Defendant brought a Writ of Error in the Exchequer Chamber upon a new Statute and after divers terms Hall died and after the Plaintiff was non-suited without mention made of his death Tadcaster brought two Scire facias against Hobs and upon two Nihils had Iudgment Hobs brought an Audita Querela alledging the death of Hallowell before Scire facias and before Capias and it was adjudged that the Audita Querela well say and Hil 4 Jac Rot 975. between Timberley and Calverly Scire facias brought against the Bail and he pleaded that the Principall died before Capias returned against him And Iudgment upon argument given against the Plaintiff The like Iudgment between Iustice Williams and the Sureties of one Vaughan Hil. 19 Jac. Rot. 312. or 3125. Walrond versus Hill London Debt WAlrond brought an action of debt upon an Obligation of three hundred pounds against William Hill with Condition that if Thomas Harris and Elizabeth his Wife One bound to levy a Fine before such a day who shall do the first act before the end of Easter Term next shall levy a Fine before the Iustices of the Common Pleas by due course of Law to the use of the Plaintiff that then c. the Defendant pleaded that before the end of the said Easter Term the Plaintiff did not purchase any Writ of Covenant pro fine leuand wherupon a Fine might be levied according to the course of Law The Plaintiff replyed that the fifteenth of April the said Thomas for money enfeoffed another of parcel of the Land that was to be conveyed by the Fine And that the said Thomas and Elizabeth his Wife have not any Estate or Interest in the said parcell so conveyed wherof they may levy a Fine And upon this Replication the Defendant demurred And upon argument at Bar by Serjeant Harvey for the Plaintiff and Serjeant Henden for the Defendant the first question was If the Bar be good Intant que le Defendent est oblige That Thomas Harris and Elizabeth his Wife shall levy a Fine he ought to procure that to be done at his perill semble al 4 H. 7. 3 H. 6. Condition that John S. a stranger shall take Alice D. to his Wife before Mich. If I. S. refuse the Obligation is forfeited And therfore it was urged that he ought to procure a Writ of Covenant at his perill But the Lord Hobart held that the Plaintiff ought to procure the Writ of Covenant to have made himself capable of the Fine And he put this case if I. S. be obliged that I. D. shall enfeoff I.N. the Obligee such a day I. N. ought to be upon the Land or ought to make a Letter of Attorney to receive the Livery or otherwise the Obligation is not forfeited And when a Covenant is to levy a Fine he which is to do the first act c. vide Palmers case Coke lib 5. fol 127. 4 E. 3. 39. 18 E. 3. 27. 11 H. 4 18. 21 E 4. 2. The second question was whether this Obligation be ferfeited being that the said Thomas Harris had made a Bargain and Sale of part of the Land to another before so that he was disabled at the time to levy a Fine And we all agreed that the Condition was impossible and is all one as if he had disabled himself afterwards as in Maynes case Coke lib 5. 21. where the Covenant was to make a new Lease upon surrender of the former Lease there if he which ought to make the new Lease disables himself to make a new Lease and to accept of the Surrender by granting the Reversion for years he ought not to do the first act viz. Surrender but the Covenant is broken And in this case it is all one as if one who had granted the Reversion for years or for life Covenant that he upon Surrender will make a new Lease he had broken this Covenant being disabled at the time And it was said and agreed by the Court that the Fine to be levied ought to be an effectuall Fine which might operate to convey the Land according to the Covenant Burnell and Brook One case was vouched in this case to be between Burnell and Brook where the Condition was that he should acknowledge a Iudgment and a good Bar that the Plaintiff had not purchased an Originall Writ for he ought to make himself capable of Iudgment acknowledged to him vide 34 E. 1. Fitz Debt 164. A Condition that if he present the Obligee to a Benefice that then c. Though the Obliges taken Wife by which he is disabled to take it put he ought to present and offer him to the Ordinary to refuse him Vide 28 E 4. 6. where parcell of the Land was recovered yet Debt lies for entry Damages recovered in a Court of ancient Demeasn which case was then vouched but it is not much to the purpose And afterwards we all agreed that the Plaintiff should have Iudgment Hord versus Cordery A President was shewn which was thus IN the County of Wiltes Richard Hord Clerk Vicar of Chute Case brought an action upon the Case against William Cordery and Bridget his Wife and Dorothy Cox Conspiracy for one malicious confederacy of charging the Plaintiff with the felonious Raye of the said Dorothy Cox and procured him to be examined before Sir Anthony Hungerford a Iustice of Peace and therupon was bound in a Recognizance to appear at the next generall Sessions of the Peace at Devises and from thence was bound over to the Assises And there the Defendants An 15 Jac before Sir Thomas Flemming and Tanfield Iustices of Assise preferred one Bill of Indictment of their malice aforesaid and by the procurement of the said William and B. the said Dorothy shewed to the grand Inquest whether it were true or false And the Iury perceiving the malice and the falsiâ—y did not find it to be true and gave their Verdict by Ignorance Vpon Not guilty pleaded by William and Bridget and non informatus by Dorothy the Iury found for the Plaintiff and after a Writ of Error An 15 Jac and 20 marks costs for the delay Ego vidi recordum est bien pleivement aver que il ne ravish le feme est ent Hil. 10 Jac. Rot. 92. 1. 1. Trin. 20 Jac. Hawkins versus Cutts HAwkins brought an action upon the case against Cutts Case and declared that he was of good Fame c. and for the space of eight years last past had used the Art and Mystery of a Baker Pandopatoritae and had gained his living by buying and selling the Defendant said of him He is a Bankrupt Knave And not guilty Words it was found for the Plaintiff And in Arrest of Iudgment it was moved that it is not shewn that he was a common Baker neither had used the Trade but used the Art and Mystery of a Baker And there is as Serjeant Hobart said as much skill
reasons the Court gave Iudgment for the Plaintiff And Serjeant Ward argued well and vouched divers good Cases The Writ of Detinue supposeth properly in the thing demanded vide 50 E. 3. 6. Cook versus Cook WIlliam Cooke alias Barker brought an Action of Wast against George Cook alias Barker and count against him as Tenant for life How a Writ of Wast shall be where there is a lease for life remainder in fee. of the Lease of George Cook and intitle himself to the Reversion Ex assignatione of the said George and shews that George Cook being seised in Fee and the Ter-tenant in Socage devised the Land to the Defendant for life the remaineer in tail to the Plaintiff And upon the Count the Defendant demurred And the Question was how the Writ should be where a Lease is made for life the remainder in Fee for it cannot be Quod de ipso tenet And it seems that the Writ shall be speciall upon the Case as a Fine levied to one for life the remainder in Fee the Writ shall be speciall upon the Case And it seems that it shall never be Ex assignatione but where the Reversion is granted over vide 38 E 3. fol. 23. the direct Case and vide 38 H. 6. fol. 30. in the Writ of Consimili casu vide F N B fol 207. in the Writ of Consimili casu qui illud tenet ad vitam D. ex Assignatione praedicti B. quam I. filius heres R. qui quidem R. illud praefat D. demisit ad eundem terminum inde fecit praefat B. c. The Estate for life with a Remainder over is but one Estate and it was a question at Common Law if he in remainder shall have an action of Wast vide 41 E 3. 16. 42 E 3. 19. 50 E. 3. 3. Reg. 75. But at this day the Law is cleer that he in remainder shall have an action of Wast F N B fol 207. but these Books prove that the Writ of Wast ought to be Ex divisione non ex assignatione Mich. 6 Caroli Case Words AN action of the case was brought for these words Thou art a Theef and hast stoln one Passions Lamb and marked it and denied it And upon Not guilty pleaded and Verdict for the Plaintiff Serjeant Ashley moved in Arrest of Iudgment because that it is not shewn whose Lamb for Passions is no word of any signification without the name of Baptisme And the Court was of opinion that the Count was good for it had been sufficient to call him Theef and then the subsequent matter and words aggravate and contain matter of Felony And it is a generall Rule that when the first words are actionable the latter words which toll the force therof ought to be such as do not contain Felony Babbington versus Wood. BAbbington brought an action of debt against Wood upon an Obligation of 600 l. the Condition was That if Wood resign a Benefice upon request that then the Obligation should be void A Condâ—tion to resign a Benefice upon request And the Condition was entred the Defendant demurred and Iudgment in Banco Regis pro querente And upon Error brought Iudgment was affirmed in the Exchequer Chamber for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Gleaves viz. Per non residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawfull As if a Patron which hath a Son which is not yet fit to be presented for default of age and he present another with an agreement that when his Son comes to the age of 24. years be shall resign it it is a good Obligation And this Case viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones An 8 Jac. And the Councel said that he who is presented to a Church is married therto Jones Case and it is like as if a man who hath married a Wife should be bound to be divorced from her or not co-habit with her these Conditions are void But these resemble not our Case Wilson versus Briggs WIlson brought an action of Account against Briggs as Bayly of his Mannor in the County of Cambr. Tryall of an action of Account upon receit in two Counties and also as Bayly to another Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff and Iudgment to account and found in the arrearages and Iudgment given And now the Defendant brought a Writ of Error Iudgment was reversed because it was mis-tryed for it should be tryed at the Bar by severall Ven. fac to be directed to the severall Sheriffs First it is agreed that a writ of Account against one as Bayliff of his Mannor cannot be brought in another County but only in that County where the land lies vi 8 E. 3. fol 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties And there it is said that it being upon a day that he may have one writ and count in the two Counties But to that it is said that that proves not but that he might have two Writs wherby it might be awarded that he should answer But in this case it was resolved that it was a mis-tryall for it ought to be by two Ven. fac and tryed at Bar and it is not aided by the Statute of 21 Jac cap 13. Trin. 8 Car. Purnell versus Bridge Hil. 6 Car. Rot. 1235. Fine to two and the heirs of one to the use of them two in fee. HEnry Pernell brought Replevin against William Bridge Robert Bridge and two others William Bridge plead Non cepit and the other made Conusance and upon Demurrer the case was such Richard Braken was seised in Fee of sixty acres of arrable Land and forty eight acres of Meadow and Pasture wherof the place in which c. was parcell And he the sixth of Febr. An 18 Eliz. by Deed granted an Annuity or Rentcharge of thirteen pounds six shillings out therof to Edward Steward in Fee payable at the Feast of Saint Peter or within eight and twenty daies after And if it be arrear for eight and twenty daies after the said Feast that then he forfeit for every Fine after forty shillings with a clause of Distresse as well for the said Rent as for the said forty shillings if it shall be arrear Edward Steward seised of the Rent died wherby it descended to Ioan Iermy Wife of Thomas Iermy Daughter and Heir of the said Edward Steward and they being seised therof in the right of the said Ioan An. 41 Eliz. in Crastino animarum levied a Fine of the said Rent to Robert Brook and Isaac Iermy and to the Heirs of Robert which Fine was to the
