was adjudged Murder for the Malice which he had to Herbert 208. A man made a Lease for years upon Condition if the Rent was behind the Lease to be void the Rent is behind the Lessee continued possession for 3. years after the Lessor brought debt for the Rent for all the time Quaere if it doth lye the Justices were divided in opinion Moreton and Hopkins Case 209. In a second Deliverance by A. against H. the Defendant he made Conusance as Bayliff to I. S. and M. his Wife The Case was the Plainâ—iff 17 Octob. 4. 5. Mar. by deed granted a Rent of 10 l. to B. and to E. and W. the younger Son of the said A. Habend for the life of E. to the use of E. and gave seisin of it W. and E. so seised W. dyed E. took Husband I. S. who for 5 l. Rent arrere avowed The Plaintiff said That the said I. S. Z October 7. Eliz. acknowledged that he had received 5 l. of the Plaintiff of the said Rent It was adjudged that the said receipt and acquittance of I. S. the Husband was a good barre of the Conusans Howse and the Bishop of Elys Case 210. In Debt the Plantiff declared that the predecessor of the Bishop granted to him the Office of keeping the Mansion House of D. of the Bishop for the Term of his life with the Fee of 2 d. per diem to be issuing and paid out of the profits of the said Rents and Farme of D. by the Receiver of the Bishop and also an yearly Robe which grant was confirmed by the Dean and Chapter the Bishop dyed the Annuity and Robe was not paid for which the Plaintiff brought his Action against the Successor Bishop who pleaded that the Plaintiff did not exercise the said Office and because D. was within the Isle of Ely where the Kings Writ did not run a Venire was to the Sheriff of Cambridge from S. next adjoyning to D. in the said â—sle of Ely who found for the Plaintiff and he had Judgment to recover the Annuity and the Arerages and the Robe and that the grant did binde the Successor Luken and Eves Case 211. In Replevin The Defendant avowed for that A. was seised of the Mannor of D. in Fee and had a Leet within the Mannor to be holden in the Feast of c. and let the Mannor to the Defendant for years And that the Defendant held the Court Leet such a Feast and that the Plaintiff was an Inhabitant within the Leet at the time and being Summoned to appear at the said Leet did not appear which being presented by the Homage he was Amerced 5 s. which was afferred and for the Amercement the Defendant did destrain The Defendent pleaded that he was not a Resient within the Leet at the time which was found against him wherefore the Defendant was adjudged to have a Return of the Cattel and his damages Stephens and Clarks Case 212. Quare Imp. King Henry 8 seised of the Mannor of D. and the Advouson Appendent presented I. S. the Mannor with the Advouson by Discent came to the Queen who granted it to the Lord Stafford and his Wife and the Heirs of the body of the Lord the Lord Stafford dyed His Wife and eldest Son granted the Mannor and Advouson to I. D. and his Wife for their lives The Incumbent dyed who during the Avoydance granted the Advouson to the Plaintiff It was Resolved That the grant of the next Avoidance to the Plaintiff during the Avoidance was void in Law Playn and Crouches Case 213. A Villein was Regardant to a Mannor the Lord of the Mannor had not seisin of the Villein nor any of his Ancestors from 1. H. 7. to this time but they had seisin of the Mannor to which the Villein was Regardant and if seisin of the Mannor was seisin of the Villein was the Question The Issue in an Assise being upon the seisin Quaere It was not Resolved It was Conceived that in favore Libertatis the Lord could not now seise the Villein No Judgment was in the Case 214. If the Husband be seised of Land in the Right of his Wife the Husband makes a gift in Tail of it rendering Rent and afterward the Husband and Wife grant the Reversion by Fine It was holden it should bar the Wife of the whole but if they had granted the Rent only then the Wife after the death of the Husband might enter into the Land 215. A man Leaseth a Mannor for years rendring Rent with a Reentry a stranger recovers in Debt against the Lessor and hath Elegit upon the Judgment Resolved he shall have the moyety of the Reversion and the moyety of the Rent in Execution and the Condition is suspended for the whole vide before 216. Tenant in Tail makes a Lease for 21 years and afterwards makes a Feoffment in Fee with a Letter of Attorney to make Livery who enters and ousts the Lessee and make Livery Adjudged It was a discontinuance And it was said That it was adjudged in the Earl of Warwicks Case A man made a Lease for life and afterwards made a Feoffment in Fee and a Letter of Attorney to make Liver who ousted the Lessee and made Livery That it was a good Feoffment and if the Lessee for life reentred the Reversion remainder in the Feoffee 217. A maid Servant conspires with her Lover to rob her Mistrisse the Man comes in the night the Maid hides him and after the Man kills the Mistresse Adjudged Murder in the Man and Petty Treason in the Maid Servant Symonds Case 218 A. 24. H. 8. Covenants with I. S. that all persons who were Feoffees of Certain of his Land should be seised thereof to the use of the said A. for life and after his decease to the use of W. his Son and M. S. and the Heirs of their bodies begotten and for want of such Issue the remainder to the Right Heir of A. and after he makes a Feoffment to those uses W. and M. S. intermary A. dyeth After 27. H. 8. the Husband aliens the whole and dyeth his Wife enters into the whole Adjudged her entry into the whole was not Lawfull but only for a moyety and it was agreed that several moyeties may be of an Estate tail aswell as of a Fee simple between Husband and Wife 219. A man made a Feoffment to the use of a Woman for â—â—fe who was a Feme sole at the time the remainder to the right Heirs of their two bodies the remainder to his right Heirs in Fee after they intermarried and the Husband having Tenants at Will of the Lands Devised that the Wife should have the Reversion in Fee so as she pay his debts and Legacies and performe his Will and by his Will deviseth his Tenant should have the Tenements for life and dyeth the Wife takes another Husband who ousts the Tenants at Will It was Resolved the same was no forfeitute of her remainder But if the Will
the Rent that the Lessor should not enter which being immediately sworn and the Records of the Outlawries against him produced the Justices dismissed the Lessee and that the Lessor should enter upon him Broughtons Case 269. Broughton a Justice of the Peace brought an Action upon the Case against the Bishop of Coventry and Lichfield because he wrote a Letter to the Earl of Leycester one of the Privy Council wherein he wrote That the Plaintiff was a Vermin in the Common wealth a false and corâ—upt man an Hypocrite in the Church of God a Dissembler He hath used many corrupt practises to work his VVill He procured my Register to be indicted of Extortion He willingly and wilfully hath boulstred out one Greenwood a Convict man of many offences and knowing him to be an Evil man maintaineth him against me without Law Conscience or Honesty Upon Not Guilty it was found for the Plaintiff and 300 l. Dammages It was objected the Action did not lye not being an overt Act but words written in a Letter Resolved the Act on did well lye being writ to a Stranger but otherwise if it had been written to the Party himself and it was also resolved That although but some of the words will bear Action yet the Dammages are well assessed because they are put in to increase the Dammages In this Case it was said if a slanderous Bill be exhibited in the Star Chamber against one the Action doth not lye because it is a Court of Justice and hath Jurisdiction to redress things but to exhibite a slanderous Bill into a Court waich hath not power to redress the thing is scandalous and an Action will lye for it Griffith and Clarks Case 170. A Writ of Disceit by the Lord of the Mannnor upon a Fine levyed of the Land within antient Demeasne The Defendants pleaded that the Lord of the Mannor in the time of E. 2. did release to one who was Tenant of the same Land de omnibus servitiis consuetudinibus salvis servitiis infrascriptis viz. pro una virgat terrae 2 s. rent suit of Court and Releife It was resolved The Custome of the Antient Demesne was extinct by the Release but the Rent Releife and suit of Court remained as parcel of the Seignory by the saving Ivors Keales Case 271. A. seised of Lands in Fee borrowed 20 l. of B. and they are agreed to assure Lands for it They went to the Land and A. there said to B. I am endebted to you 20 l. If I do not pay you at Michaelmas then I bargain and sell this Land to you and if I do pay you I am to have my Land again B. continued upon the Land a little space the Monyes was not paid at Michaelmas Adjudged the Land passed to B. upon a Condition subsequent for payment of the Mony by B. Mildmay and Standiskes Case 272. Action upon the Case for Slandering his Title In which the Defendant justified the Case was A. seised of Lands in fee had Issue 3. Daughters V. G. O. V. dyed without Issue The Father for love and affection and the better maintenance of G. and O. covenanted to stand seised to the use of himself for life the remainder to G. in tale of one Moyety the remainder to O. of the Moyety in Tail Provided it shall be Lawfull for the said A. for the payment of his Debts and Legacies and better preferment of his Servants and other good Considerations to devise the said Lands by his Last VVill and dispose of the same for lives or years and afterwards he devised the said Lands to F. and the said O. his wife for 1000. years and dyed wherefore the Defendant published the said Lands were assured for 1000 years upon which it was demurred It was said that the said V. might at any time determine any of the said uses and induce other Estates at his pleasure and the payment of his Debts and Legacyes with good considerations for the Leases But it was resolved for the Plaintiff because the Proviso was against the Law to enduce an Estate to a Stranger by way of Lease upon Covenant of Considerations to raise uses but such power might be good upon an Estate executed Or a Proviso good which did extend to determine the Estate but not to give another Estate to Lessees Veere and fâ—ofryes Case 273. It was Resolved That if the Metropolitan grant Administration where the Intestate had not bona notabilia indivers diocesses it is voidable only but not void But if a Bishop of a Diocesse grants Administration which belongs to the Metropolitan the same is void Russells Case â—74 Trover and Conversion of goods by the Executors of R. against Husband and Wife of the goods of the Testator which came to the hands of the Wife dum sola fuit The Defendant pleaded a Release of the Plaintiff after the death of the Testator and after the Trover and Conversion The Plaintiff said he was then within age It was adjudged that because there was no Consideration alledged for the Release it should not binde the Executor because it should be a Devastavit in him Twineos Case 275. Grandfather and Grandmother Tenants in special Tail before the Statute of 27 H. 8. the remainder to the right Heirs of the Grandfather The Father by deed enrolled Fine and Proclamation conveyed the Lands to the Queen and her Heirs and Successors in the life time of the Grandmother It was Resolved that by the Statute of 32 H. 8. by the Fine and Proclamation the Issue in Tail was Barred Vâ—ncent and Lees Case 276. It was adjudged in this Case That when a man devised that his Sons in Law should sell the Reversion of his Lands without naming their particular names and that some of them dyed That the Survivors could not sell the Land Sir Peter Carewes Case 277. It was Resolved in this Case That the Lord of a Mannor for life or a particular Tenant having interest in the Mannor might grant Copies in Reversion although they were not executed in the life of the grantor Moris and Franklyns Case 278. The Statute of 27 H. 8. which began 4. Feb. Anno 27. H. 8. and ended 14. April gave Monasteries of Petty value to the King The Abby of T. being of Petty value viz. 100 Marks per Ann. was mean between the 1. day and the last day Surrendred to the King It was holden the King should be in by the Statute and not by the Surrender Thorrowgood and Tarvors Case 279. In Trespasse The Defendent pleaded in bar the Release of the Plaintiff of all his right in the Land The truth was the Plaintiff was a man unlearned and the Release was read unto him only as a Release of the Arrerages of an Annuity It was the opinion of the Justices that he might plead Non est factum to it and it should nor bar him Dorrell and Thyns Case 280. Error was assigned in a Common Recovery That no Warrant of Attorny was
