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
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
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
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
Plaintiff had before brought a Quare impedit against the Defendants for the same Church which Writ was returned and that they did appear to defend it First we must know that this Assise shall be taken only in the Common Bench vide Mag Char cap 13. Assize of Darrein presentment abate by a Quare â—â—pedit then the Arch-bishop making default and the Assise being awarded against him by default if the other Defendants plead to the Assise yet the Assise shall not be presented because an Assise shall not be taken by parcels and therfore a Resummons shall be awarded against the Arch-bishop and the same for the Iury. But the other Defendants pleading their Plea to the Writ the Court was of opinion that it was a good Plea in abatement of the Writ for the Quare impedit is a Writ of a higher nature vide Regist fol 30. That if he against whom an Assise of Darrein presentment is brought brings a Quare impedit the Darrein presentment shall abate And the Statute of West 2. cap 5. saies it may be in the Election of one whether he will have an Assise of Darrein presentment or Quare impedit ergo he cannot have them both And if an Assise of Darrein presentment be brought and after that a Quare impedit for one avoidance the Assise shall abate for the Quare impedit is higher in his nature that is for the right and for the possession And Iustice Warburton vouched 10 Ed 3 Statham in Darrein presentment 3. If a man shall have a Quare impedit and also an Assise of Darrein presentment of one and the same Advowson pending at one and the same time the Darrein presentment shall abate and the Quare impedit shall stand because that it is of an higher nature By Hank and Hill it was urged that the Quare impedit was not depending untill he had appeared and it is not pleaded that he did appear but vide 2 Ed 4. fol that it is depending when it is returned And in a Quare impedit by the Earl of Bedford against the Bishop of Exeter Bedford versus the Bishop of Exeter it was adjudged Pasch 15 Jac. that he could not have two Quare impedits of one Church and for one avoidance And in this Case the whole Court agreed that the plea was good in abatement of the Writ and awarded that the Assise should abate Mich. 14 Jac. Rot. 3297. Shaw versus Taylor Wigorn. Replevin Where the Lord shal lose his Heriot when the Tenant have not any Beasts BRidget Shaw brought a Replevin against George Taylor for the taking of an Horse at Northfield in a place called Little falling the Defendant makes Cognizance as Bayliff to Sir Thomas Gervas because that one Richard Shaw was seised of an House and divers Lands of which the place where c. was parcell in his Demesn as of Fee and them held of the said Sir Thomas Gervas as of his Mannor of Northfield by Fealty and Rent of twenty pounds and rendring and paying after of every Tenant dying therof seised one Heriot and alledged Seisin and that he died seised And that for one Heriot so due and not delivered he distrained in the place in which c. as within the Fee The Plaintiff plead in Bar to the Avowry and takes the whole Tenure by protestation and for Plea saies that the said Richard Shaw at the time of his death had no Beasts wherof a Heriot might or could be rendred upon which the Defendant demurrs And upon the matter it seemed to the Court that if he had not any Beasts than the Lord must lose it for it is a casuall thing if he have it unlesse the Custom or Tenure be to have the best Beast or such a summ And if he had conveyed it away and so prevented him by any fraud then the Statute of 13 Eliz. had provided remedy but where there is nothing of any such thing which may be rendred at the time of the death there the King must lose his right And it was resolved by the Court that the Cognizance was not good for it ought to be certain i. e. for the best or two best Beasts and not generally for one Heroit and not shewing what thing in certain vide 3 Eliz Dyer 199. A Heriot is Quaedam prestatio c. and see there the Plea that there was no Beast at the time of his death And the opinion of the Court was also that the Bar to the Avowry was not good because the Issue is tendred to a thing not alledged for in the Avowry he made not mention of any beast but generally of one Heriot which is not certain And therfore it was awarded that the Plaintiff should recover and should have a return c. and Damages Pasch 14 Jac. Rot. 907. Norris versus Stapes Goldsborough Berk. RObert Norris and Thomas Trussells Wardenâ— and the Society of Weavers in the Burrough of Newbury Deâ— 1. By lawes in the County of Berkshire brought an Action of Debt for five pounds against John Stapes and Count that