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
c. but at the time of taking was so To this it was answered That the Count chargeth not the Defendant absolutely with all the time but Diversis diebus vicibus And also he justifie for two weeks which is the same Trespasse Then upon the matter the question is if he which hath Estrayes or Waifes if he seise an Estray qui est ferox whether he may fetter such Estray It was agreed by the Court that when an Estray comes within a Mannor and walk there this is a Trespasse and the party in whose Land the Estray is Damage-feasant may chase him out of his ground Also it was agreed that untill the Lord or his Bayliff or Tithing-man seise the Estray that shall not be said an Estray but when the Lord seise than he hath the Commencement of a property therby and he is chargable against all others for the Trespasse which this Estray doth and if this Estray within the year estray out of the Mannor the Lord may chase back the Estray untill he be seised by another Lord which hath Estrays But if he be seised by another Lord then the first hath lost all his possibility of gaining the property and the other Lord ought to proclaim it de novo It was moved that if a Lord of a Mannor which hath Estrayes and hath seised an Estray suffer that Estray by negligent keeping to stray away and never can be found again the Owner may have an action upon the case of Trover and Conversion against the Lord Quare vide 44 E 14. there the Lord seised an Asse for an Estray he to whom the property did belong came and challenged the Estray the Lord may detain him untill he tender sufficient recompence for the Pasture vide purc 20 H 7. 1. by Vavisor and 39 E 3. 3. That the Owner cannot take an Estray untill he tender recompence likewise the Lord after seisin of the Estray if he took him not Damage-seasant may have Replevin and he ought to make him amends The Lord cannot work the Estray but may keep him in his Stable And if the Sheriff upon a Fieri facias fetter the Colt and after the Defendant redeem him for money he shall not have trespasse vide 6 E 3. 8. it is not alledged that the fettering was to any damage of the Estray vide 22 Ass 56. Entred Pasch 18 Jac. Rot. 650. Treherne versus Cleybrooke Debt IOhn Treherne brought an action of Debt against Cleybrooke and count of a Lease made by John Treherne Grand-father to the Plaintiff of Lands in S. Olives in Surrey and intituled himself by the Will of the Grand-father by which he devised the Lands to the Plaintiff in tail Devise the remainder over to Leonard Vpon Nil debet pleaded the Iury found specially scilicet the Devise of the Reversion in tail the remainder over to A. in tail the remainder of one Moyety of the Land to one Daughter in tail and the other Moyety to another with Proviso that for the raising of a Stock for John Treherne the Grand-child when he come to the age of one and twenty years or if he dies for the raising of a Stock for Leonard in like manner he willed that Edward Griffin and Anne his Wife shall take the profits and shall receive all the rent of the Land devised to John Treherne to their own use untill he come to the age of one and twenty years upon Condition and so as the said Edward Griffin and Anne shall within three months after the death of the Testator become bound to his Overseers in an Obligation with such penalty as the said Overseers shall think fit to pay to the said John or if he dye without Issue to the said Leonard within three months after he come of age such a summ the Condition to be drawn and devised by his Overseers And if Edward Griffin and his Wife refuse then the Overseers should receive the Rent and Profits to their proper use But the Condition appoint not to whom the Overseers shall be bound And made Edward Griffing and William Iremonger his Executors and I. and others Supervisors and died and that within fourteen daies after the death of the Testator the Will was read to the said Overseers And that they did not devise or draw within the time appointed any Obligation nor tendred any within that time and that notice therof was given to the Defendant and that the Rent was demanded and the Reversion claimed by the Plaintiff sed utrum c. Vpon the Argument of Serjeant Harris which argued for the Plaintiff and vouched 21 H. 6. 6. That when one made Executors and also Coadjutors the Coadjutors are not Executors and that it is a Condition precedent vide 14 H 8. 22. Wheelers case 46 E 3. 5. Truels case Coke lib 5. 127. Palmers case 4 E 3. 39. 11 H 4. 18. And because that in this case the said Edward Griffin and his Wife are to have benefit they ought to require them to nominate the summ But because it appears to the Court that this Action is founded upon a Contract in Law therfore it ought to be brought in Surrey as it was agreed in Ungle and Glovers case An 36 Eliz vide Coke lib 3. fol 23. Nota that the Iudgment is speciall for this cause and no costs upon the Statute of 23 H 8. for the Defendant for the Statute saies that upon a Contract made by the Plaintiff the Defendant shall have costs and yet upon this Statute if the Executor be non-suited or Verdict given against him he shall not pay costs Where costs shall not be against Executors by common experience alwaies after the Statute and yet he shall have costs if he recover And in this case the Plaintiff shall have costs if he recover and yet it seems upon this Iudgment the Defendant shall not have costs against him and especially because that they are expresse words in the Statute that the Defendant shall have costs after Non-suit or lawfull tryall against the Plaintiff and here is neither Non-suit nor lawfull tryall vide Statute 4 Jac cap. 3. seems to be full in all cases where the Plaintiff shall have his costs upon Non-suit or when the Verdict passe against him the Defendant shall have costs yet it hath been taken that it shall be intended in actions of Debt upon the Contract of the Plaintiff himself for Executors neither upon Verdict nor upon Non-suit shall pay any costs because that their actions are brought upon Debts or Contracts not made between them and the Defendants vide the Statute of Glocester cap 1. that where a man recover damages there also he shall have costs Hickson versus Hickson HIckson Demandant in Dower against Hickson They are at issue the Tenant offer to be essoined upon the Venire facias and for want of the Adjornment therof by the Demandant Essoin shall not be allowed in Dower the Tenant had procured a Non-suit and yet the
and Beaumount 77 Specot and Shere 91 Simpsons case 92 Shudsouth and Fernell 107 T. TImberly and Calverley 47 Tadcaster and Hallowell 47 Thompson and Green 105 Trugeon and Meron 128 W. WIlde and Woolf 41 Wolley and Bradwell Wrotheys Case Sir George Walker and VVorsley 83 VValcot and Hind 14 PASCH 15 JACOBI Combes versus Inwood THE first day which I sate at the Bench after the day in which I was sworn Ejectione suma A Conveâ—ance delivered to be enrolled and yet not inâ—â—lled shall be accounted a Record i. e. Thursday the twenty second of May A Iury was at the Bar from the County of Surrey in an Ejectione firmae brought by Combes against Inwood upon a Lease made by one John Stockwood which was Heir to one Edward Stockwood and was for a Farm in Chertsey called Haylwick And upon Evidence the Case appeared to be thâ—â—s Edward Stockwood was seised in fee and about the 29 Hen 8. this Land was supposed to be conveyed to King Hen. 8. in fee for the enlargement of the Honour of Hampton but no Deed nor any other matter of Record was in being to prove this originall Conveyance and many Arguments were used to prove that there was never any such Conveyance because there was not one of any such conveyance named in the Act of 31 H 8. But of the other part it was proved that this Land had continued in exchange as the Land of H 8. all his life by divers accounts and that it had been enjoyed by divers Leâses made by Edward 6. and Queen Elizabeth and Rent paid for them And that in the year 16 Eliz. she granted it in Fee-farm to the Earl of Lincoln and under that Title the Land had been quietly enjoyed untill of late time And the Court delivered their opinion That it there were a Deed by which Stockwood conveyed the Land to H 8 and that brought into the Court of Augmentation although this Deed be not found nor inrolled yet it is a sufficient Record to intitle the King and it is a Record by being brought into Court and there received to be inrolled And the Report of the case in Lord Dyeâ— fol 355.19 Eliz. was not as it is there reported for it was for Bormiâ— Inne and it was adjudged a good conveyance and in this case the Iury found for the Defendant Trin. 14 Jac. Rotulo 769. Steward versus Bishop Words STeward brought an Action upon the Case for certain words against Bishop because that the Defendant said Steward is in Leicester Gaol for stealing an Horse and other Cattell the Defendant pleaded not guilty and the Iury found for the Plaintiff and Damages to thirty pounds And it was moved in Arrest of Iudgment by Serjeant John Moore that the Action doth not lye for the words do not affirm and Deed or Act or Offence but that he was in prison upon suspition of an Offence And it is the Ordinary speech and communication by way of interrogation What is such a one in prison for For stealing And all the Kalenders are such a one for stealing of a Horse such a one for Murther Vide Coke lib 4. he is detected for Perjury is not actionable And to say such words of a Iustice of Peace or an Attorney peradventure it shall be otherwise yet it seems all one if it touch not him in his Profession To say that I. S. was in Newgate for forging of Writs will not maintain an Action and so adjudged in Nowels case and Iudgment was given that the action will not lye Pasch 15 Jac. ONe brought and Action upon the Case and counted that the Defendant in consideration that the Plaintiff would take such a woman to his Wife promised to pay twenty pounds when he shall be therto requested after the marriage Request where it shall not be alledged and that the Plaintiff such a day had married the said Woman and the Defendant though often requested did not pay the aforesaid twenty pounds And it was moved in Arrest of Iudgement that he had not shewn any particular request but yet Iudgment was affirmed for the Plaintiff for this action is grounded upon the promise which imports Debt and not upon any collaterall matter which makes it a duty by the performance of a collaterall Act upon the request Trin. 15 Jac. Resolved upon the Statute of 3 H. 7. Cap. 2. VPon divers Assemblies at Serjeants Inne of all the Iudges to consider by the direction of the Star-Chamber whether by the Statute of 3 H 7. cap 2. the taking of any Woman against her will and the marrying or deflowring