several Writs issued to Certifie one to the Custos Brevium the other to the Chief Justices They both Certified there was not any Warrant of Attorney The Plaintiff alledged Diminution upon a new Writ of Error brought Resolved That he could not alledge Diminution not have a new Writ of Error after the two former Certificats in the first Writ Ive and Tracies Case 281. A man seised of Socage Land and of Lands holden in Capite by Act executed in his life Conveyed the Capite Lands for the Advancement of his Wife Issues and payment of his debts Adjudged he could not after devise the Socage Land Bonncys Case 282. King E 6. seised of the Mannors of R. and B. in the right of his Dutchy of Lanc. made a Lease thereof to B. for years rendering several Rents upon Condition that if the Rent be behind 40. dayes after the Rents payable to reenter It was found by Office that the Rent was behinde after the 40. dayes and by another Office that the Rent was tendered the Last instant of the 40. dayes and that the Queens Officers of the Dutchy accept of the Arrerages and of the Rent at other dayes and Feasts and made accquittances thereof to the Lessee and had accompted for the same in the Dutchy and after that the Queen to defeat the Lease brought the Intrusion The poynts of the Case were 1. If the Queen was bound to demand the Rent 2. If the Tender was sufficient and sufficiently found by the Office 3. If the acceptance of the Rent accrued after the Office should conclude the Queen of the Condition The 4. If the Acquittances of the Officers should conclude the Queen 1. It was Resolved that the Queen ought to have made a Demand of the Rent before Reentry 2. That the Tender found shall be intended a tender made upon the Land which was a sufficient destruction of the Reentry 3. That the acceptance of the Rent at a new day after the Rent found behinde should conclude the Queen and that the Act of her Officer should be the Act of the Queen her self so as she could not enter for the Condition broken and so it was adjudged against the Queen Hunt and Gateleys Case 283. In a Replevin the Case was this Tenant in Tail the remainder over in Tail the remainder over in Fee Tenant in Tail in remainder granted a Rent charge and afterwards Tenant in Tail in possession suffered a Common-Recovery and dyed without Issue The Question was If the Recoverers should hold the Land charged with the Rent It was Resolved that the Recoverers nor any which came in under their estate should be subject to the charge of him in the Remainder because the Recoverers are not of an Estate which they gained under the estate of Tenant in Tail in possession whose estate is not subject to any Charge of him in the Remainder 2. Resolved That no Lease nor Rent nor estate made by him in the Remainder should charge the possession of the Recoverers Brand and Glasses Case 284. Action upon the Case against an Inkeeper of London for goods of the Plaintiff stolen out of his Inn The Defendant pleaded an agreement betwixt them that the Inkeeper should not be charged with any goods brought by the guest but with such only as he should deliver to the Inkeeper himself or to his Wife and that the Plaintiff did not deliver the goods stolen neither to him nor his Wife It was Resolved by the Court it was a good bar of the Action and this Case was put and vouched to be adjudged 7 Eliz. A Clothier came to an Inn with a Wayne of Wool to Lodge at his entry the Inkeeper said to him That if he would that he should take the Charge of his Wayne that he should draw the same into an Inner Court otherwise he would not answer for it The Clothier did not do it and the Wool was stolen The Clothier brought his Action upon the Case against the Inkeeper and upon shewing the special matter the Inkeeper was discharged 185. The Case was Lessee for life Covenanted for himself his Executors and Administrators to build a new Wall during the Terme and after he assigned over his estate It was Resolved that in this Case upon the Statute of 21. H. 8. that the Grantee of the Reversion or the Grantor might have an Action of Covenant against the Assignees for by the acceptance of the possession he had made himself subject to all Covenants concerning the Land and the building of a Wall was a Covenant inherent to the Land with which the Assignee should be Charged though there wanted the word Assignees in the Deed. Mich. 26. 27. Eliz. The Case of Saffron Walden 286. King Henry 8. seised of the Mannor of Saffron Walden parcell of his Dutchy of Lanc. Anno 6. of his Raign granted to the Guild of Walden 2. Mills a Market and the Clarkship of the Market in Fee Farme rendering 10 l. per Ann. and after 31. of his Raign granted the Mannor Rent and Fee Farme to the Lord Audley in Fee 1 E. 6. by the Statute of Chauntries the Guild was dissolved by which the Mills and Markets came again to the King with a alvo of the Rent to the Lord Audley Afterwards the said King E. 6. Anno 3. of his Raign granted the two Mills Market and Clarkship of the Market and also a Fair yearly to be holden there to the Town of Walden in Fee Farme reddendo inde annuatim to the King and his Successors vel tali Capitali Domino vel Dominis feodi illius ad qâ—em vel quos de nostro pertinet vel pertinebit the sum of 10 l. per Ann. upon which Reservation they were charged with 10 l. per Ann. in the Exchequer and upon a scire facias they pleaded in discharge of the said Rent that they had payed 10 l. per Ann. to the Heirs of the Lord Audley The points debated were two 1. That when the King had granted the 2. Mills and Market to the Guild reserving Rent if the said Rent were parcel of the Mannor of Walden as the Mills were or was a Rent in grosse for if it was parcel of the Mannor then it was parcel of the possessions of the Dutchy if it was not parcel then it was a thing given to the King in Capite 2. If by the Reddend in the Patent of E. 6. the Town of Walden was charged to pay 10 l. to the Lord Audley and other 10 l. to the King This Case is very long and Learnedly argued by Walmesby for the Town of Walden and by Popham for the King And it was Resolved by the Justices That the Corporation of Walden should pay both the Rents Vide the Book at Large for the Reasons Sir William Herberts Case 287. Sir Matthew Herbert acknowledged a Recognizance to the King of 3000 l. and afterwards he made several Feoffments and Allienations of divers of his Lands the residue discended to
Praecipe but the Recovery as to the estate of the Husband took effect only by way of Estoppel but it was no bar as to him who was in Remainder and in this case it was said That if Lands be given to husband and wife and the heirs of their two bodies and the Husband alone suffers a common Recovery that the same should not bind the Estate tail although the husband doth survive the wife Martin and Wilks Case 335. It was adjudged in this Case in B. R. That Land in Antient Demesne is extendable upon a Statute Staple or Statute Merchant Hill 11. Jac. in t C. B. Cox and Barnesbyes Case adjudged accordingly Wolstan Dixies Case 336. A seised in Fee of Lands in London made a Lease to I. S. for years and after by Deed enrolled in the Chancery he sold the reversion to Dixie and his wife and afterwards the Rent was behind and he brought debt against I. S. The Defendant said That after the Lease and before the Sale to Dixie A. the Lessor by Deed enrolled in London bargained and sold the Land to him It was adjudged a forfeiture of the Term and judgment was for the Plantiff Rudhall and Milwards Case 337. Rudhall Serjeant at Law Cestuy que use before the Statute of 27. H. 8. Devised the use to C. his younger Son and the Heirs Males of his body the Remainder to I. his eldest Son and his Heirs upon condition that C. should not alien nor discontinue but for the Joynture of his Wife and only for the life of such wife C. after the death of his Father entred and levyed a fine to a stranger and declared the use to himself and his wife and to the Heirs Males of his own body the Remainder to the right Heirs of his Father afterwards C. having Issue male died the Wife died the Heir of I. the eldest Son entred upon the Lessee It was adjudged that because the Statute of 27. H. 8. gave the possession in quality and condition with the use and also gave to Cestuy que the same advantages as the Feoffees had that the said Heir was enabled to take advantage of the Condition be it a Condition or a Limitation The Vis-Countess Bindons Case 338. The Executors of Viscount Bindon brought Detinue against the Widdow of the deceased Viscount and declared upon the Detainer of certain Jewels The Defendant did justifie the Detainer of them as her Paraphronalia It was agreed in this Case by the Chief Baron and others That Paraphronalia ought to be allowed to a Widdow having regard to her Degree and in this Case the Husband of the Defendant being a Viscount that 500. Marks was but a good allowance for such a matter Mich. 28 Eliz. in Cur. Wardor Mounsons Case 339. A Commission in the Nature of Diem clausit extremum after the death of Robert Mounson issued to Enquire what Lands and Tenements he had the day of his death of whom by what services the yearly value of them who was his next Heir and of what age he was It was found that the Father of Robert was seised of the Mannor of B. in Fee and gave the same to Robert in tail the remainder to G. brother of Robert the Remainder to the right Heirs of the Father That G. died in the Life of Robert and Robert died without Issue and that F. the Son of G. was within age and the Lands holden of the Queen in Capite and that Robert long before his death was seised in tail of H. Farm and N. and 17. Eliz. levied a Fine to the use of himself in tail the Remainder to F. the Son of G. in tail and died such a day without Issue of his body and upon this Office one Mounson the Heir general prayed a new Office for it was said that the said Office was insufficient to entitle the Queen to the Wardship of F. the Son of G. It was the opinion of the Court that the Office was good to entitle the Queen to the Wardship of F. the Son of G. But if it was not then a Melius inâ—quirendum should issue forth and not a New Office Branches Case 340. In the Case of a Prohibition It was Resolved that an Union of Copyhold Lands and of the Parsonage in the hands of the Parson as Parson Impersonce was no discharge of the Tythes of the Copyhold Lands and in this Case also it was adjudged That a Farmer of Lands might prescribe in modo Decimandi but not in non Decimando Moor and Williams Case 341. Assumpsit The Case was Lessee for years the reversion to M. the Lessee in defence of the Plantiffs Title spent such a Sum money and prayed contribution or recompence Moor said in consideration thereof he should have the like Lease after the expiration of the Term which Williams the Defendant required and the said Lessor refused to make upon which Williams brought Assumpsit Resolved it did not lie because the Consideration was executed before the promise Stanley and Bakers Case 342. A man possessed of a Lease for years devised the same to his eldest Son and the Heirs of his body and if he died without issue to his youngest Son and the heirs of his body and for want of such Issue that the Term should remain to his Daughters he died having two daughters and afterwards another daughter was born The eldest Son sold the Term and died without Issue the youngest Son died without Issue the three daughters entred It was adjudged they all three should have the Term although the youngest Daughter was not born at the time of the death of the Devisor Owens Case 343. Tenant in tail the Remainder in tail Tenant in tail bargained and sold to him and his Heirs and levied a Fine which was not alledged to be with Proclamation It was adjudged that the Bargainee was not such a Grantee of the Reversion as should maintain Wast because it was no discontinuance and but for the Life of Tenant in tail Higham and Harwoods Case 344. A man had houses and Land which had bin in the tenure of those who had the Houses and he devised his Lands with the appurtenances It was adjudged That the Lands did pass by the words with the appurtenances for that it was in a Will in which the intent of the Devisor shall be observed Watkins and Ashwels Case 345. A seised in Fee made a Feoffment upon condition that if he or his Heirs paid such a sum such a day to reenter He died his Son and Heir within the age of 14. years The Mother of the Infant without the privity of the Infant and who was not Guardian in Socage in the name of the Infant tendred the mony at the day It was resolved it was an Insufficient tender otherwise if she had been his Guardian in Socage Carewas Case 346. The Abbot of M. was seised and made a Lease for years De scitu Manerii Rectoriae suae de omnibus aedificis