Queen Eliz. by her Letters Patents 14. of Octob An 44. at the request of the Inhabitants there using the Art of Weaving and to the intent that Corruption therin might be taken away and avoided c. did grant to all Weavers within the said Town to be a Body Politick by the name of the Wardens and Society c as before and to have perpetuall succession power to purchase to plead and to be impleaded And also power to make Laws and Ordinances agreeable to reason and not in any wise contrary and repugnant to the Laws and Statutes of the Realm for the well Government of the Society Apprentices and Servants and all using the Trade of weaving or selling of any thing therto belonging within the same Burrough and power to inflict punishment by Imprisonment Fine or Amercement upon the Offenders And granted further that the said Wardens and Society shall have the survey of those Lawes and the benefit of the Forfeitures And that no other person born within or without the said Burrough shal exercise the Art of weaving within the said Burrough if he shall not be admitted therto by the Wardens and Society And they recite the Act of 19 H 7. cap 7. of not putting of any Law or Ordinance in execution before it shall be allowed by the Lord Chancellor Treasurer and two chief Iustices or three of them or before both the Iustices of Assise in their Circuits upon pain of forfeiting forty pounds And shew that one Cuthbert Goodwin and John Hame Wardens of the said Society with the greater part of the said Society 1. Maij 45 Eliz. at the Guildhall within the said Burrough made divers Lawes and Ordinances for the Government of Weavers and that the 18 Novemb. 1 Jac. the said Orders were confirmed by the Lord Chancellor Lord Treasurer and Lord Anderson one of the chief Iustices among which one
Court 12 E. a. granted a Rent-charge of two shillings out therof to John Milleton and Walter Milleton In Replevin one makes Conusance derive his Estate from one as Cosin and Heir and shews not how John Milleton dies and Walter survived and died seised and this Rent descended to one John Milleton of P. as Cosin and Heir to the aforesaid Walter and he was seised in Fee and one John Dinham was seised in Fee of one house and twenty acres of Land in Pensons and by Deed shewn in Court exchanged them with the said John Milleton for the said Rent and Walter de la Therne being seised of the Land out of which the Rent issued attorned and gave Seisin of the Rent to John Dinham wherby he was seised in Fee of the Rent and conveyed the Rent by three discents to this John Dinham for whom the Defendant makes Conuzance for ten shillings for five years arrear And the Plaintiff demurs generally upon the Conuzance And the cause was that it is not shewn how John Milleton is Cosin and Heir to Walter upon the discent First if it be good as this Case is viz. That he claimes not as Cosin and Heir but makes Title under him by conveyance afterwards Also because the Defendant makes Conuzance and is a stranger Secondly if it be but forme And this Case was argued at Bench briefly in Trin. 16. And I was of opinion because that this is the Conuzance of a Bayliff and it is a discent in one blood to which Dinham is a stranger and because that a good Issue might be taken therupon as it is alledged And if it had been a case of Bastardy the Iury might have tryell it therfore it is good by the Common Law and differs from a Formedon for there he which brings it is privy vide 41 Eliz. 13 14 in a Scire facias good without shewing how 33 H. 6. 34. Sir T. C. Case 27 H. 6. 2. 4 E. 3. 43. vide 19 E. 3. Quare impedit 58. And if it were not good by the Common Law yet it was but form and aided by the Statute of 27 Eliz cap. 5. vide in Doctor Leifeilds Case lib 10. fol 94. And Iustice Winch agreed with me but Warburton to the contrary and argued strongly that it was substance and was very materiall and he relied upon the Book in the 38 H 6. 17. and he put the cases of 11 H 6. 43. 8 H 6. 22. 2 H 2. and Wimbish and Talbois case Plowden There is debate and argued two against two and no Iudgment given because that it is not shewn Comment Cosin vide 2 H 5. 