of her be Felony or only of such a Woman which hath Substance or Goods or Lands or otherwise be an Heir apparent the body of the Act seems to be generall viz. He that shall take any Woman so against her will And it was said that it were a great inconvenience that it shall be Felony to take an Heir apparent of a poor man or to take a Woman which hath but a very small Portion and of mean Parentage and as it was said of a Woman in a red Peticote and that it shall not be felony to do and commit the said Offence in taking the Daughter of an Earl or some other great man of the Realm But it was resolved that the body of the Act was incorporated to the Preamble for it had been adjudged that if one take a Woman with an intent to marry her or deflower her c. and doth it not this is not Felony and this rests only upon the Preamble then it shall have relation as well to such a Woman which is before named viz. Maid Widow or Wife having substance and to an Heir apparent and to no other And so it was taken in a Case in the Star-Chamber by the like resolution 10 Jac. between Baker and Hall and the Lord chief Baron said Baker and Hall that it had been adjudged that no Appeal did lye upon this Statute and all the Presidents in effect warrant this resolution vide Stamford fol. 37. Statute 1 H. 4. Cap. 14. COnsideration upon the Statute 1 H 4. Cap 14. was had how the word Appeals shall be intended before the Constable and Marshall And 26 Eliz. Doughties Case Doughties case Petition was made to the Queen by the Heir to make a Constable and Marshall but she would not Admitting that the King get a Commission of the Office of a Constable and Marshall whether the King may have any remedy before them by Indictment or information by the Attorney generall Mich. 15 Jac. Andrews versus Hacker AN Assise of Darrein Presentment was brought by Andrews against Hacker and the Earl of Salop Assise and against the Arch-bishop of York for the Church of Gothur in the County of Nottingham the Assise was brought to the Bar and when the Iury appeared the Arch-bishop made default and the others appeared and pleaded in abatement of the Writ that the same
be after the title devolved unto the Metropolitan And it seems also reason that he ought to admit though that the Title by Laps be accrued to the King for he claims it as supream Ordinary vide Dyer 277. quaere But in this case the Bishop which is the Defendant is bound by the Iudgement and the Writ is notwithstanding the claim of the Bishop that he admit the Clerk and the Bishop is but Servant and ought to execute the processe of the Court It was urged by Serjeant Henden one Canon Linwood fol. That if the Church be vacant when the Writ comes to the Bishop that he is bound to execute the Writ but if it be full then he certifies the Iustices And the Arch-bishop is sworn to the Canons and he vouched 22 H 6. 45. Coke lib 6. 49. and 52 Dyer 260. F.N.B. 47. Dyer 364. 14 H 7. 22. 34. H 6. 41. 9 E 3. Quare non admisit 18 E 4. 7. Trin. 16 Jac. Rot. 1999. Eire versus Bannester JOhn Eire brought an Ejectione firmae upon a Lease made by Sir Edward Kinaston against Andrew Bannester and Thomas Wenlock for Land in Norwood Challenge and after Not guilty the Plaintiff made surmiss of Kindred to the Sheriff Sir Thomas Owen to the Plaintiff the Defendant pleads that the Sheriff Non est de consanguinitate of the Plaintiff as he by his challenge supposed And because the Defendant denied the said Challenge John Eire calumnia illa non obstant prec est quod ven fac c. And at the Nisi prius the Defendants challenge the Array for consanguinity between the Sheriff and the Lessor viz. Sir Edward Kinaston and make this Averment that the Sheriff had Issue by Susan which was the Daughter of Judith the Wife of Sir Edward Kinaston and conclude it is a principall Challenge and therupon the Plaintiff demurred And it was returned upon the Postea and it seems that the Sheriff being admitted and allowed to be indifferent by the Defendants in the same Plea they which allow cannot have a Challenge to the Sheriff for the Defendants might by confession of the surmise of the Plaintiff to be true have had a Writ directed to the Coroners and although the entry is Calumnia illa non obstant that is the form of the Award and if he should be allowed otherwise afterwards to challenge the Array then it would be infinite As a man ought to alledge but one principall Challenge though he hath many so it shall be peremptory to the Defendant and when he allows the Sheriff indifferent that shall be taken to be for all causes precedent unlesse it be of latter time And so is the opinion of 20 E 4. 2. And if there be many Defendants if one challenge the Array that shall be peremptory for the others as it seems for the others ought when they challenge the Tales to shew cause presently of the Challenge for if it be quashed that shall also be against them vide Dyer 201. in Attaint vide 36 H. 6. 21. that where one challenge the Array which is affirmed the other Defendants after may challenge the Array of the Tales The second point is if it be a principall challenge or no by reason that the Lessor is not party to the Action vide 10 E 4. 12. 15 E. 4. 18. and 21 E. 4. 61. there it seems that where the Defendant justifies as Servant to I.S. and that the Land is his Free-hold it is a principall challenge that a Iuror is within the Distresse of John S. for the Title is to be tryed And now it was found by common experience that the Lessâ—e is but Servant common recoveries at this day are but as other common Conveyances But it seems that the Law is contrary and it is not averred that this is a Lease for trying the Title and as Iudges we take no notice therof but vide 3 H 7. 2. contrary to the 10 and 15 E 4. where the Challenge is to the Array because that the Sheriff was of Kindred to him whose Free-hold was in Issue and vide 9 H 7. 22. Cognizance as Bayliff to the Abbot of Ramsey Challenge to the Array because the Sheriff was within the Distresse of the Abbot and that was not a principall Challenge by Fineux Brian and Vavasor because that he was not party to the Writ vide this very Case Dyer 300. And upon argument at the Bar the Court was of opinion that it was no principall Challenge but ought to have concluded with the favour All agreed that a Surmise which is for prevention of delay ought to contain matter which is a principall Challenge for no triall shal be of such suggestion but by the deniall of the Defendant or Confession And by the opinion of Lord Hobart and Iustice Winch cest dedire n'est peremptory to the Defendant for his time of challenge is not till the Iury come to be sworn but I hold the contrary because that he might have confessed the Surmise and so have had time And I rely upon 20 E 4. 2. there in the end of the Case it is said that the Defendant by his deniall where he saies that the Sheriff is not favourable but indifferent there he shall never have a challenge for favour unlesse he shews cause of later time As to the second Point it is no principall Challenge because it might be that the Lessor had granted over the Reversion or that the Defendant might be found Not guilty And a principall Challenge ought to contain such matter which being so the Law adjudge favourable and in this very case two Presidents scil Iudgments more strong then this case Bedforne and Dandy Hil 44 Eliz Rot 1208. Bedforne against Dandy in an Ejectione firmae upon a Lease made by Sir John Digby after Not guilty pleaded a Surmise made of consanguinity between the Lessor and the Sheriff c. confessed and therupon a Venire facias to the Coroners and after the Challenge was adjudged insufficient and a Venire facias likewise to the Sheriff was ruled Craddock and Wenlock Trin 14 Jac. Rot. 2284. Craddock against Wenlock in an Ejectione firmae upon a Lease made by Sir Robert Cotton such Challenge and Award to the Coroners and tryed and adjudged a mis-tryall and a Venire facias awarded to the Sheriff and the mis-tryall is not aided by the Statute vide Coke lib 5. Bainhams case And so by the Iudgment of the Court this Challenge was insufficient and Warburton being then sick was of the same opinion as he told me vide 8 Eliz Dyer 281. Austen and Baker in Attaint vide 33 H. 6. 21. 3. Defendants one challenge the Array of the Principall and that being affirmed the other Defendants challenge the Tales Mich. 16 Jac. Easington versus Boucher Debt Severall Defendants in Debt upon a joynt Contract may plead severall pleaâ— EAsington brought an action of Debt upon a joynt Contract against Sir John
inclosing Woods but suffering them to lye open after cutting by the space of one month he alledged the cutting the tenth of April and the lying open untill the second of May which was not a month And upon Not guilty pleaded it was found for the Plaintiff and upon motion in Arrest of Iudgment it was awarded that the Defendant eat inde sine die and no costs And the Lord Hobart said that this Statute was made for the ease of the Subject and for avoiding and preventing of vexations and therfore did enumerate all the cases in which the Informer could not prevail and had many words that the Statute of 23 of H. 8. or any other Statute doth not give expresly costs upon demurrer and this is not within 23 H. 8. if upon discontinuance And now the matter passe against the informer be it by Verdict or Iudgment all is one for the makers of this Statute intended to curb all vexatious Informers And if it shall be suffered that Informers may inform upon Statutes not in force and pay no costs that would open a Window to the great vexation of the Subjects And for Presidents not inflicted upon they are of little esteem And I concurred and though Verdict be found for the Informer yet there being no Statute there can be no Offence and it is in Law as not guilty And this case is within the meaning and Letter of the Statute for the Statute intend costs where the cause passe against the Informer be it by default of matter or form Winch doubted of this speciall case because the matter is found for the Informer but he agreeh if it were upon Iudgment upon demurrer or speciall Verdict costs should be given And Iustice Warburton was of opinion that there should be no costs in this case for he is not capable to sue where the Statute is discontinued And so if the Venue be misawarded and he said that he had conference with the Lord chief Baron who also held that there should be no costs in this case And so the matter rests Blackburnes Case Norff. Debt AN action of Debt was brought by I. S. against Blackburne upon a Lease for a year and so from year to year And upon Nil debet pleaded the Iury gave a speciall Verdict to this effect A Devise to a Feme of a term upon condition Wells seised of Land in Fee devised them to his Daughter and her Heirs when she come to the age of eighteen years and that his Wife should take the profits of the Land to her use without any account to be made untill the Daughter come to the age of eighteen years And made his Wife his Executor and died And it was provided that the Wife should pay the old Rent and find the Daughter at School untill she could read and write English the Feme enters and proves the Will takes Husband and dies the Husband assign this term to the Lessor who brought this Action And it was found that all the Conditions were performed and that the Daughter was within the said age of eighteen viz. thirteen years And the sole question was whether it be a term for years in the Wife and whether when she takes Husband he shall have it after the death of his Wife and it was ruled clearly that it is and it being by Will it is a good Lease Another question was if this trust of Education be Quasi a Limitation personall and with intent that the Lease shall not be to the Wife any longer then she may educate her Daughter And it was agreed that it was not for any one may educate her and find her at School and there it is without any default in the Wife for it is the act of God and therfore Judgment for the Plaintiff Trin. 17 Jac. Whittingtons Case IVdgment in Debt against Ferdinand Earl of Derby Scire facias Sci. fac by the Baron and Feme the death of one of them shall abate it at the Suit of I. Whittington and his Wife she being Administrator to her Husband who had the Iudgment who brought a Sci. fac upon the Iudgment against 30. Ter-tenants they appear and all besides 3. plead that at the time of the Iudgment Ferdinand the Earl was seised in tail c. And the Plaintiff had Iudgment against the three with a cesset executio and afterwards Whittington the Husband died and this is surmised and entred vpon Record viz. the death of the Baron after the Darrein continuance and whether the Writ shall abate or no was the question And per totam Curiam the Writ shall abate for the Wife there cannot recover as a Feme sole and though this Writ be judiciall yet it is in nature of an Originall for she might have had an action of debt upon the Iudgment and ought to have that action solely after the year untill the Statute of Westminster 2. which give Scire facias and to this Writ they may plead But in Writs Iudiciall which are only Writs for the doing of execution there the death of one shall not abate it vide 19 Ass 10. 