chosen Resolved it was a void Return for the Sheriff ought not before Octob. Mich. have accepted return of Nulla bona for he might have some afterwards and before the return of the Writ and the return by them after Mich. being out of their Office was void but if they had executed the Writ before Mich. then the Sheriff might have accepted of their return before Mich. but not after Hobs and Tadcastles Case 584. Audita querela the case was A. sued a Bill of Debt against B. who found bail the Plaintiff and another Afterwards B. was was condemned and dyed without paying the consideration or rendring his body A. scire fac was sued against the Plaintiff his Bail and upon 2. Nihils returned Execution was awarded against him Whereupon he brought the Audita querela It was prayed he might be discaarged out of Execution for that it is now become impossible by the act of God the principal should render his body and there was never any Capias awarded against him in his life time The Court held it very unreasonable to sue Execution against the bail till a fault was returned in the principal and the Recognisance of the bail is that the principal shall render himself which is to be intended upon Capias awarded against him Judgment was given for the Plaintiff in the Audita querela and he was discharged out of Execution Slade and Morleys Case 585. A man sowed his Land with Corne and sold the Corne to the Defendant for 16 l. to be paid at Midsomer next and the Defendant in consideration of such sale promised to pay the money at Midsomer but did not upon which Assumpsit was brought It was the greater opinion of the Justices in the Exchequer Chamber that the Action did not lye because properly Debt did lye in which the Defendant might wage his Law Robins Gerrard and Princes Case 586. The Case very long in effect was this A man is Admitted Instituted and Inducted into a Benefice with Cure of the value of 8 l. and afterwards the King presents him to the Church of D. which is a Benefice with Cure and he is admitted and Instituted The Archbishop grants to him Letters of Dispensation for plurality which Letter the King confirmes and afterwards he is Inducted to the Church of D. It was adjudged in this case that the Dispensation came too late because it came after the Institution for by the Institution the Church is full against all persons but against the King and as to the Spiritualties he is full Parson by the Institution 2. Resolved that admit the Church was not void by the Institution untill Induction Yet the Dispensation came too late for that the words of the Satute of 21 H. 8. of Pluralities are may purchase Licence to receive and keep two Benefices with Cure of Souls and the words of Dispensation in this case were recipere retinere and because by the Institution the Church was full he could not purchase Licence to receive that which he had before and he cannot retaine that which he cannot receive The Queen and Cattons Case 587. Scire fac to repeal a Patent made 29 Jan. 35 Eliz. which Recited Whereas A. and B. conjunctim divisim were bound by Obligation to the Queen in a 1000 l. dated 21 April 33 Eliz. with Condition that A. should stand to the award of I. S. for controversies betwixt him and C. which Obligation is become forfeited and Recites that the Queen by
and he demanded of the Plaintiff what was his Name he answered his name was I. D. therefore he arrested him adjudged for the Plaintiff for that the Defendant at his peril ought to take notice of the party Sharpe and Swaines Case 603. A Feoffment was made of a house and Land which was within the View of the house and the deed of Feoffment was delivered in the house only It was adjudged no Livery for the Land Popham Chief Justice said it was not good for the house Barkby and Forsters Case 604. A man brought Assumpsit in B. R. and declared whereas 16. December at the request of the Defendant he delivered to the Defendant 100 l. to the use of the Defendants Father the Defendant promised to repay it to the Plaintiff ad vel ante the first of May following The Defendant pleaded the Plaintiff had brought an Accoumpt against him for the same money and declared the money to be delivered 10 December and prayed Judgment of the Action pendant the Accoumpt upon Error brought the Judgment was affirmed because damages are recoverable in this Action but not in an Accoumpt Blowfield and Withes Case 605. Debt against 2. one was taken in Execution and suffered to escape by the Goaler It was adjudged that Execution might be sued out against the other 606. Judgment a Writ of Entry was reversed because the Name of the Sommoners were not endorsed upon the Writ Arkingsall and Dennys Case 607. An Archdeacon having a Parsonage appertaining to his Archdeaconâ—y before the Statute of 13 Eliz. made a Lease for 40. years of the Parsonage which was confirmed after the Statute Adjudged the Lease and confirmation were both good Harrington and Wyes Case 608. A. made Articles betwixt him and 2. others by which it is Covenanted by the said A. that the said A. doth let c. and the said A. doth covenant to make a Lease for 21. years according to these Articles Provided that they shall pay to the said A. yearly 28 l. Resolved that it was a present Lease and a Reservation of Rent and that the Rent should be paid during the Terme Parlor and Butlers Case 609. Prohibition the case was the Plaintiff was Convented before the High Commissioners for saying of the Defendant a Minister That he was fiâ—ter to stand in the Pillary then to preach in a Pulpit and that be had taken 2. Orders already and that he lacked but taking the third which was to have his Ears cut off He there Justified the words that the Defendant had forged an Acquittance and shewed it The Commissioners would not allow of the Justification but granted him to aske the Defendant Forgivenesse the Prohibition was granted because they ought not to meddle with the Cause Easton and Newmâ—ns Case 610. If a man find goods and being demanded of him he denyes for to restore them It was adjudged to be a Conversion of them Randals Case 611. An Enfant confessed a Judgment in the Kings Bench in Debt It was Resolved that he could not have Audita Querela during his Nonage to reverse the Judgment in that Court but he might have Error in the Exchequer Chamber by the Statute of 27 Eliz. to reverse it Shephard and Metcalfes Case 612. A Prohibition by 3. Resolved one Nonsuit or Retraxit shall not bar the others Holcome and Rawlins Case 613. If a Disseisor make a Lease for years and the Disseisee reenters It was Resolved that the Disseisee after his reentry shall punish the Lessee for Trespas for the mean profits during his Occupation although he be in by Title but before his reentry he shall not punish him Gooses Case 614. Appeal of death against Principal and Accessaries before the fact and of accessaries after the fact The principal is found not guilty of the Murder but guilty of Manslaughter Resolved all accessaries before the fact should be discharged because to a Manslaughter none can be accessary before the fact Perries Case 615. An Enfant of the age of 9. years was admitted by his Guardian to sue an Appeal de morte fratris 616. A Writ of Error was delivered at the Instant the Judgment was given the Court would not allow of it because it was procured before the Judgment was given 617. Nota per Curiam A Copyholder may prescribe by usitatum est against his Lord but against a stranger he must prescribe in the name of the Lord. Ford and Glanviles Case 618. Administration is committed durante miuore aetate of an Enfant and Debt is brought against him and then the Enfant comes of age Quaere if the Writ shall abate Roberts and Agmondeshams Case 619. A Lease was made of a Rectory a Parson was presented to it and upon a supposition that he was holden out with force had a vi laica removenda upon which the Sheriff returned non inveni vim laicam nec potentiam armatam Notwithstanding which Returun upon Affidavit that he was kept out with force a Writ of Restitution was awarded out of the Kings Bench. Woodlifes Case 620. Accompt for goods delivered to a Factor to Merchandize he pleaded he was robbed of the goods and of divers other goods and Chattells of his own and holden a good plea. Bradshawes Case 621. A man prescribes for Common Appendant Resolved unity extincts it but not Common for arable Land Halliwel and Jervoise 622. A Parson sues before the Ordinary for Tythes and then he Appeals to the Audience where the sentence is affirmed Then the parties Appeal to the Delegates and there both sentences are repealed It was agreed that such a condition ad revidendum the sentences may issue forth but then such a Reviewing shall be final without further Appeal but if the Commissioners do not proceed to the Examination according to the Common Law they shall be restreined by a Prohibition Mortimer and Windgates 623. Accompt for Malt the Defendant said the Plaintiff brought Trover and Conversion for this and other Malt and for part found for him and for part not and demanded Judgment of the Action adjudged no bar for it may be he did not convert the Malt yet he ought to accompt for it Smith and Bowsals Case Vide the same Case 912. Plito 610. before Bradshawes Case the very same with this Case Rogers and Jacksons Case 624. Debt upon a Bond the Defendant pleaded the Statute of usury alledging that agreatum fuit that the Plaintiff should have so much money pro donatione diei solutionis the Plaintiff traversed absque hoc quod agreatum fuit and found for the Plaintiff It was said in stay of Judgment the word Corruptâ— was not pleaded in the Bar It was Resolved the Bar was made good by the Replication and the Declaration being good It is sufficient for Judgment for the Plaintiff Bacon and Hills Case 625. Ejectione firme the case was A. had Issue 3. Sons viz. B. C. and D. and devised to B. and C. certain parcells of Land and to D.