7. a good Issue there is no such Ancestor a generall Demurrer confesse not the matter as in Debt upon a Bill he plead payment and the Plaintiff demur that Demurrer doth not confesse the payment Lord Hobart would not speak of the Common Law but it seemed good to him by the Statute The Title of the Act is An Act for furthering of Justice Definitive Iustice and Interlocutery The Statute takes not away form but the intrappings and snares of form No place where the Obligation is made cannot be tried by them affirmatively Hough and Bamfields case matter and no form and so Dyer 319. But the point of Cousinage which comes by videlicet is form And if the case of Wimbish and Talbois had been at this day it should bee aided and Iudgment for the Defendant Sheriff ought to deliver the Moyety by meets and bounds IT was argued by the Court that upon an Elegit the Sheriff ought to deliver the Moyety by meets and bounds and if it be so that the Conuzor be Ioynt-tenant or Tenant in Common then it ought to be so specially alledged and contained in the return Pasch 16 Jac. Drury versus Fitch Case DRury an Attorney of this Court brought an action upon the case against Fitch one of the Serjeants of London for saying I arrest thee for Felony and after not guilty pleaded the Plaintiff was Non-suited Costs upon Non-suit where the Plaintiff hath no cause of action And now it was moved that no costs should be given to the Defendant because that the words will not beare action and therfore Iudgment shall be given Quod nil capiat per billam And they vouched one President in Grewstons case in Ban. Reg. vide that now by the last Statute costs shall be given to the Defendant in all cases where the Plaintiff should have costs if he recover but in such case where the Plaintiff if he recover shall not have costs the Defendant upon the Non-suit of the Plaintiff shall not have costs But it seemed to Lord Hobart that in this case the costs are for vexation and this is more vexation if he had no cause of action vide 29 H 8. fol 32. It is there resolved that an action lies for the costs notwithstanding a Writ of Error brought And the last day of this Term the Court was of opinion that the action lies for the words for it is more then these I charge thee with Felony and if the Action lies not yet the Defendant shall have costs for it was such an Action in which the Plaintiff ought to have costs if he recover Vpon motion in Court by the direction of Iustice Warburton who had caused a Iury to be drawn by reason of the slendernesse of the matter and for avoiding the charge of a speciall Verdict the Case was A Copyholder was a Lunatick and the Lord committed the custody of his Land to one which brought an Action of Trespasse Action brought by the Committee of a Lunatick which is a Copyholder and whether it ought to be brought by him or by the Lunatick was the question And the opinion of the Court was that the Committee was but as Bayliff and hath no Interest but for the profit and benefit of the Lunatick and is as his Servant and it is contrary to the nature of his Authority to have an Action in his own name for the interest and the Estate and all power of Suits is remaining in the Lunatick And it was ruled in this Court that a Lunatick shall have a Quare impedit in his own name vide Beverlies case Coke lib 4. the diversity between a Lunatick and an Ideot and H 8. Dyer fol 25. And though when Guardian in Socage as it was adjudged makes a Lease for years his Lessee shall have an Ejectione firmae yet there the Guardian hath the Interest and is accountable therfore But in this case the Committee hath no Interest but is as a Servant appointed by the Lord to keep the possession for him who is not able to keep it for himself Lord Hobart and the Court also agreed that the Lord of a Mannor hath not power to commit or dispose of the Copyhold of a Lunatick without speciall Custom no more then a man shall be Tenant by the Curtesie c. of a Copyhold
Boucher Turner Bolder and one other Turner appear and tender his Law Sir John Boucher and another plead Nil debent and the other was Outlawed and it was said that he ought to have joyned but it was resolved by the Court that they may sever in Bars but ought to joyn in Delatories For otherwise if one which never bargained be joyned in the action he must put his matter upon their pleadings And in Debt upon a joynt Obligation one may plead a Release the other Non est factum vide 48 E 3. 21. and vide Presidents in this case according to this resolution Sabud versus Râ—w â— Trin. 26 Eliz Rot. 821. Trin 26 Eliz Rot 821. Sabud against Robinson Matson and Loughton and Count sur emisset Waston and Loughton pleaded and Non sum informatus by Robinson Sed judicium inde cesset quousque the Issue be tryed and Venire facias awarded and found for the Plaintiff Peâ—iam T.P. H. P I.P. Hil 41 Eliz Rot 455. John Periam and Margaret his wife Executors of John Hart vrought an action of Debt upon Emisset against Thomasin Phelpes Widdow Henry Pittard and John Phelpes John Phelpes was Outlawed and Iudgment against Henry P. by Non sum informat and Thom P. plead Nil debet Fleet and Harrison Venire facias and Iudgment respited quousque c. and after tryall the Plaintiff had Iudgment Hil 13 Jac Rot 841. Fleet brought an action of Debt against Ja Harrison and Isaac Brooke upon Emissent And James H. waged his Law Iudgment against Isaac Brooke by nihil dicit Et quia Conveniens est quod judicium de loquela praedicta unicum sit versus praedictos Isaac Jacobum si contingat ipsum Jacob. de perficiend legem suam