25 E 3. and vide Reads case Coke lib 10. fol. 134. Ruggles Case IN Ruggles Case upon the motion of Serjeant Arthure upon the Statute of 1 Jacobi cap. 15. concerning Bankrupts How the distribution of the Estate of a Bankrupt shall be a Commission was sued out by some of the Creditors and they pursued it and the Land was sold and it being opposed they defended their severall Suits and prevailed by a tryall at Bar And after other Creditors which before would neither partake nor aid them came and prayed to be joyned with them And the Commissioners doubted upon the Statute whether they might allow them to be joyned and the words of the Statute are That it shall be lawfull for any of the Creditors of the Bankrupt within four months after the Commission sued forth and till distribution shall be made by the said Commissioners for the payment of the Bankrupts Debts as in such case hath been used to partake and joyn with other Creditors that shall sue out the said Commission the said Creditors so joyning to contribute to the charges of the said Commission and if the Creditors came not in within four months then the Commissioners to have power to distribute It was resolved that the Commissioners may sell and prepare for distribution presently upon the execution of the Commission but untill the four months are passed they may not proceed to distribution for the Creditors which inhabite in the remote part of the Realm peradventure cannot have notice and it may be carried so secretly that if they might distribute presently that they which sued out the Commission should be only satisfied when indeed there was no default in the others Also it was resolved that the offer of Creditors to be joyned and before they be partakers is not an affectuall offer without offering to be contributory
Yelverton and I were opinion that the Debt is gone for it is at the suit of the King and Iudgment is given for the King And there shall be an answer to the King And we relyed upon the cases vouched by the Lord Coke but Iustice Harvey and Crook to the contrary And upon conference with all the Iustices of Serjeants Inne it was resolved that this action was at the suit of the party for he might be Non-suited vide 25 H 8. Br. Non-suit that the Informer may be Non-suited vide 6 E. 2. Fitz Non-suit 13. when the Iury come again to deliver their Verdict the King cannot discharge them and be Non-suited and the King cannot discharge this action And his Attorney reply not as in an Information Clotworthy versus Clotworthy Amendments Debt SImon Clotworthy brought an action of Debt against John C. Cosin and Heir of Bartholmew C. And the Imparlance Roll is Quod cum praedictus B. cujus consanguineus heres idem Johannes est viz. filius Johannis Clotworthy fratris praedicti B. C. And upon the Plea Roll upon which Iudgment is given this space was perfected and Iudgment for the Plaintiff and now the Defendant brought a Writ of Error and it was moved to be amended And if the Imparlance Roll shall be amended which is the foundation of the subsequent Rolls is the question For it is commonly holden that the Plea Roll shall he amended by the Imparlance but not e converso Hil. 18 Jac. Rot. 67â— Walker versus Worsley Amendments WAlker brought an action of Debt against Worsley Debt as Son and Heir of Thomas W. in the Imparlance Roll which was entred Mich 18 Jac Rot 576. the words which bind the Heir were omitted viz. Ad quam quidem solutionem obligasset se Heredes suos but they were in the Plea Roll And after Iudgment that was assigned for Error in the Kings Bench and it was amended in the Common Bench by the Court vide there that it was by the fault and mis-prision of the Clerk who had the Obligation and so amendable by the Statute of 8 H 6. cap 15. 1. Hil. 9 Jac. Rot. 516. Govard versus Dennet GOvard against Dennet and Iudgment and the name of the Attorney viz. Henry was omitted in the Imparlance Roll and it was in the Plea Roll Henry and after Error brought it was amended Mich. 16 Jac. Rot. 581. Arrowsmith's Case THe Imparlance Roll Trin 16 Jac Rot 1727. Debt for three hundred pounds against Arrowsmith for part sur emisset and the other part sur in simul computasset And in the Imparlance Roll both parcells did not amount to three hundred pounds but wanted six pounds therof and after Error brought it was amended Pasch 12 Jac. Rot. 420. Godhow versus Bennet REplevin by Godhow against Bennet divers spaces in the Imparlance Roll were supplyed in the Plea Roll after Verdict Hil. 12 Jac. Rot. 420. Parker versus Parker THe Imparlance Roll was Mich 12 Jac Rot 547. Parker against Parker in Trover and Conversion the Imparlance Roll wanted the day and year of the possession and conversion but the Issue Roll was after the Verdict and motion in Arrest of Iudgment amended Mich. 2 Car. Crocker versus Kelsey JOhn Canterson and Agnes his Wife Tenants in speciall tail had Issue a Son Lease made by Feme in speciall tail viz. John and John the Father died John the Son levied a Fine with Proclamations to the use of himself in Fee Agnes leased to John Herring and Margaret his Wife Lessors to the Plaintiff for one and twenty years rendring Rent c. by vertue wherof they entred Agnes died John the Son entred and afterward the said John Herring and Margaret his Wife entred And the said John the Son made his Will in writing and by that devised the Land to Kelsey the Defendant and another in Fee and died John Herring and Margaret leased to Crocker the Plaintiff who entred and being ousted by Kelsey brought Ejectione firmae And this speciall Verdict being found Iudgment was given for the Plaintiff and now affirmed upon Error brought in the Exchequer Chamber Mich. 2 Car. Franklin versus Bradell FRanklin a Woman servant brought an action upon the case upon a promise against John Bradell Consideration in an Assumpsit ex post facto And count that wheras she had served the Defendant and his Wife and done to them loyall service the Defendant after the death of his Wife in consideration of the service which the Plaintiff had done to the Defendant and his Wife promised to pay her thirteen shillings four pence upon request and alledged request and non-payment And after Verdict for the Plaintiff it was moved in Arrest of Iudgment upon the Book of 13 Eliz. Dyer that this is no sufficient consideration because that it is not alledged that the Plaintiff at the request of the Defendant had served him Also it was not sufficient because that it was done after the service performed And it was answered that it was a good consideration and that the service was to the benefit of the Defendant And therfore in consideration that the Plaintiff had married the Daughter of the Defendant he promise to pay twenty pounds it is a good consideration and so in consideration that you have been my surely to such a man for such a Debt I promise to save you harmlesse And in consideration that the Plaintiff was Baile for the Defendant he promised to give him a Horse this is good And in consideration that I.S. being a Carpenter had well built my house I promise to give him five pounds And Iudgment for the Plaintiff Hil. 2 Car. Hearne versus Allen. Entred 22 Jac Rot 1875. Oxford 1. RIchard Hearne brought an Ejectione firmae against John Allen Ejectione firmae for two acres of Land in Langham upon a Lease made by Anne Keene which was the Wife of Edward Keene and upon Not guilty pleaded a speciall Verdict was found Richard Keene was seised of an house in Chippin-norton Devise and of two acres of Land there in Fee and of two acres of Meadow in Langham in Fee used with the said Messuage which were holden in Socage And by his Will in writing dated the 20. May 30 Eliz. he devised the said house Cuni omnibus singulis ad inde pertinentibus vel aliquo modo spectantibus to Tho. K. and his Heirs for ever And for want of Heirs of him the said Thomas then to one Anne K. the Daughter of the Devisor and her Heirs for ever And for default c. then to Iohn K. his Cosin and his Heirs for ever And by the same Will devised his Goods and all his Lands to Eliz. his Wife during her Widow-hood and died Elizabeth his Wife entred Thomas the Son entred upon the Wife and disseised her and having enfeoffed one Edward K. in Fee died and Tho. K. also died without Issue Edward K. by his Will devised
