Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	good_a	lease_n	rent_n	1,458	5	9.8141	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A64510	The third part of Modern reports being a collection of several special cases in the Court of Kings-Bench: in the last years of the reign of K. Charles II. In the reign of King James II. And in the two first years of his present Majesty. Together with the resolutions and judgments thereupon. None of these cases ever printed before. Carefully collected by a learned hand.; Reports. 1660-1726. Vol.3.	England. Court of King's Bench.	1700 (1700)	Wing T911; ESTC R222186	312,709	406

not avoid such Acts done by their Ancestors as well as Privies in Blood because the Incapacity of the Grantor goes to both Those who argued on the other side held that the Acts of Infants and persons non compos were not void in themselves but only voidable E contra 'T is true some Deeds made by an Infant are void not meerly Cro. Car. 502. because executed by him for some are good and those only are void which are made to his prejudice Such also are void which give Authority to a third person to do an Act as if an Infant enter into a Bond Perk. Sect. 139. March 141. and give it to a Stranger to deliver to the Obligee when he shall attain his full Age this is void because the person derived his Authority from an Infant who by reason of his Nonage could not give such a Power but if the Infant himself had delivered the Bond to the Obligee it had been only voidable Lit. Sect. 259. The Father of the Demandant was an Infant when he sold his Estate 46 E. 3.34 his Son brought the Writ Dum fuit infra-aetatem against the Alienee and it was held good which would not have been allowed if the Grant had been void All the old Authorities prove that the Acts of Infants and Ideots are not void but voidable If an Infant is bound in an Obligation 't is not void Cro. Eliz. 127. 2 Inst 483. for he may agree to it when of Age he cannot plead Non est factum and he may refuse to plead his Infancy If he be entituled to a Term for years Cro. Eliz. 126. Cro. Car. 502. and maketh a Surrender by the acceptance of a new Lease 't is good if 't is for his advantage either by the lessening of the Rent or the encreasing of the Term but if he hath no benefit by it 't is voidable only So he may purchase Lands because the Law intends it for his benefit and he can receive no damage by such a Purchase for he may either perfect or avoid it at his full Age which shews that such Acts are not voidable ab intio but only voidable as the Case shall require The Statute of 23 H. 6. Enacts 23 H. 6. c. 10. That Sheriffs shall take no Bonds upon an Arrest but for the Appearance of the Party and to themselves only and that a Bond otherwise taken colore officii shall be void that is not in its self but by pleading the Statute for 't is not to be avoided by pleading Non est factum So upon the Statute of Additions 1 H. 5. c. 5. 3 Co. 59. a. where a Man is outlawed without the addition of his condition or place of abode in the original Writ such Outlawry shall be void not of its self but it may be avoided by Writ of Error In like manner there are many Authorities to prove that the Acts of a person non compos are not void but voidable So is the first Resolution in Beverly 's Case that a Deed or Feoffment made by him is to be avoided by any other person but not by himself Thus stood the Law in the time of E. 35 Ass pl. 10. 3. For in an Assize the Defendant pleaded that the Plaintiff had released to him by Deed who replied that at the time of the making of the Deed he was Non compos The Court of Common Pleas seemed then to be of Opinion that the Replication was not good which shews that the Deed in its self was not void 't is true the Assize was then adjourned because that Opinion was directly against the Register which is that the Writ of Dum non fuit compos may be brought by the person himself notwithstanding his own Alienation But this hath since been denied to be Law Cro. Eliz. 398. for in Debt upon Bond the Defendant pleaded that he was Non compos and upon a Demurrer the Plea was over-ruled And of this Opinion was Sir William Herle Chief Iustice of the Common Pleas in 5 E. 5 E. 3.70 3. which was long before the Book of Assize So the Law continued till the Reign of H. 35 H. 6. f. 42. 6. viz. that the person himself could not avoid his own Feoffment either by Entry or Action The Writs de Ideota inquirendo and Dum non fuit compos import the same thing viz. that Acts done by them are not void for the first recites that the Ideot alienavit and the other that the Lunatick * Dimisit is there intended where the Estate is conveyed by Livery or for life and Alienavit is a Conveiance by Feoffment 17 E. 2. Stamf. Praerog 34. Dimisit terras Now if their Acts had been void ab initio then they cannot be supposed either to alien or lease their Lands which shews that such Acts are only voidable And as a farther Argument to enforce this the Statute de Praerogativa Regis was mentioned which gives the Custody of the Ideots Lands to the King during their Lives provided that afterwards it be given to their right Heirs ita quod nullatenus per eofdem fatuos alienetur Now to what purpose were these Words added if such an Alienation was void in it self Besides the Cases of Ideots mentioned on the other side and Lunaticks are not parellel for an Ideot hath a different incapacity from one Non compos 't is perpetual in an Ideot and for that reason the Law gives the King an Interest in him But a person non compos may recover his Senses Co. Lit. 2. b. Fitz. tit Issue 53. he may purchase Lands may grant a Rent-charge out of his Estate and shall not plead his insanity to defeat his own act If therefore this Surrender was not void at the time of the execution thereof but voidable only during the Life of the Surrenderor by office found then the Question cannot properly be whether the Lessor of the Plaintiff shall avoid it for that would be to revest the Estate in some body but the Surrender was good and the Estate for Life was utterly determined so that nothing being left to support the contingent Remainders those are also destroied And to prove this Chudleigh 's Case was relied on which was Co. 120. Sir R. C. was seised in Fee of the Manor of Hescot in Devon and having Issue Christopher and three other Sons made a Feoffment to the use of himself and his Heirs on the Body of Mary then the Wife of Mr. Carew to be begotten and for default of such Issue then to the use of his last Will c. for ten years and after the Expiration of that Term then to his Feoffees and their Heirs during the Life of Christopher Remainder to the Issue Male of Christopher in Tail with like Remainder to his other Sons Remainder to his own right Heirs He died without Issue by Mrs. Carew But before Christopher had any Son born the

on the 29th day of April seize the Goods of the said Toplady that after the seizure and before any Venditioni exponas viz. 4 Maij an Extent which is a Prerogative Writ issued out of the Exchequer against two persons who were indebted to the King and by inquisition this Toplady was found to be indebted to them whereupon parcel of the Goods in the Declaration was seized by the Sheriffs upon the said Extent and sold and the Mony paid to the Creditors but before the said Sale or any execution of the Exchequer Process a Commission of Bankrupcy was had against Toplady and that the Commissioners on the second of June assigned the Goods to the Plaintiff The Question was whether this Extent did not come too late And it was held it did or whether the Fi. Fa. was well executed so that the Assignees of the Bankrupts Estate could not have a Title to those Goods which were taken before in Execution and so in Custodia Legis And it was held that they had no Title Fitzgerald versus Villiers WRIE of Error upon a Iudgment in Dower Infant must appear by Guardian and the Error assigned was that the Tenant in Dower was an Infant and no Warrant was alledged of the admission of any Guardian 29 Assise pl. 67. Bridg. 74. Lib. Entr. 45. Hut 92. 4 Co. 53. Lit. 92. Hetl. 52. 3 Cro. 158. Moor 434. Hob. 5. that it might appear to be the act of the Court 't is true an Infant may sue by Prochein Amy but shall not appear by Attorny but by Guardian because 't is intended by Law that he hath not sufficient discretion to chuse an Attorny therefore 't is provided that he appear per Guardianum which is done by the Court who are always careful of Infancy and a special Entry is made upon the Roll. Viz. Per Guardianum ad hoc per Curiam admissum c. 2. The Appearance is by the Guardian in his own Name Viz. Et praedicta Katherina Fitzgerald per Richardum Power Guardianum suum venit dicit quod ipse c. it should have been in the name of the Party quod ipsa c. Adjurnatur Harrison versus Austin A Settlement was made as followeth Viz. What words amount to a Covenant to stand seised That if I have no Issue and in case I dye without Issue of my Body lawfully begotten then I give grant and confirm my Land c. to my Kinswoman Sarah Stokes to have and to hold the same to the use of my self for Life and after my decease to the use of the said Sarah and the Heirs of her Body to be begotten with Remainders over c. The Question was whether this did amount to a Covenant to stand seised so as to raise an use to Sarah without transmutation of the possession The Objection against it was Sid. 26. Moor 687. Dyer 96. 2 Roll. Abr. 786. Winch 59. Plowd 300. that Vses are created chiefly by the intention of the Parties and that by these words grant and confirm the Feoffor did intend the Land should pass at Common Law so it could not be a Covenant to stand seised 't is like the Case where a Letter of Attorny is in the Deed or a Covenant to make Livery there nothing shall pass by way of use but the possession according to the course of the Common Law and therefore there being neither Livery and Seisin or Attornment no use will pass to Sarah It cannot be a Bargain and Sale for that is only where a Recompence is on each side to make the Contract good besides 2 Inst 672. the Deed is not inrolled To this it was answered 1 Vent 137. that it shall be construed to be a Covenant to stand seised though the formal words are wanting to make it so and for that purpose it was compared to Fox 's Case 8 Co. 93. who being seised in Fee devised his Land to C. for Life remainder over for Life reserving a Rent and afterwards by Indenture in consideration of Mony did demise grant and set the same Lands to D. for 99 years reserving a Rent the Lessee for Life did not attorn in which Case there was not one word of any use or any attornment to make it pass by Grant and the Question was whether this Lease for years shall amount to a Bargain and Sale so that the Reversion together with the Rent shall pass to the Lessee without Attornment Hob. 277. and it was held that by construction of Law it did amount to a Bargain and Sale for the words import as much And in this Case it was adjudged that it was a Covenant to stand seised Hexham versus Coniers IN Ejectment the Plaintiff declared de uno Messuagio sive Tenemento An Ejectment will lye for a Tenement and had a Verdict but Iudgment was arrested because an Ejectment will not lye of a Tenement for 't is a word of an uncertain signification it may be an Advowson House or Land but it is good in Dower so is Messuagium sive Tenementum vocat ' the Black Swan for this addition makes it certain that the Tenement intended is a House Rex versus Bunny A Motion was made for a Melius inquirendum to be directed to a Coroner who had returned his Inquisition upon the death of Bunny that he was not compos mentis when in truth he was Felo de se But it was opposed by Serjeant Pemberton and Mr. Pollexfen who said that the Law gives great credit to the Inquest of a Coroner and that a Melius inquirendum is seldom or never granted tho' it appear to the Court upon Affidavits that the Party had his Senses Mod. Rep. 82. It hath been granted where any fault is in the Coroner or any incertainty in the Inquisition returned That there is such a Writ it cannot be denied Cro. Eliz. 371. but 't is generally granted upon Offices or Tenures and directed to the Sheriff 3 Keb. 800. but never to a Coroner in the case of a Felo de se who makes his Enquiry super visum Corporis DE Term. Sancti Mich. Anno 4 Jac. II. in Banco Regis 1688. In Trinity-Vacation last Mr. Justice Holloway and Mr. Justice Thomas Powell had their Quietus and Mr. Serjeant Baldock and Mr. Serjeant Stringer were made Justices of this Court And Mr. Justice Allibon who was a Roman Catholick died in the same Vacation and Sir John Powell one of the Barons of the Exchequer was made a Justice of this Court Sir Thomas Jennor another of the Barons of the Exchequer was made a Justice of the Common-Pleas and Mr. Serjeant Rotheram and Mr. Serjeant Ingoldby were made Barons of the Exchequer Wright Chief Justice Powel Justices Baldock Justices Stringer Justices Shuttleworth versus Garnet Intratur Trin. 1 Willielmi Mariae Rotulo 965. THE Defendant was Tenant of Customary Lands held of the Manor of A. of which Manor B. was Lord

But if any wrong be done in this Case the Party must Appeal so no Writ of Restitution was granted Rex versus Guardianum de le Fleet. AN Inquisition being found to seize the Office of Warden of the Fleet into the King's Hands Inquisition quashed the Court of Chancery assisted with three Iudges was moved that it might be Quashed The Exceptions taken were viz. 1. 'T is found that the Defendant was Warden of the Fleet but doth not say what Estate he had therein whether for Life or years or in Fee c. 2. The Offences which are the causes of the Forfeiture are laid to be committed at the Fleet by suffering Escapes and by Extortion and 't is not found where the Fleet is scituate so there being no Visne those Offences cannot be traversed 3. 39 H. 6.32 They do not find the Escape to be sine licentia contra voluntatem of the Warden the Debts being unpaid 4. Admitting it to be a Forfeiture the Office cannot go to the King but it shall go to the next who hath the Inheritance The Opinion of the Court was that there are two things which entitle the King to this Office neither of which were found by this Inquisition 1. An Estate in the Party offending 2. A cause of Forfeiture of that Estate Now here was no Estate found in the Warden but only that the Office was forfeited by suffering of Escapes c. If this had been an Office of Inheritance ● Co. 95. then it ought to be found that such a person was seised in Fee c. and so what Estate soever he had in it ought to be expresly found But as this is found 't is void because it doth not answer the end for which the finding of Offices was provided which is to entitle the King to the Offenders Estate An Indictment is but another sort of Office and here being no Estate found 't is much like an Indictment which finds no Offence therefore it must be quashed It might have been objected that no Man can tell what Estate the Warden had in this place and that not being known no Office could be found for the King But this Objection runs to the finding of all manner of Offices in general whose very nature is to find an Estate and to divest the subject thereof and vest it in the King Besides in this Case one of the Indentures by which the Office was granted to the Warden must be enrolled in the Court of Common-Pleas This cannot be helped by a Melius Inquirendum 3 Cro. 895. 9 Co. 95. Keilw 194. which never will support a defective Inquisition and this is such because it doth not appear that the Defendant had any Seisin or Estate in the Wardenship of the Fleet. Barker Mil ' versus Damer Hill 1 Rot. 635. AN Action of Covenant was brought by Sir William Barker who was Defendant in a former Action against Mr. Damer wherein he declared that William Barker his Father was seised in Fee of the Land in Question being in Ireland and made a Lease thereof to one Page for 31 years under the yearly Rent of 200 l. in which Lease Page did Covenant for himself his Executors Administrators and Assigns to pay the Rent to Mr. Barker his Heirs and Assigns That William Barker the Father by Lease and Release convey'd the Reversion to Sir William Barker the now Plaintiff that the Term was vested in the Defendant and assigns the breach for non-payment of the Rent The Defendant pleaded to the Iurisdiction of this Court that the Lands in the Declaration mentioned lay in Ireland where they have Courts of Record c. and so properly triable there To this Plea the Plaintiff demurr'd and the Defendant joyned in Demurrer The single Question was whether an Assignee of the Reversion can bring an Action of Covenant against the Assignee of a Lessee in any other place than where the Land is Those who argued that he may said that this Action being brought upon an Express Covenant is not local but transitory 2 Inst 231. Noy 142. 2 Cro. 142. ibidem Sid. 157. 2 Roll. Ab. 571. 1 And. 82. for debitum contractus sunt nullius loci and if it is a duty 't is so every where therefore it hath been adjudged that upon a Covenant brought in one County the breach may be assigned in another Tremain Serjeant Contra. E contra He admitted that Debt upon a Lease for years upon the Contract it self and Covenant between the same Parties are transitory Actions and may be brought any where but when once that privity of Contract is gone as by assignment of the Lessee or the death of the Lessor Latch 197. and there remains only a Privity in Law there the Action must be brought in the County where the Land lieth the reason is Hob. 37. because the Party is then chargeable in respect of the possession only Therefore it was held that where an Assignee of a Reversion of Lands in Sommersetshire brought an Action of Debt in London Cro. Car. 184. Jones 83. Dyer 40 b. upon a Lease for years made there reserving a Rent payable at London which was in arrear after the Assignment that the Action was not well brought for it ought to have been laid in Sommersetshire where the Lands were because the privity of Contract was lost by the assignment of the Reversion and therefore the Party to whom that assignment was made ought to maintain the Action upon the privity in Law by reason of the Interest which he had in the Land it self and that must be in the County where it lieth Curia There is a difference between an Action of Debt for Rent brought by an Assignee and an Action of Covenant for the first is an Action at the Common Law which hath fixed the Rent to the Reversion and therefore such an Action must be maintained upon the Privity of Estate which is always local But an Assigneé of a Reversion could not bring an Action of Covenant at the Common Law 1 Sid. 402. 3 Cro. 580. 1 Sand. 240. 32 H. 8. c. 34. for 't is given to him by a particular Statute viz. of 32 H. 8. but the Statute did not transfer any Privity of Contract to the Assignee but the intent of it was to annex to the Reversion such Covenants only which concerned the Land it self as to repair the House or amend the Fences and not to anner or transfer any collateral Covenants as to pay a Sum of Mony for that is fixed by the Common Law to the Reversion 'T is true At the Common Law an Assignee of a Reversion might have maintained an Action of Covenant for any thing agreed to be done upon the Land it self Privity of Contract is not thereby transferred so as to make the Action transitory but it must be brought upon the Privity of Estate for if a Man doth covenant to do any collateral thing not in the

Mony for putting them out which must be to such who are willing to to take them for Mony 270 Arbitrament To pay 5 l. presently and give Bond to pay 10 l. more on a day following and now to sign general Releases it shall only discharge such matters which were then depending at the time of the submission and not the Bond 264 2. A person who was a Stranger to the Submission was awarded to be a Surety 't is void 272 3. Submission was so as the Award be made c. ready to be delivered to the Parties or to such of them who shall desire it the Defendant must desire the Award and plead the matter specially and the Plaintiff need not aver that it was ready to be delivered 330 Assent See Agreement Assets Reversion in Fee Expectant upon an Estate Tail is not Assets but when it comes into possession then and not before 't is Assets 257 Assignment See Privity of Contract 2. Executor of a Lessee for years shall be liable to an Action of Debt for Rent incurr'd after an assignment of the Term for the privity of Contract of the Testator is not determined by his Death but his Executor shall be charged with his Contracts so long as he hath Assets 326 Assizes The Method of arraigning an Assize the Title must be set forth in it 273 Attornment See Bargain and Sale Ejectment of a Manor parcel in Rents and parcel in Services the Attornment of the Tenants must be proved 36 Averment See Devise 4 The consideration of a Duty ought to be precisely alledged as in an Action on the Case for a Duty to be paid for weighing Goods it must be averred that the Goods were such which are usually sold by weight 162 2. The nature of an Averment is to reduce a thing to a certainty which was incertain before 216 3. Where it may be made against the express words of a Condition 217 4. Not allowed to be made against a Record 305 B. Bail IT was demised in a Scandalum Magnatum 4 2. Writ of Error pending in the Exchequer-Chamber the principal in the Action rendred himself the Bail are discharged 87 3. Scire Facias against Bail upon a Writ of Error who plead that the Principal rendred himself before Judgment 't is not good for the Bail are liable not only to render the Body but to pay the Debt ibid. 4. Proceedings were staied by Injunction above two Terms after the Bail was put in and before the Declaration delivered which was pleaded to a Scire Facias brought against them but held not good 274 Bankrupts An Inn-keeper is not within the Statutes of Bankrupcy 327 2. 'T is not actionable to call a Man Bankrupt unless it be laid that he was a Trader at the time of the words spoken 329 3. Inn-keeper buys and sells under a Restraint of Justices and Stewards of Leets which though for a Livelihood yet cannot be a Bankrupt 329 4. Whether a Farmer or Master of a Boarding-School be within the Statutes 330 Baretry Difference between Baretry and Maintenance 97 2. 'T is not Baretry to arrest a Man without a cause ibid. 4. If one design to oppress and to recover his own right 't is Baretry 98 5. Mony may be laid out to recover the just right of a poor man and no Baretry ibid. 6. But mony may not be expended to promote and stir up Suits ibid. Barbadoes It was gotten by Conquest and therefore to be governed by what Law the King willeth 161 Bargain and Sale What words by construction of Law shall amount to a Bargain and Sale to make the Reversion pass with the Rent without Attornment 237 Baron and Feme See Slander 7 Administrator 9 11 Sci. Fa. 7 1. Whether Sci. Fa. will lie against the Husband alone after the death of the Wife upon a Judgment had against her Dum sola 186 2. If a Judgment is recovered against her while sole then she marries and dies the Husband is not chargeable unless had likewise against him during the Coverture ibid. 3. A Debt is due to her whilst sole she marries and dies before 't is recovered it shall not go to the Husband by virtue of the marriage but he may have it as Administrator to his Wife ibid. 4. Judgment is obtained against her whilst sole she marries and a Sci. Fa. is brought against Husband and Wife and Judgment quod habeat executionem the Wife dies a Scire Fa. may be brought against the Husband alone 189 5. The Recovery upon a Sci. fa. is against both and is therefore joynt against both 188 6. Husband may have Execution of a Judgment recovered by him and his Wife after the Death of his Wife without a Sci. fa. 189 7. Devastavit against both the Wife being an Executrix and Judgment that the Plaintiff have Execution de bonis propriis the Wife dies the Goods of the Husband are liable ibid. 8. A Woman who had a Term for years married the Rent is arrear she died the Husband shall be liable because by the Marriage he is entituled to the Profits of the Land ibid. 9. Feme Covert Copy-holder her Husband made a Lease for years without Licence of the Lord 't is a Forfeiture during the Coverture 222 9. Feme Covert Heir to a Copyhold Estate her Husband after three Proclamations will not be admitted 't is a Forfeiture during Coverture 226 10. The Husband hath a Lease in Right of his Wife who was an Executrix and he grnats all his Right and title therein the Right which he had by his Wife passeth 278 12. A. Feme Sole had a Lease and Married then Husband and Wife Surrender in consideration of a new Lease to be granted to the Wife and to her Sons the Estate vests immediately in her without the assent of her Husband for the Law intends it her Estate till he dissassent 300 13. Feme Covert and another joint-Tenant for Life she and the Husband Lease their Moiety reserving a Rent during Life and the Life of her Partner the Wife died 't is a good Lease against the Surviving joint-Tenant till disagreement 300 14. The Husband made a Feoffment in Fee to the use of himself and Wife and to the Heirs of the Survivor he afterwards made another Feoffment of the same Lands and died the Wife entred but the Fee was not vested in her by the first Conveyance because the contingent right was destroyed by the last 310 Barr. Recovery in a personal Action is a Barr to an Action of the like nature where the same Evidence supporteth both Actions 2 Judgment in Trespass is no Barr to an Action of Detinue 2 Bill of Exchange The Drawer and Endorsers are all liable to payment but if Recovery be against one 't is a good Bar to an Action which may be brought against the rest 86 By-Law See Corporation 12. Trade 8. Where 't is too general and where not 193 C. Carrier See Pleading 11. Certainty See Custom Grants Certiorari