praedictam desicere Ideo parcat in judicium inde versus praefatum Isaac reddendum quosque praedictus Jacobus legem praedictam perficeret sive inde desiceret postea praedictus Jacobus perfecit legem suam Ideo consideratum est per Curiam quod praedictus querens nihil capiat per breve suum praedictum sed sit in miserecordia pro falso clamore suo inde quod praedictus Jacobus eat inde sine die And according to this President it was agreed per Curiam that so it ought to be Hil. 12 Jac. Rot. 3007. Reyner versus Waterhouse Ebor. Case JOhn Reyner brought an action upon the case against L Walterhouse Ven. fat de dâ—versis villis and declares that wheras he is and by the space of twenty years past have been an Inhabitant within the Town of Long Leverseidge in the Parish of Burstall And wheras the Inhabitants of Long Leverseidge aforesaid De tempore cujus contrarii memoria hominum c. used to have a common way as well for Foot-men as for Horse-men to go and ride from the said Town of L. to the Parish Church of Burstall aforesaid on Lords daies and Festivall daies and other convenient times to hear Divine Service within the said Church and to carry bodies c. dying in the said Town to the said Church to be interred Modo forma sequent viz c. and shews the way through divers Closes in Long Leverseidge Little Leverseidge and Gomersall and over the Church-yard of the Church of Burstall and from thence unto the Church aforesaid and backward c. and shew one disturbance made by the Defendant by making of a Ditch in one of the Closes in Gomersall the Defendant pleaded Non culpab and found for the Plaintiff and in Arrest of Iudgment it was alledged that the Venire facias fuit de Gomersall tant And the Venire facias was quashed per Curiam and a new one awarded de L.L.G. Burstall Hil. 16 Jac. Bigg versus Malin BIgg brought an action upon the Case against Malin Case as Administrator and counts that whereas the Intestate was indebted to him in ten pounds and the Defendant also was indebted to him in forty shillings they accounted and upon account the Debt being twelve pounds In case upon Assumpsit against Executors it is not necessary to alledge Assets the Defendant being Administrator did assume and promise to pay it Et licet saepius requisitus non solvit And upon Non assumpsit pleaded the Verdict was found for the Plaintiff And by Finch it was moved in Arrest of Iudgment that the Plaintiff had not shewn in this Count sufficient consideration to charge the Defendant because that it doth not appear that the Defendant hath Assets But the Court disallowed that for if that were necessary it ought to be presumed to be found in the Verdict As in the case in consideration that the Plaintiff had sold and delivered to him twenty quarters of good and merchantable Barly the Defendant promise to pay him twenty pound Non Assumpsit the Plaintiff ought to prove the promise and the delivery And as in Debt against Executors upon a simple Contract it shall not need to be alledged that they had Assets to pay Debts by specialties yet good and that ought to be proved But it seemed to be agreed that if an Executor or Administrator which hath not Assets makes promise of payment if it be not mixed with any profit to himself viz. forbearance c there it shall not charge him But by Warburton if an Executor hath fifty pounds Assets and he promise to pay to a Creditor a hundred pounds that shall bind him for all for when he hath Assets for part the Plaintiff hath Iudgment for all and execution only for so much as is found And in this case the Plaintiff had Iudgment Brook versus Groves BRook brought a Quod permittat against Groves and after Imparlance the Defendant demanded a view and ruled by the Court that he might and vide 34 H 6. 9 10. accordant vide 6 E. 4. 1. and the Plea Quare impedit viz. the View was De tenementis predictis which was as well of the Lands to which the Nusance as of the Lands which was the Nusance View And the View in this action is but for fifteen daies Egerton versus Egerton THe Lady Egerton Wife of Sir John Egerton brought a Writ of Dower against Edward Egerton the Tenant at the day of Essoin did not cast any Essoin And the Demandant entred her exception at that time the Writ was not returned and upon motion to the Court for the tenant to be essoined notwithstanding the exception Dower it was resolved that notwithstanding the writ was not returned yet the Tenant might have his Essoin vide 2 E. 4. 11. 21 E. 4. 7 8. 30 H. 6. 1. that an Essoine may be before the Writ be returned and vide 2 H 7. 4. 10 E 4. 4. the Tenant may be Essoined at any day Essoin though the Writ be not returned as wel at the fourth daie as the day of Essoin unlesse the Essoin be challenged viz. an exception