use of the Kings Bench is never to enter the Admission but only to recite it in the Count vide 11 H 7. Rot 412. In a Writ of Right by Baron and Feme and another Feme Infants there per custodes good vide 8 E 4 5. for the Mainprise entred in another Term lib Intractionum fol 366. It was vouched by Croke and affirmed by Yelverton in one Simpsons case in Durham Simpsons case where the Tenant was by Prochein amy where it should be by Guardian was Error The Presidents are that an Infant when he sue may be by Guardian or Prochein amy the one or the other but when he is sued it shall be by Guardian Mich. 3 Car. Wolfe versus Hole WOlfe an Attorney Plaintiff against Hole by a Writ of Priviledge Amendment and he Count upon an Assumpsit And after Verdict given and Iudgment a Writ of Error was brought and moved that there was a default in the Imparlance Roll viz. fault de trover pledges which was as it ought to be in the Plea Roll And it was moved that it might be amended and after debate at Bar by Henden and Davenport it was resolved that the not finding of Pledges is not matter of form but matter of substance and it concerns the King for if the cause to amerce the Plaintiff the Iudgment is Ideo le Plaintiff ses pledge sont Amerce and that it is not aided by the Statute of 18 Eliz. quod quaere and vide 12 Eliz Dyer 288. there is a Case written by me that An 17 Jac was amended after the Verdict and in one Hillaries case and vide thâ—re in Dyer that the Plaintiff when he is sued by Priviledges ought to find pledges and that as well as when a Bill is filed against an Attorney But now because that it was assigned for Error and that if it be amendable the Iustices of the Kings Bench would amend it this Court would not but if it had been in the Imparlance Roll and omitted in the Plea Roll it should be amended vide 18 E 4. 9. that Pledges may be entred at any time Hil. 2. Car. Rot. 565. Hilton versus Paule RIchard Hilton brought an action of Trespasse against Robert Paule Trespasse Which shall be said a Parish Church within the act of 43 Eliz. for the maintenance of thâ— poor for the taking of a Saddle at Stoke-Goldenham And upon Not guilty pleaded the Iury gave a speciall Verdict Viz. That the Parish of Hinkley was de temps dont memory c. and yet is an ancient Rectory and a Church Parochiall And that the Town of Stoke-Goldenham is an ancient Town and parcell of the Rectory of Hinkley And that from the time of H. 6. and afterwards untill this time there hath been and is in the Town of Goldenham a Church which by all the said time hath been used and reputed as a Parish And that the Inhabitants of Stoke-G by all the said time had had all Parochiall Rights and Church-wardens And that the Towâ—â— of Stoke-Goldenham is distant two miles from Hinkley And the Verdict concluded it it should seem to them that Stoke Goldenham is a Parish for the relief of Poor within the Statute of 43 Eliz. cap. 2. then they find for the Plaintiff if not for the Defendant And this Case was argued by Serjeant Barkley and he vouched Linwood fol 89. and said that there is Ecclesia major minor and a dependant Church upon the principall and another Church and which is found to be used and reputed ergo it is not a Parish And that the Exception of the Chappell of Foulnes which by the Statute is made a Parish proves that Chappell and Parish are not within the Statute he vouched 4 E 4. 39. and 5 E 4. to prove that divers Town may be one Parish And the Lord Richardson said that it is a clear case that this is a Parish within the intent of the Statute of 43 Eliz. for the relief of Poor And that the Church-wardens and Overseers of Stoke-Goldenham might assesse for the relief of the Poor And though it be found that after the time of H. 6. and untill now it had been used as a Parish Church that doth not exclude that it was not used so before And a Reputative Chantery is within the Statute of Chantries 1 E 6. And this Statute being made for the relief of the Poor and that they might not wander therfore the intent of the Statute is to confine the relief to Parishes then in esse and so used And every one of the Court delivered their opinion and concurred And so Iudgment was given for the Plaintiff Hil. 3 Car. Peto versus Pemmerton Mich. 3 Car. Rot. 414. Replevin SIr Edward Peto Knight brought Replevin against Robert Pemmerton and Giles Thompson The Defendants made Conusance as Bayliffs to Humphrey Peto Where Grantee of a Rent-charge takes a Lease of part of the Land and surrenders it the Rent shall be revived and that Humphrey the Father of the said Humphry was seised of the place in which c. in Fee and by his Deed granted the Rent of six pounds to the said Humphrey his Son for life out therof to Commence after the Death of the Grantor and shewed that Humphrey the Father died and for Rent arrear c. The Plaintiff in Bar to the Avowry confesse the grant and seisin of the Land and that the said Humphrey died seised of the Land out of which the Rent was granted and that that descended to William and from William to the Plaintiff who entred and demised to the said Humphrey the Son parcell of the Lands unde c. for five hundred years by force of which Lease the said Humphrey had entred and was possessed The Defendants replyed that afterwards and before any part for which they made Conusance was arrear the said Humphrey the Son surrendred the said Lease to Sir Edward Peto to which surrender the said Sir Edward agreed wherupon the Plaintiff demurred And this Case was argued by Henden and he said that when the act of him which had the Rent made the suspension his act alone could not revive it But a Rent suspended might be revived by the act of Law or by the joynt act or agreement of the parties by whom the suspension was made 21 H. 7. 7. 19 H 6. 4. 19 H 6. 45. 7 H 6. 2. As for the personall things when they are suspended they are extinct unlesse it be in auter droit as if Feme Executrix take the Debtor to Husband and the Baron dies the Wife shall have an action of Debt against his Executors One reason in this case is because that by the surrender which is accepted the Contract is determined and that is by the act of both And by the surrender the Estate for years is extinguisht to all purposes as to that to which the surrender was made as if he had granted a Rent now it shall
to him and he will pay for the making therof that is a good consideration vide Coke lib 8. fol 147. And in this case all the Court were of opinion that the consideration was good for wheras he might have detained the Horse untill he had been paid for the pasture and feeding he at the speciall request of the Defendant had delivered the Horse to him to the use of the Owner which is to the prejudice of the Plaintiff and alienest to him to whose use he was delivered And Iustice Harvey vouched a case which was in this Court adjudged which was in consideration that the Plaintiff had promised to pay to the Defendant ten pounds at a day according to the Condition of an Obligation the Defendant promised to deliver the Obligation and adjudged a good Consideration Turner versus Hodges THe Custom of the Mannor of _____ is found to be for the Copyholders without the License of the Lord of the Mannor they being seised in Fee may make any Lease for a year Custom in a Mannor to make aâ— Lease for years or many years and when they dye that â—â—e 〈◊〉 shall cease and that the Heir or Heirs may enter It was moved in Arrest of Iudgment that this was a bad Custom and that the Copyholders had by Custom an Inheritance and might by the generall Custom of the Ream make a Lease for one year And that tenor the generall Custom of the Realm but the Custom of every Mannor within the Realm vide Coke lib 4. fol 26. in Melwiches Case Custom creates the Estate and the Custom is as ancient as the Estate and is casuall and upon the Act of God and is reasonable that the Heir who is to pay the Fine should have the Possession And yet a Custom that if the Copyholder had surrendred to the Lord that the Lease should be void had been a 〈◊〉 Custom because that he might subvert and destroy by his own act that Estate that he himself had made and he which took the Lease haâ—ing notice of the Custom takes the Lease at his perill for otherwise he might have procured the License of the Lord and then by this License the Lord had dispenced therwith and that is as it were the Confirmation of the Lord For if a Copyholder makes a Lease for twenty years with the License of the Lord and after dies without Heirs yet the Lease shall stand against the Lord by reason of his License which amounts to a Confirmation And the Plaintiff had Iudgment Hil. 4 Car. EJectione firmae was brought and count upon a Lease made by Husband and Wife Lease by Baron and Feme without reservation of any Rent and that was by Indenture And upon Not guilty pleaded a speciall Verdict was given in which the sole question was Whether this Lease was made by Baron and Feme being there was no Rent reserved therby It was objected that this Lease could not be made good by the Feme by any acceptance and therfore it is not the Lease of the Feme no more then if the Verdict had found that the Lease was by an Infant and no Rent reserved that had been a void Lease But it is contrary of a Baron and Feme for the Baron had power and the Feme joyning in the Lease it is not void for she may affirm the Lease by bringing a Writ of Wast or she may accept Fealty And so was the opinion of the Court and Iudgment entred accordingly vide Coke lib 2. fol 61. in Wiscots case Count of a Lease by Baron Feme and shew not that it was by Deed and yet good vide Dyer 91. Pasch 5 Car. Paston versus Utber JOhn Paston brought Ejectione firmae against Barnard Utber upon a Lease made by Mary Paston And upon Not guilty pleaded a speciall Verdict was found at the Bar and the Case was thus Custom that the Lord have a Feild-course over the Lands of his Coppyholders if the Tenant inclose it is no forfeifture Barnard Vtber seised of the said Land to him and his Heirs by Copy of Court-Roll according to the Custom of the Mannor of Binham And that within that Mannor there is such a Custom that the Lord had had one field course for five hundred Ewes in the North-field and the West-field wherof these fifteen acres were parcell from the Feast of Saint Michael if the Corn were inned and if it were not then after the Corn were inned untill the Feast of the Annunciation if it were not before that time sown again with Corn in all the Lands of the Copyholders not inclosed And that it is a Custom that no Copyholder may inclose any Copyhold Land without the License of the Lord And if any be inclosed without License then a reasonable fine should be assessed by the Lord or his Steward for the Inclosure if the Lord would accept therof And it is also a Custom that if the Lord will not accept therof then the Copyholder which so incloseth shall be punished at every Court after untill he open that Inclosure And the said Vtber inclosed the 15. acres with an Hedge and Fence of Quick-set 3. feet deep and 6. feet broad and that he had left 4. spaces of 9. feet broad in the said 15. acres And that the said Vtber was required by the Steward to lay open the said Inclosure and he did it not whereupon there was a command to the Bayliff to seise them as forfeit which was done And the said Mary being Seignoress of the Mannor entred and leased to the Plaintiff and the Defendant entred upon him Serjeant Davenport argued that it is a forfeiture and against the Custom which creates the Feildage for the Lord as well as the Estate of Copyhold for the Tenant and that this leaving of four spaces is a fraud and device and that it is against his Fealty and is to the damage of the Lord and a thing unlawfull vide Dyer 245. 34 E. 1. Formedon 88. 15 A 7. 10. 29 E 3. 6. That if the Tenant inclose the Commoner may break his hedges And though by Littleton an Inclosure which is a Disseisin is a totall Inclosure wherby he which hath the rent cannot come to distrain yet this also is an Inclosure because that it obstructs the feild-course for they cannot come so freely without interuption or damage for the hedges may deprive the Sheep of their wooll And he compared it to the case of 3 H. 7. 4. One is obliged to make an Estate of his Mannor of Dale if he alien part and then make a Feoffment the Condition is broken and vide 5 E 3. fol 58. a Recognizance with Condition to make a Feoffment to I. S. of the Mannor if he alien part therof he forfeit his Recognizance he vouched 42 E 2. 5. and Coke lib 4. that deniall of Services or making of Wast is a forfeiture 22 H 6. 18. 41 E 3. Wast 82. Dyer 364. And though that the Lord may