certain or 't is not good 134 4. Must be taken strictly when it goes to the destruction of an Estate 224 5. A Custom that every Copyholder who leases his Land shall forfeit it doth not bind an Infant 229 6. Amongst Merchants where it must be particularly set forth 226 7. It must be certain and therefore where it was laid for an Infant to sell his Land when he can measure an Ell of Cloth 't is void for the incertainty 290 8. To have solam separalem pasturam hath been held good 291 9. Prescription must have a lawful commencement but 't is sufficient for a Custom to be certain and reasonable 292 10. Whether a Custom likewise ought to have a lawful commencement 293 D. Damages See Ejectment 3. Ioint Action 2. Trespass 2. Baron and Feme brought an Action for words spoken of the Wife and concluded ad damnum ipsorum 't is good for if she survive the Damages will go to her 120 Det See Admittance 5. Assignment 1. Iudgment 1. Quantum meruit Where 't is brought upon a Specialty for less than the whole Sum it must be shewed how the other was discharged 41 2. Whether it lies for a Fine upon an admission to a Copyhold Estate for it doth not arise upon any Contract 240 3. There must be a personal Contract or a Contract implyed by Law to maintain an Action of Debt ibid. Deceit See Action on the Case Deputy See Office 6 7 9. Devise See Tail Where it shall not be extended by implication 82 2. Where the word Estate passeth a Fee where not 45 105. 3. I give All to my Mother passeth only an Estate for Life for the Particle All is a Relative without a Substantive 32 4. To A. and the Testator's Name is omitted in the Will yet 't is good by averring his Name and proving his Intention to devise it 217 5. The Testator after several Specifick Legacies and Devises of Lands gave all the rest and remaining part of his Estate c. by those Words the Reversion in Fee passed 228 6. By the Devise of an Hereditament the Reversion in Fee passeth 229 Disseisin See Election 1. Interest 2. The Son Purchased in Fee and was disseised by his Father who made a Feoffment with Warranty the Son is bound for ever 91 2. Lessor made a Lease for Life and died his Son suffered a Common Recovery this is a Disseisin ibid. 3. Where an Estate for Life or years cannot be gained by a Disseisin ibid. 4. A wrongful Entry is never satisfied with any particular Estate nor can gain any thing but a Fee-simple 92 Distribution Before the Statute if there was but one Child he had a right of Administration but it was only personal so that if he died before Administration his Executor could not have it 62 E. Ejectment THE Demise was laid to be the 12th of Junii habendum a praed duodecimo die Junii which must be the 13th day by vertue whereof he entred and that the Defendant Postea eod 12 die Junii did Eject him which must be before the Plaintiff had any Title for his Lease commenced on the 13th day not good 199 2. De uno Messuagio sive Tenemento not good because the word Tenementum is of an incertain signification but with this addition vocat ' the Black Swan 't is good 238 3. If the Term should expire pending the Suit the Plaintiff may proceed for his Damages for though the Action is expired quoad the possession yet it continues for the Damages 249 Election Where the Cause of Action ariseth in two places the Plaintiff may choose to try it where he pleases 165 2. Tenant at Will made a Lease for years the Lessee entreth this is no disseisin but at the Election of him who had the Interest in it 197 Entry In Feoffments Partitions and Exchanges which are Conveyances at the Common Law no Estate is changed until actual Entry 297 2. Lease for years not good without Entry 297 3. Tenant for Life Remainder in Tail Male levied a Fine and made a Feoffment having but one Son then born and afterwards had another Son the eldest died without Issue the Contingent Remainder to the second was not destroy'd by this Feoffment for it was preserved by the right of Entry which his elder Brother had at the time of the Feoffment made 305 Escape Debt upon an Escape would not lie at the Common Law against the Goaler it was given by the Statute of W. 2. 145 2. The superior Officer is liable to the voluntary Escapes suffered by his Deputy unless the Deputation is for life 146 3. If an Escape is by negligence it must be particularly found 151 4. A person was in Execution upon an erroneous Judgment and escaped and Judgment and Execution was had against the Gaoler and then the first Judgment was reversed yet that against the Gaoler shall stand 325 Evidence See Witness An Affidavit made in Chancery shall not be read as Evidence but only as a Letter unless Oath is made by a Witness that he was present when it was taken before the Master 36 2. What shall be Evidence of a fraudulent Settlement ibid. 3. An Answer of a Guardian in Chancery shall not be read as Evidence to conclude an Infant 259 4. Whether the return of the Commissioners in a Chancery Cause that the person made Oath before them is sufficient Evidence to convict of Perjury 116 5. Whether a true Copy of an Affidavit made before the Chief Justice is sufficient to convict the person for the like Offence 117 6. A Verdict may be given in Evidence between the same Parties but not where there are different persons unless they are all united in the same interest 142 7. Conviction for having two Wives shall not be given in Evidence to prove the unlawfulness of a Marriage but the Writ must go to the Bishop because at Law one Jury may find it no Marriage and another otherwise 164 Exchange Ought to be executed by each Party in their Life time otherwise 't is void 135 Excommunication Stat. 5 Eliz. For not coming to the Parish Church the Penalties shall not incurr if the person hears Divine Service in any other Church 42 2. The Causes are enumerated in the Statute which must be contained in the Significavit otherwise the Penalties are not to incurr 89 Executor See Grants Notice 5. Whether an Executor de son tort can have any interest in a Term for years 91 93 2. An Executor may sell the Goods before Probate 92 3. May pay Debt upon a simple Contract before a Bond of which he had no notice 115 4. Whether an Action of Debt will lie against an Executor upon a Mutuatus 5. By what words he hath an Authority only without an Interest in the thing devised 209 210 6. He had both Goods of his Testator and of his own and granted omnia bona sua that which he hath as Executor will not pass for

before a Coroner the person having drowned himself it was suffocat ' emergit fuit if it had stood singly upon the word emergit it had been insensible but the word suffocat ' expressing the sense it was held good 100 4. Where nothing is vested in the King before Office found ibid. 5. It must always be found that there is an Estate in the person offending and a cause of Forfeiture of that Estate to vest it in the King 336 Interest in a thing See Pardon 4. Where a Man may have an interest in a Chattel without a Property 61 2. Devise to a Wife and Children after Debts and Legacies paid an interest vests in the Devisees but 't is otherwise in case of Administration for there no Interest vests till actual distribution 65 3. A Man may have a Property tho' not in himself as in the Case of Joyntenancy 97 Intestate See Administration Innuendo The proper office of it is to make the subject matter certain 53 2. It will not help insensible words 54 Joyntenancy and Tenancy in Common See Abatement 3. Baron and Feme 12. Interest 3. If one Joyntenant bring an Action against the other unless he pleads the Jointenancy in abatement the Plaintiff will recover 97 2. If two Coparceners lease a House and the Rent is arrear and one brings an Action and recovers Judgment shall be arrested because both ought to joyn 109 3. Tenants in Common must join in the personalty but 't is otherwise in real Actions for though their Estates are several yet the Damages to be recovered survive to all 109 251 4. Where one Commoner may bring an Action against his Fellow 251 Joint Action See Action for a wrong 6. Ioyntenancy 2 3. Where an Action may be joint or several at the Election of the Plaintiff 86 2. Where 't is brought against three Defendants who plead jointly the Jury may sever the Damages and the Plaintiff may take Execution de melioribus damnis as well as where their Pleas are several and Tryals at several times 101 102 3. Judgment against two and one brought a Writ of Error and assigned the Infancy of the other for Error the Writ was abated because both did not joyn 134 4. The Defendants in the original Action must joyn in a Writ of Error but it seems otherwise where the Plaintiffs bring Error 135 5. Two covenant to sell Lands and the Purchasor agreed to pay the Mony to one of them he alone ought to bring the Action 263 6 Where there are several Proprietors of a Vessel for carriage of Goods which are damaged by carrying the Action must be brought against all or against the Master alone 321 322 7 Where two Tenants in Common were sued for not setting out of Tythes the Action ought to be brought not against him who set them out but against the other who carried them away 322 8. Two are bound joyntly one is sued he may plead in Abatement that he was bound with another but cannot plead Non est factum 323 9 In all Cases which are grounded upon Contracts the Parties who are Privies must be joyned in the Action ibid. 10 Action must be brought against all where a promise is created by Law 324 Issue Must be joyned upon an affirmative and a negative by concluding to the Country 80 Iudges The making altering and displacing of several Judges Serjeants at Law and King's Council 71 99 100 104 125 143 191 239 Iustices of Peace Offences against the Statute of 23 Eliz c. 1. for not coming to Church may be enquired of by them in their Sessions 79 2. Where a Statute appoints a thing finally to be done by them yet the Court of King's Bench may take Cognizance of it 95 3. Conviction for keeping of a Gun before a Justice of Peace the time when he had not 100 l. per Annum must be precisely alledged 280 Iustification See Pleading 4 5. Where 't is pleaded by way of Excuse to an Action of Trespass for the taking of any thing the Defendant must averr the Fact to be done and set forth the Warrant to him directed and the taking virtute Warranti and not generally that he took it by a Mandate c. 138 2. In Replevin where the Defendant made Conusance in right of the Lord he may Justifie the taking generally ibid. Iudgment 1. At the Common Law no Execution could be of a Judgment after a year and a day but the remedy was to bring an Action of Debt upon Judgment 187 189 2. Now a Scire Fac. is given upon a Judgment after the year by the Statue of W. 2. 189 3. When a Judgment is once execucuted the Goods are in custodia legis and shall not be taken away by an Exchequer Process or by the Commissioners of Bankrupts 236 L. Lapse See Notice Lease A Covenant in a Lease for years that the Lessee should pay the Rent without obliging his Executors or Administrators 't is determined by his Death 231 2. For 99 yeas if three persons or any of them so long live reserving a Rent and an Herriot upon the death of either the Beast of the Assignee shall not be taken for a Herriot for the Lessee is to pay his best Beast and that shall not be carried further than to the person named 231 Libel Where a Fine and Corporal punishment was imposed upon the Offender after Conviction 68 Limitation An Estate was setled upon Trustees to the use of A. and her Heirs provided she marry with the consent of Trustees remainder over to B. This is a Limitation and not a Condition 32 Limitation of Action See 21 Jac. 16. Where a Trespass is laid with a continuando for more than six years and the Statute pleaded and entire Damages it must be intended only for that which falls within the six years and that the Jury rejected the beginning of the Trespass 111 2. This Statute relates to a distinct and not to a continued Account 112 3. It provides a Remedy when the Plaintiff is beyond Sea at the time when his Right accrews and saves it till he returns whether it may be extended in a Case where the Defendant is beyond Sea longer than six years from the time the Plaintiff was entituled to the Action 311 312 Local Actions Whether Covenant will lie by an Assignee of a Reversion against an Assignee of a Lessee in any other place than where the Land lieth 337 2. Debitum contractus sunt nullius loci ibid. 3. Debt for Rent upon a Lease for years brought upon the Contract and Covenant between the same Parties are transitory ibid. 4. If Privity of Contract is gone by making an Assignment and only a privity in Law remains the Action must be brought in the County where the Land lieth ibid. M. Mayor See Corporation Marriage See Condition 3. Evidence 7. Limitation Notice A Maid above 12 and under 16 taken from Parents or Guardian and Married forfeits her Estate to the next in

An Administrator pleaded a Judgment in Bar to an Action of Debt for 100 l. brought against him and that he had not Assets praeterquam bona non attingen to 5 l. but did not shew the certain value of the Goods and yet held good ibid. 3. A Judgment upon a simple Contract may be pleaded in Barr to an Action of Debt upon a Bond 115 4. A Possession where 't is only an Inducement to a Plea and not Substance the Defendant may justifie upon such a possession against a Wrong-doer 132 5. Where a special Justification is to an Action of Assault and false Imprisonment the cause of Commitment must be set forth in the Plea 160 6. Where the defence consists in matter of Law the Defendant may plead specially but when 't is Fact he must plead the geneal Issue 166 7. Where special matter which might be given in Evidence at the Trial and which amounts to no more than the general Issue may be pleaded ibid. 8. When a Man is brought into Court by Capias he ought to plead instanter because he hath given delay to the Court 215 9. So where he appears upon Recognizance or in propria persona or is in Custody for any Misdemeanour he ought to plead instanter ibid. 10. In Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the Defendant by Bill of Exchange he pleaded that the Plaintiff secundum legem mercatoriam did assign the Mony to be paid c. it ought to have been secundum consuetudinem mercatoriam 226 227 11. If an Action is brought against an Inn-keeper or Common Carrier the Declaration must be secundum legem consuetudinem Angliae 227 12. In Trespass the Plaintiff prescribed as to the Freehold and alledged a Custom in the Copyholders to have solam separalem pasturam c. whether he could make a joynt Title in the same Declaration by virtue of a prescription and Custom 250 13. If the Plea is double the Plaintiff ought to demurr 251 14. The Condition of a Bond was to acquit discharge and save harmless Non damnificatus generally is not a good Plea without shewing how acquitted and discharged 252 15. Mutuatus for 400 l. the Defendant pleaded an Attainder of Treason in Abatement the Plaintiff replied that after the Attainder and before the Action he was pardoned c. and concludes unde petit Judicium dampna sua for this cause Replication was held ill 281 Pledges See Replevin Replevin in an inferior Court by Pleint removed in B. R. the Plaintiff was nonsuited and a Sci. Fac. brought against his Pledges and held good 58 2. There are no Pledges of Returno Habend ' at the Common Law the Sheriff was not obliged to take Pledges in a Replevin by Plaint 75 Poor A Man had 5 l. to remove out of one Parish into another who gave Bond to repay it if he returned within forty days he stayed there so long and it was held a good Settlement 67 2. A Note in writing must now be left pursuant to the Statute to make a Settlement 247 Possession 'T is sufficient to maintain an Action against a Wrong-doer 48 Prerogative Whether a Lease was made pursuant to a Power in a Proviso to make Leases for three Lives or 21 years or for any Term upon three Lives the Lease made was for 99 years determinable upon three Lives 268 269 Power In granting of Letters Patents of the sole printing exclusive of all others 76 129 2. Where no individual person can claim a Right or Property it must be vested in the King by Law 76 3. Whether the King hath a Prerogative to restrain Trade to a particular number of Men in particular places 127 4. He may command his Subjects to return out of a Foreign Nation ibid. 5. He may regulate Trade by Letters Patents Prescription See Common 2. Pleading 12. For a way he may set forth his Estate without shewing how he came by it 52 2. Where it cannot be by a Que Estate to have Retorna Brevium 200 3. Where it may be to hold Pleas Leets and Hundreds without matter of Record 201 4. For all the Tenants of a Mannor to fowl in a Free Warren this Prescription is not too large it might not be good upon a Demurrer but 't is otherwise after a Verdict 246 5. For a Profit apprender in alieno solo the Tenants of a Mannor may prescribe by a Que estate exclusive of the Lord ibid. 6. There must be a certain and permanent Interest abiding in some person to maintain a Prescription and therefore it will not lie ratione commorantiae 290 7. To have Common sans numbre is good but ad libitum suum which is almost the same thing is void ibid. 8. It may be joyned with a Custom in the same Declaration 251 9. Where 't is laid in a discharge as to be exempted from Toll or for an easment as for a Way to a Church not only a particular person but the Inhabitants of a whole Vill may prescribe but where it relates to the Profit or Interest in the Land it self 't is not so 292 Presentment In a Court Leet which concerns the person and not the Freehold whether traversable 137 138 Privity of Contract See Local Action 4. Action against an Administratrix of a Term for Rent incurred after the Assignment of the Lease the Privity of Contract of the Intestate was not determined by his death but Administratrix shall be charged with his Contracts as long as she hath Assets 326 'T is not gone either by an Assignment of the Term or death of the Lessor neither is it transferred to the Assignee by the Statute of H. 8. for that Statute only annexeth such Covenants which concern the Land with the Reversion 337 338 Proof See Prohibition Prohibition Not to be granted because a Temporal Loss may ensue 67 2. Where some words are actionable at Law and some punishable in the Spiritual Court a Prohibition shall be granted for otherwise it would be a double vexation 74 3. Libel causa jactationis maritagii the Suggestion for a Prohibition was that he was indicted at the Old Bayly for marrying two Wives that he was convicted in a Court of that Offence which had a proper Jurisdiction c. and a Prohibition was granted 164 4. A person lived in one Diocess and occupied Lands in another where he was taxed towards the finding of Bells for that Church for which a Suit was commenced in the Bishop's Court where the Lands were and he suggested the Statute of H. 8. that no Man shall be cited out of his Diocess except for some Spiritual Cause neglected to be done there and a Prohibition was granted for this was not a Spiritual Cause neglected to be done because Church Ornaments are a personal Charge upon the Inhabitants and not upon the Land Owners who dwell else where but the repairing of the Church is a real Charge upon