the Cause and they do award an Erroneous Process or Misaward a Capias by which the party is taken in Execution yet it is a lawfull Execution and the Sheriff is chargeable with the Escape and he is not to examine the Error of the Court in avoiding the Execution Second that the Conviction of the Felony was no discharge of the parties Execution and it was adjudged against the Defendant 412. Debt brought in Co. B. for an Amercement in a Court Baron the Defendant would have waâ—ed his Law the Court doubted of it and some Presidents were shewed as Trin. 6. Eliz. Tindal and Tuckers Case that he might in such Case wage his Law Quare The Queen Bishop of Lincoln and Skiffings Case 413. Quare Imp. The Case was the Countess of Kent had two Chaplains by Patent a third had no Patent of Chaplainship but he was first Retained and took two Benefices by Dispensation It was adjudged he was Lawful Chaplain for the Patent is not of necessity but only in Case where he hath Cause to shew it and he hath no cause to shew it because her Retainer was good without a Patent Bâ—rd and Adams Case 414. In this Case a Case of a Prohibition to stay a Suit in the Spiritual Court for Tythes of the Rakings of Lands after the Crop of corn was carried away It was holden That the prohibition would not lye but that Tythes should be paid of Rakings But vide 42. Eliz. in B. R. in Gree and Haales Case It was adjudged that by the Custom of the Realm Tythes should not be paid of Rakings Battey and Trevillions Case 415. Replevin The Defendant avowed That I. and A. his Wife were seised in Fee in the right of his Wife and devised the Land in which to I. H and I. his Wife with E. their Daughter for 60. years rendring four Marks Rent Afterwards 38. H. 8. I. and A. his Wife levyed a Fine and the Conusees rendred the Land to A. for Life the remainder to Tho. their Son in tail with remainder over A. died Tho. entred upon the Lessees and made a Feoffment to I. D. and others to perform his Will the Lessees reentred Tho. 7. Eliz. by his Will ordained that his Feoffees should stand seised untill they had levied sufficient to pay his debts and Legacies which were not payed and therefore the Defendant as Bayliff to the Feoffees made conusance and as to the rest he avowed for that Tho. was seised in Fee of the place in which c. and 6 Eliz. devised the same to H. L. and M for Life rendring 30. s. Rent and afterwards entred upon the Leslees and levyed a Fine thereof to the use of himself in Fee and afterwards infeoffed thereof the first Feoffees to the use of his Will the Lessees reentred and he made his Will as above and died and for 3. l. rent for two years he made conusance as Bayliff to the surviving Feoffees The Plantiff to the first Avowry said that Tho. was seised in Tail by the render of the Fine and the tail descended to H. his Son and then E. one oâ— the Lessees who survived to husband the Plaintiff bâ—que hoc that Tho. enfeoffed the Feoffees to such uses as the Defendant hath a ledged and as to the other Conusance the Plaintiff demurred in Law The Jury found the seisin of A. and her Husband and the Lessee for years to the three persons and the Fine and Render to the seisin of Tho. and the Feoffment of Tho. to I. D. and others to perform his Will and they found a Letter of Attorney to persons whereof the said I. H. one of the Lessees was one conjunctim divisim to enter in all the Premises and take possession and deliver the same to the Feoffees or one of them and that after Tho. made his Will as before and that C. one of the Attorneys to one of the Feoffees and D. another of the Attorneys delivered seisin to another of the Feoffees There were divers points in this Case First because the Jury have sound a Devise of Land and no Tenure if the Justices could judge the Tenure to be Knight Service or Soccage this point the Justices said they would not meddle with Second point admit the Land to be holden in Capite and that the Land passed by the Willâ— they held that but two parts of the Land passed by the Devise 3dly When he devised that his Feoffees should stand seised and he had not Feoffees but he himself was in possession the Justices held it was devise of the Land it self 4thly They held where one of the Lessees made Livery as Attorney to the Lessor that he did not thereby extinct or surrender the Term. 5thly When an Authority is to four conjunctim divisim to execute Livery that one might execute Livery in one part and the other in another part 6thly They held when Tenant in tail of Lands in lease for years makes a Feoffment and the Lessee reentred it was a discontinuance 7thly They held when Tenant in Fee simple of a Reversion expectant upon Lease for years deviseth two parts of the Land that no part of the Rent passeth 8thly In this Case because the avowry is made for the whole Rent and it appeareth he hath title but to two parts It was holden he should not have a Return for any part 9thly They held when the Avowant makes title but to two parts of the Rent and the Jury assesse damages for the whole Rent that the Avowant could not have Judgment unlesse he Released the damages 10thly When the Lessor entred upon his Lessee for life and made a Feoffment and the Lessee reentred the Justices doubt if the Rent was revived Keale and Carters Case 416. False Imprisonment the Defendant Justified that he was Constable and that the Plaintiff brought a Child of the age of 2. years and no more into the Church and there left it to the intent it might dye for want of sustenance wherefore he Imprisoned him till he agreed to take away the Child It was the opinion that the Justification of the Defendant was good because the Act of the Constable was but to prevent a felony which he might do by virtue of his Office Fenwick and Mitsorths Case 417. The Case was A. man seised of Lands in Fee Levyed a Fine thereof to the use of Wife for life the remainder to the use of his eldest Son and the Heirs males of his body the remainder to the right Heirs of the Conusor The Conusor made a Lease for 1000. years to B. the eldest Son dyeth without Issue having a daughter the Conusor dyeth the Wife after dyeth the eldest Son Leaseth the Lands to the Plaintiff It was adjudged in this Case it was a Reversion and no Remainder and this limitation to his right Heirs was meerely void Sir Moiâ—e Finch and Throgmortons Case 418. The Case in effect was this The Queen made a Lease for years rendring rent
The Wife entred and elected one yard Land and a half A. entred upon her Resolved that the use for the Life of the Father did cease in it without entry into the Land of the Wife and that she should haue the Election The Lady Burghs Case 791. A seised of Land bargained and sold the same to B. and C. with power of Revocation by tender of 20. s. to them or one of them in the Hall of the Dean and Chapter of Westminster in Westminster A. tendred the 20. s. in the Hall none of the Bargainees being present nor having any notice of it Afterwards A. covenanted to stand seised to the use of I. S. her Nephew It was Resolved in this Case that the tender of the 20 s. was no performance of the Condition to avoid the Estate 2. That the conveyance by Covenant to stand Seisor for consanguinity should make void the former Conveyance containing the power of Revocation wherefore it was adjudged for the Plaintiff Paramour and Veralls Case 792. The Town of Sandwich did prescribe that if any Goods of any Freeman of that Town came to the hands of a Freeman and citizen of London the Mayor of Sandwich c. had used to write to the Mayor c of London to take good order for restitution and it they refused and did not return the Answer to the Mayor of Sandwich c. and did not make Restitution within 15. days then they of S. used to detain the Body of any Londoner which they should find there till restitution was made It was Resolved by all the Justices that such a Prescription was not good Diggs Case 793. The case is very long but this in effect A man seised of Lands in Fee for diverse considerations covenanted to stand seised thereof to the use of himself for Life and after to the use of his Son in tail Provided that at any time during his Life with consent of divers by Deed indented to be enrolled in any Court of the King to revoke the said uses and estates and to limit new uses and afterwards by Deed indented enrolled in the Chancery he revokes the uses in part of the Land and limits the same to him and his Heirs and afterwards by another Deed he declares that from the time of the enrollment of the Deed in the Chancery that all the first uses in the first Indenture shall be void and that the Land shall be to the use of himself in Fee and after he levyes a Fine of all the Land and after the Deed is enrolled in the Chancery In this case these points were Resolved 1. That he might revoke part at one time and part at another time but he could revoke one part but once 2. That where the Revocation is to be by Deed Indented to be enrolled it is as much as to say by Deed Indented Enrolled for it is no Revocation till enrollment 3. That there was not a compleat and perfect Revocation till the Deed was enrolled in the Chancery 4. That the Fine before the Enrollment had extinguished the power of Revocation 5. If the Fine had not been levyed then by the Revocation the ancient Uses had bin destroyed without entry or claim because he himself was Tenant for Life and he could not enter and Acts of Revocation are as strong as a claime 6. That by the same conveyance the ancient Uses might be recovered their Uses might be limitted Costard and Wingates Case 794. A Lay-man presented to a Benefice before the Statute of 13. Eliz. made a Lease for 60. years which was confirmed by the Patron and Ordinary After the Statute his Successor became bound in an Obligation that the Lessee should enjoy the Term and after he was absent from his Living 80. days It was adjudged the Obligation was not void by the Statute of 14. Eliz. because the Lease for years was good and the Bond for enjoyning it which the Successor cannot avoid 795. Resolved by the Justices of the Kings Bench that if the Sheriff hath a capias against one to find Sureties for the good behaviour he may break the House and enter and arrest the party as well as he may do upon a capias utlagatum Talbots Case 796. He was indicted for Recusancy That being of the age of 16. years and more non accessit ad Ecclesiam c. by the space of 6. months It was said the Indictment was not good for Existens aetatis 16. annorum shall be referred to the time of absence from the Church and not to the time of the Indictment but the Court held the Indictment to be good Lovegraves Case 797. A man sued in the Spiritual Court for calling him Goose Woodcock he being a Clerk A Prohibition was awarded and in this case it was said the High Commissioners could not hold Plea for slanderous words spoken of a Clerk but for laying of violent hands on him they might Binghams Case 798. The case was this Grand-father Father and Son the Grand-father held the Mannor of D. of B. as of his Mannor of S. by Knight-Service and levyed a Fine thereof to the use of himself for Life the remainder to the use of the Father in tail and after to the use of the Right Heirs of the Grand-father the Father died his Son within age B. the Lord suffered a Recovery of his Mannor of S. unto the use of himself and his Wife in tail the Remainder to the use of C. and his wife in tail the Remainder to the Right Heirs of B. B. and his Wife died without Issue C. entred into that Mannor the Grand-father died his Wife died the Son entred and made a Lease for years It was Resolved in this case that as long as the Grand-father lived no Wardship of the body or Land was due because the Reversion remained in himself and the mean man could not be in ward during the Life of the particular Tenant for Life and in case of a Subject as long as the Reversion remained in the Donor or his Heir the Issue in tail should not be in ward to the Lord Paramount when the Son in remainder in tail died his Heir within age â— 2. Resolved that a man shall never have the Wardship of the Heir when the Land was never in his Fee or Seignory of him or any of his Ancestors at the time of the death of the Tenant Bullock and Thornes Case 799. The case upon the matter was shortly this A man conveyed Land to the use of himself for Life and after to the use of divers of his blood with a future power of Revocation as after such a Feast and afterwards and before the power of Revocation began he for valuable consideration sold the Land to one and his Heirs It was Resolved that this bargaine and sale is within the Remedy of the Statute of 27. Eliz. of Fraudulent Conveyances for the Act will not that such voluntary conveyance originally subject to a power of Revocation should stand