Devisees took their estates respectively by the Will or by the Feoffment if by the Will it was void for a third part and a Tenancy in common If by the Feoffment it was good for the whole 2. point when the use of the Feoffment is expressed to such persons as should be declared by the Will and he deviseth the Land if the same shall be said to be a limitation of the use according to the Authority The case not Resolved because the Justices were divided in their opinions It was adjourned Prat and Phanners Case 652. Debt upon Obligation The condition was Whereas Suits have bin brought prosecuted betwixt the Defendant and A his Wife which controversies are now finally to be ended betwixt them if the Defendant do not from henceforth commence and prosecute any Suit or Action in any Court or Courts Spiritual or Temporal against the said A. his Wife for any matter precedent or cause from the beginning of the World but shall from henceforth during the natural Lives of him the Defendant and A. his Wife account of use and maintaine the said A. as his lawful wife to all intents c. then c. The Defendant pleaded he had not brought any Action in any Court against the said A. after the said Obligation and that before A. was married to him she was married to I. S. who is yet alive for which cause he cannot accept of and maintain the said A. as his lawfull wife according to the Form of the Condition upon which it was demurred It was Resolved that the material part of the Condition did consist in the first part of the Condition if he do not prosecute any Suit and the Defendant having pleaded an Issuable Plea to that it is not material if he plead to the latter part of it or not and if his Justification be insufficient the Plaintiff ought not to have demurred upon it But the Court held his Justification to be good because the Condition as to that part is against the Law of God and so the Obligation void And whereas it was objected that he is estopped to plead the special matter of her former Marriage because in the Condition she is called A. his wife The Court said he was not estopped by it because he may confess and avoid it for she may be his Wife as to some purposes but as to use her as a lawfull wife she is not his wife Lloyd and Wilkingsons Case 653. In Ejectione firme the case was A. Rector of C. by Indenture between him of the one part and E. R. W. and T. of the other part devised the same to E. for 80. years if she should so long live and should not alien the premises and if she should die within the Term or should alien that then her Estate should cease and that then the same should remain to R. pro durant ' residuo praedicti termini praedict ' 80. annorum and if he should alien c. ut supra then his Estate should cease and then the same should remain to W. pro durant ' tot annis praedict termini 80. annorum si c. and if he should alien ut supra then his Estate should cease and then the said A. concessit praemissa durante tot annis praedict ' 80. annorum quod ad tunc continuarent remanerent in expiratis to T. his Executors and Assignes A. died F. died E. and R. died The Administrator of F. entred and assigned over the same In this Case it was Resolved That the Demise to R. and W. were void because that the Estate which E. had was not for 80. years absolutely but sub modo under a condition and then the Demise to them pro tot annis quot remanerent after the death of the said E. pro durante residuo termini praedict ' 80. annorum was void for there could not be a residue of the said Term because that determined by the death of E. 2. Resolved That the Lease and Limitation to F. was void for the uncertainty for it was uncertain at the making of the Lease how many years should be behind at the time of the death of E. 3. Resolved That the Demise and Limitation to T. was not good because that R. and W. survived F. which was against the express Limitation for his Estate was limited upon two Contingents Pigot and Hearns Case 654. In Trover and Conversion the case was this The Lord of the Mannor of B. in the Parish of D. did prescribe that he and his Ancestors and all those whose Estate c. had used from time to time whereof c. to pay to the Parson of D. the now Plaintiff and his Predecessors 6 l. per an for all manner of Tythes growing within the said Parish and that by reason thereof he and all those whose Estates c. Lords of the said Mannors had used time whereof c. to have Decimam garbam decimum cumulum garbarum of all of his Tenements within the said Mannor It was in this case Resolved that it was a good Prescription and that a Modus decimandi by the Lord for himself and all the Tenants of his Mannor from barring the Parson to demand tythes in kind is a good Prescription because it might have a lawful commencement 2. It was Resolved That it was a good Prescription to have Decimam garbam in or Decimum cumulum garbarum or gramorum or the tenth Shock for he hath it as a profit appender and not as Tythes 3. Resolved in this case that if the Queen be Lady of the Mannor she might prescribe to have Tythes for that she is capable of them she being Persona mixta capax Spiritualis Jurisdictionis Holcrofts Case 655. A seised of Lands in Fee levyed a Fine thereof to the use of himself for Life the Remainder to B. his Son for the Term of his Life only so long and untill he attempt to alien and then to the use of C. and the Heirs Males of his Body during the Life of B. and immediately after his death to the use of the first begotten Son of B. then after to be begotten and the Heirs Males of his Body and so successively to his Second Third or Fourth Son to be begotten in lawful Marriage and if it fortune the Fourth Son to die without Heir Male of his Body then to the use of C. and the Heirs Male of his Body with diverse Remainders over in tail the remainders to the right Heirs of A. A. dyed B. having only one Son born after the Indenture and Fine which dyed without Issue Male joyned in a Fine with C. to I. S. and I. D. who rendred the Land to B. for 80. years next following if the said B. so long lived and immediately after his Decease to the first begotten Son of the said B. or which afterwards he should beget and the Heirs Males of his Body and so successively to the Second or Third
Sons the Remainder to C. and his Heirs B. never had any Son afterwards but dyed having Issue a Daughter his sole Daughter and Heir Afterwards C. dyed having Issue It was Resolved in this case that it shall be intended in the Limitation of the use that after the death of B. without Issue Male that C. should have the Land as well where no attempt is to alien as where there is an attempt because the words are and immediately after his decease then to the first Son c. by which they conceived that the use which should rise upon the attempt to alien is only restrained to the use of B. for Life 2. Resolved that by the words If it fortune the Fourth Son to die without Issue then to C. and in truth B. never had a Son that the use should rise to C. 3. Reâ—olved when the render was made to B. for 80. years if he should so long live and after his Decease to his first Son c. with the Remainder to C. that all the Remainders were void because the Estate of the Freehold during the Life of B. did not pass by the Render out of the Conusees but the Inheritance compleat did remain in the Conusees 4. Resolved That the Conusance of the Fine is of necessity to be intended to the use of the Conusees because they otherwise could not render by the Fine but if the Render had bin void in all as it is in part then they conceived the use should go according to the Render but not in this case because the Render for 80. years was good and so the use remains in the Conusees The Lord Buckhursts Case 656. The case it self is very long being upon several Conveyances Settlements of very many great Mannors Lands in several Counties within the Realm of England and by her last Will to several persons or to their uses or to her Executors for the performance of her last Will upon which diverse matters of Law did arise which were very largely and Learnedly argued by Council but not Resolved some points in Law were agreed upon and Resolved which vide in Coo. 1. Reports in rhe Lord Buckhursts Case and were these in Substance viz. 1. If a man grant Land for him and his Heirs to another and his Heirs that is a general Warranty because it is not restrained to any person certain 2. If a man seised in Fee-simple hath diverse Evidences some containing Warranty and some not and convey the Land to another without Warranty upon which he may be vouched the Purchaser shall have all the Charters and Evidences as well those which contain the Warranty as the other for in as much as the Feoffor hath conveyed his Estate absolutely and is not bound to Warranty it is reason that the Feoffee for his better assurance have all his Charters as incidents to the Land although they are not granted to him by express words 3. If the Feoffee in the case aforesaid make a Feoffment with Warranty so as he is bound to render in value in such case without express Grant the Feoffee shall not have any Charters which comprehend Warranty upon which the Feoffor may have his Waranty paramount for the Feoffee hath not taken upon him to defend the Title but the Feoffee shall have the Evidences which do concern the possession 4. If A. enfeoff B. with Warranty to him his Heirs and Assignes and B. enfeoff C. with Warranty although that C. may vouch A. as Assignee yet he shall not have the first Deed for B. hath made a Warranty to him and may be vouched and therefore he shall have the first Deed. 5. If A. be seised of a Seignory Rent Advowson or any thing which lies in Grant and grants the same over to B. with Warranty and B. grants the same over to C. with VVarranty C. shall have the Charter although that B. is bound to VVarranty for that it is for his necessity to make his Title and without it he cannot make any defence against A. or any claiming by him 6. If a man maketh a Feoffment in Fee with VVarranty and dieth the Heir of the Feoffee shall have all the Charters which the Feoffor himself may have although the Heir hath nothing by discent for the possibility of discent after Barker and Bornes Case 657. Debt against the Heir upon an Obligation of his Father and Judgment is given against him upon nihil dicit the Judgments shall be general and not only of the Lands special which discend but extend to his own Lands Thompson and Butlers Case 658. An Annuity is granted to a woman for Life she takes Husband the Husband during the Coverture by express words releases the Annuity Resolved that the Release of the Husband doth not extinct the Annuity but that if the VVife survive she shall have it 659. It was Resolved by all the Justices That if the Clerk of the Market do take a Fee of a peny for view only of Vessels which are not defective and doth not Seal them or if he Seal them he take 2 d. upon every Vessel the same iâ— extortion 660. Resolved upon the Statute of 33. H. 8. 28. 23. Eliz. That if Tenant in tail become Recusant is convict but not by Judgment upon Tryal or Confession and dieth and his Lands seized that the Issue shall avoid it because it is not a debt by Judgment as the Statute of 33. H. 8. requires The Lady Willoughbyes Case 661. Sir Francis Willoughby died his VVife with Child P. W. who had married the Daughter of Sir Francis and had a great part of the Possessions setled upon him for want of Issue Male of Sir Francis attempted to suffer a Common Recovery to the intent to bar the Issue Male of Sir Francis and disinherit this Issue in ventre of his VVife to stop the Recovery she pretended she was with Child P. W. prayed a VVrit de Ventre inspiciendo which was granted and the Sheriff of London came to the Ladies House and brought a Jury of women whereof two were Midwives and they searched the Lady and the Sheriff returned that she was with Child Clark and Hardwicks Case 662. Scire fac upon Recognizance in Chancery acknowledged by H. to M. of 200 l. The VVrit was brought by the Plaintiffs Executors of M. the Sheriff returned Mortuus whereupon a new scire fac issued against the Heir and Terrae-Tenants The Sheriff returned K. Terre-Tenant of certain Lands and C. Terre-Tenant of the Mannor of D. K. made default C. appeared and pleaded a Joynt-tenancy with two other who were alive not named in the Writ nor Returned It was adjudged that upon this Return and Plea of Joynt-Tenancy that the Scire facias should abate and a new Scire facias was awarded Davy Matthew and Binfields Case 663. 3 â— Eliz. Ejectione firme The Case was Husband and wife seised for the Life of the wife made a Lease of a Mill to B. the Defendant for 17. years who 34.