remain amongst us 't is a Custom contrary to the positive Laws of God and which inverts the very order of Nature it was introduced amongst us in a barbarous Age and by a very wicked and adulterous practice after this manner viz. The Lords of certain Lands which were held of them in Villenage did usually lye with their Tenants Wives the first Night after Marriage this Usage was continued after those very Lands were purchased by Freemen who in time obtained this Custom on purpose that their eldest Sons who might be their Lord's Bastards should be incapable to inherit their Estates I could never yet find any tolerable reason for the support or continuance of this Custom but the Reason of it which was given by a learned Lawyer is because the youngest is least able to defend himself certainly he could never mean Ability of Body because 't is frequently seen that the youngest Son is the Champion of the Family and if he intended Ability in Estate I would fain know what the elder Brother hath to defend himself when by this unnatural Custom the youngest is entitled to the whole I am not setting up for a Reformer of the Law or the Abuses of it 't is not a work for a single person but rather for a Committee of able and skilful Men of that Profession appointed by the Government Neither will I object against the Practice of it as heretofore in the year 1654. it hath been done viz. That great part consists in known and apparent Untruths That a Common Recovery ought not to be suffered in a Christian Nation because 't is Fictio Juris which is an abuse of the Law That when 't is suffered at the Bar by the Tenant and Demandant there is scarce a true word in all the Colloquium amongst the Serjeants and that therefore an Estate Tail may more righteously be discontinued by a Feoffment with Livery than by the Statute de Donis This was the Language of those times They found fault likewise with that wicked Process of Latitat that it was framed upon a supposed Falshood by suggesting of a Bill of Middlesex sued out which is never actually done and that the Defendant could not be taken there because he is sculking about in another County which is seldom or never true and presently afterwards he is in Custodia Marescalli which is as false as the rest and that John Doe and Richard Roe are Pledges de Prosequendo when there are no such Men in Nature these things and many more I could name of the like Nature I esteem as trivial Matters for no Injury is done to any Body by such Formalities But when there is danger of Corruption in that which was originally intended for the great preservative of our Liberties I mean in Trials by ordinary Juries it may be worth a great deal of Pains and Study to propose some effectual means to prevent it which is the chief end of this Preface that you may at some time employ your Thoughts in so useful a piece of Service to your Country I shall only give you a short History of such Trials which is as followeth viz. There are Opinions that such Trials were had in this Nation by a Jury of Twelve Men long before the time of the English Saxons though the Writers in those Ages give no account of this Matter This is collected from that great esteem the Chaldeans had for the number 12. because of so many Signs in the Zodiack those People applying themselves chiefly to the Study of Astrology That from them this Number came to the Aegyptians and so to Greece where Mars himself was tryed for a Murder by a Jury of that Number and acquitted by an equality of Votes which is the first Trial mentioned in History by a Jury of Twelve That the Greeks frequenting this Island to export our Tin became acquainted with the Natives and in process of time cohabited with them who being a more polite People did introduce this way of Trials here and 't is very probable that some of our Customs came from them because some of our Law-Terms as Chirographer Protonotary and many more are derived from their Language After the Conquest of Greece by the Romans new Laws were instituted by them to govern this Nation which was then a Province to the Conquerors and though such Trials were then disused yet they had that Number in several subordinate forms of their Administration Afterwards when that great Empire declined when the Britains were forsaken by them and left to the Depredations of the Pagan Saxons then were other Trials introduced by that barbarous People which was by Battle in doubtful cases and when that could not be joyned then Purgations by Ordeal were allowed Trials very agreeable to the uncultivated Temper of those People Thus it continued till about two hundred years before the Norman Conquest and then Ethelbert an English Saxon King received Christianity and by his Example the Dispositions of the People were qualified into a more civil and peaceable deportment then were those Trials for the most part laid aside and that good King being at Wantage now a Market-Town in Berk-shire did there by the Advice of his Council ordain that Trials should be had by Juries consisting of twelve Men which Law doth still continue But notwithstanding such were then and are still the best and most effectual Methods to discover the Truth yet Ordeals were used here for above one hundred and fifty years after the Conquest and then about the beginning of the Reign of H. 3. were abolished by Act of Parliament But Combates continued here till 6 Car. 1. so difficult are the English to part with any ancient Usage of their Ancestors though in no wise suitable to them who live in a more polite and learned Age. Juries being thus confined to the Number 12. it was afterwards enacted by the Statute of 2. H. 5. That all Jurors returned for Trials of Issues c. should have 40 s. per annum This Law continued for the space of an hundred and ninety years or thereabouts and then the Wisdom of the Nation considering that to be a very mean Estate for the support of a Jury-Man a farther Provision was made by a Statute Anno 27 Eliz. That such Jurors should have 4 l. per Annum And thus the Law stood for above an hundred years in all which time this Kingdom hath been growing in Riches its Trade is now extended to most parts of the World and as that hath been enlarged so the Price of our Lands the Value of our Rents of our natural Commodities and of all our Manufactures have wonderfully encreased so that a Man of 4 l. per Annum is now in so mean a condition of life that he is no longer to be entrusted with the Trial of an ordinary Cause and therefore by the Statute of 4 5 Willielmi Mariae such Jurors are to have 10 l. per Annum Now upon a moderate

Trust as in the Case of Wardship formerly which always went to the Executor of the Grantee and which was of greater consideration in the Law than the feeding or clothing of an Ideot and of that Opinion was the Court that the King had a good Title to dispose of both the Ward and the Ideot one till he was of Age and the other during his Ideocy Iudgment for the Defendant DE Term. Sanctae Trin. Anno 36 Car. II. in Banco Regis 1684. Reeves versus Winnington THE Testator was a Citizen and a Freeman of London A Devise of all his Estate passed a Fee and being seised in Fee of a Mesuage c. and likewise possessed of a considerable personal Estate made his Will in which there was this Clause viz. I hear that John Reeves is enquiring after my Death but I am resolved to give him nothing but what his Father hath given him by Will I give all my Estate to my Wife c. The Question was Whether by these words the Devisee had an Estate for Life or in Fee in the Mesuage It was argued that she had only an Estate for life because the Words All my Estate cannot be construed to pass a Fee for it doth not appear what Estate was intended and Words in a Will which go to disinherit an Heir must be plain and apparent A Devise was in these Words viz. Sid. 191. Bowman versus Milbank I give all to my Mother all to my Mother and it was adjudged that a Fee did not pass which is as strong a Case as this for by the word All it must be intended All that was in his power to give which is as comprehensive as if he had said All my Estate 'T is true Kerman and Johnson Stiles 281. 1 Rol. Abr. 834. Cro. Car. 447. it hath been adjudged that where a Man devised his whole Estate to his Wife paying his Debts and Legacies that the word Estate there passed a Fee because it was for the benefit of the Creditors there being not personal Assets sufficient to pay all the Debts But that is not found in this Case therefore the Word Estate being doubtful and which will admit of a double construction shall not be intended to pass a Fee Mr. E contra Pollexfen contra The first part of this Sentence consists in negative words and those which are subsequent explain the intention of the Testator viz. That John Reeves should take nothing by the Will The Word Estate doth comprehend the whole in which the Owner hath either an Interest or Property like a Release of all Actions which is a good discharge as well of real as personal Actions In common understanding it carries an interest in the Land and then 't is the same as if he had devised all his Fee-simple Estate In the Case of Bowman and Milbank it was adjudged that a Fee-simple did not pass by the Particle All because it was a Relative Word and had no Substantive joined with it and therefore it might have been intended All his Cattle All his Goods or All his personal Estate for which incertainty it was held void yet Iustice Twisden in that Case said that it was adjudged that if a Man promise to give half his Estate to his Daughter in Marriage that the Lands as well as the Goods are included The Testator devised all his Tenant-right Estate held of such a Manor 3 Keb. 245. Mod. Rep. 100. and this being found specially the Question was Whether any more passed than an Estate for Life because he did not mention what Estate he intended but it was held that the Devisee had a Fee-simple because the Words were as comprehensive as if he had devised all his Inheritance and by these Words a Fee-simple would pass Curia It plainly appears that the Testator intended nothing for John Reeves therefore he can take nothing by this Will and that the Devisee hath an Estate in Fee-simple for the Words All my Estate are sufficient to pass the same Rex versus Sir Thomas Armstrong Saturday June 14th THE Defendant was outlawed for High-Treason and being taken at Leyden in Holland was brought into England and being now at the Bar he desired that he might have leave of the Court to reverse the Outlawry and he tried by virtue of the Stature of Ed. 6. which Enacts 5 6 E. 6. cap. 11. That if the Party within one year after the Outlawry or Judgment thereupon shall yield himself to the Chief Justice of England and offer to traverse the Indictment upon which he was outlawed he shall be admitted to such Traverse and being acquitted shall be discharged of the Outlawry He alledged that it was not a year since he was outlawed and therefore desired the benefit of this Law But it was denied because he had not rendered himself according to the Statute but was apprehended and brought before the Chief Iustice Whereupon a Rule was made for his Execution at Tyburn which was done accordingly DE Term. Sancti Mich. Anno 36 Car. II. in Banco Regis 1684. Hebblethwaite versus Palmes Mich. 36 Car. II. in B. R. Rot. 448. AN Action on the Case was brought in the Common-Pleas Possession is a sufficient cause to maintain an Action against a wrong doer for diverting of a Watercourse The Declaration was That the Defendant Primo Augusti c. injuste malitiose did break down an ancient Damm upon the River Darwent by which he did divert magnam partem aquae ab antiquo solitu cursu erga molendinum ipsius quer c. ad dampnum c. The Defendant pleaded that before the said Breach made he was seised in Fee of an ancient Mill and of six Acres of Land adjoyning upon which the said Damm was erected time out of mind to turn the Water to his said Mill which Damm was always repaired and maintained by the Defendant and the Tenants of the said Land that his Mill was casually burnt and he not intending to Re-build it suffered the Damm to be broken down and converted the Timber to his own use being upon his own Soil prout ei bene licuit c. The Plaintiff replied that by the breaking of the Damm the Water was diverted from his Mill c. The Defendant rejoyned and justified his Plea and Traversed that the Mill of the Plaintiff was an ancient Mill. And upon a Demurrer to this Rejoynder Iudgment was given for the Plaintiff and a Writ of Error now brought to reverse that Iudgment and for the Defendant in the Action it was argued 1. That the Declaration is not good because the Plaintiff had not set forth that his Mill was an ancient Mill. 2. Because he had not entituled himself to the Watercourse 3. That the Plea was good in Bar to this Action because the Defendant had sufficiently justified having a Right to the Land upon which the Damm was erected and always repaired it As to the first Point it

general as this Case There are many instances where Breaches have been generally assigned and held ill that in Croke is so but the later Opinions are otherwise Affirmetur Judicium Pye versus Brereton A Lease was made of Tythes for three years rendring Rent at Michaelmas and Lady-day and an Action of Debt was brought for Rent arrear for two years Vpon Nil debet pleaded the Plaintiff had a Verdict and it was now moved in Arrest of Iudgment that the Declaration was too general for the Rent being reserved at two Feasts 2 Cro. 668. the Plaintiff ought to have shewed at which of those Feasts it was due But the Council for the Plaintiff said That it appears by the Declaration that two years of the three were expired so there is but one to come which makes it certain enough Curia This is helped by the Verdict but it had not been good upon a Demurrer DE Term. Sancti Mich. Anno 1 Jac. II. in Banco Regis 1685. MEmorandum That in Trinity-Vacation last died Sir Francis North Baron of Guilford and Lord Keeper of the Great Seal of England at his House in Oxfordshire being a Man of great Learning and Temperance And Sir George Jefferies Baron of Wem and Chief Justice of the Kings-Bench had the Seal delivered to him at Windsor and was thereupon made Lord High Chancellor of England And Sir Edward Herbert one of the Kings Council succeeded him in the Place of Chief Justice There died also this Vacation Sir Thomas Walcott one of the Justices of the Kings-Bench and he was succeeded by Sir Robert Wright one of the Barons of the Exchequer Sir John Newton al' versus Stubbs IN an Action on the Case for Words Words laid to be spoke ad tenorem effectmu sequen ' not good The Plaintiffs declared that they were Iustices of the Peace for the County of Gloucester c. and that the Defendant spake these scandalous Words of them Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie Men out of their Estates postea eodem die c. they spoke these words Viz. Sir John Newton and Mr. Meredith make use of the Kings Commission to worrie me and Mr. Creswick out of our Estates And afterwards these words were laid in Latin without an Anglice ad tenorem effectum sequen ' c. There was a Verdict for the Plaintiffs and entire damages and now Mr. Trindar moved in Arrest of Iudgment 1. That the words in the Declaration are laid in Latin Roll. Abr. 74. pl. 2. without an Anglice and without an Averment that the hearers did understand Latin 2. 'T is not expressly alledged that the Defendant spoke those very words for being laid ad tenorem effectum sequen ' something may be omitted which may alter the sense and meaning of them Cro. Eliz. 857. and for this very reason Iudgment was staied though the Court held the words to be actionable Rex versus Ayloff al' THey were Outlawed for High-Treason Treason and on Tuesday the 27th day of October they were brought to the Bar and a Rule of Court was made for their Execution on Fryday following The Chief Iustice said that there was no hardship in this proceeding to a Sentence upon an Outlawry because those Malefactors who wilfully flie from Iustice and a new Crime to their former Offence and therefore ought to have no benefit of the Law for tho' a Man is Guilty yet if he put himself upon his Tryal he may by his submissive Behaviour and shew of Repentance incline the King to mercy In Felonies which are of a lower nature than the Crimes for which these persons are attainted flight even for an Hour is a forfeiture of the Goods of the Criminal so likewise a Challenge to three Iuries is a defiance to Iustice and if that be so then certainly flying from it is both despising the mercy of the King and contemning the Iustice of the Nation They were both Executed on Frday the 30th of October following Dominus Rex versus Colson al' AN Information was exhibited against the Defendants Information for a Riot not good setting forth that they with others did riotously assemble themselves together to divert a Watercourse and that they set up a Bank in a certain place by which the Water was hindred from running to an antient Mill in so plentifull a manner as formerly c. Vpon Not Guilty pleaded it came to a Tryal and the Iury found that Quoad factionem Ripae the Defendants were Guilty and quoad Riotum not Guilty And now Mr. Williams moved in arrest of Iudgment because that by this Verdict the Defendants were acquitted of the charge in the Information which was the Riot and as for the erecting of the Bank an Action on the Case would lie and the Iudgment was accordingly arrested Mason versus Beldham Trin. 1 Jac. Rot. 408. THE Plaintiff brings his Action against the Defendant Quantum meruit will lie for Rent and sets forth That in consideration that he would suffer the Defendant to enjoy a House and three Water-Mills c. he promised to pay so much yearly as they were reasonably worth and avers that they were worth so much And upon a Demurrer the Question was whether this Action would lie for Rent It was argued for the Defendant that it would not lie Cro. Eliz. 242. 786 859. 2 Cro. 668. because it was a real Contract 'T is true there is a Case which seems to be otherwise 't is between Acton and Symonds Cro. Car. 414. which was in consideration that the Plaintiff would demise to the Defendant certain Lands for three years at the Rent of 25 l. by the year he promised to pay it this was held to be a personal Promise grounded upon a real Contract and by the Opinion of three Iudges the Action did lie because there was an express promise alledged which must also be proved But Iustice Croke was of a contrary Opinion Mr. Pollexfen contra If a Lease be made for years reserving a Sum in gross for Rent and which is made certain by the Lease in such case an Action of Debt will lie for the Rent in arrear But if where no Sum certain is reserved as in this Case a Quantum meruit will lie and no reason can be given why a Man may not have such an Action for the Rent of his Land as well as for his Horse or Chamber And Iudgment was given for the Plaintiff Anonymus THere was a Libel in the Spiritual Court for scandalous Words Prohibition for words where some are actionable and others not Viz. She is Bitch a Whore an old Bawd And a Prohibition was now prayed by Mr. Pollexfen because some of the words were actionable at Law and some punishable in the Spiritual Court and therefore prayed that it might go Quoad those words which were actionable at Law The Chief Iustice granted

my Lord Coke to be an allowance by the King 's Grant to any person for the sole buying or selling of any thing restraining all others of that Liberty which they had before the making of such a Grant 3 Inst 181. and this he tells us is against the ancient and fundamental Rights of this Kingdom This Patent agreeth exactly with that Definition 9 E. 3. cap. 1. 18 E. 3. c. 3. 25 E. 3. c. 2. Roll. Abr. 180. 2 R. 2. c. 1. 11 R. 2. c. 7. and therefore it must be against Law 't is against an Act of Parliament which gives Liberty to Merchants to buy and to sell in this Realm without disturbance and 't is expresly against the Statute of 21 Jac. cap. 3. which declares all such Letters Patents to be void That which may give some colour to make such Grants good 2 Inst 540. 11 Rep. is a pretence of Order and Government in Trade but my Lord Coke was of Opinion that it was a hinderance to both and in the end it produced Monopolies There is a great difference between the King's Grant and his Prohibition for the one vests an Interest which is not done by the other and all Prohibitions determine by the King's death but Grants still remain in force Adjornatur Langford versus Webber IN Trespass for the taking of a Horse Justification upon a bare possession good against a wrong doer the Defendant justified for that Joseph Ash was possessed of a Close c. and that the Defendant as his Servant took the Horse in that Close Damage fesant And upon a Demurrer to this Plea for that the Defendant did not shew what Title Ash had to this Close The Councel for the Defendant insisted that it being in Trespass 't is sufficent to say that Ash was possessed because in this Case possession is a good Title against all others But it might have been otherwise in Replevin The Title of the Close is not in question Cro. Car. 138. Yelv. 74. Cro. Car. 571. pl. 10. the possession is only an inducement to the Plea and not the substance thereof which is the taking of the Horse and the Law is plain that where the interest of the Land is not in question a Man may justifie upon his own possession against a wrong-doer Mr. Pollexfen on the other side alledged that damage fesant would bring the Title of the Land in question But the Court gave Iudgment for the Defendant Perkins versus Titus A Writ of Error was brought to reverse a Iudgment given in the Common-Pleas Fine upon an Admittance where it must be certain in Replevin for taking of the Plaintiff's Sheep The Defendant avowed the taking damage fesant The Plaintiff replied that the Lands where c. were Copy-hold held of the Manor of Bushy in Com. Hertf. the Custom whereof was that every Tenant of the said Manor qui admissus foret to any Copyhold Estate should pay a years Value of the Land for a Fine as the said Land is worth tempore Admissionis And upon a Demurrer the Question was 1. Whether this be a good Plea or not as 't is pleaded 2. If it be good as pleaded then whether such a Custom may be supported by Law 1. It was for the Plaintiff in the Writ of Error now and in Michaelmas Term following argued that it was not a good Custom The substance of whose Arguments were that Fines are either certain or incertain those which are incertain are arbitrary and therefore cannot be due of Common Right nor by Custom for there can be no Custom for an incertain Fine and such is this Fine for the value of the Land cannot be known because as this Custom is pleaded it doth not appear whether it shall be a years value past or to come at the time of the admittance of the Tenant A Custom to assess rationabilem denariorum summam for a Fine upon an admittance that is to say 13 Rep. 1. being two years Rent of a Tenant of the yearly value of 53 s. 4 d. is no good Custom A Lease is made for so many years as a third person shall name this is altogether incertain 13 Edw. 3. Fitz. Abr. 273. but when the Term is named then 't is a good Lease but this can be done but once How can this Fine be assessed It cannot be by Iury for then it stands in need of the Common Law and will be therefore void for a Custom must have nothing to support it but usage 1. Neither can this be a good Custom as 't is pleaded because all Customs are made up of repeated Acts and Vsages and therefore in pleading them it must be laid time out of mind which is not done here for admissus foret hath a respect to future admissions and are not to those which are past 2. Here is no time laid when this Fine shall be paid for 't is said Quilibet tenens qui admissus foret c. solvet tantam denariorum summam quantum terra valebat per Annum tempore admissionis c. which last words must be taken to relate to the value of the Land and not to the time when the Fine shall be paid so that if there be such a Custom which is Lex loci and not fully set forth and expressed the Common Law will not help it by any Construction 2. Point Whether such a Custom can be good by Law And they argued that it cannot Where the Fine is certain the Lord may refuse to admit without a tender of it upon the prayer of the person to be admitted 4 Rep. 27. b. but where 't is incertain the Lord is first to admit the Tenant and then to set the Fine the reasonableness whereof is to be determined by Iudges before whom the Case shall depend or upon Demurrer or by a Iury upon proofs of the yearly value of the Land but for non payment of an unreasonable Fine the Lord cannot enter Cro. Eliz. 779. Cro. Car. 196. The Law admits of no Custom to be good but such as is very certain for incertainty in a Custom as well as in a Grant makes both void and therefore 't is held a void Custom for an Infant to make a Feoffment when he can measure an Ell of Cloth Rol. Abr. 565. 6 Rep. 60. Davies Rep. 37. It may be objected that certum est quod certum reddi potest the meaning of which saying must be quod certum reddi potest by something which is certain for if this Rule should be taken to be an answer to incertainties it would destroy all the Books which say a Custom must be certain The Law is very clear Fitz. Bar. 177. 2 Rol. Abr. 264. that a Custom is void for the incertainty therefore this Custom must be void for the value of Land is the most incertain thing in nature and therefore Perjury will not lye for swearing to the value Serjeant Fuller and Mr.