brought an action of debt against the now Plaintiff upon an Obligation of a hundred and twenty pounds to which the now Plaintiff appeared by his Attorney and required a Declaration and the now Defendant on the part of the said William Carter his Master gave the said Declaration and required the now Plaintiff to confesse the action and pendente Pl. he the now Defendant in consideration that the Plaintiff would give order to his Attorney to confesse the action and to suffer the said Defendant to have Iudgment in the said Plea for the said William Carter his Master assumed to the Plaintiff that no Iudgment should be entred untill after Crast Annunciat And that no execution shall be sued out untill after the end of Michaelmas Term next and shew the performance therof by him and the breach of the Defendant And after Verdict it was moved that it is no sufficient consideration and that was impossible for him to perform that Iudgment should not be entred in the Term in which Iudgment is given but that is in the discretion of the Court and afterwards Iudgment was given for the Plaintiff Pach. 19 Jac. Rot. 3014. 21 Jac. Jennings versus Pitman RIchard Jennings brought an action of Covenant against George Pitman upon an Indenture of an Apprentiship Covenant of an Apprentiship by which the Defendant had put himself to be an Apprentice to the Plaintiff in Ipswich to the Trade of a Linnen Draper and there were divers clauses in the Indenture according to the usuall form and assigne for breach the wasting of severall summe of money The Defendant pleaded the Statute of 5 Eliz. by which it is enacted That it is not lawfull for any one inhabiting in any City or Towne Corporate using the Trade of a Merchant over the Sea Mercer Pannary Goldsmith Iron-monger Imbroyderer or Clothier to take any Apprentice to be instructed in any of these Trades if it be not his Son or that the Father or Mother of such Apprentice had at the time of the taking of him Lands Tenements or Hereditaments of Inheritance or Freehold of forty shillings per annum to be certified by three Iustices of Peace under their hands and Seals where the Land lies to the Mayor Bayliffs or other head Officer of the City or Town Corporate and to be inrolled entred and recorded there and pleaded the clause of the Statute which makes Obligations and Covenants void which are taken against it And averred that Ipswich was a Town Corporate at the time of the making of the Statute The Plaintiff replyed that his Father had at that time when he was bound Lands and Tenements in great Bealing viz. ten acres to the Value of forty shillings per annum The Defendant by Rejoynder offer to joyn Issue that his Father had not Lands c. wherupon the Plaintiff demurred And the question was If this part of the Statute To be certified by the Justices c. be such an essentiall part therof that the Covenant be void without it It was agreed that it had not been put in use after the Statute but it seems that it is Essentiall and it ought to be so at the time when he is put to be an Apprentice but it may be enrolled afterwards for the Statute in another part provides a penalty for the not Inrolling Like to the Case upon the Statute of 18 Eliz. That they which claim any Estate of them which were Attainted in the Rebellion they brought their Conveyances to the Exchequer to be inrolled within one year if they bring and deliver these Conveyances though they be not inrolled yet they have performed as much as was in them And if the Certificate be not at the time when the party is put to be an Apprentice the Statute was to no purpose If this Bar be good then the Replication is a departure and the Rejoynder also and the Bar being good Iudgment shall be given against the Plaintiff but if the Bar be not good then for the Plaintiff for the Count contains matter certain But the Court moved whether this Covenant lay against an Insant for although it is by the Statute provided that he shall be bound to serve as a man of full age yet that makes not the Covenants good and it is like to a Custom which shall be taken strictly Trin 20 Jac. This Case between Jennings and Pitman was moved this Term And the Lord Hobart was of opinion that this Statute being that it appears that he was within age scil sixteen years will not bind him to any Covenants which are not implyed in the Indenture of serving For the doubt was whether an Infant was an Apprentice out of London though that he put himself to serve And the only matter which binds him in this Statute is that he shall be bound to serve when he is bound by Indenture being within age as well as if he were of full age and if the Covenant be only a Covenant to serve no Covenant lies for Imbeziling of Goods And if the Covenant be to serve him faithfully and diligently that shall not bind him upon this Covenant And I was of the same opinion for it is only made good as to the serving and there are many Covenants and Clauses besides in this Indenture