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
Justices that if one be bounden to make such assurance of all his Land that another will devise and require if it be to be done at the Costs of the Devisor he may devise one Assurance of one part and another of another part of the Land but if be at the Costs of the other he can devise but a joynt assurance for the whole Land Gage and Topers Case 741. Resolved in this Case If the Writ of Covenant upon which a fine is levyed be returned before the date it is Error because it is an Original Writ and not amendable by any Statute Strougborough and Biggins Case 742. In Appeal by a Woman of the death of her Husband of Murther the Defendant is found guilty of Manslaughter It was holden that a general pardon could not pardon the burning of the hand because it is at the suit of the party Vide Co. 6. p. the Case Reported to be adjudged contrary 743. It was holden by the Justices that in a scire fac to have Execution of a Fine it is no plea that there are other Terre-Tenants not named in the Writ otherwise it is upon a scire fac to have Execution of a Recognizance Bennes and Edwards Case 744. The Patron of the Advowson granted the next Avoydance to B. and after granted an other next Avoydance to R. who first presented and the Bishop refused the B. presented and the Bishop refused his Clerk also R. brought duplex Querela against the Bishop before the Metropolitan against B. and upon default his Clark was Inducted by the Metropolitan but depending the duplex Querela B. recovered against the Bishops Ordinary in a Quare Impedit and his Clark was Instituted and inducted and he took the profits of the Gleab Lands which were sowed by the Clark of R. It was Resolved in this Case that the Clark of R. being in upon the Judgment in the duplex Querela the Clark who was in upon the Recovery in the Quare Impedit could not oust the Clark of R. without a scire facias first brought Foxley and Ansleys Case 745. The Bayliff of the Queens Mannor which had waifes and estrays appertenant took goods esloyned by a Felon and relinquished in the Mannor and seased them for the use of the Queen and in Trover brought against him prayed in aide of the Queen Resolved the Aide not grantable being an action transitory and not local James and Rudledges Case 746. Words viz. Hang him he is full of the Pox I marvel you will eate or drinke with him adjudged not Actionable for it may be the small Pox and not to defame the party but to Counsell his friend 747. The Sheriff sells a Terme upon a scire fac and afterwards the Judgment is reversed Resolved the party shall not be restored to the Terme but to the money for which it was fold Holford and Andrewes Case 748. Debt upon an Obligation the Condition was to pay a sum at a certain day The Defendant pleaded that in respect of a Trespas done by the Plaintiffs beasts upon the Defendants Lands the Plaintiff gave him a longer day of payment which is not yet come Resolved it was no plea for that an agreement by perol cannot dispense with the Obligation Scrogs and Stevensons Case 749. In a Leet a payne was assessed upon the Town for not making of a Tombrell and Stocks and the Bailiff of the Mannor destrained one of the Town for the payne and avowed for it Adjudged the Avowry not good because it was not alledged that the payne was unpaid to the Lord for if any of the Town paid it the Plaintiff in the Replevin was not destrainable and also he doth not show that he had a Precept from the Steward to distrain which he ought to have Resolved that the Lord of the Mannor and Leet is to finde the Tombrell and Stocks upon payne of forfeiture of his Liberty and not the Inhabitants Johnson and Clarks Case 750. Debt upon Obligation The Defendant pleaded the Statute of Usury Quod Corrupte agreaâ—un fuit quod Querens Corrupte recepit Issue upon them found for the Defendant it was said that the double Issue was a Mistâ—yal The Court held the tryal good because an Issue is taken upon a thing material the other upon a thing not material and both being found for the Defendant it is a sufficient warrant for the Court to give Judgment for the Defendant Whitcalfe and Jones Case 751. Assumpsit The Consideration was that the Plaintiff assumed to a stranger to pay a debt which the Defendant owed him It was holden to be a good consideration although he doth not alledge payment of the money Smith and Shepherds Case 752. Trespas for taking of his sheep The Defendant justified as servant to the Lord Barkley by Prescription to take 2 d. for every score of sheep passing through the Town and if it was denyed upon request to detain the sheep till payment Resolved the Prescription was not good to take Toll for passages in via Regia for that the Inheritance of every man for passage in via Regia is precedent to all Prescription 2. Resolved a man may prescribe for Toll Traverse because it is a passage over his own freehold but not for Toll thorough 3. In this Case it was adjudged against the Defendant because it was not shewed that the Sheep were passing thorough the Town before he took the distresse otherwise it doth not sure with the Prescription Warner and his Wife and Babingtons Case 753. Debt upon an Obligation by Husband and Wife the Defendant pleaded the Wife had another Husband living The Plaintiff said the Wife ad annos nubiles disagreed to the former marriage It was said by Popham if she marry another Husband infra annos nubiles it is a disagreement to the first marriage à fortiori where she cohabits with the second Husband after years of Consent adjudged for the Plaintiff White and Gerishes Case 754. The Case was A. and B. levyed a Fine of Land to I. S. with a Render of a rent of 5 l. to B. yearly with a Clause of distresse the Remainder of the Land to A. and his Heirs I. S. dyed his Son distrained for the Rent It was adjudged against the Avowant for the Rent in a Replevin brought because the limiting over of the Remainder of the Land over was an Extinguishment of the Rent Davenant and Hardis Case 755. The Case long put was shortly this The Company of Merchant Taylors of London having power by Charter to make Ordinances for the better Rule and Government of the said Company made an Order that every Brother of the same society who should put any Cloth to be dressed by any Clotheworker not being a Brother of the same society should expose one half of his Cloths to be dressed to some Brother of the Company upon pain of forfeiting 10 l. and to destrain for it This Case was very long and very Learnedly argued vide the Book at
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
Plaintiff that the Action did not lye Vide this Case more at large in Cook 3. part of his Reports Cornwalls Case 869. Quo Warranto for claiming goods of Felonum de se The Defendant said that the Mannors of S. and L in the County of Gloucester were within the Principality of Wales before the Statute of 27 H. 8. and the Kings Writ did not run there and that his Grandfather seised of those Mannors as Lord Marcher used amongst others to have that Liberty of goods of Felons de se and that the Statute of 27 H. 8. which united Wales to England had a Proviso that the Lord Marchers should retain their Franchises to hold Courts to have Waifes and Estrays infangtheef outfangtheef and Felons goods and deduced the Mannors to himself and eo Warranto he claimed to have the good of Felons de se within his Mannors upon which it was demurred the Case is only argued bet not Resolved Ideo Quaere Darcy and Allens Case 870. The Queen by her Letters Patents granted to Darcy the Importation and sole making of playing Cards within the Realm of England for a certain Terme of years A Citizen and Freeman of the Company of Haberdashers in London Cards beings Merchantable Commodities brought Cards into England and sold them for which Darcy brought his Action of the Case and declared it was to his damage of 2000 l. upon which there was a demur in Law It was in this Case after long and Learned Arguments at length Resolved That the Letters Patents for the sole making of playing Cards within the Realm was void because it being a Mechanical Trade it was contrary to the Liberty and to the prejudice of the Subject 2. That the dispensation or sole License to have the Importation of Cards was a Monopoly and so void by the Law See Coo. 11. pt the Case of Monopolies Garrard and the Dean and Chapter of Rochesters Case 871. The Dean and Chapter by deed under their Common Seal granted to the King the Mannor of S. in exchange for other Lands the deed was made without a Letter of Attorney but they acknowledged it to be their deed in their Chapter house before I. S. Attorney of the Court of Augmentations who brought it into Court and it was there enrolled with a Memorandū that the enrolment was such a day which was a moneth before the date of the deed In this Case it was Resolved 1. That the acknowledgment of the deed in the Chapter house was sufficient without doing it by Attorney 2. That the Attorney of the Augmentation might take the acknowledgment of a Deed out of Court he being a Judge of the Court. 