Finch contra The chief Objection is the incertainty of this Custom now if a Custom as incertain as this hath been held good in this Court 't is a good Authority to support this Custom And as to that it was said that a Custom for a person whom a Copy holder should name to have his Land after his death and that he should pay a Fine for his admitance And if the Lord and Tenant cannot agree about the Fine that then the rest of the Tenants should assess it 1 Rol. Rep. 48. 2 Cro. 368. 4 Leon. 238. Noy 3. 2 Brownl 85. this was adjudged a good Custom by the Court of Common-Pleas and affirmed upon a Writ of Error in this Court It was the Case of Crab and Bevis cited in Warne and Sawyers Case Adjornatur Afterwards the first Iudgment was affirmed and all the Court held the Custom to be a good Custom Hacket versus Herne JVdgment was had in Debt upon a Bond against Father and Son Where the Defendants in the Action must joyn in a Writ of Error and afterwards the Father alone brought a Writ of Error and the Error assingned was that his Son was under Age but because the Son did not join in the Errors the Court ordered the Writ to be abated If a Quare impedit be brought against a Bishop and others and Iudgment be against them all they must likewise all join in a Writ of Error unless it be where the Bishop claims only as Ordinary 'T is true Rol. Abr. 929. pl. 30. this is against the Opinion of my Lord Rolls in his Abridgment who puts the Case that where a Scire Facias was brought against four Executors who pleaded plene administraverunt the Iury find Assets in the Hands of two of them and that the other eant inde sine die two bring a Writ of Error and altho' at the opening of the Case it was held that the Writ should abate for that reason because brought only by two yet he says the Iudgment was afterwards affirmed and the Writ held good But there is a difference where a Writ of Error is brought by the Plaintiffs in the original Action 5 Co. 25. a Ruddock's Case and when by the Defendants for if two Plaintiffs are barred by an erronious Iudgment and afterwards bring a Writ of Error the Release of one shall bar the other because they are both actors in a personal thing to charge another and it shall be presumed a Folly in him to join with another who might release all But where the Defendants bring a Writ of Error 't is otherwise for it being brought to discharge themselves of a Iudgment the Release of one cannot barr the other because they have not a joint Interest but a joint burthen and by Law are compelled to join in Errors Mosse versus Archer COvenant by an Assignee of an Assignee of Lands which were exchanged the Breach assigned was Breach not well assigned that a Stranger habens jus titulum did enter c. There was a Uerdict for the Plaintiff and it was now moved in Arrest of Iudgment that the Plaintiff had not shewed a sufficient breach for he sets forth the Entry of a Stranger habens jus titulum but doth not shew what Title and it may be he had a Title under the Plaintiff himself 2 Cro. 315. Hob. 35. after the Exchange made and to prove this the Case of Kirby and Hansaker was cited in point and of that Opinion was all the Court. Nota It was said in this Case that an Exchange ought to be executed by either Party in their Life-time or else it is void Taylor versus Brindley THE Original in Trespass was quare Clausum fregit Variance between the Original and Declaration where 't is no Error and the Plaintiff declared quare Clausum Domum fregit and had Iudgment in the Common-Pleas and a Writ of Error was brought in this Court and the variance between the Original and Declaration was assigned for Error and that one was not warranted by the other But Serjeant Levinz argued that because the Original was certified three Terms since 2 Cro. 674. 1 Rol. Abr. 790. n. 7. Cro. Car. 272. 18 Eliz. cap. and no Continuances between it and the Declaration therefore that could not be the Original to this Action and that the Court might for that reason intend a Verdict without an Original which is helped by the Statute of Jeofails But he argued that where the Original varies from the Declaration and is not warranted by it 't is not aided by this Statute Iudgment was affrmed DE Term. Sancti Mich. Anno 3 Jac. II. in Banco Regis 1687. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices Sawyer Attorny General Powis Sollicitor General Mathews versus Cary Pasch 3 Jac. Rot. 320. TRespass for entring of his House and taking of a Silver Tankard Where the Defendant justifies by way of excuse he must set forth the Warrant and that he took the Goods virtute Warranti The Defendant made conusance as Bayliff of the Dean and Chapter of Westminster for that the place where c. was within the Iurisdiction of the Leet of the said Dean who was seised of a Court Leet which was held there such a day c. And that the Iury did present the Plaintiff being a Tallow-Chandler for melting of stinking Tallow to the annoyance of the Neighbours for which he was amerced and that the Amerciament was affered to 5 l. which not being paid the Defendant by a Mandate of the said Dean and Chapter distreined the Tankard c. The Plaintiff replied de injuria sua propria absque hoc that he did melt Tallow to the annoyance of the Neighbours c. And upon a Demurrer to this Replication it was argued this Term by Mr. Pollexfen for the Defendant and Tremaine for the Plaintiff and afterwards in Michaelmas Term 1 Will. Mariae by Mr. Bonithan and Serjeant Thompson for the Defendant It was said for the Defendant that a Presentment in a Court Leet which concerns the person as in this Case and not the Free hold 5 H. 7.3 Fitz. Bar. 271. Bro. Abr. tit Travers sans ceo pl. 183. Presentment in Court pl. 15. was not traversable and that the Amerciament was a Duty vested in the Lord for which he may distrain or bring an Action of Debt Co. Entr. 572. But on the other side it was said that if such a Presentment is not traversable the party hath no remedy 't is contrary to the Opinion of Fitzherbert in Dyer Dyer 13. b. who affimed the Law to be that it was traversable and that if upon such a Presentment a Fine should be imposed erroniously 11 Co. 42. 1 Rol. Rep. 79. it may be avoided by Plea and this agrees with the second Resolution in Godfrey 's Case 2. It was objected to the Plea that it was not good for it sets

forth that the Plaintiff was amerced and that it was affered at the Court and so he hath confounded the Office of the Iurors and Affearers together which he ought not to do for he should be amerced to a certain Sum Hob. 129. Rol. Abr. 542. and not in general which Sum may be mitigated or affered by others If it had been a Fine 8 Co. 38. 1 Leon. 142. it need not be affered because that is imposed by the Court but this is an Amerciament which is the act of the Jury and therefore it must be affered 3. The chiefest Exception was to the matter of the Warrant viz. the Defendant sets forth that he seised by virtue of a Precept from the Dean and Chapter whereas he ought to shew it was directed to him from the Steward of the Court and then to set forth the Warrant without which he cannot justifie to distrain for an Amerciament And of this Opinion was the whole Court and therefore Iudgment was given for the Plaintiff in Michaelmas Term Primo Will. Mariae If it had been in Replevin where the Defendant made cognizance in the right of the Lord it might be well enough as here pleaded but where 't is to justifie by way of excuse there you must averr the Fact and alledge it to be done and set forth the Warrant it self 3 Cro. 698.748 1 Leon. 242. and the taking virtute Warranti for a Bayliff of a Liberty cannot distrain for an Amerciament by virtue of his Office but he must have a Warrant from the Steward or Lord of the Leét for so doing The other Exception that the Amerciament ought to be to a Sum Rast Ent. 606. Co. Ent. 665. the Presidents are otherwise for an Amerciament per duodecim probos legales homines adtunc ibidem jurat ad 40 s. afferat ' is well enough but the Warrant is always set forth Dominus Rex versus Darby THE Defendant was indicted for speaking of scandalous words of Sir J.K. a Justice of the Peace Viz. Sir J.K. Indictment for Scandalous words is a buffle-headed Fellow and doth not understand Law he is not fit to talk Law with me I have bafled him and he hath not done my Clyent Justice Mr. Pollexfen for the Defendant said that an Indictment would not lye for these words because not spoken to the Party in the exceution of his Office but behind his back it will not lye for irreverent words but for Libels and Writings because such are publick but words are private offences But the Court being of Opinion that an Indictment would lye where an Action would not because it respects the publick Peace and that an Action would not lye in this Case unless the party had a particular loss Sid. 65. 2 Cio 5 8. and therefore it hath been held not to be actionable to call a Iustice of Peace Fool Ass Coxcomb He then took Exceptions to the Form of the Indictment 1. There is no place of Abode laid where the Defendant did inhabit which is expresly required by the Statute of H. 5. Viz. 1 H. 5. cap. 5 That in Indictments there shall be addition of the Estate Degree c. and of the Towns Hamlets Places and Counties where the Defendants dwell And by the Statute of H. 6. 8 H. 6. cap. 12 which gives the Iudges power to amend Records in affirmations of Iudgments such defects which are named in the Statute of H. 5. are excepted and therefore where a Writ of Error was brought to reverse an Outlawry upon the Statute of 5 Eliz. for Perjury 2 Cro. 167. the Defendant was Indicted by the Name of Nicholas Leech de Parochia de Aldgate and did not shew in what County Aldgate was and for this cause it was reversed 2. The Caption is coram Justiciariis ad pacem dicti Domini Regis conservand ' and the word nunc is left out It was the Opinion of Iustice Twisden that it ought to be nunc conservand ' Sid. 422. for otherwise it may be the Peace of King Stephen The Councel on the other side said that it was a new Doctrine that the King shall not have the same Remedy by an Indictment which the Subject may have by an Action What is the meaning of the words of all Commissions de propalationibus verborum As to the first Exception they said that the Indictment was certain enough for the Defendant is laid to be de Almondbury in the West-Riding of Yorkshire To the second Exception they said that ad pacem conservand ' without nunc is well enough for it cannot be intended upon this Indictment that they were Iustices to preserve the Peace in any other Kings Reign and what was quoted out of Siderfin is but the Opinion of one single Iudge This is a Scandal upon the Government and 't is as much as to say that the King hath appointed an ignorant Man to be a Iustice of Peace for which an Indictment will lye And of that Opinion was the whole Court and gave Iudgment accordingly Ball versus Cock A Writ of Covenant did bear Teste the first day of Trinity Term Error to reverse a Fine where the Cognisor died after the Caption and before it passed the King's Silver retornable tres Trinitatis and it was taken by Dedimus 30 Julii A Writ of Error was brought to reverse this Fine and the Error assigned was that the Cognizor died after the Caption and before the Enrolment at the King's Silver Office It was argued by the Councel for the Plaintiff in the Writ of Error that a Fine Sur Cognizance de droit c. is said to be levied when the Writ of Covenant is returned and the Concord and King's Silver which is an antient Revenue of the Crown pro licencia concordandi duly entred for though the Cognisor dieth afterwards Dyer 220. b. 5 Co. 37. Cro. Eliz. 469. the Fine is good and the Land passeth but if the King's Silver be not entred the Fine may be reversed by Writ of Error for it is an Action and Iudgment and the death of either Party abates it If it should be objected that this cannot be assigned for Error because 't is against the Record which is Placita terrae irrotulat de Termino Sanctae Trinitatis anno primo Jacobi c. 'T is true an Error cannot be assigned against the very essence of a Record but in the matter of time it may and so 't is in this Case 'T is like Syer's Case 32 Eliz. 3 Inst 230. 4 Co. Hind's Case 10 H. 7.24 who was indicted for a Burglary supposed to be done primo Augusti and upon the Evidence it appeared to be done primo Septembris and though he was acquitted of the Indictment for that reason viz. because the Iudgment relates to the day of the Indictment yet it was resolved by all the Iudges of England that the very day needs not be set down in

the Fine and Non-claim the Substance of which was That Robert Basket was seized in Fee of the Lands in Question who by Will devised it to Philip Basket and others for 99 years with power to grant Estates for the payment hf the Debts and Legacies of the Testator the Remainder in Tail to John Basket his Brother but that if he gave Security to pay the said Debts and Legacies or should pay the same within a time limited that then the Trustees should assign the Term to him c. John Basket entred after the death of his Brother with the assent of the said Trustees and received the Profits and paid all the Legacies and all the Debts but 18 l. The Iury find that John had Issue a Daughter only by his first Wife after whose death he married another Woman and levied a Fine and made a Settlement in consideration of that Marriage upon himself for Life and upon his Wife for Life with divers Remainders over that he died without Issue by his second Wife who entred and five years were past without any claim c. And now the Heir at Law in the name of the Trustees brought this Action The Questions were 1. Whether the Term for 99 years thus devised to the Trustees was bound by this Fine and Nonclaim or not 2. Whether it was divested and turned to a Right at the time of the Fine levied For if it was not then the Fine could not operate upon it It was agreed that as a Disseisin is to a Freehold so is a divesting to a Term and that a Fine and Non-claim is no Barr but where the Party at the time of the levying thereof had a Will to enter and when the Estate of which 't is levyed is turned to a Right That in the Case at the Barr the Entry of John Basket was tortious because the legal Estate was still in the Trustees But if he had gained any Right by his Entry 't is only a Tenancy at Will to them for they took notice of the Devise and he entred by their consent and such a Right is not assignable and then a Fine levyed is no Barr. To prove this 9 Co. 106. Margaret Prodger's Case was cited where the the Lord granted a Copyhold to John Elizabeth and Mary for their Lives and afterwards by Deed enrolled sold the Land to John in Fee and levyed a Fine to him and his Heirs c. and five years passed without any Claim John dyed his Son entred and levyed another Fine to Trustees to the use of himself and Margaret his Wife for Life the Remainder to his own right Heirs the Son died and his Wife survived who having a Freehold for Life distrained and the Husband of Elizabeth brought a Replevin It was adjudged that this Fine and Nonclaim did not barr those in Remainder becase the Bargain and Sale to John did not divest their Estate and turn it to a Right for the Lord did what he might do and John accepted what he might lawfully take who being in possession by virtue of a particular Estate for Life could not by this acceptance divest the Estate of her who had the Freehold and the Fine and Nonclaim could not do it for to what purpose should he make any Claim when he was in actual possession of the thing to be demanded And he who is so in possession need not make any Claim either to avoid a Fine or a collateral Warranty Now though at the Common Law there must be Livery and Seisin to create an Estate of Freehold 3 Co. Fermer 's Case yet any thing is sufficient to make an Estate at Will in which neither the Inheritance or the Title of the Land is concerned and therefore a Fine levyed by such a Tenant is no Barr. 'T is true Sid. 458. Freeman versus Barns if a Lease be made for an hundred years in Trust to attend the Inheritance and Cestuy que Trust continues in possession and devises to another for fifty years and levies a Fine and the five years pass without Claim he being still in possession after the first Lease made is thereby become Tenant at Will and by making the second Lease the other is divested and turned to a Right though he was not a Disseisor and so 't is barred by the Fine because the Cestuy que Trust of the term of one hundred years was also Owner of the Inheritance But in the Case at the Barr John shall not be a Disseisor but at the Election of the Trustees of the Term of 99 years to prove which there are many Authorities in the Books As if Tenant at Will make a Lease for years and the Lessee enters Latch 53. 1 Leon. 121. Lit. Sect. 588. 't is not a Disseisin but at the Election of him who hath the Freehold and even in such Case if the Tenant of the Freehold should make a Grant of the Land 't is good though not made upon the Land it self for he shall not be taken to be out of possession but at his own Election 'T is like the common Case of a Mortgagee for years where the Mortgagor continues in possession twenty years afterwards and pays the Interest and in that time hath made Leases and levyed a Fine this shall not barr the Mortgagee for the Mortgagor is but Tenant at Will to him The Trustees need not make any claim in this Case because there was no transmutation of the possession so they could take no notice of the Fine 'T is true John Basket entred by their consent but still as Tenant at Will to them and the Acts done by him after his Entry will not didest this Term for though he made a Bargain and Sale of the Lands yet nothing will pass thereby but what of right ought to pass He likewise demised the Lands to Vndertenants for years but 't is not found that they entred but admitting they did enter yet that could not displace this Term for these Tenants claimed no more than for one or two years and made no pretence to the whole Term. But if by either of these Acts the Term should be divested yet still it must be at the election of those who have the Interest in it Dyer 61 62 173. The Case of * Cro. Car. 302. 1 Rol. Abr. 661. Blunden and Baugh which is grounded upon Littleton's Text Sect. 588. is an Authority to this purpose which was The Father was Tenant in Tail and his Son was Tenant at Will who made a Lease for years then both Father and Son join in a Fine to the use of the Son for Life and to Elizabeth his Wife for Life the Remainder to the Heirs Males of the Body of the Son who died without Issue Male the Lessee being in possession made a Conveyance of the Estate by Bargain and Sale to Charles Lord Effingham who was Son and Heir of the Tenant in Tail who made a Lease to the Plaintiff who was ousted by the

which he claims he ought to shew the other Will by which it must appear that nothing is contradictory to it or that it doth confirm the first but if Presumptions shall be admitted it must be in favour of the Heir for nothing shall be presumed to disinherit him Afterwards in Trinity-Term 5 Willielmi Iudgment was given for the Plaintiff and a Writ of Error was brought in the House of Peers to reverse that Iudgment but it was affirmed Anonymus A Writ of Error was brought to reverse a Iudgment in the Common Pleas in an Ejectment for Lands in the County of Essex in which a Special Verdict was found viz. That R. F. What Words in a Will make Tenants in Common was seized in Fee of the Lands in question who had Issue two Daughters Frances Jane Frances had Issue Philp Frances Anne R. F. the Father devised unto Philip Frances and Anne the Children of his Daughter Frances and to Jane his other Daughter the Rents and Profits of his Mannor of Spain for thirty years to hold by equal parts viz. the three Grandchildren to have one Moiety and his Daughter Jane the other Moiety And if it happen that either of them should die before the thirty years expired then the said Term should be for the benefit of the Survivor and if they all die then the same was devised over to other Relations Afterwards he made a Codicil in these words viz. I give Power and Authority to my Executors to let my whole Lands for the Term of thirty years for the benefit and behalf of my Children Anne one of the Granchildren died without Issue Frances another of the Grandchildren died but left Issue The first Question was whether the Power given to the Executors by the Codicil will take away that Interest which was vested in the Grandchildren by the Will Mr. Appleton argued that it would not because the Executors had only a bare Authority to let it or improve it for the benefit of the Children there was no Devise of the Land to them If Power be given to Executors to sell Lands 't is only an Authority and not an Interest in them but a bare Authority only to let is of much less importance 2. After the Testator had devised the Profits of these Lands to his Grandchildren and Daughter equally to be divided during the term and had provided that if any dye without Issue that then it should survive and if all dye then to remain over to collateral Relations c. Whether Frances being dead but leaving Issue her Interest shall survive to Philip or go to such her Issue As to that he held that the Testator made them Tenants in Common by equal parts and therefore he devised it by Moieties in which there can be no Survivorship 'T is like a Devise to the Wife for life 2 Cro. 448. 1 Roll. Abr. 833. King versus Rumbal Cro. Car. 185. and after her decease to his three Daughters equally to be divided and if any of them die before the other then the Survivors to be her Heirs equally to be divided and if they all die without Issue then to others c. the Daughters had an Estate Tail and there was no Survivorship So in this Case it shall never go to the third Grandchild as long as any Issue of the second are living On the other side it was argued that they are Ioyntenants and not Tenants in Common E contra for the Testator having devised one Moiety to his three Grandchildren joyntly by equal parts that will make them Ioyntenants But the Court were all of Opinion that the words in the Will shew them to be Tenants in Common for equally to be divided runs to the Moieties So the Iudgment was affirmed Woodward 's Case THE Statute of 23 H. 8. c. 9. Church Ornaments are a personal Charge upon the Inhabitants and not upon those who live else where though they occupy Lands in that Parish Godb. 134. pl. 4. 152. pl. 29. 154. pl. prohibites a Citation out of the Diocess wherein the Party dwelleth except in certain Cases therein mentioned one whereof is viz. Except for any Spiritual Cause neglected to be done within the Diocess whereunto the Party shall be lawfully cited One Woodward and others who lived in the Diocess of Litchfield and Coventry but occupied Lands in the Diocess of Peterborough were taxed by the Parishioners where they used those Lands for the Bells of the Church and they refusing to pay this Tax a Suit was commenced against them in the Bishop of Peterborough's Court who thereupon suggested this Matter and prayed a Prohibition because they were not to be charged with this Tax it being only for Church Ornaments And a Prohibition was granted the reason given was because 't is a personal charge to which the Inhabitants only are liable and not those who only occupy in that Parish and live in another but the repairing of the Church is a real Charge upon the Land let the Owner live where he will DE Term. Sanct. Trin. Anno 4 Jac. II. in Banco Regis 1688. Wright Chief Justice Holloway Justices Powel Justices Allibon Justices The Bishop 's Case Friday June 15th THE King having set forth a Declaration for Liberty of Conscience did on the 4th day of May last by Order of Council enjoyn that the same should be read twice in all Churches c. and that the Bishops should distribute it through their respective Diocesses that it might be read accordingly The Archbishop of Canterbury who then was together with six other Bishops petitioned the King setting forth that this Declaration was founded upon a dispensing Power which had been declared illegal in Parliament and therefore they could not in Honour or Conscience make themselves Parties to the Distribution and Publication of this Declaration who thereupon were summoned before the King in Council and refusing there to give Recognizance to appear before the Court of Kings Bench they were committed to the Tower by Warrant of the Council-Board The Attorney General moved for a Habeas Corpus retornable immediate and the same Morning in which that Motion was made Sir Edward Hales Lieutenant of the Tower returned the same and they were all brought into the Court. The Substance of the Return was viz. That they were committed to his Custody by Warrant under the Hands and Seals of the Lord Chanchellor Jefferies and also naming more of the Lords of the Privy-Council Dominos Concilij for contriving making and publishing a Seditious Libel against the King c. Then it was prayed that the Return might be filed and that the Information which was then exhibited against them for this Crime might be read and that they might all plead instanter Serjeant Pemberton Mr. Finch and Mr. Pollexfen oppsed the reading of it and moved that the Bishops might be discharged because they were not legally before the Court for it appears upon the Return that there is no lawful cause of