or the Remainder and therefore no traverse could be to it but they conceived if it was a Reversion a Traverse did presently lie if a Remainder that it did not lie till after the death of the Tenant for Life which was B. Countess of B. Worleys Case 959 A seised in Fee of the Mannor of D holden in capite with 500 l. to be sold having a long intent to sell the same that he might more freely dispose of his other Lands and satisfie a just debt of 60 l. which he owed to I. S. by Deed indented and enrolled in consideration of the said Debt and other considerations viz Vpon trust and confidence that he should pay to W. his Executors or Assigns within one year so much mony above the said 60 l. He bargained and sold the said Mannor of D to I. S. and his Heirs W. within one year died no mony paid his Heir within age It was Resolved his Heir should not be â—n Ward because neither the Land nor Surplusage of the same ought to come to his Heir by the Trust nor be paid to the children or wife oâ— W. Drowâ—s Case 960. A. seised of divers Messuages in the Parish of S. in London made a Lease thereof for 31. years to B. and M. his Wife paying yearly during the Term 60. l. at four Feasts viz. The Nativity c. or within 28 days after each of the said Feasts afterwards he covenanted to stand seised to the use of himself for Life and after to the use of his eldest Son and his Wife and the Heirs of their two Bedâ—es and then for mony he bargained and sold the Land by Deed enrolled to I. S. to hold to him and his Heirs during the Life of the Lessor I. S. dyed seised of that Land and of other Lands holden in capite his Heir within age It was found by Office that A. died after the Feast of the Nativity and within the 28 days next following Resolved the Rent was due to him in the Remainder and that the Wardship of the Land being but a Freehold discendable did not belong to the Queen Digbies Case 961. A Tenant in Tail in the Mannor of C in the County of W. the reversion in the Crown and in Fee of Lands in the County of D. and in C. aforesaid and of Lands in the County of B. by his Will devised that his Lands in D. which he appointed to be a third part of the whole should discend to his Heir the Manner of C. and all his Lands in B. he devised to his Wife in recompence of her Dower for Life so long as she should be Soâ—e and then to his Son and Heir and he charged his Lands in B. with Annuities to his younger Sons and portions to his Daughters Afterwards by a Codicill annexed to his Will he devised to I. S. and I. D. and their Heirs all and singular his Lands in C. whereof himself was then seised to him and his Heirâ— in Fee simple to the use of his Son and Heir so long as he and all claiming under him should suffer his wife and children to enjoy the Lands and Annuities devised to them and he should interrupt or deny it then he devised all his Fee-simple Land to his Wife and his younger Sons A. died his Son and Heir within age It was in this case Resolved that the Qâ—een by reason of the Wardship of the Heir should not have more of the Fee-simple Lands in D then so much as would make the entailed Land to be the third part of the whole Creswâ—lls Case 962. Certain Lands called S. were holden of the Mannor of P. by rent and Suit of Court P. was holden of the Mannor of G by Rent and Suit of Court the Mannor of G. came to the Crown by the Statute of Disâ—olutions The King H. 8. granted the Mannor of G. to I. S. and his Hâ—irs to hold by Knight Service in capite I. D. purchased the Mannor of G and afterwards he purchased the moiety of the Mannor of P. and the Lands called S. I. D. died the Lands purchased by him discended to his Son who purchased the other moiety of P. and afterwards enfeoffed C. of the Lands in S. It was Resolved in this case that I. D. held the Lands called S. by Knight Service in capâ—te by a whole Knights Fee Lâ—mâ—oâ—s Case 963. It was Resolved in this case in the Court of Wards that if the Jâ—ry do not find an Office according to the direction of the Court they shall be committed to the Fleâ—t vide diverse Presidents there accordingly Sir William Knoâ—ts Case 964. The case was A. died seised of Lands purchased by him and discendable to the Heis Males of his Body holden by Knight Service in capite of the value of 140 l. per annum and also of capite Land discendable to his Heirs general of the value of 13 l. per annum and an executed Estate for the advancement of his Sons of Soccage Land in capite to the value oâ— 48 l. B. was his Son and Heir Male and the two Daughters of his eldest Son deceased were his Heirs general It was Resolved that no Livery nor Primer Seisin should be of the Lands executed for advancement because the Queen was satisfied by the discent to the Heirs Males of the Livery and Primer Seisin of more then of a third part of the Lands Strangways and Sir Henry Newtons Case 965. The case is very long put but in effect was this The Father limited divers Mannors and Lands by Indenture to the use of himself and his Heirs untill the marriage of his Son with the Daughter of I. S. and after marriage to the use of the Father for Life only and after to his Sons Wife for Life for her Joynture The Father died before Marriage and afterwards the Marriage took effect The Question was if the use should rise to the first Wife Note That the Father before his death made his Will and thereby devised portions to his Daughters to be raised out of the said Land by his Executors and then died his Heir within age The two chief Justices doubted much this case but they enclined to be of opinion that if there was a devise of the Land that the same had interrupted the raising of the Future use for the Joynture c but they doubted of the Devise because he devised portions out of the Lands but did not devise the Lands themselves Framptons Case 966. A seised in Fee of the Mannors of M. and B. and of the moiety of the Mannor of V. covenanted to levy a Fine to I. S. and others of the said Mannors viz. of all the said Mannors to the use of himself for Life and afterwards of the Mannor of M. to the use of I. his wife for her Life and after to such Heirs of the Body of A. as be should afterwards beget of the Body of her or of any other woman which he should after marry
levyed another Fine to all the said uses but only the Estate for 20. years to his Executors and made his wife his Executrix the wife married Sir Robert Remington It was adjudged in this case that by the second Fine the Lease for 20 years to his Executors was extinct Littletons Case 971. A seised of Lands holden in copite in consideration of a Marriage of M. his Daughter with W. L. Son of Sir John and of 1300 l paid by Sir John the Father of W. levyed a Fine of part of the Lands to the use of himself for Life the Remainder to W. and M. and the Heirs of the Body of W. upon the Body of M. the Remainder to the right Heirs of W. and the residue to the use of himself for Life the Remainder to his first Son in Tail the Remainder to the right Heirs of W. with power to make a Joynture â—o his second Wife and to make Leases for Twenty one years or three Lives The marriage took effect A. took a wife and had Issue by her I. and died I. his Son and Heir within age W. died without Issue G. L. being his Brother and Heir the second wife of A. living and also M living It was upon â— Melius Inquirend found that M. was the Daughter of A. It was Resolved in this case that the Queen should have the Wardship of the third part of the whole Land during the minority of I. the Son of A. Also it was Resolved by them that although money was paid and so the consideration of the Marriage was a mixt consideration yet â—hat should not alter the Law for the duty to the Crown 1. and one Ciffias case was cited to have been so adjudged The Lord Ross and the Earl of Rutlands Case 972. H. Earl of Rutland 2 Elâ—z levyed a Fine with Proclamation to the use of himself and B. his Wife and the Heirs of his own Body and died B. married the Earl of Bedford they covenanted with Edward Earl of Rutland Son of H. Earl of Rutland to levy a Fine which Fine was levyed with Proclamation sur concâ—ssit of the said Mannors and Lands by the said Edward Earl to the said B. for Life Afterward Edward Earl of Rutland 29 Eliz. covenanted with the Lord Burâ—eigh and others to stand seised of the said Mannors to the use of himself and the Heirs Males of his Body the Remainder to the Heirs Males of the Body of Thomas Earl of Rutland his Grandfather Edward Earl 29 Eliz. died without Issue Male having a Daughter which was the Lady Roâ—s the Mother of the Lord Ross the plaintiff B. died the entail made by the Earl of Rutland and the discent to the Lord Ross the Plaintiff was found by Office It was Resolved by the Justices in this case That the Mannors did belong to the Plaintiff the Lord Ross as Issue in tail of Henry Earl of Rutland notwithstanding the Fine levyed by Edward Earl of Rutland because the Fine being sur concessit the same remained a Bar no longer then during the Life of B. Also they held the taking of the Fine by B. to be a surrender of her Estate but to be no discontinuance because not seised of the Tail at the time 3. Resolved the Lands should be in the King during the Minority of the Lord Ross Anno 1. Jacobi 973. It was Resolved by the Justices that Informations for the Queen alone in any Latin Court should not abate by the Demise of the Queen and so like of Informations tam pro the party quam for the Queen and so also it was of Informations in English Courts they were not discontinued by the Demise of the Queen Handall and his Wife and Browns Case in Chancery 974. The case was A. possessed of a Term for years had Issue a Son and two Daughters and by Will he devised his Term to John his Son and if he died to his two Daughters and if they died to his Wife he made his Son his whole Executor who entred claiming by the Will and after Probate he died Intestate his Wife took Letters of Administration and for mony sold the Term to Brown the Defendant It was the opinion of the Justices that the Assignee of the Administrator should have the Term and not the two Daughters and Decreed in Chancery accordingly 975. Upon the cases of claims at the Coronation of the King these points were Resolved by the Justices 1. That where a Barony or a Mannor or Land holden by grand Serjeanty to do special Service at the Coronation is come to many hands by purchase there each Tenant is chargable with the whole Service but the King may appoint which of them shall do the Service and he which doth the Service shall alone have the Fee but if the Division be by Copartners there the eldest is only to do the Service and the other shall contribute to the charge and the eldâ—st shall have the Fees but if each Sister sell her part the Feoffee of the eldest shall not have the preheminence 2. Resolved where Grand Serjeanty is to be done at the Coronation by Tenure and the Lands come to an ignoble person who is unmeet to do the Service the Lord Steward may appoint a Noble or meet person to do the Service as Deputy to the Tenant of the Land 3. Resolved where Land is given to hold as to be Hostiarius Câ—merae Regis or the like In such Case the Tenants are to make their claims yet they are not to be admitted to the said Services by the Commissioners for claims or the Lord Steward but they are to be referred to the King himself their Tenure being perpetual and continuing Leigh and Helyers Case 976. A man supposing he had Title to certain Lands which were in the possession of I. S. contracted to sell them to I. D. and sealed a Lease for years to a third person to the use of I. D. with whom the contract made and the year and day long before expired Resolved it was maintenance by the Common Law but not within the Statute of 32. H. 8. Foster and Kings Case 977. A man made his Will and gave diverse Legacies and devised that the rest and residue of his Goods after his Debts and Legacies paid to his wife and after in the same Will he devised that his Overseers should enter into the Lands and cut down so much of the Woods as would suffice to pay his Debts Quere in this case if the Debts and Legacies shall be paid of the Woods if the Goods be not sufficient to pay them Skipwiths Case 978. Tenant in tail and he in the Reversion bargaineth and sells the Lands to the King and before enrollment Tenant in tail suffers a common Recovery Quere if the Issue in tail be barred by the Recovery not Resolved Lucas Case 979 Resolved in this case that before the Statute of 13 R. 2â— Murder was pardonable by the name of Felony but since that Statute the