proceed by fiue to enforce him to lay it open yet these Affirmative Customs do not toll the Negative And to prove that the Lord had an Inheritance therin he vouched 14 E 2. Fitz. Grant 92. A Rent granted to one and his Heirs out of the Mannor of Dale which he hold of the Mannor of D. this is an Inheritance And if this shall not be a forfeiture then this Customary Inheritance which the Lord had in the feild-course might be tolled at the will and pleasure of the Copyholder Serjeant Hitcham argued strongly to the contrary First That it is no Inclosure because that all is not inclosed Secondly The forfeiture of a Copyhold is alwaies by some thing done to the Copyhold land it self but this is done as it is supposed to the feild-course of the Lord which is not Copyhold and it is better for the Copyhold and makes the land better and also the Feild-course is therby made better and more beneficiall to the Lord and therfore the Copyhold land is not altered but is meliorated and it is like so the case in Dyer 361. Althams case after no Wast done the Evidence was that a Trench was made in a Meadow by which the Meadow was Meliorated and adjudged no wast which might be given in evidence But he said that in Brooks case at the first comming of Popham to be chief Iustice it was adjudged that if a Copyholder build a new house it is a forfeiture for that altoreth the nature of the thing and put the Lord to more charge So if Tenant for yeare makes a Hay-yard in the land that is wast He said that this Custom is qualified by taking a Fine if he would or by imposing a pain in the Court to enforce the Defendant to lay it open And all the Court were of opinion that this is no forfeiture for the reasons before and that this Feild-course is a thing which commence by agreement and is but a Covenant and not of common right And Forfeitures which are odious in Law shall be taken strickly Trin. 5 Car. Starkey versus Tayler Case STarkey an Atterney of this Court brought an action upon the case against one Mr. Tayler of Lincolns Inn for saying of these words to him Words Thou art a common Barretor and a Judas and a Promoter And it was moved in Arrest of Iudgment that these words maintain not action for the generality and uncertainty that he shall be called a common Barretor And the chief Iustice seemed to be of opinion that those words are not more then if he had said That he was a common Brabler or Quarreller But it was urged by Serjeant Hicham that the action lies and that it is a generall Rule Quod sermo relatur ad personam As in Birchley's Case He is a corrupt man And in Mores Case it was said of an Attorney That he was a cousening Knave And if these words were spoken of a common person he doubted if they were actionable but being spoken of an Attorney action lies And if these words were spoken of Iudge without doubt they were actionable And in this case being spoken of an Attorney who is a Minister of Iustice and who hath the Causes of his Clients in his hands to gain them or to lose them The Statute of Westminster saies the Sheriffs are charged to expell all Barretors out of their Countries And in the Statute of 34 E. 3. is the description of a common Barretor and his punishment who is a stirrer of false and unjust Suits and that he shall be imprisoned during the pleasure of the King bound to his good behaviour and fined And Littleton in his Chapter of Warranties faith they are hired to keep Possessions and therfore an action lies But to say of another man That he is a common Barretor is not actionable unlesse he saith that he is convicted Hil. 3 Car Rot. 1302. Watt versus Maydewell Leicest WIlliam Watt brought an Ejectione firmae against Laurence Maydewell Where acceptance of a new Lease for years makes a surrender of the former upon a Lease made by Robert Rome upon Not guilty and a speciall Verdict found the Case was thus Francis Griffith seised of Land in Fee by Indenture bearing date the fourteen of November and 14 Iac. demised the said Land wherof c. for one and forty years to Robert Rome rendring two shillings Rent to commence from the Annunciation which shall be An 1619. and after the same year by another Indenture bearing date the third of December 15 Iac. to commence from the Annunciation last demised the same Lands for ninety nine years to Dame Frances Perroint who entred and was therof possessed And after that the said Francis Griffith by another Indenture the same year bearing date the fourteen day of November 16 Iac. to commence from the seventeenth of November An. 1619. devise it to the said Robert Rome for one and forty years who accepted it and afterwards entred and being possessed made his Will and appointed Executors and died the Executors administred and made the Lease to the Plaintiff who was possessed untill he was ousted by the Defendant And the only question of this Case was if the acceptance of the second Lease by Robert Rome had determined discharged or extinguished the former Lease And after Argument it was adjudged for the Plaintiff the reason was because that by the Lease made to the Lady Perpoint for ninety nine years and her Entry Francis Griffith had but a Reversion and could not by his Contract made afterwards with Robert Rome give any Interest to Robert Rome This Lease made to Robert Rome viz. his former Lease was good in Interest being to commence at a day to come and is grantable over and may be surrendred or determined by matter in Law before the Commencement therof as if he take a new Lease to commence presently which see in 37 H. 6. 29. 22 E. 4. for it tuures in Contract And in this case it had been without question that the taking of the new Lease had been a surrender of the former if it were not by reason of the Lease for ninety nine years which is for so great a number of years that disables him to contract for one and forty years 37 H. 6. 17. 18. 14 H. 7. 3. Dyer 140. Vide Smith and Stapletons case in Plowden If a man makes a Lease for one and twenty years and after makes a Lease for one and twenty yeares by Paroll that is meerly void but if the second Lease had beene by Deed and hee had procured the former Lease to Attorn he shall have the Reversion vide Ive's Case Coke lib 5. fol 11. there it is adjudged that the acceptance of a Leese for years to Commence at a day to come is a present surrender of a former Lease These Cases were vouched in this Case Baker and Willoughby Serjeant Bakers Case in the Court of Wards with the Lady Willoughby that a
latter Lease taken by him which was void did nâ—t surrender his former Lease which was good Sir Rowland Heywards Case the Lessee had Election to take as a Lease or as a Bargain and Sale and that it is not by way of Estoppell because it was contracted out of the Reversion Trin. 14 Jac. Rot. 3308 Thompson against Green Thompson and Green Mills and Whitewood adjudged that when one grants Proximam Advocationem to mother this is meerly void 13 Eliz. Rot. 1428. Ejectione firmae brought by Mills against Whitewood adjudged that where Lessee for years takes a new Lease after the death of his Lessor of the Gardian in Socage this is no surrender of his Lease 42 Eliz. Rot. 105. In Sir Arthur Capels Case adjudged _____ Rud who was Lessee for sixty years of an Advowson when the Church was void took a Presentation to himself of the Lessor and is admitten and inducted this was a Surrender of his Lease Mich. 5 Car. Baker versus Johnson A Iury was at the Bar in an Ejectione firmae brought by Henry Baker against Bartholomew Johnson upon a Lease made by James Baker which was seised of two Marshes among others called Knightswick and Southwick In a recovery if the Town be omitted the Land do nor pass which lye in an Island called Camby in the Parish there called North-Benfleet And he being Tenant in tail and intending to dock it and to make himself seised in Fee by Indenture the 10. of Eliz. Covenanted to suffer a recovery of these two Marshes by name and of many other Lands and that it should be to the use of himself in Fee and the recovery was had and therin South-Benfleet and many other Parishes named and Camby but the Parish of North-Benfleet was omitted And if the Lands in North-Benfleet passed or no was the Question And it was strongly argued by Crew and Henden to have it found specially it being in a Common Recovery which is but a Common Conveyance But all the Court agreed that the Town and Parish being omitted although that Camby was a place known but it appeared that that extends in and to ten Towns yet being in a Town that the Recovery extends not therto no more then if one had a Mannor in the Town of Dale which Mannor is called Bradford and within the said Mannor is a place known which is called Braisty Wood and he omit the Mannor and the Town and say the hundred acres of Land in Braisty Wood that is not good And the Court agreed that a Common Recovery is good in a Town Parish or Hamlet and peradventure in a place known out of the Town Parish or Hamlet as in the Forrest of Inglewood in Insula de Thamete c. But if it should be admitted that a Common Recovery shall be good in a place known in a Town or Hamlet that shall be absurd for there is no Town in which there are not twenty places known and it had been adjudged that a Venire facias de viceneto of a place known in a Town without making the Visne of the Town is not good Mich. 5 Car. Bill versus Lake London Case FRancis Bill brought an action upon the Case against Sir Aurthur Lake and counted that wheras at the speciall instance of Lettice Wife of the Defendant Where the request is the cause of action he had provided for the said Lettice a Tasfety Roll the Defendant did assume to pay as much as it was worth upon request And so in like manner for providing of Linnen stuff c. and making of severall Garments for the Wife and aver that the severall things bought amount to such a summ and the making therof was worth such a summ which in toto c. and alledge the request And aver that they were necessary Vestments and convenient for the degree of the Wife and after the making of them he had delivered them to the Wife The Defendant pleaded the Statute of 21 of King James for Limitation and said that the Plaintiff within six years after the promise supposed nor within three years after the end of the Parliament had not prosecuted any Originall or any Action upon this promise and Assumpsion wherupon the Plaintiff demurred And upon Argument at Bar by Serjeant Brampton for the Plaintiff and Davenport for the Defendant the matter was reduced to this Question Whether the cause of Action shall be said upon the request Quest or upon the promise Brampton agreed that where it is found upon an Assumpsit in Law and that the request is but for increase of Damages and not issuable there the Assumpsit is the cause of the Action But this cannot be founded upon an Assumpsion in Law because that it is not certain but to be made certain first by the Plaintiffs buying and providing of the Stuff Secondly by the Plaintiffs termining and making therof and then the matter of promise is for the payment of so much money as it should be reasonably worth and therfore the request is there collaterall and then it is the cause of the action and so within the Statute if it be an action which is founded upon an Assumpsit in Law then it doth not charge the Husband see the difference when request is materiall and shall be alledged and when not in Mecholl and Pecks Case before and a Feme Covert is not capable to make any Contract because she is Sub potestate viri And though it be for necessaries of Diet and Apparrell that shall not charge the Husband Sir William Alephs Case But an Infant is capable to make Contract for Diet and Apparrel necessary An 25 Eliz Sir William Alephs case was adjudged that where an Infant had taken so much for his necessary Apparrell and Diet which amounted to fifty pounds which was paid by Sir William Aleph And he took an Obligation with a penalty adjudged that it did not bind him in regard of the forfeiture And Dyer 234. Sir Michael Penits case the Wife took Sattin and Stuff to make her a Gown and Sir Michael paid the Taylor for the making therof And yet upon an action of Debt brought against the Husband it was resolved that it did not charge him And that the request to the cause of the action he vouched Dyer 31. 18 E 4. 4. solvend sur request and 9 H 7. fol 22. Replevin and Tenure for plowing the Land when he shall be required he ought to alledge the request and he concluded with a Case adjudged Hil 4 Car Rot. 710. Banco Regis between Shuesouth and Fernell an action upon the Case and count that the Defendant An 1618. had kept a Dog which he know had used to woory Sheep and that the Dog had wooried and killed divers Sheep of the Plaintiffs And the Defendant in consideration therof promised to satisfie the Plaintiff what he was damnified when he should be required therto and the promise was An 18 Jac. and the request and