which bind him not As not to play at unlawfull Games c. And a Custom that an Infant at such an age may sell his Land shall be taken strictly viz. that he cannot give it c. But my Brother Winch was of opinion that it was a thing incident and a quasi Consequent viz. That if he shall be bound to serve by consequence he shall be bound to serve faithfully and truly He resembled it to the case of a Fine levied by an Infant and not reversed during his â—onage that shall bind him and by consequence the Indenture which leads the uses of the Fine and when the Law enables to any thing that which is incident and without which the other thing cannot be is implyed Trin. 19 Jac. Rot. 1734. Blemmer Hasset versus Humberstone Norf. JN an Ejectione firmae brought by Ralph Blemmerhasset against William Humberstone for Land in Pucklethorp Ejectione firmae upon a Lease made by John B. upon a speciall Verdict found it was resoved A Copyhold may be extinguisht without an actuall surrender that when a Copyholder bargain and sell his Copyhold to the Lord of a Mannor which hath the Mannor in Lease for years that therby the Copyhold Estate is extinguished And the Lord Hobart said that if a Copyholder come into Court and saies that he is weary of his Copyhold and request the Lord to take it that is a Surrender for between the Lord and the Tenant a Conveyance shall not need to be according to the Custome for the Copyholder hath no other use of the Custome but only to convey the Land to another vide Coke lib. 4. That a Release by him which hath Right to a
pleaded Not guilty absque hoc that the said suit and tryall was for the said Common And Issue being joyned it was found for the Plaintiff and Damages to twenty pounds And in Arrest of Iudgment it was moved that now it appears that it was not for the maintenance of the Title of Common that it could not be for the tryall therof because he did not plead the Title of Common which had been the proper apt way for the tryall therof And when the Iury find that which is contrary and repugnant to Law that is repugnant and not good And this case was strongly argued by Serjeant Davenport in Arrest of Iudgment and by Attho for the having of Iudgment And first he said That although there was a Parlance and Communication concerning the Common yet the promise is to defend this action brought by Palmer and is pro defentione of the Common not generally but against Palmer and the promise is to pay the Moyety of the Charges if he prosecute the said Suit untill the determination therof so that if it had been found against the now Plaintiff the now Defendant ought to have paid the Moyety of the said charges And it is not agreed that he shall plead title by Prescription for the Common but that he should prosecute it untill the determination of the Suit for the maintenance of the Common And the Court gave Iudgment for the Plaintiff for it might be for the maintenance of their Common against Palmer for if he had not the Soil therof but had inclosed it as part of his Wasts the Plaintiff could not plead the Title to Common without admitting the Soil and Free-hold to be in Palmer And if one had been of councell and to advise a Plea if he had not discovered that Palmer had no Title he would have advised him to have pleaded Not guilty for if the said Palmer had no Title to the Soil which the now Plaintiff could not know it should be found against him and so this Plea might have been in maintenance of Common And the Lord Richardson who at first doubted now concurred and sayd that he was fully satisfied Trin 3. Car. Chapman versus Chapman Debt REbecca Chapman brought an action of Debt against Henry Chapman upon an Obligation with Condition to perform the Covenants contained in certain Indentures The Defendant pleaded a generall performance the Plaintiff replyed and shewed that she made a Lease to the Defendant of certain Cole-pits rendring eighty pounds Rent and that the Defendant did not pay the Rent at the day Obligation conditioned for the payment of Rent demand is not necessary to be alledged after generall performance pleaded wherupon the Defendant demurred And it was adjudged upon Argument for the Plaintiff but the matter upon which the Defendant justified came not in question viz. If the Plaintiff ought to have demanded the Rent And that the Obligation had not altered the nature of the Rent it being generall to perform all Covenants and the reason is apparent for when the Defendant plead performance of all the payments that is intended an actuall payment for he cannot now rejoyn that he made tender for that shall be a departure from his Plea And that was the reason of the Iudgment which was Pasch 43 Eliz. between John Specot Plaintiff Specot and Shere and Emanuel Shere Defendant upon the like case in debt upon an Obligation wheras the Defendant had granted an Annuity