Revocation or not at all which revocation must depend upon the construction and exposition of the sixth Paragraph in the Statute of Frauds c. the words whereof are Viz. That no Devise of Lands c. or any clause thereof shall be Revoked otherwise than by some Codicil in Writing or other Writing declaring the same or by burning cancelling tearing or obliterating the same by the Testator himself or in his presence and by his direction or consent But all devises of Lands c. shall be good until burnt cancell'd torn c. by the Testator c. or unless the same be altered by some other Will or Codicil in Writing or other Writing of the Devisor signed in the presence of three Witnesses declaring the same So that the Question will be whether a Will which revokes a former Will ought to be signed by the Testator in the presence of three Witnesses 'T is clear that a Will by which Lands are devised ought to be so signed and why should not a Will which revokes another Will have the same formality The Statute seems to be plain that it should for it saies that a Will shall not be revoked but by some Will or Codicil in writing or other writing of the Devisor signed by him in the presence of three or four Witnesses declaring the same which last Clause is an entire sentence in the disjunctive and appoints that the Writing which revokes a Will must be signed in the presence of three Witnesses c. Before the making of this Act it was sufficient that the Testator gave directions to make his Will tho' he did never see it when made which mischief is now remedied not in writing the Will but that the Party himself should sign it in the presence of three Witnesses and this not being so signed but only published by the Testator in their presence 't is therefore no good Revocation Iustice Street was of a contrary Opinion that this was a good Revocation That the words in the fifth Paragraph of this Statute which altered the Law were Viz. That all Devises of Lands c. shall be in Writing and signed by the Party so devising or by some other person in his presence and by his express Directions and shall be attested and subscribed in the presence of the Devisor by three or four credible Witnesses In which Paragraph there are two parts 1. The act of the Devisor which is to sign the Will but not a word that he shall subscribe his Name in the presence of three Witnesses 2. The act of the Witnesses viz. that they shall attest and subscribe the Will in the presence of the Devisor or else the Will to be void But the sixth Paragraph is penn'd after another manner as to the Revocation of a Will which must be by some Codicil in writing or other Writing declaring the same signed in the presence of three Witnesses Now here is a Writing declaring that it shall be revoked not expresly but by implication and though that Clause in the disjunctive which says that the revocation must be by some Writing of the Devisor signed in the presence of three Witnesses c. yet in the same Paragraph 't is said that it may be revoked by a Codicil or Will in Writing and therefore an exposition ought to be made upon the whole Paragraph that the intention of the Law may more fully appear Such a construction hath been made upon a whole Sentence Sid. 328. 1 Sand. 58. where part thereof was in the disjunctive as for instance viz. A Man was possessed of a Lease by disseisin who assigned it to another and covenanted that at the time of the assignment it was a good true and indefeasable Lease and that the Plaintiff should enjoy it without interruption of the Disseisor Or any claiming under him in this Case the Diffeisee re-entred and though the Covenant was in the disjunctive to defend the Assignee from the Disseisor or any claiming under him yet he having undertaken for quiet enjoyment and that it was an indefeasable Lease it was adjudged that an exposition ought to be made upon the whole Sentence and so the Plaintiff had Iudgment The Chief Iustice Herbert was of the same Opinion with Iustice Street Rex versus Grimes and Thompson THE Defendants were indicted for being Common Pawn-Brokers Two are indicted for a Confederacy one is acquitted and that is the acquittal of the other and that Grimes had unlawfully obtained Goods of the Countess of c. and that he together with one Thompson per confoederationem astutiam did detain the said Goods until the Countess had paid him 12 Guineas Thompson was acquitted and Grimes was found Guilty which must be of the first part of the Indictment only for it could not be per confoederationem with Thompsom and therefore it was moved in arrest of Iudgment that to obtain Goods unlawfully was only a private injury for which the party ought not to be indicted To which it was answered that a plain Fraud was laid in this Indictment which was sufficient to maintain it and that tho one was acquitted yet the Iury had found the other guilty of the whole But the Court were of Opinion that the acquittal of one is the acquittal of both upon this Indictment and therefore it was quash'd King versus Dilliston Hill 2 3 Jacobi Rot. 494. A Writ of Error was brought to reverse a Iudgment in Ejectment given in the Common-Pleas Infant not bound by a Custom for one Messuage and twenty Acres of Land held of the Manor of Swafling There was a special Verdict found the substance of which was viz. That the Land in question was Copy-hold held of the said Manor of Swafling in the County of Suffolk and that Henry Warner and Elizabeth his Wife in right of the said Elizabeth were seized thereof for Life Remainder to John Ballat in Fee That the Custom of the said Manor was that if any Customary Tenant doth surrender his Estate out of Court that such Surrender shall be presented at the next Court of the said Manor and publick Proclamation shall be made three Court days afterwards for the Party to whose use the Surrender was made to come and be admitted Tenant and if he refuseth then after three Proclamations made in each of the said Courts the Steward of the said Manor issueth forth a Precept to the Bailiff thereof to seise the Copyhold as forfeited They find that Henry Warner and his Wife and John Ballat made this Surrender out of Court to the use of Robert Freeman and his Heirs who died before the next Court and that John Freeman an Infant was his Son and Heir That after the said Surrender three Proclamations were made at three several Courts held for the said Manor but that the said John Freeman did not come to be admitted Tenant thereupon the Steward of the said Manor made a Precept to the Bayliff who seized the Lands in

question as forfeited to the Lady who entred and made a Lease to the Plaintiff upon whom the Defendant re-entred The single Question upon this special Verdict was whether this was a Forfeiture and so a good seisure to bind the right of an Infant It was argued for the Plaintiff in the Action that it was a good Seisure and a Forfeiture till the Infant should come of Age for as a Copyhold is established by Custom so likewise 't is Custom which obligeth the Infant to the Conditions thereof and therefore where one under Age hath an Estate upon a Condition to be performed by him 8 Co. 44. b. Whittingham 's Case Latch 199. Jones 157. and that Condition is broken during his Minority the Estate is lost for ever In this Case the Custom obligeth the Heir to be admitted that the Lord may be entituled to a Fine which if he should lose because his Tenant is an Infant then that priviledge of Infancy works a wrong which the Law will not permit 'T is true an Infant shall not be prejudiced by the Laches of another but shall be answerable for himself and therefore if he is Tenant of Lands and the Rent should be unpaid for two years and no Distress can be found a Cessavit lies against him and the Lord shall recover the Land because of the Non-performance which arises by his own default So if one under Age be a Keeper of a Gaol and suffer a Prisoner to escape out of Execution 2 Inst 382. an Action of Debt will lie against him upon the Statute of W. 2. It was agreed that such a Custom and Non-claim will not foreclose an Heir 8 Co. 100. Sir Rich. Letchford 's Case who is an Infant and beyond Sea at the time of his Ancestors Death though he is bound by the Custom to claim it at the next Court but that if he will come over and tender himself though after a Seisure he shall be admitted and so shall the person in this Case if after his Minority he offer himself to be admitted But it cannot be denied 2 Cro. 226. but that the Lord may seize when the Heir is beyond Sea till he return and tender himself to be admitted and by the same reason he may also seize in this case during the Minority A Temporary Forfeiture is no new thing in the Law Cro. Car. 7. for if a Feme Covert be a Copyholder and marrieth and her Husband makes a Lease for years without License of the Lord 't is a Forfeiture and shall bind her during the Coverture So the Law is Cro. El. 351. that the Lord may seize the Land till a Fine is paid for 't is a reasonable Custom so to do It hath been a good Custom for the Lord to assign a person to take the Profits of a Copyhold Estate descended to the Infant during his Minority without rendring an Accompt when he came of Age. 1 Leon. 266. 2 Leon. 239. So that all taht is to be done in this Case is to enforce the Infant to be admitted that the Lord may be entituled to a Fine The Inheritance is not bound but the Land is only seized quousque E contra It was argued that here is a general Seizure E contra which cannot extend to an Infant for he is not bound in a Writ of Right much less in an inferior Court after three Proclamations but if this had been a Temporary Seisure the Iury ought to have found it so which is not done There are many Authorities in the Books which affirm that an Infant is not obliged to be admitted during his Non-age 1 Leon. 100. 3 Leon. 221. or to tender the Fine in order to an Admittance that the Law was settled in this Point and therefore without any further Argument he prayed Iudgment for the Defendant Afterwards in Hillary-Term 1 Willielmi Mariae this Case was argued seriatim at the Bench three Iudges being of a contrary Opinion to the Chief Iustice for the affirming of the Iudgment Iustice Eyre premised two things 1. That he could not intend but that this Verdict had found an absolute Forfeiture the Iury having no way qualified it as to a certain time and therefore he would give a Iudgment upon the whole Record 2. He agreed that a Feoffment of an Infant was no Forfeiture at the Common Law and that as a particular Custom may bind an Infant for a time so it may barr him for ever but whether this Custom as 't is found in general words shall bind an Infant after three Proclamations is now the Question he not coming then to be admitted And he held that it shall not and that for these reasons 1. The Right of Infants is much favoured in the Law and their Laches shall not be prejudicial to them as to Entry or Claim upon a Presumption that they understand not their Right 1 Inst 380. 2 Inst 401. and therefore in a Cessavit per biennium which is a remedy given by the Statute of W. 2. and which extends to Infants Westm 2. c. 31. who have not the Land by descent for if a Cesser be in that Case the Infant shall have his Age because the Law intends that he doth not know what Arrerages to tender 'T is admitted that if an Infant doth not present to a Church within six Months or doth not appear within a year that his Right is bound but this is because the Law is more tender of the Church and the life of a Man than of the Priviledges of Infancy So if an Office of Parkship be given or descends to an Infant if the Condition in Law annexed to such an Office which is skill be not observed the Office is forfeited But that a Proclamation in a base Court should bind an Infant when he is not within the reason of the Custom is not agreeable either to Law or Reason 2. Cro. Jac. 80. Cro. El. 879. Noy 42. 1 Rol. Abr. 568. All Customs are to be taken strictly when they go to the destruction of an Estate and therefore a Custom was that if a Copyholder in Fee surrender out of Court and the Surrendree doth not come in after three Proclamations the Lord shall seize it A Copyholder in Fee surrendred to another for Life the Remainder over in Fee if the Tenant for Life will not come in he in the Remainder shall not be barred for the Custom shall be intended to extend only to those in possession But the Infant in this Case is not within the Letter of the Custom for 't is found that the Surrender was made to one Freeman who died before the next Court-day and that John Freeman the Infant was his Son and Heir so they have found a Title in him for the word Heir is not here a word of Purchase but of Limitation 3. Jones 157. Noy 92. Infants are not bound by other Customs like this as a Custom that every Copyholder

who makes a Lease of his Land shall forfeit it but this doth not conclude an Infant 4. There is not any necessity to construe an Infant to be within this Custom for 't is not found that the Lord was to have a Fine upon admittance and 't is no consequence to say that the Lord shall have a Fine because usually Fines are taken upon admittances 1 Leon. 100. 3 Leon. 221. for an Infant may be admitted to a Copyhold but not be bound to tender his Fine at any time during his Non-age Justice Gregory was of the same Opinion which he chiefly grounded upon Sir Richard Letchford's Case between which and the Case at the Barr he said there was no material difference only in that Case the Heir was beyond Sea and in this at the Barr 2 Cro. 226. Latch 199. Godb. 364. Jones 391. Dyer 104. he was an Infant 'T is very true that the Books mention a Seisure quousque 't is so said by Iustice Williams in Croke but he gives no reason for it 't is only an Opinion obiter but it is clear by many Authorities that Infants may be bound by Acts of necessity and so they may by a Custom Iustice Dolben of the same Opinion which he said was agreeable to the reason of the Law in parallel Cases An Infant is priviledged in a Fine for he is excepted by the Statute because he knows not how to make his Claim He said this was likewise agreeable to the Custom of 26 Mannors of which he was formerly Steward for in such Cases he always marked the Court Roll Nulla Proclamatio quia Infans It cannot be a Forfeiture quousque because an Infant is wholly exempted by the Custom and therefore 't is no Forfeiture at all 'T is an Objection of no moment to say that the Lord by this means will lose his Fine and that he hath no remedy to make the Infant when of Age to be admitted for no Fine is due to him before admittance But this Objection will be of less weight if the loss of the Infant be compared to that of the Lord who looseth only the Interest of a Fine before Admittance and shall this Infant who is now but three years of Age loose the Profits of his Estate for 18 years But there may be a way found out that neither may loose for if it should be that when the Infant comes of Age his Estate should be then forfeited if he doth not tender himself to be admitted after three Proclamations Now upon his admittance the Lord may set a reasonable Fine having respect to the length of time in which it was deteined from him Stowel's Case was no more but this viz. Pl. Com. 356. A Disseisor levied a Fine with Proclamations and lived three years his Heir being under Age and the five years incurred after the said Heir came of Age and then he entred within a year and his Entry was adjudged unlawful But that will not concern this Case because it was a Iudgment upon the Statute of H. 7. 4 H. 7. c. 24. for the five years being once attached and begun in the life of his Ancestor shall incurr and go on and bind the Infant if he do not pursue his Claim within that time after he comes of Age but 't is to be observed that my Lord Dyer in the Argument of that Case said nothing of a Seisure quousque The Chief Iustice was of a contrary Opinion from the other three Iustices and that the Iudgment ought to be reversed Because until the Infant is admitted the Estate remains in the Surrenderor and without an Admittance he cannot enter but by a special Custom to warrant it and for this reason 't is that the Surrenderor shall have an Action of Trespass against any person who enters because he shall be intended still in possession till the Admittance of another If so 2 Cro. 368. Yelv. 16. then Infancy cannot protect an Estate to which the Infant hath no Title till Admittance for till then he hath neither Jus in re nor Jus ad rem This is a Condition annexed to the Estate to be performed by the Infant by which he is bound notwithstanding his Non-age otherwise his Estate is forfeited The Custom which obligeth him to be admitted is to entitle the Lord of the Mannor to a Fine to which he hath a right Now Infancy was never yet extended to endanger that remedy which Men have to recover their Rights it has been often so far extended as to delay such a remedy but never to destroy it for if the Infant should die the Lord looseth the Fine and then another person is to be admitted but he cannot encrease the Fine upon him who is a Stranger for the neglect of the Infant 'T is true Bridg. 83. Yelv. 144. Poph. 127. where an Infant hath a Right it shall be preserved though a Fine be levied and the five years pass but in this Case he hath no Right before Admittance If a Feme Covert be an Heir to a Copyhold Estate where the like Custom is and she marrieth and the Husband after three Proclamations will not come and be admitted 't is a Forfeiture during the Coverture Now the reason in the Cases of Coverture and Infancy is the same for if there shall be a Seisure during the time the woman is Covert why not during the Infancy As to Sir Richard Letchford's Case the Heir was beyond Sea but when he came into England he desired to be admitted but this Infant never yet desired to be admitted he stands upon his Priviledge of Infancy But upon the Opinion of the other three Iustices the Iudgment was affirmed that the Custom doth not bind the Infant Carter versus Dowrich A Covenant to pay so much Mony to the Plaintiff or his Assigns as should be drawn upon the now Defendant by a Bill of Exchange Custom of Merchants where it must be particularly set forth c. The Breach was assigned in Non-payment The Defendant pleaded that the Plaintiff secundum legem Mercatorum did assign the Mony to be paid to A. who assigned it to B. to whom he paid 100 l. and tendred the rest drawn upon by Bill of Exchange c. And upon a Demurrer Mr. Pollexfen insisted that this was not a good Plea because the Defendant had not set forth the Custom of Merchants without which all these Assignments are void of which Custom the Court cannot take any judicial notice but it must be pleaded and 't is not sufficient to say that the Assignment was made secundum legem Mercatoriam but it must be secundum consuetudinem Mercatoriam otherwise 't is not good E contra E contra Litt. 182. It was argued that the Custom of Merchants is not a particular Custom and local but 't is of an universal extent and is a general Law of the Land The pleading it as 't is here is good for if an Action is brought against

an Inn-keeper or common Carrier 't is usual to declare secundum legem consuetudinem Angliae for 't is not a Custom confined to a particular place but 't is such which is extensive to all the King's People The word Consuetudo might have been added 1 Inst 182. but it imports no more than Lex for Custom it self is Law If the Custom of Merchants had been left out the Defendant had then pursued his Covenant for if a Man agrees to pay Mony to such a person or his Assigns and he appoints the payment to another a tender to that person is a good performance of the Covenant But the Court were of Opinion that this was not a good Plea Panton versus the Earl of Bath A Scire Facias to have Execution of a Iudgment obtained in the Court of Oliver late Protector of England and the Dominions and Territories thereunto belonging Where the Pleading is good in substance tho' there is a small variation it will not hurt and in reciting the Iudgment 't is said that it was obtained before Oliver Protector of England and the Dominions thereunto belonging leaving out the word Territories And upon a Demurrer Mr. Pollexfen held this to be a variance Yelv. 212. Orde versus Moreton and like the Case where a Writ of Error was brought to remove a Record in Ejectment directed to the Bishop of Durham setting forth that the Action was between such Parties and brought before the said Bishop and seven other persons naming them and the Record removed was an Ejectment before the Bishop and eight others so that it could not be the same Record which was intended to be removed by the Writ E contra E contra It was said suppose the word Scotland should be left out of the King's Title would that be a variance The Iudicature in this Case is still the same and the Pleading is good in Substance and of that Opinion was the whole Court Hyley versus Hyley HYley had Issue W. Where the Reversion in Fee shall pass in a Will by the words viz. Remaining part of my Estate his eldest Son who had Issue Peter Charles John He by Will devised 1000 l. to his eldest Son and several parcels of Land to other Legatees Then he gave to Peter Lands in Tail Male To John a Mansion House now in question in Tail Male He devised another House to his Grandson Charles in like manner And all the rest and remaining part of his Estate he devised to his three Grandsons equally to be divided amongst them that only excepted which he had given to Peter Charles and John and to the Heirs of their Bodies whom he made Executors Then by another Clause he devised viz. That if either of his Executors die without Issue then the part or parts of him so dying shall go to the Survivor or Survivors equally to be divided John the youngest Grandson dyed without Issue and the question was whether the Reversion of his House shall be divided between his surviving Brothers or descend to his Heir And it was adjudged that the Exception in the Will did comprehend the Reversion in Fee and that it did not pass but without such an Exception it had passed * Allen 28. as where a Man devised his Mannor to another for years and part of other Lands to B. and his Heirs and all the rest of his Lands to his Brother in Tail it was held that by these words the Reversion of the Mannor did pass Anonymus NOTA. An Infant having entred into a Statute brought an Audita Querela to avoid it he was brought into the Court and two Witnesses were sworn to prove his Age and then his Appearance and Inspection were recorded he was bound in this Case with two other persons for 1600 l. and had no more than 200 l. for his share Lydcott versus Willows IN Ejectment A special Verdict was found viz. Devise of an Hereditament carries the Reversion in Fee that the Testator being seized in Fee of certain Houses in Bedfor-Bury and in Parker's Lane did by Will devise his Houses in Parker's Lane to charitable Vses then he gave several specifick Legacies to several persons named in the said Will and then he devised his Houses in Bedford-Bury to Edward Harris and Mary his Wife for their Lives then follow these words viz. The better to enable my Wife to pay my Legacies I give and bequeath to her and her Heirs all my Mesuages Lands Tenements and Hereditaments in the Kingdom of England not before disposed of c. The Question was whether this Devise would carry the Reversion of the Houses in Bedford-Bury to his Wife Adjudged that it did not but that it ought to go to the Heir of the Testator who was Plaintiff in this Case It being found that Harris and his Wife were dead and that the Wife who was Executrix had sufficient Assets to pay the Legacies without the Reversion But Iustice Powel was of another Opinion for that the word Hereditament imports an Inheritance and if it had devised thus viz. the Inheritance not before disposed of the Reversion had passed Afterwards a Writ of Error was brought in the Exchequer-Chamber upon this Iudgment 2 Vent 285. and according to the Opinion of Iustice Powel the Iudgment was reversed Nota. A Rule of Court was made that no Certiorari should go to the Sessions of Ely without Motion in Court or signing of it by a Iudge in his Chamber But Mr. Pollexfen insisted that the Sessions there did not differ from other Courts and Franchises for the inferior Courts in London are of as large a Iurisdiction as any and yet a Certiorari goes to them and so it ought to go to Ely for 't is the Right of the Subject to remove his Cause hither Their course in the Royal Franchise of Ely is to hold the Sessions there twice a year viz. in March and September in which two Months the Iudges are seldom in Town and if this Court should deny a Certiorari the Court of Common Pleas would grant it Attorney General contra This Franchise of Ely is of greater Priviledge and Authority than any inferior Court for it hath many Regalia though 't is not a County Palatine A Certiorari will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes 't is true it lyeth to remove Indictments for Riots and this Franchise being truly called Royal hath equal priviledge with a County Palatine and therefore a Certiorari will not lie But no Rule was made Osborn versus Steward TRespass Distress for an Heriot where it may be taken The Case upon the Pleadings was this viz. A Lease was made of Land for 99 years if Margery and Dorothy Upton should so long live reserving a yearly Rent and an Heriot or 40 s. in lieu thereof after the death of either of them Provided that no Heriot shall be paid after the death of Margery living