the Use passeth to the Bargainee and then the Fine being levyed upon it the Bargain is irrevocable if not by Error 70. Lord and Tenant by Knights service the Tenant dyes his Heir being a Daughter within age of 14. years the Lord seizeth the VVard and after at 13. years she marryeth without the assent of the Lord It was the opinion of Wray Justice That the Lord should not have the forfeiture of the Marriage without tender but otherwise of the value of the Marriage because that de mero jure pertinet ad Dominum 71. Lessee for years hath Execution by Elegit of the Moyety of the Rent and Reversion against his Lessor the Lease being upon Condition Resolved That it is a suspension of the whole Condition during the Extent and although but the moyety of the Rent was extended yet the entire Condition was suspended and cannot be proportioned being entire 72. A man was bound in a Bond to make a sufficient Lease to the Obliger before such a day the same to be made at the Costs of the Obliger In Debt upon the Bond it was a holden a good Plea That the Plaintiff did not tender the Costs to him and if then that he was ready c. The Lord Windsors Case 73. A Precipe was brought against him It was Edwardo Domino Windsor de London Militi and because the word Militi was after the name of Dignity the VVrit abated 74. Entry sur Disseisin was brought the Writ was of an Entry in duas partes in tribus partibus dividend unius Messuagii and not in duas partes unius Messagii in tribus partibus dividend and yet adjudged good Pasch 3. Eliz. 75. Debt upon Obligation conditioned if the Obligator pay all such sums which he was Obliged to pay by his several writings Obligatory that then c. The Defendent said That there were not any writings Obligatory by which he was to pay any sum Adjudged to be no plea because it is repugnant to the Condition and he is estopped to say against the Condition 76. Wast The Case was Lease for life Covenanted to repair the houses at his proper Costs during the Terme The groundsels of the houses were rotten and the Lessee cut down trees upon the Land to repair them Resolved he might do it and it was not Wast and his justification of it good notwithstanding the Covenant which shall not exclude him from that benefit which the Law gives him 77. Debt against an Executour of an Executor the Defendant pleaded That the Executor his Testator had fully Administred and so nothing in his hands It was found that he had Assetts upon which a Fieri fac issued to the Sheriff who returned he had nor any thing adjudged a void Return and the Sheriff was amerced for if he had not goods of the Testator he should be payed of his own goods because when he pleads the first Executor had fully administred he doth not deny but Assetts remained after the death of his Testator 78. A grant was made per nomen Messuagii sive tenement It was holden by Dyer that neither a Garden nor Land do passe by the Grant but nothing but the House and Carthage Weston said the Garden should passe with the Messuage with an Averment that they have been occupied together Quere The Earl of Worcesters Case 79. Debt was recovered against the Earl and the Plantiff had an Elegit in the County of M. The Sheriff returned he had no goods nor Cattels Land nor Tenements within his County It was holden that after the year he might have a scire facias and upon that that an Elegit And it was holden that the party might divide his Execution and have several Elegits into Several Counties and to that purpose diverse Presidents were shewed by Lenard one of the Prothonotories Lady Audleys Case 80. Detinue A Woman delivered Goods to rebayl and after took Husband who after his Intermarriage released all Actions to the Baylee Adjudged the Release was good for that by the Intermarriage the Property of the Goods was in the Husband 81. In Dower The Tenant vouched the Heir of the Husband within the same County and he appeared and entred into Warranty as he who had nothing by Discent Judgement shall be given presently and the Sheriff by a special Writ shall put the Woman in Possession of all the Lands of the Tenant and that to avoid Circuit of Action betwixt the Tenant and the Vouchee Then the Question was If the Heir had nothing by Discent but Lands in tayle if they should be assigned to the Woman for her Dower It was the greater opinion she should not have Dower of the Lands intailed because the Execution for the Wife against the Vouchee is given only for Avoidance of Circuit of Action betwixt the Tenant and the Vouchee and therefore it follows That she shall not have Execution of other Lands whereof the Tenant could not have Execution against the Vouchee and the Lands intayled cannot be rendred in value 82. A Lease was made to 3. Habendum to them and the Survivor of them modo forma sequente viz. to one for Life the Remainder to another for Life the Remainder to the 3d. for Life It was holden they are not joynt Lessees by this Lease but they take by way of Remainder but if the viz had been before the Habendum or no Habendum had been then they had taken a joynt Estate notwithstanding the Limitation by the viz. because the viz. is but a declaration of the precedent Text and shall not confound the same mala est expositio quae corrumpit textum Skernes Case 83. A. by Indenture let an House to I. S. for 40. years The Lessee by the same Deed covenanted with the Lessor that he would repair the House during the Term and that it should be lawfull for the Lessor his Heirs and Assigns after the 40. years past every year during the Term to come into the House to see if the Reparations were sufficient by the Lessee his Executors or Assigns and if it should be repaired upon the view of the Lessor that then the Lessee should hold the Lease during 40. years after the first years ended I. S. granted over his Term by these words Totum interesse terminum terminos quae tunc habuit intenementis illis It was resolved in this Case That the words in the Assignment did not extend but to the first Term and therefore the possibility of the future Term did not pass but that by the Assignment there was a separation between the first Term and the possibility and by consequence the possibility determined 2ly That the want of the word Assignes did not hinder the possibility for it was a thing inherent which passed without such word But yet they held That if there had been the word Assignes yet the Assigns could not have taken the possibility 84. Debt upon Obligation The Defendant said he was to pay 20 l. at a
day and at the time of the delivery there was not any Day written in the Deed but a space for it and that after the Delivery the Plaintiff put in a Day and so Non est factum It was conceived the Plea had been better to have set forth the special matter per quod scriptum praedict perdidit effectum and Judgement if Action 85. Lands were given to Husband and VVife in tayle The Husband by Fine and Deed inrolled aliened the Land and dyed Resolved That the VVife might enter by the Statute of 32 H. 8. although the words are Of Tenements being the Inheritance or Freehold of the Wife And it was holden That by the Entry of the VVife the Inheritance of the Heir should thereby be recontinued 86. A man made a Feoffment to divers persons that they should infeoffe the Son of the Feoffor and his Wife in tail the remaynder to the right Heirs of the Feoffor who made the estate accordingly and the Son dyed It was Resolved the same was a Joynture within the Statute of 27 H. 3. cap. 10. for although she did not clayme it by the Ancestor himself but by his Feoffâ—rs yet because the Feoffes derive their Estate from the Ancestors of the Husband it is within the Statute But if he had bargained and sold the same upon trust to make the Joynture it had not been within the Statute 87. Resolved That an Action upon the Case doth not lye for calling one Adulterer because that is not punishable at the Common Law but in the Spiritual Court 88. Two Joynt tenants make partition by word and for equality of the partition one assignes to the other a Rent It is void if he hath not a Deed of it 89. In a Praecipe quod reddat at the Nisi Prius the Tenant made default and Petit Cap. returned at which day he in the Reversion prayed to be Received and was so received by the Rule of the Court notwithstanding he did not require it at the Nisi Prius 2. By the Equity of the Statute of West 2. he in the remainder shall be received upon the default of the Tenant for life although the words of the Statutes be ad quos spectat reversio 90. Resolved by the Justices That the Coroner super visum Corporis cannot enquire of an Accessary after the Murder 91. Two were joyntly and severally bound in an Obligation in Debt brought the Defendent said the Plantiff recovered against the other the same Debt and had Execution and adjudged a good plea notwithstanding it was not shewed by what proces he had Execution because the Execution is on Record and shall be tryed by the Record but if he paid the monies in pais to the Plantiff and not in Court It is not an Execution of the Judgement 92. A Recordare was to remove a Plaint in Curia nostra and the plaint was in Curia Mariae Resolved that for this variance the Record was not removed for it could not be the plaint whereof c. 93. It was said If the Defendant will plead to the Writ matter apparent within the Writ he must begin his plea with Petit Judicium of the Writ but if he plead matter de hors as Joyntenancy or Nontenure c. he shall make the conclusion in such manner only and not the beginning 94. Ejectione firme Of a Lease made by the Prebendary Ecclesiae Beatae Mariae whereof the foundation was Ecclesiae Beatae Mariae de Thornton and Thornton being omitted the Leaser to make it agree entertayned the words de Thornton It was the opinion of the Justices That non est factum is no proper plea because it was once his deed but he is to shew the special matter and demand Judgment of Action vide before 95. A Rent was granted to I. S. for life the remainder to I. D. in Fee I. S. dyed the Rent was behind he in the Remainder destraind and avowd for the Rent and good for the grant was good to him in the remainder which took effect with the particular estate and so adjudged 96. One made his Will in this manner I have made a Lease for 21. years to I. S. paying but 10 s. Rent adjudged a good Lease at Will and the word I have shall be taken in the present tence 97. Replevin The Defendant avowed for a Rent charge granted to him but did not alledge any seisin of it within the years according to the Statute of 32 H. 8. Cap. 2. and yet holden good for the Statute is to be intended where seisin ought to have been alledged before at the Common Law 98. Dower The Case was The Husband made his Will thereby devised all his Lands to his Wife the now demandment during her Widdowhood and dyed the Wife entred by force of the Will and after took Husband It was the opinion of the Justices that this estate devised being as great an Estate for her life and her acceptance of it she not being Compellable to Marry was in the nature of a Joynter to her and a good barre of her Dower 99. Note by the Justices If a man seised of a Rent charge be bounden in a Statute and Execution be sued upon it the Rent shall be extended in Execution and yet the Statute de Mercatoribus speaks only of the Goods and Lands of the debtour and doth not speak of Tenements or other things 100. I. S. Tenant in tail by Indenture upon Consideration of Marriage Covenants to stand seised to his own use for life and after his death to the use of his Son and heir apparant Resolved there is no change of the use but only during the life of the Tenant in tail 101. A man seised of Land in the right of his Wife makes a Lease for life the remainder in Fee and afterwards he and his Wife recovers the same Land in a Writ of Entry against the Tenant for life Dyer held the Wife should be remitted and no act shall be adjudged in the Wife for the bringing the Writ shall be adjudged the sole act of the Husband and not of the Wife Quaere if she shall not be estopped by the Record 102. Note by the Justices That a Writ of Curia Claudenda lyeth of a Close which lyeth in a Field aswell as where there are 2. Messuages Courts oâ— Gardens adjoyning But after Imparlance in this Writ the Defendant shall not have the view 103. In a Quid juris Clamat after Issue joyned upon Ne dona pass at the Nisi Prius the Jury gave a privy verdict the Court being risen for the Defendant and had License to eat and drink and at another day when the Court was sitting they returned and gave an open Verdict for the Plantiff Resolved That Judgement should be entred for the Plantiff for the last Verdict which is given openly in Court is the Verdict in fact and not the first and the eating and drinking of the Jurours before the second Verdict given doth not