3. That the enrolment of the deed before the date of it was not void as to make the deed void because it was only the Misprision of the Clark which shall not make the deed void Prine and Allingtons Case 872. A Capias ad satisfaciend ' was 2. July delivered in Holborne to the Sheriff of C. he the same day made his Warrant to his Bailiffs but afterwards the same day there came a Supersedeas to the Sheriff the Bailiffs not having notice of it took the party in Execution who escaped and they retook him upon which false Imprisonment was brought It was adjudged the Action did lye for the retaking of him was not Lawfull because the Authority of the Sheriff was determined by the Supersedas Yet the Court held the Bailiffs were excused in this Case and no action of Debt upon the escape did lye because they had no notice of the Supersedas Webster and Allens Case 873. A Copyholder where the custome was to demise for three Lives demised to one for life the Remainder to such a one as he should marry and the first Son of his body Resolved that both the Remainders were void but the estate for his own life good Penny and Cores Case 874. Debt upon Obligation for payment of 8 l. the Defendant pleaded payment of 5 l. before the day and acceptance of it in satisfaction of the 8 l. It was adjudged a good plea. The Queen and Bishop of Peterboroughs Case 875. A Baronesse which was a Widdow retained two Chaplains they purchased Dispensation the Baronesse was married before they accepted double Benefices It was adjudged they might after take two Benefices because the marriage was no discharge of their Service but if the Baronesse dye before they accept the Benefices they cannot afterwards take two Benefices within the Statute of 21 H. 8. Ward and Lakins Case 876. In a Replevin the Plaintiff declared of the taking of two Heifors apud W. tali die and did not say in quodam loco vocato c. and for that cause the Declaration was held to be insufficient Scarles Case 177. Debt against an Excecutor by Original he pleaded a Recovery in the Court of I. and that ultra he had not goods the Recovery was after the Teste of the Original but the Defendant avered that he had not notice of the Original It was holden by the Court a good plea but if a man be sued upon an Obligation and he will pay another debt after without suit if he have notice of the first suit Devastavit in an Execuror Gregory and Harrisons Case 878. Resolved Ejectione firme doth not lye of a Copyhold if the Plaintiff doth not declare the Custome Lease and Ejectment 879. A Woman recovered Dower in the Common pleas and had a Writ to the Sheriff to put her in possession of the same The Sheriff returned the Writ that he delivered her 84. Acres and that she had entred into 24. Acres parcel thereof and accepted of the same Resolved it was a good bar to her although it was a lesse quantity then the 3. part of the Land mentioned in the Record Aoliffe and Archdales Case 780. Resolved in this Case If a man be bounden to pay money for the Meat Drink and Apparel of an Infant and pay it and take a Bond of the Infant to repay the money such a Bond is void and the Infant shall avoid it for Nonage Broke and Smiths Case 881. It was adjudged in this Case that where a man by a Deed was to discharge Lands from all Incumbrances and before the sealing and delivery of the Deed there is Memorandum endorsed that it should not extend to such an Incumbrance It was Resolved the Endorsement is an explanation of the Deed and made parcell of it and a suit upon an Obligation to discharge Incumbrances shall not extend to the Incumbrances mentioned upon the endorsement of the Deed. Yate and Goths Case 882. A. was indebted to B. who dyed Intestate his Wife took Letters of Administration and brought debt and had Judgment and after dyed Intestate It was adjudged that an Administrator de bonis none of the first Intestate could not sue forth Execution upon the Judgment but is put to a new action of debt Swelman and Cuts Case 883. A Lease was made for years upon
by voucher of him in the Remainder in tail who vouched the common Vouchee and if he in the Remainder in Fee were bound by the Recovery because the Statute of 14. Eliz. is That Recoveries suffered by Tenants for Life shall be void against him in Remainder or Reversion and the Proviso doth not extend to bind more of them in the Remainder then those who assent of Record It was adjudged in B. R. that the Remainder in Fee was bound as well as if the Tenant in tail had bin the first Tenant to the Precipe and upon Error brought the Judgment in the Exchequer Chamber was affirmed But because the Defendant in the first Action had pleaded the Recovery by a Writ brought de tenementis praedictis which was not the use in common Recoveries but especial to have the Recovery of so many Messuages so many Acres of Land Meadow Pasture c. in certain and because it did not appear by the Record before them that the Writ did contain any certainty of the Messuages or Acres c. the Judgment was reversed Rotheram and Stibbings Case 905. Action upon the case against an Executor upon Assumpsit of the Testator to pay 100 l. in consideration of Marriage of his Daughter the payment to be made when he should be required upon non Assumpsit Judgment was had in B. R. for the Plaintiff Error brought in the Exchequer Chamber and the Judgment was reversed because the Action did not lie against the Executor Maynard and Bassets Case 906. Trover and Conversion de 3000. cords of Wood the case was A. granted to B. so much wood in Buxsted Wood as would make 4000. cords to be taken by the appointment of A. B. before any appointment assigned his Interest to M. the Plaintiff afterwards A. granted to the Defendant as much wood in the said Wood as should make 6000. cords at the choice of the Defendant then A. appointed B. a certain quantity to satisfie the first Bargain which B. cut down and the Defendant by colour of his Grant took and carried away the same whereupon the Plaintiff brought his Action and had Judgment in B. accordingly And Error brought and assigned because the Declaration is not de bonis propriis 2. Because he sais he was possessed de 3000. cordis ligni and the Defendant cordas praedicti ligni cepit without saying any particular quantity and 3d. because the Declaration is vi armis but all the Exceptions were disallowed by the Court and the Judgment was affirmed Palmâ—r and Sherwoods Case 907. A Trespass for carrying away goods The Judgment in B. R. was that the Plaintiff should recover his Damages for part and the Defendant capiatur and that the Plaintiff sit in misericordia pro residuo transgressionis which is said to be Error and that the Judgment ought to have bin Quaerens nibil capiat per billam pro residuo transgressionis Sed non allocatur but the Judgment was affirmed Chamberlain and Nichols Case 908. In debt upon a single Bill for payment of money at a day the Defendant pleaded payment without an acquittance Issue upon it Judgment for the Plaintiff in B. R. Error assigned because the Issue was joyned upon a matter not material nor pleadable viz. payment without an acquittance but because it was after Verdict and the Error assigned in the Plea which the Defendant himself had pleaded The Judgment was assirmed Only and Font Le Roys Case 909. Debt being against an Executor he pleaded there was another Executor who administred and was alive and concluded Judgment si Action whereas he ought to have pleaded to the abarement of the Bill The Plaintiff replyed Billa cassari non debet It was objected to be Error out holden good notwithstanding the Bar of the Defendant would have concluded the Plaintiff Smithwick and Binghams Case 910. Error brought upon a Judgment in B. R. in Ejectione firme because the Plaintiff entituled himself to a Term for years by an Administration taken of the Arch-Bishop of Canterbury and did not alledge that the Intestate had goods in diverse Diocesses but the same was disallowed because it did not appear to the Court whether he had or not but if it had appeared to them they conceived the Administration taken had been void if the Inrestate had not goods in divers Diocesses Partridge and Turks Case 911. The case was A. seised of two Messuages in the Parish of St. Brides London demised them to the Parson and Churchwardens of St. Brides ad distribuend ' annuatim 5 s. of the profits to the poor of the Parish in honorem duplicationem omnium illorum annorum quibus Dominus noster Jesus Christus vixerat in terra and gave 20 s. to maintain a Priest and dyed and the Parson and Churchwardens were seised and the Jury found the Act of 1 E. 6. and that the King was seised ut Lex postulat and granted the same to I. S. in Fee who devised it to the Plaintiff for Life and that the Parson and Churchwardens reentred and were seised ut Lex postulat and so demised them to the Defendant The Question was whether Partridge the Plaintiff was in by disseisin or not It was adjudged in B. R. he was not in by disseisin Error was brought and it was adjudged that the gift of A. was good and the giving of 5 s. inter pauperes was no Superstitious use and where part is given to a good use and part to a Superstitious use the King shall have but that Rent which is given to the Superstitious use and the Land shall go to the Devisee 2. It was said the entry of Partridge was no Disseisin because no actual expulsion of the Parson and Churchwardens were found but the Court held that because it is found that Partridge when he made the Lease was seised prout lex postulat his Seisin shall be intended lawful and not by disseisin and it cannot be lawful because the Devise was good to the Parson and Churchwardens and therefore it was by disseisin and afterwards the Judgment was reversed Bucknel and Heys Case 912. Error brought upon a Recovery in Battery in B. R. and assigned that there was no Bail there and upon a Certiorari the Chief Justice certified Bail I. H. without addition and with a Blanck for the place of his Habitation The Judgment there was reversed because no bail for the party who was sued and so he was never in the custody of the Marshal nor could be sued there Turges and Beachers Case 913. In Assumpsit in B. R. the Declaration was That the Defendant was indebted to the Intestate 30 l. for the residue of 100 Quarters of Wheat sold to him by the Intestate The Defendant promised the Plaintiff being Administrator to pay it when he should be required Found for the Plaintiff there the Judgment was reversed because in the case Debt lay and not Action upon the case Ody and Yates Case 914. Note It was holden by all