or Rent of six and twenty shillings eight pence to the Plaintiff for one and twenty years the Condition was that if the said Shere perform all the Covenants c. conteined in the said Writing so that the Plaintiff may enjoy the Rent according to the intent therof then c. the Defendant recited the Deed and pleaded performance the Plaintiff replyed that the Defendant had not paid the said eight and twenty shillings eight pence upon such a Feast wherupon the Defendant demurred and adjudged for the Plaintiff And the Lord Coke in his private Book as the Lord chief Baron said had shewn this reason If the Defendant had pleaded specially That he was upon the Land and ready to pay and to make tender but the Plaintiff did not come to demand it then the Plaintiff ought to shew that he did demand it which seems to be agreed 14 E 4. 4. 2 H. 6. 57. 11 E 4. 10. 21 E 4 42. but Brook 6 E 6. Tender makes this diversity when the Condition is expressed to pay the Rent that alters the nature of the Rent But otherwise when it is to perform Covenants And the Iudgment given in the Kings Bench was affirmed Trin. 3 Car. Stephens versus Oldsworth IN a Quare Impedit brought by Stephens and Cross against Oldsworth and Holmes for the Church of Lechamseed the Incumbent pleaded Quare Impedit Tenure that he was Parson Imparsonee to the Church of the presentation of the King and confessed the Seisin of Sir Anthony Greenwood under whom by the grant of the next avoidance the Plaintiffs claim but said that the said Sir Anthony held the said Mannor of the King per redditum ac wardam Castri Dower to be paid yearly 8 s. 1 d. ob q. And among other matters which I omit it was resolved that it was Socage Tenure for a Rent for Castleguard is Socage vide Littleton 26. Coke lib 4. fol 6. 5 E 4. fol. 128. F.N.B. 256. a Mich. 3 Car. Young versus Young Formedon in Descender Act of Court shall be amended IN a Formedon in the Descender brought by Young against Young the Demandant was within age and was admitted to prosecute by his Guardians and that appears by a generall admittance before Iustice Jones And this admittance was first entred in the remembrance of Gulstons Office and afterwards in the Plea Roll And the Demandant which is admitted by the Court viz. per Guardianos ad hoc per Curiam admissus and there the Concessit per Curiam quod prosequatur per Gardianos is entred and so is the Roll upon the View And in the Philizers Roll the recitall is That the Demandant per Gardianos admissus obtulit se And in this Roll the Concessit per curiam of admitting the Demandant to prosecute by his Guardian is not entred And after Verdict and Iudgment for the Demandant a Writ of Error was brought and that assigned for Error And it was moved that it might be entred upon the Philizers Roll. And it was resolved by all the Court that it should be supplyed and entred upon the Philizers Roll and the principall reason was because that this admittance by his Guardians is the act of the Court and not like to the entry of the Warrant of Attorney nor to the Essoin Roll vide Dyer 330. otherwise it is of Admission by Prochein ami Where an Infant ought to appeare by Gardian and where by Prochein amy vide Rawlins case Coke lib. 4. fol 53. The
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
use of the said Robert and Isaac and their Heirs for ever by force therof and of the Statute 27 H 8. they were seised of the said Rent in Fee and after the said Robert died and Isaac survived and is yet seised Per jus Accrescendi and for Rent arrear c. and for the said forfeiture of forty shillings they avow wherupon the Plaintiff demur And upon Conference between the Iudges they all agreed that by this Fine which granted to Brook and Jermy and the Heirs of Brook to the use of Brook and Jermy and their Heirs that they were in by the Statute of 27 H 8. and were Ioyn-tenants of the Rent for otherwise there would be such a Fraction of the Estato that Brook should be in by the Common Law and Jermy by the Statute and that is not according to the Statute And it appears that the use was limited by the Fine it self and not by any Indenture And the principall reason is upon the Statute of 27 H 8. which is where two or three are seised to the use of one or two of them Cestui que uâ—e shall be adjudged to have such Estate in possession as they have in use Iudgment pro Defendent Memorand That in this Term a motion was made for the filing of a Writ of Entry in a Common Recovery suffered by Sir John Smith upon a Purchase and all was well done and the Writ made and sealed Filing of a Writ of Entry many Termes after but by the negligence of the Attorney it was not filed and it was Unanimo assensu resolved that it should be filed and that after the death of Sir John Smith for it is but to perfect a Common Recovery which is a Common Conveyance And this was denied in