Dorothy Margery survived and is since dead The Question was whether upon this Reservation the Beast of any person being upon the Land may be distreined for an Heriot Mr. Pollexfen argued that it could not because the words in the Reservation ought to be taken very strictly and not to be carryed farther than the plain expression Where words are doubtful they have been always expounded against the Lessor Cro. Eliz. 217. 2 Roll. Abr. 448. Latch 99. as if a Lease be made for years reserving a Rent durante termino to the Lessor his Executors or Assigns the Lessor dies his Heir shall not have the Rent because 't is reserved to the Executors But here is no room for any doubt upon these words for if a Lease for years be made in which there is a Covenant that the Lessee shall pay the Rent without any other words this determines upon the death of the Lessee So where a Lease was made for 99 years if A. B. C. 2 Rol. Abr. 451. Hetley 58. Cro. Car. 314. or any of them should so long live reserving Rent to him and his Executors and also at or upon the death of either his or their best Beast in the name of an Heriot provided that if B. or C. die living A. no Heriot shall be paid after their deaths A. assigns his Term and the Beast of the Assignee was taken for an Heriot but adjudged that it could not for the words his or their shall not be carried farther than to the persons named in the Limitation The Books that affirm that a Man may seize for an Heriot Service cannot be brought as Authorities in this Case because they are all upon Tenures between Lord and Tenant and not upon particular Reservations as this is The old Books say that if a Tenant by Fealty and Heriot-Service Broke tit Heriot 2. made his Executor and died that the Lord might seize the best Beast of his Tenant in the Hands of the Executor and if he could not find any Beast then he might distrain the Executor Plo. Com. 95. and the reason of this seizure was because immediately upon the death of the Tenant a Property was vested in the Lord but it was held always unreasonable to put him to distrain when he might seise And it is now held that for Heriot-Service the Lord may either distrain or seise but then if he makes a seisure Cro. Car. 260. Jones 300. it must be the very Beast of the Tenant but if he distrain he may take any persons Cattle upon the Land So that admitting this to be Law yet it proves nothing to this matter because such Services being by Tenure shall not be extended to those which are created within time of memory upon particular reservations for by those ancient Tenures the Lords had many Priviledges which cannot be upon Reservations Besides the seisures in those Cases were by the Lords who continued so to be at the very time of the seisure but in our Case the Lease is determined by the death of the last Life so the Priviledge is lost and then it must stand upon the particular words in the Deed. Sed adjornatur into the Exchequer Chamber the Iudges being divided in Opinion Vid. 2 Sand. 165. Shipley versus Chappel Pasch 3 Jac. Rot. 404. THE Plaintiff Shipley as Administrator of Hannah his Wife Condition of two parts in the disjunctive and one part becomes impossible to be done yet the other must be performed according to the subsequent matter brought an Action of Debt upon a Bond against Chappel an Attorny for 140 l. The Defendant craved Dyer of the Condition which was Viz. Whereas Hannah Goddard who was Wife to the Plaintiff and Thomas Chappel of Greys-Inn in the County of Middlesex are Coparceners according to the Common-Law of one House with the Appurtenances in Sheffeild in the possession of William White and whereas the said Hannah Goddard hath paid unto Thomas Chappel the Father for the use of his Son the Sum of 72 l. in consideration that the said Thomas Chappel the Son when he attains the Age of 21 years which will be about Midsomer next do by good Conveyance in the Law at the costs and charges of the said Hannah Goddard convey his said moiety of the said House with the Appurtenances unto her and her Heirs Now the Condition of this Obligation is such That if the said Thomas Chappel the Son shall at the Age of 21 years convey his said moiety of the said House or otherwise if the said Thomas Chappel the Father his Heirs Executors or Administrators shall pay or cause to be paid the sum of 72 l. with lawful Interest for the same unto the said Hannah Goddard her Executors Administrators or Assigns that then this Obligation to be void Then he pleaded that his Son Thomas Chappel was Coparcener with Hannah Goddard as Co-heires of Elizabeth Goddard that Thomas came of Age and that before that time Hannah died without Issue The Plaintiff replied that true it is that before Thomas Chappel the Son came of Age the said Hannah died without Issue of her Body that Elizabeth Goddard before the making of the said Bond died seised in Fee of the said Messuage but that she first married with one Malm Stacy by whom she had Issue Lydia that Malm her Husband died and Elizabeth married John Goddard by whom he had Issue Hannah their only Daughter and Heir that John Goddard died and that Lydia Stacy married the Defendant Thomas Chappel by whom he had Issue Thomas Chappel his Son that Lydia died in the life-time of Elizabeth that Thomas Chappel hath not paid the 72 l. to Hannah in her life time or to John Shipley after her death The Defendant demurred and the Plaintiff joyned in Demurrer The Question was since the word Heirs in the Condition being a word of Limitation and not of any designation of the person whether the death of Hannah Goddard before Chappel the Son came of Age and who was to make the Conveyance shall excuse the Defendant from the payment of the Mony Those who argued for the Defendant 5 Co. 21. b. chiefly relied upon Laughter's Case which was viz. Laughter and Rainsford were bound that if R. after marriage with G. together with the said G. shall sell a Messuage c. if then R. do or shall in his life-time purchase for the said G. and her Heirs and Assigns Lands of as good value as the Mony by him received by the said Sale or leave her as much Mony at his decease then c. G. died R. did not purchase Lands of an equal value with that he sold and upon Demurrer it was held that where a Condition consisteth of two parts in the disjunctive and both possible at the time of the Bond made and afterwards one is become impossible by the act of God there the Obligor is not bound to perform the other part because the Condition is made for

Indebitatus Ass will lye for a Fine upon an Admission c. That a Fine was due to him for an admission That upon the death of the said Lord the Manor descended to W. as his Son and Heir who died and the Plaintiff as Executor to the Heir brought an Indebitatus Assumpsit for this Fine He declared also that the Defendant was indebted to him in 25 l. for a reasonable Fine c. The Plaintiff had a Verdict and entire Damages and it was now moved in arrest of Iudgment that an Indebitatus will not lie for a Customary Fine because it doth not arise upon any Contract of the Parties but upon the Tenure of the Land for upon the death of the Lord there is a Relief paid for there must be some personal Contract to maintain an Action of Debt or an Indebitatus Assumpsit 2 Cro. 599. Jones 339. and therefore it was held that where the Plaintiff locasset a Ware-house to the Defendant he promised to pay 8 s. per Week An Assumpsit was brought for this Rent and a Verdict for the Plaintiff And a Motion was made in Arrest of Iudgment that this was a Lease at Will and the weekly payment was in the nature of a Rent and it was agreed that an Assumpsit would not lie for a Rent reserved because it sounds in the Realty but because it was only a Promise in consideration of the occupying of the Warehouse the Action was held to be well brought 2. Where the Cause of an Action is not grounded upon a Contract but upon some special Matter there an Indebitatus Assumpsit will not lie and therefore it will not lie upon a Bill of Exchange or upon an Award or for Rent though there is a Privity both of Contract and Estate without a special Assumpsit E contra E contra It was argued that the Action lies for though a Fine savours of the Realty yet 't is a certain Duty In all Cases where Debt will lie upon a simple Contract there an Assumpsit will lie likewise 't is true this doth concern the Inheritance but yet 't is a Contract that the Tenant shall be admitted paying the Fine It hath been also maintained for Mony had and received out of the Office of Register for the Plaintiffs use and for Scavage Mony due to the Mayor and Commonalty of London 3 Keb. 677. which is also an Inheritance 'T is a Contract implyed by Law and therefore the Action is well brought Afterwards in Michaelmas Term 1 Willielmi Mariae by the Opinion of Iustice Dolben 2 Leon. 79. Eyre and Gregory Iudgment was given for the Plaintiff But the Chief Iustice was of another Opinion for he held that if the Defendant had died indebted to another by Bond and had not Assets besides what would fatisfie this Fine if the Executor had paid it to the Plaintiff it would have been a Devastavit in him Suppose the Defendant promiseth that in consideration that the Plaintiff would demise to him certain Lands that then he would pay the Rent If the Defendant pleads Non Assumpsit Cro. Car. Acton versus Symonds the Plaintiff must prove an express Promise or be Non suit Also here is no Tenure or Custom set out Yet by the Opinion of the other three Iustices the Plaintiff had his Iudgment Rex versus Johnson INformation upon the Statute of 29 30 Car. 2. cap. 1. Pardon after a Verdict for the King excuseth the Forfeiture prohibiting the Importation of several French Commodities and amongst the rest Lace under the Penalty of 100 l. to be paid by the Importer and 50 l. by the Vendor and the Goods to be forfeited The Information sets forth that a Packet containing so many yards of Lace was imported by the Defendant from France and that he did conceal it to hinder the Seisure and that he did privately sell it contra formam Statuti Vpon Not-Guilty pleaded the King had a Verdict and on the 2d of October there came forth a general Pardon in which were these Words viz. That the Subjects shall not be sued or vexed c. in their Bodies Goods or Chattels Lands or Tenements for any Matter Cause or Contempt Misdemeanour Forfeiture Offence or any other thing heretofore done committed or omitted against us Except all Concealments Frauds Corruptions Misdemanours and Offences whereby we or our late Brother have been deceived in the Collection payment or answering of our Revenues or any part thereof or any other Mony due or to be due to us or received for us or him and all Forfeitures Penalties and Nomine Poena's thereupon arising and all Indictments and Informations or other Process and Proceedings now depending or to be depending thereupon The Question now was whether this Forfeiture was excused by this Pardon The Attorney General argued that it was not because an Interest is vested in the King by the Iudgment and that no particular or general Pardon shall divest it without words of Restitution So was Tooms's Case who had Iudgment against another 1 Sand. 361. and then became Felo de se his Administrator brought a Scire Facias quare Executionem non haberet The Debtor pleaded that after the Iudgment the Intestate hanged himself which was found by the Coroners Enquest returned into this Court. The Plaintiff replied the Act of Pardon But it was adjudged for the Defendant for when the Inquisition was returned then the Debt was vested in the King which could not be divested without particular words of Restitution and which were wanting in that Act of Pardon The most proper word in the Body of this Pardon which seems to excuse the Defendant is the word Offence but the same word is likewise in the Exception viz. Except all Offences c. in collecting or paying of Mony due to us and all Forfeitures c. Now the concealing of forfeited Goods from Seisure is an Offence excepted for 't is a remedy for the King's Duty of which he was hindred by the Concealment 'T is true the first part of the Pardon excuseth all Misdemeanours comitted against the King in his standing Revenue but this Exception takes in all Concealments and Frauds in answering of the Revenue and this Information is principally grounded upon Fraud 5 Co. 56. so that the Exception ought to be taken as largely for the King as the Pardon it self to discharge the Subject No Fraud tending to the diminution of the Revenue is pardoned for it excepts not only all Concealments in collecting the Revenue but other Mony due or to be due to the King If therefore when the King is entituled by Inquisition Office or Record there must be express and not general words to pardon it and since this Fact was committed before the Pardon came out and so found by the Iury whose Verdict is of more value than an Enquest of Office so that the King by this means is entituled to the Goods by Record

Intratur Trin. 1 W. M. Rot. 249. THis was a Trial at the Bar A Will shall not be revoked by a subsequent Writing unless that be also a good Will by a Wiltshire Iury in an Ejectment brought by the Plaintiffs as Heirs at Law to Ann Speke who died seized in Fee of the Lands in Question Vpon not Guilty pleaded this Question did arise at the Trial Whether the Answer of a Guardian in Chancery shall be read as Evidence in this Court to conclude the Infant There being some Opinions that it ought to be read and the Defendants Council insisting on the contrary Mr Iustice Eyres being the Puisne Iustice was sent to the Court of Common-Pleas then sitting to know their Opinions who returning made this Report That the Judges of that Court were all of Opinion that such Answer ought not to be read as Evidence for it was only to bring the Infant into Court and to make him a Party Then the Plaintiffs proceeded to prove their Title as Heirs at Law viz. by several Inquisitions which were brought into Court and by the Heralds Office The Defendants Title likewise was thus proved viz. That the Lady Speke being seised in Fee c. did by Will dated in March 1682. devise the Lands to John Petit for Life Remainder to the Defendant and his Heirs for ever That the Lady Speke died so seised that John Speke the Tenant for Life and Father to the Defendant was also dead c. This Will was proved by several Witnesses one of which likewise deposed that my Lady Speke made two other Wills subsequent to this now produced and a Minister prov'd that she burnt a Will in the Month of December which was in the year 1685. Then the Plaintiffs produced another Will made by her at Christmas 1685. attested by three Witnesses but not in the presence of my Lady so that though it might not be a good Will to dispose the Estate yet the Council insisted that it was a good Revocation of the other for 't is a Writing sufficient for that purpose within the sixth Paragraph of the Statute of Frauds The Case of Sir George Sheers was now mentioned whose Will was carried out of the Chamber where he then was into a Lobby and signed there by the Witnesses but one of them swore that there was a Window out of that Room to his Chamber through which the Testator might see the Witnesses as he lay in his Bed Vpon which Evidence the Iury found this special Verdict viz. That Ann Speke being seised in Fee c. did on the 12th day of March 1682. make her Will and devised the Lands to John Pettit for Life and afterwards to George his Son and to his Heirs for ever upon condition that he take upon him the Name of Speke That the 25th of December 1685. she caused another Writing to be made purporting her Will which was signed sealed and published by her in the presence of three Witnesses in the Chamber where she then was and where she continued whilst the Witnesses subscribed their Names in the Hall but that she could not see them so subscribing They find that the Lessors of the Plaintiff are Heirs at Law and that they did enter c. This matter was argued in Easter Term following and the Question was whether this Writing purporting a Will was a Revocation of the former or not and that depended upon the Construction of the sixth Paragraph in the Act of Frauds viz. All Devises of Lands shall be in Writing and signed by the party or some other in his presence and by his express Directions and shall be attested by three or four Witnesses c. and that such devise shall not be revocable but by some other Will or Codicil in Writing or other Writing c. declaring the same Now the want of Witnesses doth not make the last Will void in it self but only quoad the Lands therein devised it hath its operation as to all other purposes It must therefore be a Revocation of the former and this is agreeable to the Resolution of the Iudges in former times for there being nothing in the Statute of Wills which directs what shall be a Revocation 32 H. 8. cap. 1. Dyer 143. the Iudges in Trevilian's Case did declare that it might be by word of mouth or by the very intention of the Testator to alter any thing in the Will for before the late Statute very few words did amount to a Revocation Moor 429. 1 Roll. Abr. 614 615 616. If Lands are devised and afterwards a feoffment is made of the same but for want of Livery and Seisin 't is defective yet this is a Revocation of the Will though the Feoffment is void The Council on the other side argued that this Will was not void by any Clause in the Statute of Frauds E contra for if this is a Revocation within that Statute then this second Writing purporting a Will must be a good Will for if 't is not a good Will then 't is not a good Revocation within that Law No Man will affirm that the latter Writing is a good Will therefore the first being a Devise of Land cannot be revoked but by a Will of Land which the second is not This Statute was intended to remedy the mischief of parol Revocations and therefore made such a solemnity requisite to a Revocation It cannot be denied but that this latter Writing was intended to be made a Will but it wanting that perfection which is required by Law it shall not now be intended a Writing distinct from a Will so as to make a Revocation within the meaning of that Act. If a Man hath a power of Revocation either by Will or Deed and he makes his Will in order to Revoke a former this is a Writing presently but 't is not a Revocation as long as the person is living Therefore a Revocation must not only be by a Writing but it must be such a Writing which declares the intention of a Man that it should be so which is not done by this Writing Vpon the first Argument Iudgment was given for the Defendant that the second Will must be a good Will in all Circumstances to Revoke a former Will Cross versus Garnet THE Plaintiff declared that on such a day and year there was a discourse between him and the Defendant concerning the Sale of two Oxen then in the possession of the Defendant and that they came to an agreement for the same that the Defendant did then sell the said Oxen to the Plaintiff and did falsly affirm them to be his own ubi revera they were the Oxen of another Man The Plaintiff had a Verdict Cro. Eliz. 44. 1 Rol. Rep. 275. 2 Cro. 474 1 Roll. Abr. 91. More 126. Yel 20. Sid. 146. and Serjeant Thompson moved in arrest of Iudgment that the Declaration was not good because the Plaintiff hath not alledged that the Defendant did affirm the