Debt against Executors upon Obligation of 200 l. they pleaded a Recovery by a stranger of 200 l. upon another Obligation and averred it was a just and true Debt ultra which they had not in their hands the Plaintiff said the Recovery was by Covin It was adjudged in B. R for the Plaintiff Error brought and the Judgment reversed for it could not be by Covin if it was a just Debt and the Replication should have been absque hoc it was a just and true Debt Morses and Rosses Case 935. Assumpsit In consideration the Plaintiff would surcease his Suit which he had in Chancery against the Defendant the Defendant promised to save him harmlesse from all actions which should be brought against him for or Concerning a Lease which the Defendant had assigned to him and alledged he surceased his Suit and that a Stranger had brought an action against him in B. R. by reason of the said Lease and the Defendant did not save him harmlesse Judgment being for the Plaintiff in B. R. It was reversed because he did not shew the certainty of the Action brought against him nor that it was for any matter in esse at the time of the promise Wood and Bukleys Case 936. Action upon the Case whereas Wood exhibited his Bill against Buckley in Star Chamber containing he had nusselled Pirats Murtherers and other Malefactors he being a Justice of Peace and Vice-Admiral Wood afterwards in another place having speech with divers concerning as well of the ill carriage of the said Buckley as of the matter in his Bill against Buckley in the Star Chamber said I will Justify every matter therein to be true The Defendant Justified the speaking of the words being examined upon the truth of his Bill before I. S. and I. D. by Command of the Councell and traversed that he spake them at any other place or time upon demur being adjudged for the Plaintiff upon Error brought the Judgment was reversed because no action lying for the exhibiting of the Bill no action lay for saying the words of his Bill were true Sir Henry Berkley and Earle of Pembrooks Case 937. Action upon the Case by the Earl of Pembroke against Sir Henry Berkley and shewed he was seised of the Mannor of S. to which the Office of the Keeper of the Forrest of F. did appertain in Fee and to have omnia bona forfeited within the Forrest fugam facere bis per annum quicquid de hujusmodi fugatione accidere possit and to have Hony Wax mortuum boscum c. appertaining to his Office and the Defendant disturbed him to exercise the said Office The Defendant pleaded a Deed in Tail in Bar made by the Plaintiff In the Deed there was a Proviso viz. Provided alwayes and the said Sir Henry Berkley doth Covenant for him and the Heirs males of his body to and with the said Earl and his Heirs to preserve the game as far as commonly hath been used and that he nor his Heirs males shall cut or sell any woods there except for browse and necessary reparations and the Plaintiff said the Defendant had cut down four Oakes and converted them to his own use and averred they were not for browse nor reparations and that he entred for the forfeiture It was adjudged upon a demur in B. R. for the Plaintiff Error was brought upon the Exchequer Chamber upon the matter in Law that the Proviso was not a Condition but a Covenant but as to that point it was Resolved by all the Justices that the Proviso was a Condition 2. Error was that the damages were assessed entirely for divers things some of them being uncertainly and insufficiently alledged for he prescribed to have omnia bona forisfacta which could not be without Charter also to have de furgatione quicquid acciderit which was also uncertain and also the damages for them ought to have been severally assessed and not entirely The Court held that for that Cause the Judgment was erroneous and for that Cause only the Judgment was reversed Reymer and Grimstones Case 938. Assumpsit In Consideration he at the Defendants request had promised to wash the Defendants linnen and the linnen of his Servants and to provide meat and drink for the Defendant and his Servants the Defendant promised to pay so much money to the Plaintiff when he should require it so as it should not exceed the proportion used in O. for the like time and further declared that in Consideration the Defendant upon accompt between them made was in arrerage to the Plaintiff 18 l. the Defendant promised to pay him the said 18 l. and the Plaintiff shewed for how long time he had washed the Cloathes c. and that he required 8 l. which did not exceed the proportion in O. upon Non Assumpsit found for the Plaintiff and damages severally assessed for the Costs entirely Error was thereupon brought it was the opinion that the first Assumpsit was good and the second void and the Judgment given for the damages and Costs upon the first Assumpsit was good and the Judgment for them affirmed but for the damages assessed upon the second Assumpsit and for the damages de incremento entirely give for both the Judgment was reversed Goodall and Wyatts Case 939. In Ejectione firme The Case was A. made a Feoffment of Lands to B. in Fee upon Condition if A. paid within a year after the death of the Feoffee to his Heirs Executors or Administrators 100 l. that the Feoffment should be void B. made a Feoffment over to C. and dyed and afterwards within the year it was agreed betwixt A. and the Administrator of the Feoffee that the said A. should pay to the Administrator the 100 l. and that the Administrator should repay back all to A. the Feoffee but only 32 l. which was done accordingly and then A. entred into the Lands pretending the Condition was performed it was adjudged in B. R. that his entry was not Lawfull and that this fraudulent and Covenous payment was no performance of the Condition and upon a Writ of Error brought in the Exchequer Chamber all the Justices a greed that the Judgment given in B. R. should be affirmed Vitsey and Fermours Case 940. The King granted Manerium de H. in Parochia de R. omnia terras decimas haereditamenta sua in R A. in the tenur of I. S nec non omnia alia terras tenementa haereditamenta in R praedict ' It was adjudged in B. R. that the Tythes in H. which was a Town within the Parish of R. did passe But upon Errour brought the Judgment was reversed because R. praedict shall be intended R. the Town and not R. the Parish Adams and Dixons Case 941. Assumpsit the Plaintiff was Bail for I. S. in B. R. the Defendant in Consideration that he should pay him the Condemnation promised to deliver to him the Bond made for the principal Debt and a letter of
Attorney to sue the principal in his name It was adjudged for the Plaintiff in B. R. and upon Error brought the Judgment was reversed because it was an insufficient Consideration Dickenson and Sheres Case 942. Upon the awarding of the Venire facias upon the Roll the day of the return of it was omitted this being assigned after verdict for Error was holden by the Court not to be Error 943. Note it was Resolved by the Justices that an action lyeth for the Rector of a Parsonage against the Parishoners for not seting forth of their Tythes although the Statute of a Edward 6. drâ—h not appoynt who shall have the action English and Bowers Case 944. Covenant upon an Indenture of demyse of the Rectory of S. in the County of O. The Indenture was made at London and the Venire Issued to the Sheriff of O. It was assigned to be Error but the Court held it good because it shall be of the County where the Land lyeth Heley and Rigs Case 945. A Bill was exhibited in the name of Rigs per Johannem Keeling attornaâ— ' suum and the Warrant of Attorny was posuit lcco suo Gulielmum Keeling the same was assigned for Error but the Justices caused it to be amended and affirmed the Judgement Maylard and Kesters Case 946. Assumpsit In Consideration the Plaintiff would sell and deliver to the Defendant pannos laneos pro funer alibus of a Clark he promised to pay him for them cum inde requisitus esset and alledged he sold and delivered divers Cloths to him viz. 31. yards of black Cloth for 19 l. and recited divers other particulars amounting to 160 l. upon Non Assumpsit found for the Plaintiff Error brought in Exchequer Chamber and the Judgment was reversed because Debt properly lay and not Assumpsit Wolley and Mosleys Case 947. Action of Assault and Battery in B. R. upon a demur the Plaintiff had Judgment to recover It was a Warded upon the Roll à Fierifac to enquire of damages returnable die Martis post tres Trinitatis and the Writ was in facto returned die Mercurii post tres Trinitatis which was the very date of the return upon the Roll and the Plaintiff had damages and Costs 40 l. Error was brought and assigned whereas by the Record of the Continuance the Plaintiff appeared by I. P. his Attorney that before that time he was dead The Court held that to be no Error because the Record is to be credited before the allegation of the party 2. Because there was variance between the Roll and the Writ the Court held that was amendable 3. That the Writ is executed the same day of the Return that was holden to be no Error and so it was said it was adjudged Mich. 37. and 38. Eliz. in Gawen and Ludlows Case In the Court of Wards The Queen and Savages Case 948. A. seised of Lands holden in Capity by Knight service by License 27 H. 8. conveyed the same to his Son and Heir apparent and F. and their Heirs in consideration of Marriage betwixt them who intermarried and 2 E. 6. by Fine regranted the Land to the Father who rendred it to the Son