make it void 104. Note by the Justices where in a Praecipe quod reddat brought against Tenant for life he makes default and he in the Reversion is received he shall hear the Count made by the Tenant and shall answer presently and cannot have an Imparlance 105. Resolved by the Justices That Tenants in Comon cannot joyn in Waste against their Lessee but it is otherwise of Copartners or Joynt Tenants 106. In Debt the Defendant pleaded to Issue and afterwards brought a Writ of Priviledge out of the Exchequer because he was a person Priviledged there The Court dissallowed of the Writ because by his pleading he had affirmed the Jurisdiction of the Court. Hawle and Kirkbyes Case 107. Covenant upon an Indenture dated 20 April 4. E. 6. The Defendant pleaded in Bar a Release made 3 Eliz. of all Actions Suits Debts Executions and Demands which ever before he had or may have ab origine Mundi to the day of the date of the Release adjudged no bar because it was before the Covenant broken 108. A man leaseth Lands for years and afterwards by Deed Indented bargains and sells the same Lands to the Lessee and his Heirs without any word of guift or grant in the deed That nothing passeth if the deed be not Enrolled for without Enrollment the Freehold doth not passe and it is not any Confirmation The Lord Sands and Brays Case 109. A scire facias by the Lord Sands against the Defendant to have Execution of Lands whereof the remainder was entailed to his Ancestors by Fine The Defendant said The Plaintiff was within age and prayed The parol might demur till his full age The opinion of the Court was That the parol should not demur and by award of the Court the Defendant was put to Answer 110. A man bargains and sells his Land by deed Enrolled The bargainee by the same deed Covenants That if the bargainor or his Heirs pay to the bargainee or his Heirs 20 l. such a day that then the bargainee and his Heirs and all other seised should be presently seised to the use of the bargainor and his Heirs before the day the bargainor tenders the mony to the bargainee and he refuseth it Resolved that by the Tender the Covenant is not performed for the Covenant alters the use upon the payment and nothing rests in the bargainor till payment 111. It was Resolved by the Justices That if a man by deed Leaseth certain parcel of Lands and names them severally and afterwards the Lessor raseth the deed and puts one parcel out of the deed that the whole deed is void for the deed is entire in it self and cannot stand for part and be void for part But yet notwithstanding the Lease being of Lands the Lessee may plead it as a Lease parol Trinit 4. Eliz. 112. Tenant in tail the remainder in Fee Tenant in tail aliens and dyes without Issue he in the Remainder recovers in a Formedon brought being within age Adjudged he shall not be in Ward because a Right of remainder discended only to him and not a Remainder in possession 113. A man made a Lease for life and afterwards was bounden in a Recognizance and afterwards he granted the Reversion to another and the Tenant for life attorned and dyed the grantee entred and the Recognizee sued Execution against the grantee If the Execution was well sued upon the grantee Quaere the Justices were divided in opinion 114. Debt upon Obligation The Defendant pleaded that the plantiff by deed Indented betwixt them Covenanted and granted that if the Defendant paid him certain monies at a day certain the Obligation should be void and that at the day he tendred the money and he refused it The Court held the plea good without saying uncore prist 115. Debt upon Obligation the Condition was if the Defendant paid to the Plaintiff or his assignes 20 l. at such a day and place that then c. The Defendant said that the Plaintiff appointed one A. to receive the mony of him at the day and place and that he tendred the same accordingly to the said A. which he refused Resolved the plea was good without alledging payment in fact 116. A. made a Feoffment in Fee rendering rent with Clause of distresse and afterwards bound himself in a Statute and the day being incurred Execution was sued by the Conusee and the Sheriff returned the Conusor dead and that he had extended the Rent The Heir of the Conusor within age brought an Audita Querelâ— and adjudged it did well lye because there was an Exception in the Writ of Extent that if the Lands are discended to any Enfant that the Sheriff should surcease to extend 117. Debt against Executors at the Pluries Distring as they appeared and pleaded that they had fully Administred the goods of the Testators before any Notice given them of the Suit The Plaintiff said That upon the Original the Sheriff had returned them Summoned It was the opinion of the Court it was no Estoppel against them for it may be they were never Summoned notwithstanding the return of the Sheriff The Archbishop of Yoâ—ks Case 118. An action brought by him upon the Statute dâ— scandalis Magnatum against I. S. because he put in a slanderous Bill against him before the President of the Council of the North surmising that he was a Covetous and Malitious Bishop Resolved the words were not sufficient to maintain that Action 119. A. seised of a Mannor holden by Knights service devised 2. parts there of to 2. strangers severally and all the Residue he devised to his Heir in Tail the remainder over to another in Fee It was the opinion of the Justices that when he had devised 2. parts he had done all which he could by the Statute and the devise of the resiâ—ne was void but the devise shall enure to the Heir of a third part of the 2. parts that the devise which takes effect at the death of the devâ—sor may take effect and that especialle by reason of the Remainder and so the Heir shall have a third part of the 2. parts vide 3 H. 6. accordingly 120. A. made a Feoffment in Fee to the use of another in Tail the Remainder to the right Heirs of Tenant in Tail in Fee Cestuy que use in Tail before the Statute of 27 H. 8. made a Feoffment in Fee the Feoffee dyed It was the opinion of the Justices That when the Feoffee dyed during the life of Cestuy que use in Tail the first Feoffees could not enter for the discent was when they had no title of Entry for by the Feoffment the Feoffee had title during the life of Cestuy que use in Tail wherefore during his life they could not enter nor make claim But they agreed that the Heir of Cestuy que use in Tail had not any remainder but by the Entry of the Feoffees 121. A man made a gâ—ft entail upon Condition that if the Donee or his issue
limitation over was good enough Dyer said If the Remainder be in tayl the Conusee is seised of the Reversion to his own use quod fuit concessum per les Justices 134. A man granted unto another Herbagium Pannagium within his Lands rendring Rent the Lessor cut down the Trees Resolved That Trespass would not lye by the Lessee against the Lessor but he might have an Assize because it is a Profit Apprender in loco certo capiendo 135. An Abbot was Parson imparsonee of the Church where the Abbot and Tythes were the Abby was dissolved The King granted the Monastery to one and the Parsonage and Rectory to another It was the opinion of the Justices That if the Land of the Abby was the Glebe of the Parsonage before the Appropriation that that Land was discharged of Tythes for it remains Glebe notwithstanding the Appropriation and the Glebe cannot be gained by Prescription and the Glebe was never chargeable to pay Tythes And if a Parson doth make a Lease of his Glebe the Lessee shall not pay Tythes But the Demeasnes of the Abby not parcel of the Glebe should be chargeable to pay Tythes if they were not discharged in right by a Composition or unity perpetual 136. A man made a Feoffment in Fee of Lands upon Condition if he paid him 20 l. at the Feast of St. Mich. in St. Pauls Church the Feoffment to be void The Defendant in an Action brought pleaded he paid the Money at the day and place upon which Issue was joyned and gave in Evidence That he paid it before that day at another place Resolved That the Evidence did nâ—t maintain the Issue For although the Party may pay it at another day and place if the other will accept of it yet he is not bound to receive it and in as much as the Partie is restrained to a day and the day is made parcell of the Issue he ought to prove payment at the day or alledge the special matter and plead payment before the day and acceptance thereof as the truth of the Case is 137. If a man be indebted to I. S. 100 l. and the Debtee maketh an Acquittance to him in Writing that he hath received 20. l. of him in satisfaction of the 100 l. of all other Debts Duties and Demands the same is good and amounts to a Release but if it be without Writing then payment of the 20 l. cannot be in satisfaction of the 100 l. by the Opinion of all the Justices 138. A man deviseth his Lands to his Wife de anno in aunum till his Son shall come to the age of 20. and dyes the Wife enters the Son dyeth before he attains 20 years Resolved the Interest of the Wife was determined But if the Devise had been untill the Son should or might come to the age of 20. years there notwithstanding his death the Estate of the VVâ—fe had continued 139. If a Grand Cape issueth where there was no Original before and Judgement be entred upon it Resolvd it is not void but voidable only by Error 140. Ravishment of Ward of two Daughters the Plaintiff declared to his Dammages of 100 l. and upon Nihil dicit had Judgement and upon a VVrit of Enquiry the Jury found the Ravishment of the Eldest and that she was married to the Plaintiffs dammage of 80 l. and of the other two to the value of 60 l. pro raptu abductione 100 l. and the Judgement was entred for the dammages pro raptu abductione conditionally if she was married 141. A man seized of an Advowson in Fee granted to another and his Heirs that when the Church should become void that the Grantee and his Heirs should nominate a Clarke to the Grantor and his Heirs and he and his Heirs should present him to the Ordinary Resolved That if he who hath the Nomination present he which ought to present shall have a Quare Impedit against him â— contra But if an Annuity be brought against a Parson the Aide is grantable onely of him who hath the Presentation for that is in the right and the right is in the Presenter 142. Debt upon a Contract for 10 l. It is no Plea for the Defendant to say that the Contract was for a lesser sum than the sum contained in the VVrit because the Defendant might wage Law of it 143. Copyhold lands are demised to two for Life successive where the Custome is they may cut Trees