Peter Edgecombe and it was to the intent of granting the Rent to the King and his Heirs and then of the recovery of the Mannor out of which c. to the said Sir Peter Edgecombe in tail the remainder to the King and they being seised by their Deed dated the third of June 11 H 8. sealed and delivered which is found in haec verba and that it was inrolled afterwards viz. 7. June granted the said Rent to H 8. Et si super totam materiam the Court adjudged it a Grant by Deed the third of June 11 H 8. then for the Defendant c. And upon Argument at Bar and conference had we all declared our opinion and agreed that Iudgment should be given for the Defendants The first reason was that the Issue is joyned upon the Grant modo forma and not upon the day as is offered by the Traverse but upon the Grant modo forma And the matter found is generally as is alledged vide Littleton Title Release that modo forma avoid and prevent the matter of day and goes solely to that which is materiall And by any thing which appears by the Verdict there is no intervening matter after the third day and before the seventh when the Deed was enrolled and then it is a good Grant of the third of June vide H 7 31. Then the speciall Conclusion found which is contrary to Law shall not conclude the Iudges to give Iudgment according to Law And so Iudgment was given for the Defendants Mich. 8 Car. Col. versus Wilkes SAmpson Cole brought an action of Debt upon the Statute of 2 H. 6. against Leonard Wilkes Tryall at the Bar Debt Debt upon the Statute of the 2 E. 6. for Tithes A Lease was made to two they enter and occupy and set not out their Tithes Debt was brought against one of them it lies not But here it was found that one only occupyed the Land and therfore the action well lies Sir John Gerards case And a Case was shewn Mich 8 Jac. An action of Debt was brought upon this Statute by Sir John Gerard against two Tenants in Common and it appeared that one of them set out his Tithe and that the other afterwards took it and carried it away and adjudged that the action lies only against him which carried it away Pasch 9 Car. Strilley's Case Amendment of the proclamation of a fine VPon motion made in this Court for the amendment of a Proclamation of a Fine levied by Strilley of Lands in Nottinghamshire Mich 11 Eliz. The Proclamations endorsed by the Chirographer upon the Fine were well but in the Transcript and Note of the Fine which is delivered to the Custos brevium by the Chirographer according to the Statute the second Proclamation was entred to be made the twentieth of May where it should have been the twenty third day of May and that by the misprision of the Clerk And it was moved that that might be amended And the Court was of opinion that it should be amended for the Ingrossement upon the Fine by the Chirographer is the foundation and that being well it is sufficient Warrant to amend the other And the Court was of opinion that it was a good Fine without any amendment But it being the misprision of the Clerk it shall be amended as in the case Coke lib 8. Blackamores case The Proclamation made and entred before the Originall shall be amended And it was objected that this Fine and Proclamations as they found in the Office of the Custos brevium are exemplified under the Great Seal and therfore by a Clause in the Statute of 23 Eliz cap. 3. could not be amended after such exemplification To that it was answered that that Statute extends only to Fines before levied which should be exemplified before the first day of June An 1582. And the latter clause in the said Statute doth not extend but to Fines exemplified according to the said Statute And therfore it was awarded to be amended Pasch 9 Car. Glasier versus Heliar Sussex Case GLasier brought an action upon the case for words against Heliar and shewed that three Colliers being in an house in Sussex were feloniously burnt in the said house and shewed that two or three men were indicted convicted and executed for the said Murther the Defendant knowing therof and intending to bring the Plaintiff in perill of his life Words as accessary to the said Murther sayd to him Thou didst bring Faggots a mile and a half to the burning of the Colliers And after Verdict for the Plaintiff and motion in Arrest of Iudgment it was adjudged that the words were actionable For if a Mansion-house be burnt feloniously to say You brought fire to set in the Thatch of the house which is burnt it is actionable Iudgment pro quaerente Smith versus Cornelius Southamp JOhn Smith Town-Clark of Southampton Case brought an action upon the case against one Cornelius an Attorney of this Court and shew that the Plaintiff was of good fame and Town-Clark of the Major and Burgesses of Southampton and was their Scribe and had the custody of all Rolls Pleas and Certificates Words and other proceedings before the Major and Burgesses in the Court before them to be holden And the Defendant intending to draw him into Infamy and to cause him to lose his Office said to him Thou hast made many false Certificate to the Major and Burgesses in that Court and the more thou stirrest in it the more it will stink And it was adjudged that these words are not actionable 1. Because that it is not alledged that there was any Colloquium concerning his Office of Town-Clark 2. Because that it appears not in the Count that the making of Certificates belong to his Office but only that he had the custody of them 3. It might be false and yet no blame to him if he did know them to be false or that he had made them false maliciously And therfore Iudgment was given for the Defendant And this Case was moved again by Hitcham the first day of Trinity Term next And then Iudgment was affrmed Hil. 9 Jac. Edwards versus Laurence Trin. 9 Car. Rot. 2488. Suff. RAchel Edwards brought an action of Trespasse against Richard Laurence for breaking of her Close Trespasse The Defendant in Bar to the new Assignment plead Traverse of Seisin that before the time of the Trespasse supposed to be done one Francis Tayler was seised in Fee of the Tenements wherof c. and so being seised died wherby it descended to Francis his Son and Heir who being seised therof 8 Car. demised it to the Defendant for two years by vertue wherof he entred and gives colour to the Plaintiff by a Grant made to him by Francis the Father where nothing passed therby and so iustifie The Plaintiff replyed that long before Francis Tayler the Son had any thing one Francis Tayler Grand-father of
without danger of their health Not guilty pleaded Verdict for the Plaintiff The Plaintiff prayeth Iudgment and doth offer for Authorities in this Case Smith and Mopham 4 Ass 3 4 E 3.37 5 E 3.47 new Book of Entries fol 19. in 5 Jac. between Smith and Mopham an action upon the case for erecting a Tan-fat with averment of corrupting the Aire and water to the annoyance of the Plaintiff and adjudged for the Plaintiff after Verdict Coke lib 4. Aldreds case pleaded in new Book of Entries fol 106. an action of the case for erecting a Hogsty Ad nocumentum aeris adjudged 22 H 6.14 by Newton an action upon the case lyeth expresly Blande against Mosely Trin. 29 Eliz Bland against Mosely an action of the case for stopping Lights in London adjudged a void Prescription to build so high that the Neighbors lights are therby stopped in a City Old Book of Entries fol 406. in the Edition 1596. action upon the Case brought for annoying a Piscary with a Gutter that came from a Dye-house 1. And there an action brought against a Dyer Quia fumos foeditat alia sordida juxta parietes querentis posuit per quod parietes putridae devenerunt ob metum infectionis per horridum vaporem c. ibid. morari non audebat 13 H 7.26 An action lyeth against a Glover because he with a Lime-pit so corrupted the water that the Tenants departed F. N. B. 185. b. A Writ lyeth to the Major of a City to cleanse the Streets from filth wherby infection might grow By which cases it appeareth that although Sea-cole be a necessary Fuell to be used and that Brew-houses are necessary yet the Rule in Law is Sic utere tuo ut alienum inon laedas And Chimneys Dye-houses and Tan-fats are also necessary but so to be used that they be not prejudiciall to their Neighbors And in this Case the Iury found that this new Brew-house and Privy was maliciously erected to deprive the Plaintiff of the benefit of his Habitation and Office and that the Plaintiff was hereby damnified as in the Declaration is alledged And upon Conference and Consideration of the Case all the Iudges did concur that Iudgment should be given for the Plaintiff THE TABLE Reciting the heads of all the PRINCIPALâ— CASES in this BOOK A ACcompt payment by the appointment of the Plaintiff is no good plea before Auditors where the issue was Ne unque receivor 133 Acceptance of a new Lease makes a surrender 104 Action of the case for giving evidence 11 Action brought by the Committee of a Lunatick 16 Action by the Feme for Frank-bank before admittance 18 Action brought for Rent by the Husband of a Feme to whom the land was granted by a former Husband by his Will untill the Daughter of the Devisor came to the age of eighteen years with a Condition 36 Act on brought against an Attorney for procuring a Judgment to be entred against the Plaintiff and a speciall plea therupon 125 Amendment in a Judgment 41 Amendment where it shall be 41 42 56 81 82 83 84. Act of the Court shall be amended 92 Amendment shall not be of the Pledges left out in the Imparlance Roll upon Bill by an Attorney 92 Amendment of the Proclamation of a Fine 122 Annuity to commence after eight years contained in the Will and no mention therof in the Will by which it is given 32 Annuity out of the clear gains of the Allome Mines 33 Arbitrement of all actions untill the date of the Award 9 Administrators cannot plead that the Intestate died outlawed 53 Advowson in grosse for life 88 Assumpsit by the Husband to the Wife before marriage 17 Assumpsit upon request to procure assent 39 Assumpsit in consideration to maintain Suit in defence of a Common and the Title therof 89 Assumpsit in consideration of forbearance 46 Assets need not to be alledged in an action upon the case against Executors 27 Arbitrements 29 Assumpsit lies not for Rent 34 Assise of Darrein presentment abates by a Quare Impedit 3 Avowry for Homage 50 Attaint how a Prisoner convicted and let at large shall be brought to execution 21 Avowry for Rent granted to the Father without alledging that it was arrear after the death of the Father 55 B. BAil insufficient taken by the Sheriff no action lies for it 120 Bail discharged where the Principall died before the return of the Capias 47 Bail action lies not against the Sheriff for taking insufficient bail 77 Baron and Feme at Exigent whether the Feme shall have Supersedeas alone 86 Bankrupt how the distribution of his Estate shall be 37 Bankrupt upon a fraudulent conveyance 42 Bar recovery in trespasse for taking of Goods is no Bar to an action of the case of Trover 81 Buggery 116 Bylawes 5 Burglary 20. 