and his Wife and to the Heirs of their two bodies begotten the Father dyed the Son haveing Issue three Daughters dyed 5 Mar the eldest Daughter had Issue Fran. Mooâ—e and dyed 25 Eliz. F. took second Husband W. Savage and they 28 Eliz. Leased the Rectory of K. to I. S. for 60. years and after granted the Reversion of the Rectory and Leased the Mannor to A. Savage for the life of F. Afterwards a Common Recovery was had in which S. and his Wife were vouched The Queen prayed to have the Wardship of Fran. Moore and to have the primer seisin and profits of the Land after the death of the Wife W. Savage averred the Recovery was to the use of himself pretending thereby that the Issues in Tail of the Son of Agnes and F. were barred In this Case it was Resolved for the Queen for one moyety and that the first Feoffment by A. to his Son F. before Marriage was not within the Statute of 11 H. 7. but when they Reconveyed back the Land that was a Conveyance of each of them their parts and then the render of the whole to them in special Tail as to the moyety of the Son the gift of the Father to the Son and his Wife within the Statute of 11 H. 7. but as to the gift of the Wife by the Fine was not within the Statute but the Recovery as that should bind the Issue Fishers Case 949. It was found by Office that A. seised in Fee of divers parcells of Lands holden by Knight service in Capite 21. Eliz. by License conveyed them to I. S. and E. his Wife Daughter of the said A. and that afterwards by Indenture he Covenanted for Fatherly love and affection that after the sealing of the said Indenture he would stand seised of the premises to the use of the said I. S. and E. his Wife in Tail Remainder in Fee to a stranger It was not found when the said Indenture was sealed and delivered nor that I. S. and E. his Wife were seised in Tail nor was it found in the Office Sic inde Seisitus did Covenant Notwithstanding these Exceptions it was Resolved that the Office was sufficient wherefore a Travers was to the Office Gervoyes Case 950. A. seised of the Mannor of N. in the County of W. and of Lands called F. in the County of of S. in Consideration of Marrage and for a Jointure for his Wife Covenants that he and his Heirs shall stand seised of the Mannors Lands c. to the use of himself and his Wife for their lives after their deceases to the use of the Heirs of the body of A. The Lands in F. are recovered by verdict from A. only during the Coverture between them A. dyeth his Heir within age It was Resolved in this Case that the Wife should have recompence for the Lands which were Enrolled during the Coverture although she accepted of the Residue of her Joynture after the death of her Hâ—sband Forsters Case 951. The Husband seised of Land in the Right of his Wife which was holden in Knight service the Heir being in Wards committed wast in the Lands Resolved the Husband should be charged to the value of the Lands and lose the possession of the Lands so long as his Wife should live Georges and Stanfields Case 652. Lands by Act of Parliament were assigned to the Countesse of Bindon during her life the Reversion to her Daughter who was in Ward to the Queen the Viscountesse took Husband and she and her Husband committed wast in the Land For the punishing of which a Bill was exhibited in the Court of Wards Resolved that the Court of Wards could not adjudge treble damages for the wast in this Case and therefore the Case was dismissed to Law Bridges Case 953. A. bargained and
sold Lands to B. and C. by Deed enrolled they suffered a Recovery to the use of A. and his Wife who was the Daughter of B. for her Joynture the Remainder over in Tail to their Issues A. dyed his Heirs within age Resolved in this Case it was an Assurance by A. himself for the advancement of his Wife and her Issues within the Statute of 34 H. 8. and the Heir of A. should be in Ward for the third part of the Land The Earl of Bedfords Case 954. The Case was this Francis Earl of Bedford made a Feoffment in Fee of the Mannor of D. to the L. St. John and others to the use of himself for 40. years and after to the use of John his second Son and the Heirs males of his body and for want of such Issue to the use of the right Heirs of the Feoffor Afterward Edward Lord Russell Heir apparent of the Earl dyed without Issue male of his body having issue Eliz. and Anne Daughters Afterward Francis by Indenture between him and I. S. and others for the advancement of the Heirs males of the body of the said Earl and the establishing of his Mannors in his blood Covenanted to stand seised of the said Mannor to the use of himself for life and after his decease to the use of Francis Lord Russell his youngest Son and the Heirs males of his his body with divers Remainders over Afterwards Francis Lord Russell dyed having Issue Edward Lord Russell and after dyed and if the Daughters of the said John Lord Russell or the Earl of Bedford should have the Mannor of D. was the Question in the Court of Wards It was Resolved the Daughters should not have the said Mannor but the Earl because there was no right Heir to take as purchasor when the estate Tail was determined by the death of John Lord Russell without Issue male for the Remainder to the right Heirs cannot be preserved by the mean estate for years for it ought to be a Freehold at least which ought to preserve such a Remainder till there be one to take it by the name of a purchasor as right Heir Andrews and Sheffields Case 955. A. hath Issue three Sons B. C. and D. and seised of Lands in P. by Will deviseth them in this manner viz. I will that all my Lands in P. shall Remain after the death of my Wife to C. my Son and his Heirs and if it fortune that D. liveth untill the said Lands come to C. then I will that C pay to D. 10 l. every year as long as D. liveth A. dyeth C. commeth to the Lands and payeth the Rent hath Issue and dieth It was Resolved that in this Case the devise did enure as a Rent-seck for the life of D. and the Lands in the hands of the Heir or Assignes of C. should be chargeable with the same Wrotesleys Case 956. A. seised in Fee of the Mannors of N. and W. of the Mannor of D. in Tail Covenanted to stand seised to the use of himself and his Wife and to his own right Heirs Afterward he dyed seised of these Mannors and also sole seised of other Lands in Fee The Mannor of D. was holden in Capite It was found that A. dyed his Heirs within age the body and Lands of the Mannor of D. was committed to I. S. and I. D. the committee ousted the Wife of D. It was Resolved that the Wife of A. should have recompence to the value of the said Mannor of D. out of the other Lands of the Heir of which his Ancestors dyed seised Boydell and Walthalls Case 957. The Case was A. seised of Land in Fee an Indenture was made purporting a Feoffment to B. and C. with Waranty There was another Indenture bearing date the same day with the first between the Feoffees and the Feoffor whereby the Feoffer reciting the former Feoffment to them granted that immedâ—atly after the said Feoffees and their Heirs and Assignes have taken and received the profits of the Lands during the Terme of 100 years then it should be Lawfull for A. his Heirs and Assignes to reenter and have the said Lands in their first right and Title It was Resolved by the Justices in this Case that the Intent upon the Livery was that the Feoffor should have the Lands after the 100. years quit possession of the Feoffees and that the use did immediately arise to the Heirs of the Feoffor as soon as the Lands had been enjoyed for 100. years and that by the Statute of 27 H. 8. the Heir of the Feoffor might enter The Earl of Rutlands Case 958. Ed. Earl of R. seised in Fee of and in the Reversion or Remainder of the Mannor of E. expectant upon the death of B. Countesse of B. who held the same for life for the augmentation of the Joynture of I. his Wife Covenanted 21 Eliz. with I. S. and I. D. before the last day of Trinity Term next following by Fine or other assurance to assure the Reversion or Remainder of the said Mannors to them and their Heirs and the parties thereof seised should stand seised of and in the Reversion and Remainder of the said Mannor to the use of the said Earl and the said I. his Wife and the Heirs of the said Earl for ever Afterwards in the same year by another Indenture made between the said Earl the Lord Treasurer and the said I. S. and others of the other part for the advancement of him who should succeed him in the Earldom and the advancement of the Heirs male of T. late Earl of R. his Grandfather to convey the Castle and Honor of B. and the said Mannor of E. amongst other Lands to the said Lord Treasurer and others to the use of the said Earl and the Heirs males of his body and for want of such Issue to the Heirs males of Tho. his Grandfather with divers Remainders over and by the last Indenture further Covenanted that if the said Earl before the Feast of our Lady next should not sufficiently convey all the said Honors Mannors c. in the last Indenture in manner and forme as therein is mentioned that then he and all other persons seised should from thenceforth stand and be seised to the uses in the last Indenture No Fine was levyed of the Mannor of E. before the end of Trinity Term but in Mick Term a Fine was levyed of the said Mannor within the time limited in the last Indenture and another Fine was levyed of other Land but not of the Mannor of E. and after the Earl died The Quest on in this case only was whether I. the wife of the said Earl might during the Life of B. Countess of B trayerse the Office found after the death of the Earl viz. That the Fine levyed of the Mannor of E. was not to the uses limited in the latter Indenture Resolved that the Office was insufficient for the Incertainty where it found the Earl was seised of the Reversion