Cattle to be his own sciens the same to be the Goods of another or that he sold them to the Plaintiff fraudulenter deceptive or that there was any Warranty for this Action will not lie upon a bare Communication But notwithstanding these Exceptions the Plaintiff had his Iudgment it might have been good upon Demurrer but after Verdict 't is well enough Lea versus Libb IN Ejectione firmae for Lands in Hampshire Two Witnesses to a Will and two to a Codicil one whereof was a Witness to the Will these are not three Witnesses to the Will it self the Iury found a special Verdict the substance of which was this viz. That the Lessor of the Plaintiff was Heir at Law to one John Denham his Ancestor who being seised in Fee of the Lands in question did by Will bearing date the 28th day of January in the year 1678. devise the same to the Defendant which he subscribed and published in the presence of two Witnesses and they likewise attested it in his presence They find that on the 29th day of December 1679. he made another Will or Codicil in Writing reciting that he had made a former Will and confirming the same except what was excepted in the Codicil and declared his Will to be that the Codicil should be taken and adjudged as part of his Will They find that he published this Codicil in the presence likewise of two Winesses one of which was Witness to the first Will bue the other was a new Man They find that these were distinct Writings c. The Question was whether this was a good Will attested by three Witnesses since one of the Witnesses to the Codicil was likewise a Witness to the Will so that the new Man if any must make the third Witness Serjeant Thompson argued that it was not a good Will The Clause of the Statute is That all Devises of Lands shall be in Writing and signed by the Testator in the presence of three Witnesses and they to attest it in his presence But here are not three subscribing Witnesses in the presence of the Testator so that the first Will must be void for one of the Witnesses to the Codicil did never see that Will Besides the Codicil is not the same thing with the Will 't is a confirmation of it and this being in a Case wherein an Heir is to be disinherited ought not to have a favourable Construction Attorney General contra A Will may be contained in several Writings and yet but one entire Will 'T is true if it be attested only by two Witnesses 't is not good but if the Testator call in a third person and he attests that individual Witing in his presence this is a good Will though the Witnesses were not all present together and at the same time for there is the Credit of three persons to such a Will which is according to the intent of the Statute And therefore it cannot be objected that these are distinct Wills or that the Papers are not annexed for no such thing is required by Law for a Man may make his Will in several Sheets of Paper and if the Witnesses subscribe the last Sheet 't is well enough or if he doth put up all the Sheets in a blank piece of Paper and the Witnesses attest that Sheet 't is a good Will In these Cases the intent of the Law-makers must and ought to be chiefly regarded and for what reasons and purposes such Laws were made and what Iudgments have been given in parallel Cases If a Man grants a Rent-Charge to his youngest Son for Life 2 Cro. 144. Noy 117. and afterwards devises that he shall have the Rent as expressed in the Grant Now though the Writing was no part of the Will but of another nature yet the Will referring to the Deed is a good Devise of the Rent-charge within the Statute of Wills But in this Case the Codicil is part of the Will 't is of the same nature and being made animo restandi the end of the Statute is performed for both Will and Codicil joined together make a good Devise the first was a Will to all purposes it only wanted that circumstance of a third Witness to attest it which the Testator compleated after by calling in of a third person for that purpose Curia If a Man makes a Will in several pieces of Paper and there are three Witnesses to the last Paper and none of them did ever see the first this is not a good Will Afterwards in Hillary-Term Iudgment was given that this was not a good Will Tippet versus Hawkey TIppet the Elder and his Son covenant with John Hawkey to sell and convey Land to him free from all Incumbrances and that they will levy a Fine c. and deliver up Writings Where two covenant the Action may be brought in the name of one Item 'T is agreed between the Parties that the said Hawkey shall pay to Tippet the younger so much Mony c. The Action is brought in the name of both and upon a Demurrer to the Declaration it was held ill for the Duty is vested in Tipper the younger and he only ought to have brought this Action Iudgment for the Defendant Rees versus Phelps DEBT upon a Bond conditioned for performance of an Award Award where good Vpon nullum fecerunt arbitrium pleaded the Plaintiff replied and shewed an Award that the Defendant should pay 5 l. to the Plaintiff presently and give Bond for the payment of 10 l. more on the 29th day of November following and that this should be for and towards the Charges and Expences in and about certain differences then depending between the Parties and that they should now sign general Releases And upon a Demurrer it was argued to be a void Award because mutual Releases were then to be given which would discharge the Bond payable in November following 1 Roll. Abr. 259 260. But the Court held it to be good for the Releases shall discharge such Matters only which were depending at the time of the Submission Godfrey al' versus Eversden THere was a Parish Church and a Chappel of Ease in the Parish of Hitchen Prohibition denied upon Suggestion that there was a Chappel of Ease and so ought not to repair the Parish Church the Defendant was taxed towards the Repairs of the Church and a Livel was brought against him for the refusing of the payment of that Tax He now suggests that there was a Chappel of Ease in the same Parish to which the Inhabitants do go and that they have always repaired that Chappel and so prayed a Prohibition But Serjeant Tremain moved for a Consultation because the Parishioners of common right ought to repair the Church and though there is a Chappel of Ease in the same Parish yet that ought not to excuse them from repairing of the Mother Church He produced an Affidavit that there had been no Divine Service there for

long a Man may live in one of these ancient Houses Such a Custom might be good in point of Tenure for it might have a reasonable commencement between Lord and Tenant but this cannot be good as laid in this Declaration for several Reasons 1. Because 't is not alledged that the Defendants of right ought to keep a Boat there or that it was necessary for them to be always attending for possibly it might require the use of skilful Men and therefore in all Actions brought for not repairing of Ways 't is alledged that the Defendant reparare debuit 2. Because it brings a Charge without any recompence 8 E. 4.18 Br. Tit. Customs pl. 46. and this must be very unreasonable 'T is true that a Custom for Fishermen to dry their Nets upon another Man's Ground is good which may seem to be a Charge upon the Land without any Reward but the reason is because the catching of Fish is for the publick benefit and every man may have advantage by it A Custom to have solam separalem pasturam hath been formerly doubted whether good or not but 't is now held to be good because the Lord of the Soil might have some other Recompence for it 3. Because 't is unlimited for the Tenants may pass and repass ad libitum according to this Custom but it ought to be laid for their necessary occasions for otherwise the Defendants may be deprived of their Freehold because the Tenants may always keep the Boat in use The 2d Point was not much insisted on which was as to the matter of the Plea only it was said that it was not so well to take away the whole Prescription that the Plea might have been good if it had been quousque the Bridge fall or decayed then the Prescription doth revive again The 3d. Point Then supposing the Declaration to be sufficient yet as this is upon the Record the Plaintiff could not have this Action because he had set forth this to be a publick and common Ferry for all People to pass and that he was hindred but doth not shew any particular damage and therefore can have no cause of Action 'T is like the Case of a common High-way which is out of repair 27 H. 8. 27. a. 1 Inst 56. Moor 108. Cro. Eliz. 664. 5 Co. 104. for which no man can bring an Action unless he hath a particular damage or loss more than the rest of the People passing that way but the Party ought to be indicted and this is to prevent multiplicity of Suits for if one man may have an Action every person traveling that way may have the like Another Exception was taken to the Declaration viz. that all the Custom is laid to be for the Inhabitants of an ancient Vill to pass Toll-Free from Ferry-Lane to Adventurers-Bank and they do not alledge that Bank to be within the Vill. Those who argued for the Plaintiff held this to be a good Custom E contra as set forth by him and as such 't is not confined to the same Rules with a Prescription which must have a lawful commencement but it is otherwise in a Custom for 't is sufficient if it be certain and reasonable The Cases cited on the other side are not to this purpose because they concern only such Customs which relate to some Interest or profit in the Land of another person but this Custom is only in a matter of exemption and easment This was the very difference taken by the Iudges in Gatewood 's Case 6 Co. where it was held to be a good Custom for every Inhabitant of a particular Town to have a Way over such Lands to go to Church or Market because this was matter of easement and no profit Now a Passage over a River is no more than a way and may be tied up to one or more persons according to their comorancy Since therefore no Interest is claimed by the Plaintiff but only an easment this Prescription need not be laid in the Owners but in the Inhabitants of the Vill of Littleport It may be compared to a Case where a Custom was laid for the Inhabitants of a Town to pay a Modus in discharge of Tythes Hob. 118. Yelv. 163. this was held good because it was by way of discharge in the persons Lands without claiming any profit in that of another 'T is also like the common Case of a Market when a Man has pitched his Stall there no person can remove it for he hath a right ratione comorantiae Then as to the first Objection upon the first Point That a Custom to pass and repass ad libitum cannot be good it was answered this passage was in the nature of a High way over which a Man may pass as often as he will and therefore 't is well enough as laid in the Declaration 2. As to the Objection that it ought to be laid in some person and not in the Inhabitants it was said this was an easment to the Plaintiff and no such thing can be to one man but it makes another a Crespasser and 't is no Interest in the Plaintiff to be discharged of a Charge A Custom to grind at the Lords Mill discharged of Toll rules this Case for is it not as much charge for a Lord of a Mannor to keep a Mill as for the Defendant to keep a Boat If the Plaintiff had prescribed then this had come within the the Rules of Gatewood 's Case But he hath alledged a Custom and when such Allegations are made they ought not to be too narrowly searched for No reason can be given why an Infant at 15 years of Age shall be capable to make a Feoffment in one Town and not in another 18 Ed. 4.3 3. Then as to the third point that this being laid to be a Common Ferry the Plaintiff ought to shew some special damage to maintain an Action To which it was answered that the right was on the Plaintiff's side and that was sufficient to maintain the Action 'T is not like the Case of a Common-High-way as mentioned on the other side because this Action is confined to Littleport alone and no Man is intituled to it but such who inhabit that Vill so that every Man cannot bring an Action As to the Exception to the form of the Declaration that Adventurers-Bank is not laid to be in the Vill it was said that the Plaintiff only claimed a right of passage over the River which is laid to be in the Vill of Littleport 2 Cro. 555 557. the Bank is only the terminus ad quem 't is like the Case where the Defendant covenanted to repair a Mill and the Water-courses in a Parish and also the Banks belonging to the Mill in which Case the Plaintiff had Iudgment tho' he did not shew in what Vill the Banks were because it shall be intended to be in the same Vill where the Mill was Afterwards in Trinity Term

3 Willielmi Judicium Iudgment was given for the Defendant absente Dolbin Iustice who was also of the same Opinion It was held that the Custom was well alledged both as to the manner and matter 't is true all Customs must have reasonable beginnings but it would be very difficult to assign a lawful commencement for such a Custom as this is so it would be for the Custom of Gavelkind or Burrough English which are circumscribed to particular places and since 't is sufficient to alledge a Custom by reason of the place where t is used it may be as reasonable in this Case to say that there hath been an ancient Ferry-Boat kept in this place 't is but only an inducement to the Custom which did not consist so much in having a Right to the Passage as to be discharged of Toll This might have a lawful beginning either by a Grant of the Lord to the Ancestors of the Defendant or by the agreement of the Inhabitants A Custom alledged for all the Occupiers of a Close in such a Parish to have a Foot-way Cro. Car. 419. Co. Lit. 110. b. Cro. Eliz. 746. 1 Roll. Rep. 216. c. is not good the reason is because the Plaintiff ought to prescribe in him who hath the Inheritance but where a thing is of necessity and no manner of profit or charge in the Soil of another but only a thing in discharge or for a Way to a Market or to be quit of Toll in such cases not only a particular person but the Inhabitaints of a Vill may alledge a Prescription This may be as well alledged as a Custom to turn a Plow upon another mans Land or for a Fisherman to mend his Nets there 'T is good as to the matter for 't is only an easment 't is like a Custom alledged for a Gateway or Watercourse and for such things Inhabitants of a Vill Cro. Eliz. 441. or all the Parishioners of a Parish may alledge a Custom or Vsage in the place 2. Point But as to the Plea in Bar 't is not good because the execting of a Bridge is but laying out a Way t is a voluntary act and no man by reason of his own act can be discharged of what he is to do upon the interest he hath in the Ferry If the Defendant had petitioned the King to destroy the Ferry and got a Patent to erect a Bridge and had brought a Writ ad quod dampnum and it had been found by inquisition to be no damage to the People then he might safely have built this Bridge 3. But notwithstanding the Plea is not good yet the Plaintiff can have no advantage of it because he cannot have an Action on the Case for this matter for by his own shewing 't is a common Passage Cro. Car. 132 167. 1 Inst 56. a. Cro. Eliz. 664. 13 Co. 33. Davis 57. which is no more than a common High-way now for disturbing him in such a Passage no Action on the Case will lie unless he had alledged some particular damage done to himself for if he could maintain such an Action any other person is entituled to the like and this would be to multiply Suits which the Law will not allow but hath provided a more apt and convenient remedy which is by presentment in the Leet If Toll had been extorted from him F. N. B. 94. 22 H. 6.12 then an Action on the Case had been the proper remedy but no such thing appeared upon this Declaration Prince 's Case THE Suggestion in a Prohibition was that Prince was seized of the Rectory of Shrewsby ut de feodo jure and that he being so seised de jure ought to present a Vicar to the said place but that the Bishop of the Diocess had of his own accord appointed a person thereunto This Exception was taken to it viz. He doth not say that he was Impropriator but only that he was seised of the Rectory in Fee so it not appearing that he had it Impropriate he ought no to present the Vicar Iustice Dolben replied That in several places in Middlesex the Abbots of Westminster did send Monks to say Mass and so the Vicaridges were not endowed but he put in and displaced whom he pleased That he had heard my Lord Chief Iustice Hales often say that the Abbot had as much reason to displace such Men as he had his Butler or other Servant Curia Declare upon the Prohibition and try the Cause Harrison versus Hayward Pasch 2 Gulielmi Rot. 187. AN Agreement was made to assign a Stock upon Request When a thing is to be done upon request the performance must be when the person requires it and the Defendant cannot plead that he was ready to assign after the promise made and for non-performance an Action was now brought setting forth the Agreement and that the Plaintiff did request the Defendant at such a time c. The Defendant pleaded that he was ready to assign the Stock after the promise made c. and upon a Demurrer it was ruled if the thing was not to be done upon Request then the Defendant was bound to do it in a convenient time after the promise but it being to be done upon request the time when the Plaintiff will require the performance of the Agreement is the time when the Defendant must do it Iudgment pro Quer. Thompson versus Leach WRit of Error upon a Iudgment in Ejectment given in the Common-Pleas Surrender not good without acceptance of the Surrendree 2 Vent 198. the Case upon the special Verdict was thus Viz. Simon Leach was Tenant for Life of the Lands in question with Remainder in contingency to his first second and third Son in Tail Male Remainder to Sir Simon Leach in Tail c. This Settlement was made by the Will of Nicholas Leach who was seised in Fee The Tenant for Life two months before he had a Son born did in the absence of Sir Simon Leach the Remainder man in Tail seal and deliver a Writing by which he did Grant Surrender and Release the Lands which he had for Life to the use of Sir Simon Leach and his Heirs and continued in possession five years afterwards and then and not before Sir Simon Leach did accept and agree to this Surrender and entred upon the Premisses But that about four years before he thus agreed to it Simon Leach the Tenant for Life had a Son born named Charles Lessor of the Plaintiff to whom the Remainder in contingency was thus limited The Tenant for Life died then Sir Simon Leach suffered a Common Recovery in order to bar those Remainders 1. The Question was whether this was a legal and good Surrender of the Premisses to vest the Freehold immediately in Sir Simon Leach without his Assent before Charles Leach the Son of Simon Leach the Surrenderor was born so as to make him a good Tenant to the Precipe upon which the Recovery was

first Son of the Body of the said Simon Leach my Brother lawfully to be begotten and to the Heirs Males of the Body of such first Son lawfully to be begotten with like Remainder in Tail Male to the second third fourth c. Sons and for default of such Issue to Sir Simon Leach my Kinsman being Son and Heir of Simon Leach of Cadley in the County of Devon ' Esquire deceased and to the Heirs Males of his Body lawfully to be begotten and for default of such Issue to the right Heirs of me the said Nicholas Leach for ever They find that Nicholas Leach died without Issue that Simon Leach his Brother and Heir with Remainder over in Contingency as aforesaid entered and afterwards married Anne the Daughter of Unton Croke and that after the said Marriage viz. 20 August 25 Car. 2. he executed a Deed purporting a * Two months before a Son was born Surrender of the said Lands and Tenements to Sir Simon Leach in manner following viz. To all Christian People c. I Simon Leach of Elsefield in the County of Oxon Esquire send greeting Know ye that I the said Simon Leach for divers good Causes and valuable Considerations me hereunto moving have granted surrendred remised released and for ever quit claimed and confirmed and by these Presents do grant surrender remise release and for ever quit claim and confirm unto Sir Simon Leach of Cadley in the County of Devon Knight of the Bath and his Heirs and Assigns for ever all and every the Mannors c. To have and to hold the same to the said Sir Simon Leach for ever They find that Simon Leach Brother of the Testator was not compos mentis at the time of the sealing and delivery of the said Surrender That on the 10th day of November 25 Car. 2. which was two Months after this Surrender made the said Simon Leach had Issue of his Body Charles Leach who is his Son and Heir that he after the death of his Father entred and made a Lease to Tompson by vertue whereof he was possessed until the Defendant Sir Simon Leach entred upon him c. Two Questions were made upon this Special Verdict 1. Whether this Surrender by a person Non compos mentis was void ab initio and so could pass no Estate to the Surrendree for if so then though the Ideot himself is estopped by his own Act yet that can be no Barr to him in the Remainder because the Act being void the Estate in Law still remains in him 2. If it is not void in its self then whether it is voidable after the death of the Party by Charles Leach he claiming by virtue of a collateral Remainder and not as Heir at Law to the Devisor As to the first Point it was argued that the Cases of Lunaticks and Infants go hand in hand and that the same Reasons govern both that the Law is clear that a Surrender made by an Infant is void therefore a Surrender made by a person Non compos mentis is also void Fleta lib. 1. c. 11. num 10. the reason is because they know not how to govern themselves And as Fleta saith Semper judicabuntur infra aetatem F.N.B. 202. a. Regist 238. b. if he makes any Conveyance of his Land the Law hath provided a remedial Writ even for himself to avoid his own Alienation His Feoffments are void 39 H. 6.42 Bract. fol. 12. no. 5. fol. 100 120. Brit. cap. 34. fol. 88. Perk. 5. pl. 21. and if Warranties are annexed those they are also void if he granteth a Rent-Charge out of his Land that is likewise void and if the Grantee should distrain for this Rent after the death of the Grantor his Heir shall have an Action of Trespas against him and therefore by parity of Reason this Surrender must be void In Fitzherbert Tit. Grantee pl. 80. there is a Case to this purpose viz. An Assize was brought against the Tenant supposing that he had no right of Entry unless under a Disseisor by whom the Brother of the Demandant was disseised The Tenant pleaded that the supposed Disseisor was the Father of the Demandant whose Heir he then was and that his said Father made a Feoffment of the Land to the Tenant with Warranty and demanded Iudgment c. The Demandant replied that his Father at that time was Non compos mentis and the Tenant was compelled to rejoin and take Issue upon the Insanity which shews that if he was Non compos he could not have made such a Feoffment So if he maketh a Feoffment in Fee and afterwards taketh back an Estate for Life Fitz. Remitter pl. 23. the Non compos shall be remitted to his ancient Title which shews likewise that such Feoffment was void for the Remitter supposeth a former Right 'T is incongruous to say that Acts done by persons of no discretion shall be good and valid in the Law such are Infants and Lunaticks and it stands with great reason that what they do should be void especially when it goes to the destruction of their Estates Therefore 't is held that if a person Non compos releaseth his right that shall not barr the King in his Life time but he shall seize the Land and if he die his Heir may bring the Writ Dum non fuit compos mentis and may enter 'T is for this reason that a Release made by an Infant Executor is no barr because it works in destruction of his Interest 5 Co. 27. Russel 's Case 34 Ass pl. 10. the reason is the same where a person Non compos maketh a Feoffment for that likewise destroys his Estate So likewise an Infant can neither surrender a future Interest by his acceptance of a new Lease Cro. Car. 502. nor make an absolute Surrender of a Term of which he is possessed for such a Surrender by Deed is void 'T is agreed that if a Man Non compos maketh a Feoffment by Letter of Attorny 't is meerly void because 't is not delivered to the Feoffee by the hands of the Feoffor but 't is said that if it be delivered by him in person then 't is only voidable at any time by Action or Entry Finch 's Law 102. And of this Opinion was Sir Henry Finch in his Discourse of the Law who in the Margen of his Book quotes several Authorities in the Year Books to justifie this Opinion and amongst the rest he cites Sir Anthony Fitzherberts Natura Brevium 35 Ass pl. 10. who taking notice of the old Authorities seems to reject their Reasons who affirm a person Non compos shall not avoid his own Act when he recovers his memory because he cannot then tell what he did when he was in his former Condition But certainly when he recovers his Iudgment he is then of Ability to consider what was done during his Insanity and to avoid such Acts by shewing how his indisposition came by the