Resolved It is a forfeiture of his Estate and of the Estate of him in the Remainder Ter. Pasc 5 Eliz. 144. Lands at the Common-law and Copyhold-lands are leased by one Indenture rendring rent Resolved that the whole Rent shall issue out of the Lands at the Common-law and not out of the Copyhold But if a man leaseth Lands a part of which he hath by Disseisin rendring Rent there the Rent shall issue out of the whole Land and by the Entry of the Disseisee the Rent shall be apportioned 145. A Composition was betwixt an Abbot and a Parson that in recompence of the Tythes of all the VVoods within the Mannor whereof the Abbot was Owner that he should have to him and his Successor â—0 loads of VVood every year in 20. acres of the said Mannor to burn and spend in his House The Parsonage was appropriate to the Abby and after the Abby was dissolved and the King granted the Parsonage to one and the 20. Acres to another It was was resolved That by the uniâ—y the Estovers were not extinct for if they be Tythes they are not extinct by this unity of Possession for that Tyths run with the Lands and Tythes de jure Divino Canonica Institutione do appertain to the Clergy Eyres Case 146. In Replevin The Case was the Archbishop of York was seized of a Field in B. in the right of his Church and Leases the same by Deed for years rendring rent which was confirmed by the Dean and Chapter In the Indenture there was a Proviso that in the vacancy of the Bishoprick the rent should be paid to the Chapter as in his right the Bishop dyed I. S. was created Bishop and was deprived because he refused to take the Oath of Supremacy I D. was chosen and created Bishop and for Rent behind and not paid to the Chapter in the time of the vacancy he avowed In this Case these these points were resolved 1. That the Proviso was well placed and was a Condition being annexed to the Reservation of the Lease 2ly That the Successor might enter for the Condition broken in the time of his Predecessor 3ly The Bailiff of the Bishop could not enter for the Condition broken without a Special Warranty 4ly That the Condition was repugnant because he appoints the Rent to be paid to the Chapter in the time of the vacancy the Reservation being to the Bshop and his Successors 5ly That no Title was in the Succcessor to enter because the Condition was repugnant
had been upon condition that his last Will should be performed It had been otherwise 220. A man made a Lease for 30. years The Lessor Covenanted to Repair the House The Lesse granted parcel of the Term for 10 years It was holden that his Grantee should not have an Action of Covenant by the Statute of 32. H. 8. of Conditions for he is not Tenant to the first Lessor But if the Lessor ganteth his Reversion for years his Grantee shall have Covenant or benefit of the Condition with which the Lessee is charged for he is an Assignee within the Statute because the Lessee holdeth of him 221. If the Ancestor of the Husband Covenant to stand seised of Certain Lands to the use of the Husband and Wife in Consideration of Marriage and also for a Certain Sum of Mony If the Wife alien that Land after the death of the Husband It was said that the Heir of the Husband might enter by the Statute of 11. H. 7. for the Consideration of Marriage shall be preferred before the Consideration of Mony and then it shall be said the gift of the Ancestors of the Husband and within the Statute as it was said it was adjudged in Villiers Case The Lord Treasurer and Bartons Case 222. A man made a Lease for 100 years The Lessee made a Lease for 20. years rendering Rent with clause of Reentry the first Lessor granted the Reversion in Fee attonement was had the grantee purchased the Reversion of the Term It was holden and adjudged that he should not have the Rent not the reentry for that the Rent which was incident to the Reversion was extinct by the purchase of the Reversion in Fee 223. A man was Tenant by the Curtesie of a Mannor a Copy-hold came to his hands by forfeiture Afterwards he was bound in a Statute and afterwards demised the Copyhold Land again It was holden this Copyhold should be lyable to the Statute because it was once annexed to the Freehold of the Lord and bound in his hands Pasch 12. Eliz. 224. If the Lord grant to his Copyholder the Trees growing upon the Land and which afterwards shall grow and that it shall be Lawfull for the Tenant to cut and carry them away It was holden to be No forfeiture of his Copyhold because he hath dispensed with the forfeiture by his grant but he cannot cut the Trees which shall after grow for as to them the grant is void Brabrokes Case 225. I. D. 19. H. 8. gave the Mannor of N. to I. S. and A. and the Heirs of the body of the said I. S. on the body of A. remainder to a stranger in Tail the remainder in Fee I. S. Maried A. and after 26. H. 8. he suffered a Common Recovery with single voucher to the use of him and his Heirs the Statute of 27. H. 8. was made and after he in the remainder in Tail was attainted of Treason and 28. H. 8. It was Enacted in Parliament that all his Lands and hereditaments which he had or ought to have should be forfeited the Recovery was without any Original Afterwards I. S. gave the Mannor to I. D. and his Heirs who made a Joynture thereof to M. his Wife for life after the death of I. D. M. took to Husband the Plaintiff against whom Intrusion was brought It was adjudged against the Plaintiff for one moyety Hil. 14. Eliz. 226. The Earl of Oxon. Tenant for life of certain Mannors made a Copy in reversion to I. S. for life and dyed the Copyholder in possession dyed The Heir of the Earl demised the same by Copy to I. S. It was the opinion of all the Justices that the Copy in Reversion was not good But it was agreed If it come in possession during the Tenant for life then it is good 227. Two Acres discend to two Coparceners one of them before Partition grants a Rent Charge out of one of the Acres and upon Partition the Acre charged is allotted to the other Sister It was adjudged she should hold it discharged of the Rent Pledall and Pledalls Case 228. It was Adjudged in this Case That the Jurours are not to to take Notice of matters of Estoppel which are given in Evidence between the parties upon pain of Attaint for they are strangers to the Conclusions of the parties Evans Case 229. A man had issue two Sons and devised Lands to his youngest Son in Tail and dyed the eldest having Issue a Son the younger Son aliened the Land in Fee with Warranty and went beyond Sea and there dyed without Issue the Son of the eldest being within age It was the opinion of the Justices the same was a Collateral Warranty and without asserts was a bar to the Issue of the eldest Son notwithstanding his Nonage Muttons Case 330. A man seised of Land levyed a Fine to the use of himself and such Woman as he should after Marry and after their decease to the use of I. his daughter and the Heirs of her body afterwards he Married A. and dyed who entred It was the opinion of the Justices to A. for her life Appowel and Monnoux Case 231. A. seised of the Mannors and Rectories of B. G. and D. let the same except the scite of the Mannor of B. to I. S. for 25. years Reserving for the Mannor of B. 76 l. for the Mannor and Reversion of B. 30 l. for the Rectory of B. 14 l. and for the Rectory of D. and the Lands to it belonging â—3 l. payable yearly at â— Feasts in the Church of F. not parcel of the Premisses upon Condition if the said Rents or any of them were behind for the space of 7. Weeks it should be Lawfull for him his Heirs and Assignes to Reenter on all the premises and afterwards he bargained and sold the Scite of the Mannor of B. and the Reversion of all the Mannors and Rectories to I. D. and his Heirs who enfeoffed certain persons and granted the Reversion of all the Mannors and Rectory to have and hold the Scite of the Mannor of B. and the Reversion of the Rectory of D. to the use of himself and Eliz his Wife for their lives and the life of the Survivour of them the remainder to W. his Son and his Heirs for ever And to have the Reversion of all the other Mannors and the Rectories of B. and C. to the use of himself for life the Remainder to the said W. his Son and his Heirs I. S. the Lessee attorned I. D. dyed Eliz. his Wife held the Scite of B. and the Reversion of the Rectory of D. by Survivour W. seised of all the Mannors and Rectories as aforesaid granted the Reversion of a Messuage parcell of the Mannor of B. to W. D. and his Heirs to which grant I S. attorned and afterwards by Bargain and sale enrolled granted the Reversion of all the said Mannors and Rectories to H. I. and K. and their Heirs half a years Rent reserved for the Mannor
of B. was behind for which the grantees destrained by their Bayliffs In this Case it was Resolved 1. That this demise and Lease was joynt and entire and so was the Condition of it notwithstanding the several Reservations of the Rents 2. That the grantee of parcell of the Reversion could not take advantage of the Condition but that the Condition as to the grantee was determined 3. That the bargainee was a sufficient Assigne within the Statute to take advantage of the Condition by the Statute of 27. H. 8. of uses which gives Cestuy que use the possession and the Estate of the Feoffees and all the advantages which the Feoffes might have and they agreed the Condition to be determined upon this difference viz. When it is entire one cannot divide it by his own act but by act of Law in may be divided and apportioned and so it was in this Case Hunks and Alboroughs Case 232. A man made his Will and gave divers Legacies and in the end of it he gave all the rest of his goods to his Wife who he made his Executor to pay his debts she took Husband who made the Defendant his Executor and dyed against whom the Wife Executrix brought Detinue of the goods of her first Husband and adjuged maintainable because she took the goods not as Legatee but as Executrix Harwell and Lucas Case 233. A. seised the Mannor of K. leased 6. acres parcel of it to I. S. for 21. years without any Remainder and after lets the 6. Acres to I. D. for 26. years to begin after the expiration of the first Lease rendring rent and afterwards made a Feoffment of the Mannor and all his Lands to the use of the Feoffees their Heirs upon Condition if they did not pay 10000 l. within 15. dayes then it should be to the use of himself and his wife the Reversion to their second Son in tayle with divers Remaâ—nders over the Remainder to his right Heirs Livery was made of the Land in possession and not in the 6. Acres the Money was not paid afterwards the first Lessee for years attorned the Husband and wife dyed the first Lease ended the second Lessee dyed his Wife married the Defendant The Son of A. distreyned for the Rent It was adjudged in this Case That although the reversion of the 6. Acres did not passe by the Livery without attornment yet the attornment of the first Lessee was sufficient and although the use to the Feoffees and their Heirs was determined before the attornment yet the attornment was good to passe the Reversion to the last contingent use and so the Title of the Sonne of A. to the Rent was good Cranmers Case 234. King Henry 8. made a Lease of Land for 21. years the Reversion came to E. 6. who Anno primo of his reign granted the same to Cranmer Bishop of Canterbury He 6 E 6. granted the Reversion to D. and C. to the use of the Bishop for life the Remainder for 20. years to the use of the Executors of the Bishop the Remainder in tayle to the Grantor the Remainder to his right Heirs The Bishop in time of Queen Mary was attainted of Treason and all his Lands and Chattels given to the Queen by Act of Parliament The Queen was possessed of the Term for 20. years and granted the same to I. S. It was adjudged That the term for years in remainder was never in the Bishop to forfeit but it was only an authority to nominate Executors in whom the Term should vest by purchase and because by reason of his Attainder he could not make Executors the Term for 20. years did never rise and so the Grant of it by the Queen Mary to I. S. not good See Dyer 310. contr Plastow and Batchâ—llors Case 235. Aâ—man brought a Formedon in Discender and pending it he brought a Writ of Estrepment which he delivered to the Defendant who notwithstanding the Writ afterwards committed Waste It was adjudged the Plaintiff should recover his Dammages