or the Remainder and therefore no traverse could be to it but they conceived if it was a Reversion a Traverse did presently lie if a Remainder that it did not lie till after the death of the Tenant for Life which was B. Countess of B. Worleys Case 959 A seised in Fee of the Mannor of D holden in capite with 500 l. to be sold having a long intent to sell the same that he might more freely dispose of his other Lands and satisfie a just debt of 60 l. which he owed to I. S. by Deed indented and enrolled in consideration of the said Debt and other considerations viz Vpon trust and confidence that he should pay to W. his Executors or Assigns within one year so much mony above the said 60 l. He bargained and sold the said Mannor of D to I. S. and his Heirs W. within one year died no mony paid his Heir within age It was Resolved his Heir should not be â—n Ward because neither the Land nor Surplusage of the same ought to come to his Heir by the Trust nor be paid to the children or wife oâ— W. Drowâ—s Case 960. A. seised of divers Messuages in the Parish of S. in London made a Lease thereof for 31. years to B. and M. his Wife paying yearly during the Term 60. l. at four Feasts viz. The Nativity c. or within 28 days after each of the said Feasts afterwards he covenanted to stand seised to the use of himself for Life and after to the use of his eldest Son and his Wife and the Heirs of their two Bedâ—es and then for mony he bargained and sold the Land by Deed enrolled to I. S. to hold to him and his Heirs during the Life of the Lessor I. S. dyed seised of that Land and of other Lands holden in capite his Heir within age It was found by Office that A. died after the Feast of the Nativity and within the 28 days next following Resolved the Rent was due to him in the Remainder and that the Wardship of the Land being but a Freehold discendable did not belong to the Queen Digbies Case 961. A Tenant in Tail in the Mannor of C in the County of W. the reversion in the Crown and in Fee of Lands in the County of D. and in C. aforesaid and of Lands in the County of B. by his Will devised that his Lands in D. which he appointed to be a third part of the whole should discend to his Heir the Manner of C. and all his Lands in B. he devised to his Wife in recompence of her Dower for Life so long as she should be Soâ—e and then to his Son and Heir and he charged his Lands in B. with Annuities to his younger Sons and portions to his Daughters Afterwards by a Codicill annexed to his Will he devised to I. S. and I. D. and their Heirs all and singular his Lands in C. whereof himself was then seised to him and his Heirâ— in Fee simple to the use of his Son and Heir so long as he and all claiming under him should suffer his wife and children to enjoy the Lands and Annuities devised to them and he should interrupt or deny it then he devised all his Fee-simple Land to his Wife and his younger Sons A. died his Son and Heir within age It was in this case Resolved that the Qâ—een by reason of the Wardship of the Heir should not have more of the Fee-simple Lands in D then so much as would make the entailed Land to be the third part of the whole Creswâ—lls Case 962. Certain Lands called S. were holden of the Mannor of P. by rent and Suit of Court P. was holden of the Mannor of G by Rent and Suit of Court the Mannor of G. came to the Crown by the Statute of Disâ—olutions The King H. 8. granted the Mannor of G. to I. S. and his Hâ—irs to hold by Knight Service in capite I. D. purchased the Mannor of G and afterwards he purchased the moiety of the Mannor of P. and the Lands called S. I. D. died the Lands purchased by him discended to his Son who purchased the other moiety of P. and afterwards enfeoffed C. of the Lands in S. It was Resolved in this case that I. D. held the Lands called S. by Knight Service in capâ—te by a whole Knights Fee Lâ—mâ—oâ—s Case 963. It was Resolved in this case in the Court of Wards that if the Jâ—ry do not find an Office according to the direction of the Court they shall be committed to the Fleâ—t vide diverse Presidents there accordingly Sir William Knoâ—ts Case 964. The case was A. died seised of Lands purchased by him and discendable to the Heis Males of his Body holden by Knight Service in capite of the value of 140 l. per annum and also of capite Land discendable to his Heirs general of the value of 13 l. per annum and an executed Estate for the advancement of his Sons of Soccage Land in capite to the value oâ— 48 l. B. was his Son and Heir Male and the two Daughters of his eldest Son deceased were his Heirs general It was Resolved that no Livery nor Primer Seisin should be of the Lands executed for advancement because the Queen was satisfied by the discent to the Heirs Males of the Livery and Primer Seisin of more then of a third part of the Lands Strangways and Sir Henry Newtons Case 965. The case is very long put but in effect was this The Father limited divers Mannors and Lands by Indenture to the use of himself and his Heirs untill the marriage of his Son with the Daughter of I. S. and after marriage to the use of the Father for Life only and after to his Sons Wife for Life for her Joynture The Father died before Marriage and afterwards the Marriage took effect The Question was if the use should rise to the first Wife Note That the Father before his death made his Will and thereby devised portions to his Daughters to be raised out of the said Land by his Executors and then died his Heir within age The two chief Justices doubted much this case but they enclined to be of opinion that if there was a devise of the Land that the same had interrupted the raising of the Future use for the Joynture c but they doubted of the Devise because he devised portions out of the Lands but did not devise the Lands themselves Framptons Case 966. A seised in Fee of the Mannors of M. and B. and of the moiety of the Mannor of V. covenanted to levy a Fine to I. S. and others of the said Mannors viz. of all the said Mannors to the use of himself for Life and afterwards of the Mannor of M. to the use of I. his wife for her Life and after to such Heirs of the Body of A. as be should afterwards beget of the Body of her or of any other woman which he should after marry
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
be of the Castle The Court held it to be a Mis-tryal although it was tryed for the Defendant who moved the Exception Cooper and Andrews Case 1120. Prohibition upon a Modus Decimandi in a Park the Viccar had 2s yearly and the Shoulder of every third Dear killed in the Parke the Parke being Dis-parked the Viccar sued for Tythes in kind The Court was divided in opinion Nichols and Hobart Justices that notwithstanding the Dis-parking the Modus did remaine Winch and Warburton Justices that by the Dis-parking the prescription as to the Modus Decimandi was determined that Tythes should be paid in kind Quere Cuddington and Wilkins Case 1121. Action upon the Case for calling the Plantiff Theif the Defendant justifies that he had stollen the Sheep of I. S. the Plaintiff said that before the words were spoken he was pardoned by the general pardon and pleaded the Pardon adjudged the Action did lie by reason of the Pardon Pope and Skinners Case 1122. The Case was more fully reported in Hobarts Reports 73. and was this In a Replevin the Defendant avowed as a Commoner taking the Cattle dammage feasants The Plaintiff said that A. was seised of an House and Land wherein he had Common and devised the same to him the 30th of March 11. Jac. to hold from the Feast of Annunciation next for a year The Avowant traversed the Lease modo forma Issue was taken and found thereupon That A. made a Lease to the Plaintiff 25 of May. for a year thence next ensuing It was holden that although this be not the same Lease that the Plaintiff pleaded Yet the Court gave Judgment for the Plantiff for the substance of the Issue is whether the Plaintiff have such a Lease from A. or not as by force thereof he might have Common which appeared he had and the modo forma in the rest is not material but yet it was said he must not depart altogether from the forme of this Issue for if it had been found that he had right of Common by a Lease from another it would not have served his turn for that had been clear out of the Issue both for matter and form 1123. Debt upon an Obligation The Obligation was in Octogefimis Libris Yet the Court held the Obligation to be good Sparke and Parnells Case 1124. A. seised of Gavelkind Land had issue 3. Sons and devised to each of his Sons a several part and if any of them dyed without Issue the other should be his heir It was adjudged Tail in each of them and the Fee simple by the word Heir in the other Slawny and Elbridges Case 1125. It was Resolved in this Case That the Ordinary cannot take an Obligation of the Administrator after the Debts and Legacies paid but the residue of the goods shall remain at the appointment of the Ordinary Weaver and Wards Case 1126. Batterie the Defendant justified that he being a Training at a Common Master as a Soldier discharged his Gun per insortunium hurt the Plaintiff and traversed that he was guilty aliter vel alio modo adjudged the Justification was not good because he ought to have further said that he could not otherwise avoid the fact and when he justifieth the whole fact there needs no traverse Pye and Cookes Case 1127. Two persons exhibited two several informations against an Ecclesiastical person for taking a Lease for years contrary to the Statute of 21. H. 8. It was the opinion of the Court they being exhibited at one time and for one thing the Defendant