Occupant and let the Land to the Plaintiff until c. Et hoc paratus est verificare The Defendant demurred to this Replication and had Iudgment The Matter now in Debate was upon Exceptions to the Barr. 1. For want of a Traverse that Sir Peter Werburton was seised in Fee at the time of the taking c. 2. For want of a sufficient Title alledged in the Plaintiff for that by the Statue of Frauds all Occupancy is now taken away It was argued that the Replication was good without a Traverse Co. Ent. 504. for where the Plaintiff hath confessed and avoided as he hath done here if he had traversed likewise that would have made his Replication double He confesseth that Sir P. W. was seised in Fee of the Mannor but afterwards the Seisin was expresly alledged to be in Sir George the Father and that the place where was parcel thereof which is a Confession and an Avoidance The Avowant should have traversed this Lease but the Traverse of the Plaintiff upon him had made it a worse Issue Agreeable to this Case in reason is that which was adjudged in this Court in Michaelmas-Term 10 Car. 1. It was in Trespass Cro. Car. 384. the Defendant pleaded that the locus in quo was the sole Freehold of John c. and justified by his Command The Plaintiff replyed that the Land was parcel of the Mannor of Abbots Anne and that W. was seised in Fee and levied a Fine to the use of himself and Wife for their Lives the Remainder to E. for 100 years if he lived so long who after the death of the Cognizors entred and made a Lease to the Plaintiff And upon a Demurrer to this Replication the same Exception was then taken as now viz. that the Plaintiff did not confess and avoid the Freehold of John but the Plaintiff had Iudgment for the Barr being at large and the Title in the Replication being likewise so too the Plaintiff may claim by a Lease for years without answering the Freehold The not concluding with a Traverse is but a form and the Court will proceed according to the Right of the Cause without such form 27 Eliz. c. 5. 't is a defect which after a Ioinder in Demurrer is expresly helped by the Statute of Ieofails which enables the Court to amend defects and want of Forms other than such for which the party hath demurred The Case of Edwards and Woodden is in point Cro. Car. 323. 6 Co. Heyley 's Case Dyer 171. b. 1 Leon. 77 78. contra it was in Replevin the Defendant made Cognizance as Bailiff to Cotton for that the place where c. was so many Acres parcel of a Mannor c. that Bing was seised thereof in Fee who granted a Rent Charge out of it to Sir Robert Heath in Fee who sold it to Cotton c. The Plaintiff in Barr to the Conusance replied and confessed that the Land was parcel of the Mannor c. and that Bing was seised in Fee prout c. and granted the Rent to Sir R. H. but that long before the Seisin of Bing c. one Leigh was seised thereof in Fee who devised it to Blunt for a Term of years which Term by several Assignments came to Claxton who gave the Plaintiff leave to put in his Cattel c. And upon a Demurrer to this Replication an Exception was taken to it for that the Plaintiff did not shew how the Seisin and Grant of Bing to Sir R. H. was avoided for having confessed a Seisin in Fee prout c. that shall be intended a Fee in possession and notwithstanding he had afterwards set forth a Lease for years in Leigh by whom it was devised to Blunt c. and so to Claxton it may be intended that the Grantor was only seised in Fee of the Reversion and therefore the Plaintiff ought to have traversed the Seisin aliter vel alio modo But three Iudges seemed to encline that the Replication was good and that the Plaintiff had well confessed and avoided that Seisin in Fee which was alledged by the Defendant for he had shewed a Lease for years precedent to the Defendants Title and which was not chargeable with the Rent and his pleading that the Grantor Bing was seised in Fee must be only of a Reversion expectant upon that Lease But if his Confession that Being was seised in Fee prout c. shall be intended a Seisin in Fee in possession yet the Replication is good in substance because the Charge against the Plaintiff is avoided by a former Estate and in such Case 't is not necessary to take a Traverse But after all it was held that if it be a defect 't is but want of a Form which is aided by the Statute and that is this very Case now in question The want of a Traverse seldom makes a Plea ill in substance but a naughty Traverse often makes it so because the adversary is tied up to that which is material in it self so that he cannot answer what is proper and material and therefore in Ejectment upon a Lease made by E. I. Yelv. 151. Bedel versus Lull the Defendant pleaded that before E. I. had any thing to do c. M. I. was seised in Fee after whose death the Land descended to his Heir and that E. entred and was seized by Abatement The Plaintiff replied and confessed the Seisin of M. but saith that he devised it in Fee to E. I. who entred absque hoc that E. I. was seized by Abatement and upon a Demurrer this was held to be an ill Traverse for the Plaintiff had confessed the Seisin of M. and avoided it by the Devise and therefore ought not to have traversed the Abatement for having derived a good Title by the Devise to his Lessor 't is an Argument that he entred lawfully and it was that alone which was issuable and not the Abatement therefore it was ill to traverse that because it must never be taken but where the thing traversed is issuable Then it was said that the Conusance was informal because the Avowant should have said that the Locus in quo c. contains so many Acres of Ground c. he only saith that it was parcel of a Mannor besides he neither prays Damages nor Retorn ' Habend ' 2. As to the 2d Point it was said that the Statute of Frauds doth not take away all Occupancy it only appoints who shall be a special Occupant Besides here is a Title within the Statute for a Lease for Lives is personal Assets so is a Term in the Hands of an Executor de son tort and in this Case the entring of one Brother after the death of the other made him an Executor de son tort More 126. Sid. 7. and it was never yet doubted but that there may be such an Executor of a Term. Whereupon it was concluded that the Barr was good both as to the Form

the Neglect in this Case was in the Servant the Action may be brought against all the Owners for it is grounded quasi ex contractu though there was no actual Agreement between the Plaintiff and them And as to this purpose 2 Sand. 345. Hob. 206. Hutt 121. 1 Mod. 198. 't is like the Case where a Sheriff levies Goods upon an Execution which are rescued out of the hands of his Bailiffs this appearing upon the Retorn an Action of Debt will lie against him though there was no actual Contract between the Plaintiff and him for he having taken the Goods in Execution there is quasi a Contract in Law to answer them to the Plaintiff 2. As to the second Point it was ruled that Not-Guilty was a good Plea to any Mis-feazance whatsoever and that a Plea in Abatement viz. that the rest of the Owners super se susceperunt simul cum Defendente absque hoc quod Defendens super se suscepit tantum had been no more than the general Issue 3 Cro. 554. Vering versus More but he hath not pleaded thus Iustice Dolben agreed that the Action ought to be brought against all the Proprietors it being upon a Promise created by Law but he was Opinion that this Matter might have been pleaded in Abatement Gold versus Strode AN Action was brought in Somersetshire and the Plaintiff recovered and had Iudgment and died Intestate Gold the now Plaintiff took out Letters of Administration to the said Intestate in the Court of the Bishop of Bath and Wells and afterwards brought a Scire Facias upon that Iudgment against the Defendant to shew Cause quare Executionem habere non debeat He had Iudgment upon this Scire Facias and the Defendant was taken in Execution and escaped An Action of Debt was brought by the said Gold against this Defendant Strode who was then Sheriff for the Escape and the Plaintiff had a Verdict It was moved in arrest of Iudgment and for Cause shewen that if the Administration was void then all the dependencies upon it are void also and so the Plaintiff can have no Title to this Action Now the Administration is void because the entring upon Record of the first Iudgment recovered by the Intestate in the County of Middlesex where the Records are kept made him have bona notabilia in several Counties and then by the Law Administration ought not to be committed to the Plaintiff in an inferior Diocess but in the Prerogative Court Curia The Sheriff shall not take advantage of this since the Iudgment was given upon the Scire Fac. and the Capias ad satisfaciendum issuing out against the then Defendant directed to the Sheriff made him an Officer of this Court and the Iudgment shall not be questioned by him for admitting it to be a Recovery without a Title yet he shall take no advantage of it till the Iudgment is reversed 'T is not a void but an erronious Iudgment and when a person is in execution upon such a Iudgment and Escapes and then an Action is brought against the Goaler or Sheriff 8 Co. 141. and Iudgment and Execution thereon though the first Iudgment upon which the party was in execution should be afterwards reversed yet the Iudgment against the Goaler being upon a collateral thing executed shall still remain in force The Ca. Sa. 21 E. 4. 23. b. Cro. El. 164. Moor 274. 2 Cro. 3. 1 Rol. Abr. 809 God b. 403. 2 Leon. 84. was a sufficient authority to the Sheriff to take the Body though grounded upon an erronious Iudgment and that Execution shall be good till avoided by Error and no false Imprisonment will lie against the Goaler or Sheriff upon such an Arrest Coghil versus Freelove In the Common-Pleas DEBT for Rent was brought against the Defendant as Administratrix of Thomas Freelove her late Husband deceased Debt for Rent incurred after an assignment by an Administrator for the privity of Contract is not determined by the death of the intestate 2 Vent 209. in which Action the Plaintiff declared That on the 1st of May 21 Car. 2. he did by Indenture demise to the said Thomas Freelove one Messuage and certain Lands in Bushey in Hertfordshire Habendum from Lady day then last past for and during the term of 21 years under a yearly Rent that by virtue thereof he entred and was possessed That on the 7th of March 1685. the said Thomas Freelove died Intestate and that the next day Administration of his Goods and Chattels was granted to the Defendant and that 78 l. was in arrear for Rent due at such a time for which this Action was now brought in the Detinet The Defendant confessed the Lease prout c. and the death of the Intestate and that the Administration was granted to her but saith that before the Rent was due she by Articles made between her of the one part and Samuel Freelove of the other part did assign the said Indenture and all her right title and interest thereunto and which she had in the Premisses unto the said Samuel Freelove who entred and was possessed that the Plaintiff had notice of this Assignment before he brought this Action but nothing was said of his acceptance To this Plea the Plaintiff demurred and the Defendant joined in Demurrer And Iudgment was given by the Opinion of the whole Court for the Plaintiff against the Authorities following Viz. Cro. Eliz. 555. 'T is true in Overton and Sydal 's Case it was resolved that if an Executor of Lessee for years assign his Interest Debt for Rent will not lye against him after such Assignment the reason there given was because the personal privity of the Contract is determined by the death of the Lessee as to the Debt it self and for the same reason the Executor shall not be lyable to the Rent after the death of the Lessee if such Lessee doth make an assignment of his Term in his life-time My Lord Coke mentioning this Case 3 Co. 24. a. in his third Report affirms that it was resolved by Popham Chief Iustice and the whole Court that if an Executor of a Lessee for years assign his Interest Debt will not lye against him for Rent due after such an Assignment Pop. 120. but my Lord Popham himself in Reporting that very Case tells us he was of another Opinion which was that so long as the Covenant in the Lease hath the nature and essence of a Contract it shall bind the Executor of the Lessee who as well to that as to many other purposes represents the person of the Testator and is privy to his Contracts T is true my Lord Popham held in that Case that the Action did not lye but because it was brought by the Successor of a Prebendary upon a Lease made by him in his life-time who being a single Corporation the personal Contract was determined by his death But the same Case reported by others Moor 251.

intestate leaving one Son an Infant Administration was granted durante minore aetate he died before 17. whether Administration de bonis non of the Father shall be granted to the next of Kin of him or his Son 61 62 7. Whether an Interest is vested in an Infant where Administration is granted durante minore aetate so that if he die before 17. it goes to his Executor 61 8. Before the Statute of Distribution if there was but one Child he had a right of Administration but it was only personal and if he died before it was granted to him by the Court it would not go to his Executor 62 9. Husband hath a right of Administration to the Goods of the Wife because the Marriage is quasi a Gift in Law 64 10. If Administration had been granted to a Stranger before the Statute of Distributions and no Appeal within fourteen days he who had right though beyond Sea was barred 64 11. Husband and Wife Administratrix to her first Husband recover in Debt the Wife died and the Husband brought a Scire Facias to have Execution it will not lie by him alone because it was a Demand by the Wife as Administratrix in auter droit ibid. 12. Judgment was had in Somersetshire the Plaintiff died intestate Administration is committed by an inferior Diocess 't is void because the Entry of the Judgment in Middlesex where the Records are kept made him have bona notabilia in several Diocesses and so Administration ought to be granted in the Prerogative 324 13. If the Intestate hath two Sons and no Wife each have a Moiety of the personal Estate if but one an interest is vested in him 59 14. At Common Law none had a Right to an Intestate's Estate but the Ordinary was to distribute it to Pious Uses ibid. Admiral and Admiralty There was a Sentence in the Admiralty for taking of a Ship and afterwards Trover was brought for taking of the same Ship whether it lies or not 194 2. Pawning of a Ship for Necessaries at Land and a Libel was exhibited in the Admiralty whether good or not 244 3. Where things arising upon Lands may be sued for in the Admiralty 245 Addition See Indictment Where it makes a thing certain as an Ejectment de Tenemento is incertain but with the addition vocat ' the Black Swan 't is made certain 238 Admittance See Baron and Feme 9. A Custom cannot warrant an incertain Fine upon an Admittance to a Copyhold 133 2. The Lord may refuse to admit without a tender of the Fine where 't is certain ibid. 3. Where 't is incertain the Lord is to admit first and then to set the Fine ibid. 4. Custom that upon every Admission the Tenant should pay a years value of the Land as it was worth tempore admissionis t is good 132 5. For a Fine upon an Admission an Action of Debt will lye for though it favours of the realty yet 't is a certain duty 230 6. Before Admittance the Estate is in the Surrenderor and he shall have an Action of Trespass against any person who enters before another is admitted 226 7. Before an Admittance the Surrendree cannot enter but by special Custom to warrant it 225 Affidavit See Action on the Case for a Wrong 4. See Baron and Feme 11. Infant 21. Agreement and Disagreement Whether assent is necessary to a Surrender it being a Conveyance at the Common Law 't is not necessary in Devises or in any Conveyances directed by particular Statutes or by Custom 298 2. Whether the Estate shall be in the Surrendree immediately upon the execution of the Deed if he doth not shew some disassent to it 300 3. Agreement is not so much necessary to perfect a Conveyance as a Disagreement is to make it void ibid. 4. A Feoffment to three and Livery is made to one the Estate is in all till disagreement 301 Alien Leases made to Alien Artificers are void by the Statute of 32 H. 8. This Statute was pleaded by an Alien who was a Vintner and held to be no Artificer 94 Amendment See Mistrial Costs 2. 1. Of the Distringas by the Roll after a Verdict the Day and Place of Assizes being left out 78 2. In matters of Form the Court have sent for a Coroner to amend his Inquisition 101 3. Of a Mis-entry of a Writ of Enquiry without paying of Costs 113 4. Return to an Homine Replegiando amended by Rule of Court 120 5. A Riot was laid to be committed after the Indictment it was amended being only a Misprision of the Clerk 167 6. Where matter of Form is cured by a Verdict but 't is not amendable upon a Demurrer 235 7. Scire Facias upon a Recognizance to have Execution for 1000 l. juxta formam Recuperationis it should have been recognitionis amended after a Demurrer 251 Amerciament See Court 3. 1. Differs from a Fine for that is the act of the Court but an Amerciament is the act of the Jury 138 2. It need not be to a Sum certain for that may be affered 138 3. A Bailiff of a Liberty cannot distrein for an Amerciament Virtute officii but he ought to set forth the taking Virtute Warranti ibid. Appeal Against three for a Murder the Count was that O. gave the wound of which the person died the Jury found that L. gave the wound and that O. and M. were assisting this varies from the Count and yet held good 121 2. The Wound was given in one County and the Death ensued in another and the Party was Tryed where the Wound was given and held good ibid. 3. At Common Law it was at the Election of the Appellant to bring the Appeal in either County and the Tryal to be by a Jury of both but now it may be brought in the County where the Party died 122 4. Whether Auter foitz Convict of Man-Slaughter is a good Plea to an Appeal of Murder 156 157 5. If a Woman be slain her next of Kin shall maintain an Appeal 157 6. How many things are required by the Statute of Gloucester to be alledged in an Appeal of Murder 158 7. The Appellee pleaded in Abatement but did not plead over to the Felony whether good or not 267 8. Where the Appellee must plead in propria persona and where per Attornatum 268 Apportionment Where a Contract under Hand and Seal for a Sum certain shall not be apportioned in an Action pro Rata as if it be for a Years Service the Plaintiff must serve a Year and aver it tho' the Contract is executory 153 2. But if a Promise is for a Years Board an Action may be brought for three Quarters of a Year for if there is a Variance between the Agreement and the Declaration 't is for the benefit of the Defendant 154 Apprentice Whether Justices of Peace have any power to compel men to take poor Children Apprentices since the Statute gives power to Church-wardens to raise

IT lies to remove Causes and Orders from an inferior Jurisdiction where 't is not prohibited in express words by any Statute 95 2. Will not lie to the Grand Sessions nor to a County Palatine to remove Civil Causes quaere whether it lies to the Royal Franchise of Ely 230 Charter Usage shall expound ancient Charters 9 2 The Common Law doth operate with it ibid. 3. One Clause of a Charter may expound another 10 4. A Charter which establishes a Corporation must provide for a new Election in order to a Succession otherwise the Common Law will not help 13 Church See Prohibition Commitment By the Lord Chancellor and several others Dominos Concilii for a Misdemeanour whether it should not be Dominos in Concilio 213 2. Of a Peer for a Misdemeanour which amounts to a Breach of the Peace for which Sureties are to be given 214 3. When a person is brought in by a Capias for any offence he ought to plead instanter 215 Common and Commoner See Ioytenancy 4 Ioynt Action 7 Prescription 7 A Common cannot pass without Deed and if the Plaintiff sheweth a Que Estate he must produce the Deed 52 2. If a Prescription is made for a Common and doth not say for Cattle Levant and Couchant 't is not good 162 246 3. But this fault is cured by a Verdict 162 Confederacy See Indictment Condition See Infant 2. Notice 2 4. A bare denial without doing any more is no Breach of the Condition 31 2. How it differs from a Limitation 32 3. To restrain Marriage to the consent of particular persons is void ibid. 4. Where 't is of two parts in the disjunctive and both possible at the time of the Bond given and one becomes impossible afterwards by the Act of God the Obligor is not bound to perform the other part for the Condition being made for his benefit shall be taken very beneficially for him who had election to perform either part 233 5. When the Condition is but of one part 't is otherwise as if A. promise B. that if C. do not appear such a day at Westminster he will pay 20 s. C. died before the day the Mony must be paid 234 6. Condition was to pay Rent at Michaelmas or Lady-day during the Life of a Woman or within thirty days after she died after the Feast but within the thirty days the payment which was due at the Feast was discharged thereby ibid. 7. To save harmless Non damnificatus generally is a good Plea but if it be to save harmless acquit and discharge then 't is not good without shewing how acquitted and discharged 252 Confederacy See Agreement Consideration See Action on the Case Construction Where it shall be made of an Act of Parliament according to the intent of the Law-makers 33 2. Where it shall be made of an entire Sentence so as the intent of the Law may appear 220 3. Where particular words are in the first part of a Sentence and general words follow both shall stand 278 279 Contract Where an Agreement is entire to do or perform a thing for a certain Sum it shall not be apportioned pro rata for the performance of part 153 2. There must be a recompence of each side to make the Contract good 237 Copyhold and Copyholders See Baron and Feme 8 9. Lord may seize the Land of a Copyholder till a Fine is paid 222 2. A Man by Custom may assign a person to take the Profits of a Copyhold Estate during the Minority of an Infant without rendring an accompt when he comes of Age ibid. Corporation See Charter 4. In all proceedings which concern a Corporation it must be alledged that there is one and how erected whether by Grant or Prescription 6 2. Mayor hath no more Power than an Alderman in the Coporation where he is Mayor 9 3. Is not of the Quorum for electing of an Alderman 10 4. The Mayor is named in the Grant as part of the Name of the Corporation and is not of the Quorum without naming him to be so 9 10 5. He is a Mayor in respect of Reverence but not of Power 11 6. At the Common Law neither his Name or Office require his presence at the choosing of an Alderman 11 14 7. He cannot act eo nomine but by the express Power given in the Charter 12 8. Elections of Officers of a Corporation must be free 21 9. Mayor of a Corporation is no Officer at the Common Law 12 10. Original of Corporation was preservation of Trade ibid. 11. Corporation by Charter without setting forth their Duty or Office hath no Power ibid. 12. A Company in London made a By-Law that none of them should buy such a Commodity within 24 Miles of London but two Men 't is too large to bind at such a distance out of their Jurisdiction 159 Costs See Amendment 3. Trespass for breaking of a Close and impounding of Cattel and Damages given under 40 s. the Plaintiff shall have his Costs 39 2. Amendment after a Writ of Error brought Costs must be paid 113 Covenant See Local Action Where a thing is lawful at the time of the Covenant made and afterterwards prohibited by Law yet the Covenant is binding 39 2. To find Meat Drink and other Necessaries the Breach was assigned in not finding Meat Drink alia necessaria and entire Damages though this Breach was too general yet 't is good for it may be as general as the Covenant 69 3. There must be such certainty in it that if the Defendant should be sued again he may plead the former Recovery in Bar ibid. 4. Need not so much certainty in assigning a Breach upon a Covenant as upon a Bond for performance of Covenants ibid. 5. For quiet enjoyment the Breach was that a Stranger habens jus titulum and doth not say what Title for it may be under the Plaintiff himself therefore not well assigned 135 6. To make an Assignment according to an Agreement between the Partis as Council should direct whether the Council of the Plaintiff or Defendant should advise 192 7. Give grant and confirm are words at the Common Law where they shall be taken to amount to a Covenant to stand seized 237 Court Cause not to be removed out of an inferiour Court unless the Habeas Corpus is delivered to the Steward before Issue or Demurrer joyned so as 't is joyned within six Weeks after Arrest or Appearance 85 2. If the Cause is tried in an inferior Court the Steward not being an Utter Barister an Attachment shall go ibid. 3. Amerciament in a Court Leet is a Duty vested in the Lord for which he may distrain 138 4. Presentment in a Court Leet is the proper remedy when a Man is disturbed in a common Passage or Way 294 Custom See Admittance Infant 10. Prescription 8. Pleading 12. Must have nothing to support it but Usuage 133 2. 'T is made of repeated Acts ibid. 3. Must be very