the case of one Allonson for there Error was brought and Diminution alledged and a Certificate that there was no Writ by the Custos brevium And it is ordinary to file these Writs at any time within a year without motion Mich. 8 Car. Harbert versus Angell CHarles Harbert Plaintiff against Angell Case Words in an action upon the case of words which were Thou art a Theef and hast cousened my Cosin Baldwin of his Land And after Verdict for the Plaintiff it was moved in Arrest of Iudgment that the words would not maintain action And at the first Iustice Crawley and Iustice Vernon were of opinion that the former part of the words were actionable and that they were not extenuated by the subsequent words but they agreed if it had been for thou hast robbed c. it would be otherwise And the Lord Heath and Iustice Hutton were of a contrary opinion and that the words And and For are in this case to have one effect and declare what Theef he intended And they relyed on Birtridges case Coke lib 4. And upon this diversity of opinion the Lord Heath conferred with the Iustices of Serjeants Inn in Fleetstreet and we with the Lord Richardson and they all agreed that the subsequent words explained his intent and meaning viz. the Robbery and cousening of the Land And Verba sunt accipienda in mitiori sensu As to say Thou hast stoln my Corn it shall be intended Com growing so in Arrowes case Arrowes case 19 Jac. Thou art a Theef and hast stoln ten Cart-loads of my Furzes adjudged not actionable for it shall be intended of Furzes growing Quaerens nil capiat per breve Ram versus Lamley Norff. RAm brought an action upon the case against Lamley and declared That wheras he was Bonus legalis homo and free a suspitione feloniae the Defendant maliciously want to the Major of Linn and requested a Warrant of him being a Iustice of Peace against the Plaintiff for stealing his Ropes The Major said to him Be advised and look what you do the Defendant said to the Major Sir Words I will charge him with flat Felony for stealing my Ropes from my Shop Quorum quidem verborum c. And after Not guilty pleaded and Verdict for the Plaintiff Hitcham moved in Arrest of Iudgment And the Court unanimously resolved that these words being spoken to the Iustice of Peace when he came for his Warrant which was lawfull would not maintain an action for if they should no other would come to a Iustice to make complaint and to inform him of any Felony Quaerens nil capiat per breve Mich. 8 Car. Lamb versus West Trin. 8 Car. Rot. 333. SIr John Lamb Knight brought Replevin against Thomas West and count Replevin that the Defendant took his Beasts at Blisworth in quodam loco vocat Thorny Close The Defendant avowed as Bayliff to Sir William Sheapherd and derived Title by a Lease to Michael West for ninety years if he and Thomas West the Defendant Demand of Rent and one Hutton West should so long live And the said Michael 19. Aprilis An 20 Jac. granted a Rent-charge of ten pounds per annum to the said William Shepheard and his Executors out of the place in which c. for the residue of his Tearm to be paid at the house of Thomas West in S. And the said Mich. granted that if the Rent he arrear by eight and twenty daies being lawfully demanded at the said house he should forfeit twenty shillings for every day that it should he arrear and if it be arrear by six months being lawfully demanded at the said house then he might distrain for that and the Nomine poenae And for Rent arrear by a year after demand due c. he makes Conuzance And therupon the Plaintiff demurred generalls And after many Arguments at Bar the Iustices delivered shortly their opinions severally and all argued that it is a Rent-charge and then a Distresse is incident to a Rent-charge which is in its creation a Rent-charge as well as if one makes a Lease for life or years rendring Rent and if it be lawfully demanded then it shall be lawfull to distrain for it None will deny but that he may distrain for this Rent without any demand And the diversity is between a Penalty and a Rent for if the Avowry had been for any part of the Nomine poenae then without actuall demand at the day he could not have distrained therfore vide Maunds case Coke lib 7. fol 28. And all agreed that when a Distresse is for Homage if it be once tendred and refused he cannot distrain without demand vide Litt 34. 21 E 4. 6. 16 17. 7. E 4. 4. That where a Rent is reserved upon a Lease and an Obligation to pay it yet that alters not the nature of the Rent 22 H 6. a good case Rent is reserved upon a Lease and an Obligation to perform Covenants that extends not to the Rent reserved but if it be to pay the Rent then it shall be demanded there it is said that if Rent be tendred and refused the Lord or Lessor may distrain without demand It was agreed that
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