was not Answer to any of them Pits and James Case 1128. The Case was The Hospital of Donnington in the County of Berks was founded by the name of Minister Dei pauperis domus de Donnington and they made a Lease of parcell of the Lands of the Hospital in English Minister of the Almeshouse of God of Donnington besides Newbury in the County of Berks. It was holden the seeming variance did not hurt nor avoid the Lease for if they do agree in Common understanding it shall be good vide the same Case Hil. 43. Eliz. in Banco Regis Sherborn and Lewis Case Robins and Barnes Case 1129. In a Quod permittat for erecting of an Newsance 20. foot in length and 8 in bredth It was Resolved by the Court that if one be owner of 2 Houses and one doth a Newsance to the other and the owner sells the house which makes the Newsance that the vender shall never abate the Newsance 1130. Words spoken of I. S. he was in prison for stealing of Horses adjudged an Action lyeth for the words otherwise it is if but for suspition 1131. In an Assise the Writ was Recognitionem illum where it should have been illum It was amended Lampleigh and Braithwaits Case 1132. Assumpsit B. having killed a man required the Plaintiff to do his endeavor to get his pardon for which he went to the King to Royston and obtained the pardon In consideration the Plaintiff had done his endeavour the Defendant promised him 200l It was said it was no good consideration because the consideration was executed before the promise But Resolved the Action did well lie because there is a Request before the endeavor had and then the Assumpsit subsequent after the Consideration executed is sufficient Tasker and Salters Case 1133. Batterie The Defendant Justified that he was a Copyholder and that the Lord of the Mannor for him and his Copyholders had a way over the Land of the Plaintiff who was also a Copyholder of the Mannor and that he going in the way was resisted by the Plaintiff for which Molliter he laid his hand on him upon which they were at Issue It was agreed by the Court that the Lord of the Mannor could not have a way over his own Land 2. Agreed although the verdict passed upon a void Issue the same was not remedied by the Statute of 32. H. 8. Wherefore a Repleader was awarded VVintham and Kemps Case 1134. Quare Impedit the Plaintiff counted that he was seized of a Mannor with an Advouson appendant viz. to present every first Turn It was said the viz. was void and made the Count insufficient because crossed the premises but the Court Resolved that the Count was good Coxes Case 1135. Words spoken of an Atturney viz. Thou art a Common maintainer of Suites and a Champerter I will have thee thrown over the Barre the next Terme Adjudged the words were Actionable Small and Dales Case 1136. A. seised of Lands in Copitie had Issue B. his Son and Heir and E. a Daughter by one woman and two Daughters by a second Wife and W. a Son by a third Wife and devised all his Lands to his Wife durante viduitate and dyed the Wife entred and dyed B. before any entred dyed It was Adjudged the Will was void for a third part and that the entry of the Wife in the whole made her seised but of two parts in Common
for calling the Wife Witch a Prohibition was prayed and denied because a Defamation for which no Action could lie at common Law Quaere for since 1 Jac. an Action at Law lies for the Words 1196. Upon a Suit to revoke an Administration the Judge in the Ecclesiastical Court would have examined the party upon Covenants and what Land he had by discent and a Prohibition was awarded Collier and Colliers Case 1197. The Spiritual Judge would have examined the parties in a Suit of Incontinency upon their Oaths if they committed the Fact or not and a Prohibition was awarded Manns Case 1198. He was sued in the Spiritual Court for the marrying of one of his wives sisters Daughters and a Prohibition awarded because such marriage is forbidden by the Levitical Court Sherburn and Clerks Case 1199. Suit was in the Spiritual Court for the Tythe of wood in a Park There was a surmise for a Prohibition that a Modus had bin paid time out of mind to the Vicar for the Tythes of the Wood there the Parson sued in the Spiritual Court and because the right of Tythes came in debate betwixt the Parson and Vicar a Prohibition was denied by the Court. Fryer and Bestneys Case 1200. The Question was in the Spiritual Court whether the Tythe Hay did belong to the Parson or the Vicar a suggestion being of a Modus to be paid to the Vicar It was doubted if a Consultation should be in the case the ground of the Prohibition being a Modus decimandi Bagnell and Stoakes Case 1201. A Prohibition was granted after a Sentence in the Spiritual Court for a Legacy in a Suit where a Release was pleaded and they refused to allow of it because proved but by one Witness Forster and Peacocks Case 1202. Resolved that for Birch above the age of Twenty years growth Tythes should be paid Wray and Clenches case 1203. Resolved That of small Oakes under Twenty years growth apt for Tymber in time to come shall not pay Tythes Ran and Patisons Case 1204. Of Dotard Trees although converted to Fire-wood Tythes shall not be paid Broke and Rogers case 1205. Resolved Tythes shall not be paid of the toppings and loppings of Trees which are aridae cavae in culmine putridae where the bodies of the Trees being Tymber are discharged being 20. years growth of Tythes Sovell and Woods Case 1206. The Clerk of a Parish prescribed that he and his Successors had used to have 5 s. per annum of the Parson for the Tythes of a certain place within the Parish and a consulation was awarded because a Clerk Dative and Removeable cannot prescribe Libb and Watts Case 1207. Resolved that Tythes shall not be paid of Slates nor of the Quarreys of Slate or Coale 1208. A Prohibition was prayed where the Parson sued in the Spiritual Court for Tythe of Pigeons and awarded to stand because the Court thereof would not allow their proof without two Witnesses Bedingfield and Feakes Case 1209. The Parson had the great Tythes and the Vicar minutas decimas Land within the Parish was sowed with Safforn the Vicar sued in the Spiritual Court for the Tythe of the Safforn Resolved Safforn is minuta decima and the Vicar shall have it although the Land had paid Tythe corn before Sherington and Fleetwords Case 1210. Resolved that Land that was not barren of its own nature but is become unprofitable by ill Husbandry or negligence is not priviledged by the Statute of 2 Ed. 6. to be discharged for the first seven years of Tythes Austin and Lucas Case 1211. Resolved That of Broom or Fewel spent in a House within the Parish Tythes shall not be paid Awberies Case 1212. Suit was in the Spiritual Court for the Tythe of the Aftermowings of Grass and upon a Surmise that the Occupiers of the Land had used to make the first cutting of the Grass into cocks for Hay and to pay the Tenth cock thereof in satisfaction of the first and after-mowing a Prohibition was awarded Green and Handlies Case 1213. Resolved Tythes shall not be paid of the Rakeings of corn unless it be a covenous Raking to deceive the Parson 2. That it is a good custom to pay the Tythe wool at Lammas day though it be due upon the clipping 3. That for the Pastorage of young barren Cattel preserved for the Pail or Plough no Tythe shall be paid 4. That a Prescription to pay a penny called a Hearth-penny in satisfaction of the Tythe of all combustible wood is a good Prescription Blincoes Case 1214. Resolved if the Vicar be endowed of all Petty Tythes of all the Lands within the Parish yet he shall not have Tythes of the Gleab of the Parson for Ecclesia Ecclesiae dec mare non dâ—bet But if the Parson Lease out his Gleab the Vicar shall have minutas decimas of the Lessee Gresham and Lucas Case 1215. Suit in the Spiritual Court for the Tythes of Milchkyne Steers Oxen and Horses A Surmise was made to pay one penny for every milch Cow a half-penny for every other Cow and a half-penny for every Mare in satisfaction of all Cows Horses Steers and other Chattell A special consultation was awarded dummodo non tractatur de vaccis mulcibilibus bobis Caâ—ucae nec bestiis agist ' proproâ—icuo domus 1216. A Custom to pay a half-penny for the Wool de ovibus venditis after shearing and before Mich. was adjudged a good custom Mich. 38 Eliz. Austin and Pigotts Case 1217. It was surmised in the Spiritual Court that the Parson had twenty Acres of Pasture ten Acres of Wood in satisfaction of all the Tythes of the Land in demand he failed in the precise proof of his whole Surmise for he proved the the twenty Acres of Pasture but not the ten Acres of Wood and a Prohibition was granted and it was said it was not material to shew by what Title the Patron had the Land but if he had the same in any other manner the Parson is to shew it and a Prohibition was granted Green and Pipes Case 1218. Suit was for the Tythes of an house in London a Prohibition was paid upon a Surmise that the house was a Priory which was discharged or Tythes by the Popes Bull and the Statute of 31 H. 8. which gave their Possessions to the Crown did ordain that the King and his Patentee of such Lands should be discharged of Tythes yet a consultation was awarded because by a Latter Statute viz. 37 H. 8. c. 1. all houses in London shall pay Tythes according to their Ordinances and that Statute extends to all houses and none excepted but the house of Noblemen Leâ—gh and Woods Case 1219. Resolved if the Owner sets forth his Tythes and a Stranger takes them no Suit shall be for the same in the Spiritual Court But if the Owner himself after he hath once set forth his Tythes takes them away again the Parson may sue him in the Spiritual Court for the Tythes Beadle