33 C. CHallenges 24 Condition not to be assistant to another in any action and after he bring a Writ of Error with another upon a iudgment against him and the other 40 Condition to levy a Fine who ought to do the first act 48 Condition to perform Covenant c. concerning Rent where demand is necessary inde 114 Condition to resigne a Benefice upon request 111 Consideration of forbearance 46. 108 Consideration to save one harmlesse if he being an Inn-keeper would safely keep a Prisoner 55 Consideration to confess a Iudgment and a promise therupon to defer the entry therof 63 Consideration that if the Obligor would pay the money the Obligee would deliver up the Bond 76 Consideration Ex post facto 84 Consideration that wheras one was indebted to the Plaintiff in seven pounds for keeping an Horse if the Plaintiff would deliver the Horse the Defendant promised to pay the seven pounds 101 Conspiracy 49 Copyhold may be extinguished without actuall surrender 65 Copyhold land enclosed where the Lord hath a Feild course if it be a forfeiture or no 102 Costs upon Non-suits where the Plaintiff hath no cause of action 16 Costs shall not be allowed upon the Statute of 5 Eliz. for Perjury 22 Costs against an Informer upon a Statute repealed 35 Costs shal not be allowed against Executors 69 Costs shall be allowed against Executors upon Non-suit in a Writ of Ravishment of Ward 78 Councel to what persons it shall be allowed to Prisoners arraigned 133 Counter-plea to the view 44 Custome of London to give security for the payment of Orphans Portions 30 Custome of Copyholders to make a Lease for years 101 Covenant of an Apprentice and when an Infant shall be bound therby 63 D. DEvise to a Feme a tearm upon condition 36 Debt against a Sheriff for monies returned levied by him 11. 32 Demand not necessary in Avowry for a Rent-charge 23 Demand of Rent with a Nomine poenâ—e 114 Demand of Rent where necessary or not 42 Discontinuance where Tenant in â—ail and he in Reversion joyn in a Lease pur aut vie 126 Devise of a fee after a
fee 60 Devise and what said in tail inde 85 Dower barred by Joynture 51 E. ELegit the Sheriff ought to deliver the Moyety by meets and bounds 16 Essoign though the Writ be not returned 28 Essoin upon return of an alias Summons 43 Essoine shall not be allowed in Dower after Issue 69 Error in omission of additions 41 Estate derived from one and shews not how 15 Exâ—cutors to what intents they shall be before probat of the Will 30 Executor the same person made by the Obligor and by the Obligee 128 Execution shall be de bonis testatoris where the Executors breake the Covenants of the Testator 35 Execution shall not be awarded upon Iudgment given in the grand Sessions of Wales 117 Extortion 53 78 Estrayes where they may be fettered 67 F. FIne to two and the Heirs of one to the use of them two and their Heirs 112 Fine de Oct. puris where the Caption was 14. February 135 G. GRant of an Advowson without alledging it to be by Deed 54 Grantee of a Rent-charge takes a Lease of part of the Land and after surrenders it the Rent shall be revived 94 Tenant for life with a Remainder to him in tail expectant and remainder to him in fee 96 Grant a Rent in fee and after had fee by Fine 96 H. HEriot where the Lord shall loose it when the Tenant hath none 4 Habeas Corpus liberty cannot be given to a Prisoner therby 129 Habendum void to parties not named in the Deed 88 Hue and Cry and Debt upon that Statute 125 I. INdempnitas nominis and supersedeas inde 45 Infant where he shall appear by Guardian and where by Prochein amy 92 Inditements for Rape and Buggery 115 Inns how they may be erected or restrained 99 Information against a Subject for Extortion 53 Information where it shall be brought 98 Intermarriage where it is a release of a promise c. before marriage 17 Jurisdiction a Plea therto where part of the land lies in the Cinque Ports 74 Judgment to what day it shall have relation 95 Joynture bars Dower 51 L. A Lord where he may be sworn 87 Lease by Feme in speciall tail 84 Lease by Baron and Feme without reservation of any rent 102 Lease where the acceptance of a new Lease makes a surrender of the former 104 N. NOtice where it shall be upon a promise 80 Nusances 136 O. OUtlawry where it may be pleaded 53 Obligation by the Sheriff where void 52 Office of a Park-keeper is good if the King dispark the Park 86 Obligation to levy a Fine before a day who shall do the first act 48 P. PArdon 79 Parliament what shall be said a Session 61 Pleas severall and by severall Defendants upon joynt Contracts 26 Prescription for a way and no place to which c. issue joyned on the Prescription 10 Prescription to have Herbage 45 Prescription to have Deer in discharge of Tithes 57 Plea as Heir and shews not how 15 Prescription to have Common omni tempore anni without saying quolibet anno 1 Plea of Grant of an Advowson without alledging by Deed 54 Prohibition 22 Prohibition to Chester 59 Q. QVire Impedit c. 31. 36 Quid juris clamat 89 Quod permittat 28 R. REcord shall be good where the conveyance is delivered to be inrolled but is not inrolled 1 Release of land devised before it be vested 60 Rationabile parte bonorum 109 Recovery if the Town be omitted therin the Land doth not passe 106 Record matter of Record tryed per pais 20 Remainder where it shall be said Contingent 118 Rent tendred at the day 13 Rent Assumpsit lies not for it 34 Rescous by the Plaintiff in the first action 98 Request where necessary 2. 73. 106 Return insufficient of a Writ of Quare Impedit 24 S. Statutes What shall be said a Parish Church within the Statute of 43 Eliz. 93 Resolves upon the Statute of 3 H. 7. cap. 2. 2 Resolves upon 35 Eliz. cap. 1. concerning Sectaries 61 Resolves upon 5 Eliz. concerning Aliens 132 Resolves upon the Statutes concerning Souldiers 134 Upon the Statute of Hue and Cry 125 Statute-Merchant without day of payment 42 Statute of Limitations extends not to Arrearages of Rent reserved upon Indenture 109 So De rationable parte bonorum 109 Debt upon a poenall Statute is not gone by the death of the King 82 Sci. fac against a Sheriff to have Execution of monies returned levied by him 32. 11 Sci. fac by Baron and Feme the death of the one shall abate it 37 Sci fac against the Sheriff for taking insufficient Pledges 77 Surrender by Baron and Feme of the Estate of the Feme for life and the King in consideration therof makes a new Lease 7 Suspension of things where they may be revived 94 Supersedeas by the Wife upon an Exigent against Husband and Wife 86 T. TEnder of Rent at the day 13 Tithes and action therupon 121 Tithes of Wood and small tithes 77 Trespass by Baron and Feme for breaking the Close of the Baron and for the Battery of the Wife 59 Tryall where nul tiel vill it pleaded 31 Traverse upon Traverse 96 Traverse of a day 121 Town shall be intended whole Town 74 Traverse of Seisin 123 Tenure by Castleguard is Socage Tenure 91 Tryall of Treason how it shall be 131 Tryall of an action of Account upon receit in two Counties 111 Tryall of matter of Record by the Country 20 Trover and Conversion the Defendant justifie without confession of the Conversion 10 Treason persons attainded therof and set at large how they shall be brought to execution 21 V. VEnire fac from a Towne within a Parish 6 Ven. fac from divers Towns 27 39 Ven. fac where nul tiel vill is pleaded 31 Ven. fac of a Visne from a place known in a Town without making it from the Town 106 View counterpleaded 44 View upon a Quod permittat 28 Usurpation 66 Judgment in Dower upon Voucher 71 W. VVAter increase thereof in Westminster Hall 108 Waifes where they may be fettered and other learning therupon 67 Warrant to four and two only execute it 127 Warranty lineall bind not without Assets 22 Wast in cutting wood to make Cole-mines 19 Wast and inquiry of damages theron 45 Wast how the Writ shall be made where a Lease for life is made the remainder in fee 110 Writs and filing therof 112 WORDS I. S. is in Leicester Gaole for stealing a Horse 2 Welsh words 8 He is a cousening Knave and so I have proved him before my Lord Major for selling of me a Saphire for a Diamond 13 George is a cousening Knave and cousened a poore man of a hundred pounds and all the Georges are Knaves 14 He is a cousening Knave and hath cousened me of forty pounds 14 He is a false Knave and keeps a false Debt-book for he chargeth me with the receit of a peice of Velvet which is false 14 Thou art a pilfering Merchant and hast pilfered away my Goods from my Wife and Children 14 She is a cousening woman and hath cousened one of her Neighbours of four pounds and I will bring good proof of it 14 I doubt not but to see you indited for Sheep stealing 18 Forgery spoken of an Attorny 29 Thou hast forsworn thy self in the Councell before the Marches 34 Thou art a filching fellow and didst filch four pounds from me 34 I charge thee with Felony for taking money out of I. S. pocket and I will prove it 38 I have matter enough against thee for I. S. hath found Forgery against thee and can prove it 41 Forsworn where actionable and where not 44 He is a Bankrupt spoken of one not a Tradesman 45 He is a Bankrupt spoken of a Baker without alledging him to be a common Baker 49 Cousening Knave whether actionable or not 52 I will have him hanged for robbing in the high-way 58 Thou art a Theef and hast stoln my Corn 15 He is as arrant a Knave as any in England 72 I doubt not but to prove that the Plaintiff hath spoken Treason 75 Thou art a common Barretor a Judas a Promoter spoken of an Attorney 104 Thou art a Theef and hast stoln Passions Lamb and marked it and he denied it 110 Thou art a Theef and hast cousened my Cosin Baldwin of his Land 113 I will charge him with flat Felony for stealing my Ropes from of my Shop 113 Thou didst bring Faggots a mile and halfe to burn the Colliers 123 Thou hast made many false Certificates to the Major and Burgesses in that Court 123 Trust him not he is not worth four pence of a Tradesman 125 If I list I can prove him perjured 127 Thou old Witch thou old Whore I will have thee hanged if I can do it 132 I accuse Mr. Justice Hutton of high Treason 131 He is a Witch and an Inchanter and hath bewitched the Children of Strong 13 Errata PAge 1. line 28. for Bormis Inn read Bozuni's Inn p. 3. l. 19. r. grant p. 7 l. 25. blot out by p. 13. l. 2. r Witch p. 22. l. 20. for to the Secondary r. secondarily p. 24. l. 27. r. of p. 28. r. Quod permittat p. 49. l. 8. r. entire l. 24. r. Ignoramus l. 36. r. Lord Hobart the same p. 54. l. 18. the same L. 38. p. 56. l. 42. r. Vicaridge l. 54. r. folk p. 61. l. 9. r. vested p. 65. l. 37. r. Lord Hob. p. 76. l. 38. r. sold p 81. l â—â— r. Justices p. 88. r. Hartopp p. 99. l. 25. r. unwholesome p. 104. l. 35. r. Perpoint l ult r. demised p. 105. l. 23. r. Lessee l. 33. after One add Grants proximam Advocationem to and after l. ult r. admitted p. 107. l. 10. r. founded l. 15. r. trimming p. 109. l. 24 r. objection l. 25. r. Action p. 110. l. 14. r. property l. 19. the Ter-tenant r. and held the said lands l. 37. r. dimisione p 112. l. 10. r. time l. 24. put out which granted p. 214. l. 8. r. agreed l. 35. r. rendred p. 116. l. 5. r. Georges p. 117 l. 24. r. Certiorari p. 119. l. 23. r. her l. 35. r. to p. 130. l. penult r. according