and Costs Manwoods Case 236. Wast was brought and assigned in digging of Clay and selling of it and in plowing of Meadow and cutting down of 100. Oaks The Defendant pleaded Not Guilty as to all but cutting down of 6. Oaks which grew in a Hedge row which he said were Pollards not sufficient for building upon which it was demarred and adjudged for the Plaintiff Calthrops Case 237. Ejectione formae The Case was A. seised in Fee 26 H. 8. in consideration of Marriage between E. his Brother and F. the Daughter of W. and 200 l. of Money paid by W. covenanted to execute an Estate of the Mannor of N. to the uses following viz. of Lands of the value of 20 l. to the use of the said E. and F. for their lives and after carnal Copulation to the use of the Issues of their Bodyes with remainder over to E. and the Heirs of his Bodye the remainder to the right Heirs of A. and of the residue to the use of A. for life the remainder to E. F. for their lives and after carnal Copulation the remainder as before and afterwards he executed the estate by Fine and Recovery to the said uses The Marriage did not take effect but E. by another Wife had Issue 3. Daughters A. took a Wife and had Issue by her and dyed E. and F. dyed C. conveyed the Mannor to D. upon whom the eldest Daughter of E. entred and made a Lease of her part In this case It was resolved 1. That the use for the life of E. and F. did well rise although the marriage took no effect the use being declared upon an Estate executed which needs not any consideration but otherwise if it had been upon a Covenant to stand seâ—sed upon consideration of Marriage and Money for there without Marriage no use would rise although the Money was paid 2ly That the Election should go to him who was to take the use 3ly That the limitation was not void for the incertainty 4ly That in this Case although the Cestuy que use did not make the Election during his life yet he in the Remainder might after his death 5ly The Court doubted whether the Remainder did take effect because the Marriage did not take effect and they conceived it was not the intent of the Parties that should be advanced with so much Land if the Marriage did not take effect The matter was afterwards ended by Arbitrament Lane and Coopers Case 238. The Case was The Mannor of H. to make a Joynture was conveyed by a Deed in Latine to himself and his VVife for the Term of their lives the Reversion Seniori puero de corpore ipsius W. H. Haered de corpore suo legitimo procreato the Remainder to the general tayl to the Husband the Remainder to I. S. in fee thereof Afterwards by an Indenture between him and I. S. in English he covenanted that he and his wife should levy a Fine to B. and C. to
his Heirs A scire fac issued against the Heir and Terre Tenants who made default and Judgment was given against the Heir aswell of his own proper Land as of those which he had by discent It was said by Cook that although the Heir upon default shall be charged above his Assets but that was where a man bound him and his Heirs in the Recognizance but here the Heir should not be charged because the words of the Recognizance are no obligation against the Heir but only upon the Land and therefor he prayed contribution against the other Feoffes The Court refused to grant it and said that one purchasor shall have contribution against another but the Heir shall not have it but shall be in the same degree as his Ancestors was Bantings Case 288. In Trespas the Case was John Banting contracted himself to Agnes A. after Agnes was Maried to F. and Cohabited with him Banting sued Agnes in the Court of Audience and proved the Contracts and sentence was there pronounced that she should Marry the said Banting and Cohabit with him which she did and they had Issue Charles Banting and the Father dyed It was argued by the Civilians that the Marriage betwixt Banting and Agnes was void and that Charles was a Bastard But it was Resolved by the Justices that Charles the Issue of Banting was Legitimate and no Bastard 289. The Case was Lessee for years assigned the Terme to the Wife of the Lessor and a stranger and afterward the Lessor bargained and sold for Mony by deed Inrolled the stranger dyed the the Wife claimed to have the residue of the Terme not expired Whether by the Bargain and sale the Terme of the Wife was extinct or not was the Question it was said it was not but Contrary if the Husband had made a Feoffment in Fee with Livery Quaere the Case was not Resolved Vide Plowdens Commentary Amy Townsends Case Treshams Case 290. Tenant in Capite made gift in tail to I. S. upon condition that if he aliened that it should be Lawfull for him to enter I. S. aliened Tenant in Tale entred for the Condition broken It was adjudged That a Fine for the Alienation of the Tenant in Tail was due to the Queen and that the Queen might charge the Lands in whose hands so ever they came for this Fine and the duty was not discharged by the entry of the Tenant in Tail for the Condition broken but the Tenant of the Land was Chargeable for the same 291. Debt against an Executor for 100 l. in C. B. Afterwards Debt was brought against the same Executor for 100 l. in B. R. in which he confessed the Action and pleaded the same to the first Action and that he had fully administred all but the said 100 l. The Court inclined to be of opinion that the plea was not good but that the Executor was chargeable to the first Judgment Quaere because not Resolved 292. A. for mony sold to B. all the Butter which should be made of his Cowes in a year and when he had made Butter he sold the same to C. C. paid his money and set his mark upon the Barrells and left them in the Custody of A. and afterwards A. delivered them to B. the first vendee C. brought a Replevin and B. claimed the property in the Butter by the first sale It was said that the property of it was in C. for the first Contract betwixt A. and B. was but a Covenant and agreement that A should sell the butter when it should be made for before that he could not sell it and before the making of it there was no property in it and so no contract and the second alienation was a change of the property and so B. hath no remedy for it but his Action upon the Case against A. Quaere not Resolved The Earl of Huntington and Lord Mountjoyes Case 293. The Lord Mountjoy bargained and sold Lands by deed enrolled Proviso that it is Covenanted granted and agreed that it shall be Lawfull for I. S. who was a stranger to dig in the Lands for Mynes It was adjudged in this Case that although the word Proviso absolutely taken be a Condition yet when it is coupled with other Words subsequent It shall be construed to be a Covenant and not a Condition Crocook and Whites Case 294. Debt upon an Obligation the condition was That if the Defendant Warrant and defend an Oxgange of Land to the Plaintiff against I. S. and all others that then c. It was Resolved the word defend shall be taken and shall not imply any other sense but a defense against Lawfull Titles and not against Trespasses and this Case was put by Anderson Chief Justice If one Covenants to make a Lease of all his Lands in D. and in D. he hath aswell Copyhold Land as Freehold Land he is not by the Covenant to make a Lease of the Copyhold Land for that he cannot Lawfully Lease without License and the for the Law shall construe the Covenant to be of Lands dimiseable and not of other Lands Roberts Case 295. The Bishop of Batb and Wells granted to King E. 6. by Deed enrolled all his Farmes and Hereditaments of W. in W. in the County of S. Habend to the King and his Heirs and in W. the Bishop had a Rectory which extended into the County of D. It was holden in this Case that the word Farme did not include the Rectory without a special averment that the same was in Lease before but the word Hereditament was sufficient to passe the Rectory 296. A Statute is Continued during the Will of the King It was Resolved that the Demise of the King had determined his Will 297. Note it was Resolved by the Justices that if Lands are devised to 2. men and to the Child with which the Wife of the Devisor is ensient It is a good Devise and the Child shall take by the Devise but if he shall be Joynt or Tenant in Common with the other Quaere Grises Case 298. A. gave Lands to his Son and his Wife for life the remainder to the Heirs of A. the Son dyed having Issue within age A. dyed Living the Wife It was adjudged that the Issue of the Son should not be in Ward for the Remainder notwithstanding the Statute of 32 H. 8. Wests Case 299. West went beyond Sea and wrote a Letter that his Land should go in such a manner It was adjudged to be a good Will and Devise Cooks Case 300. It was agreed by the Justices in this Case that if Lessee for years during his Terme set up Posts for out-doores and hangs doores upon them by Engines that he cannot take them away at the end of the Terme but otherwise they conceived if it be of Indoors within the house Mollineux Case 301. A. bound himself in an Obligation upon condition that if he did pay to the Obligee the sum of 20 l. within 40. dayes after his personal
extends to Fines ritè Levatis and that a Fine is not ritè Levatus when partes finis nihil habuerunt To all which it was Answered and Resolved That the Issue in tail is not excepted in those Statutes and therefore is bound by the very Letter of the Acts 2. Although the Issue in tail was not bound by any Fine by his Ancestors untill 4. H. 7. yet in such Case he was ousted to add Quod partes finis nihil habuerunt being privy as Heir to him who levyed the Fine first 3. That a Fine may be said ritè Levatus although partes finis nihil habuerunt and it may be ritè Levatus although it be a Fine meerly by Conclusion Elmer and Goales Case 383. In Ejectione firmae the Case was The Abbot of West was seised and let the Lands for 60. years to a Stranger the Abby was dissolved and King Henry 8. united it to the Bishoprick of London The Bishop 12. Eliz made a Lease for three Lives the Lease for 60. being in being for 16. years which Lease was confirmed by the Dean and Chapter the Lease for 60. years expired the Lessees for three Lives entred and were seised untill the Bishop entred upon them and made the Lease upon which the Action was brought The point was if the Lease for three Lives were good It was Resolved it was good and stood good because the Statute of â— Eliz. which made Bishops Leases was not pleaded and the Statute being a private Act of Parliament the Judges were not to take nâ—tice of it if it were not pleaded Butler and Babers Case 384. The Case was A. seised of the Mannor of Toby in Fee and A. and his wife seised of the Mannor of Hinton to them and the Heirs of their bodies the Reversion to A. in Fee Toby amounting to the value of two parts and Hinton to the third part both holden in capite A. by his Will devised the Mannor of Toby to his Wife for life upon consideration that she should not take her former Joynture in Hinton with divers remainders over the Wife in pais disclaimed and waved her Estate in Hinton and agreed to the Mannor of Toby and entred upon it and if the Devise was good for the whole Mannor of Toby or for two parts only was the Question It was Resolved in this Case by the greater part of the Justices upon argument in the Exchequer Chamber that the waving of the Joynture by the Wife made an immediate discent by Relation to the Heir and that the Devisor was not such a person having Lands as could dispose of it according to the Statute and in this Case it was agreed by the Justices That if one deviseth Land in which he hath nothing and afterwards he purchaseth the lands that the same is not a good Devise within the Statute of Wills because he is not a person having c. Priscot and Chamberlains Case 385. In a Replevin the Case was Tenant for Life the Remainder in Tail jâ—yned in a Lease for years afterwards he in the Remainder in the life of Tenant for life suffered a Common Recovery the Recoverers sued execution upon the Lessee for years and afterwards enfeoffed Lincoln Colledge in Oxon to whom the Son and Heir of the Tenant in Tail in the life of his Father released with Warranty the Lessee for years reentred the Tenant for Life and he in the Remainder in Tail both died the Son of the Tenant in Tail had issue who by his Bayliff distreined the Chattel of the Lessse for years as damage Feasants upon the Land and he brought a Replevin The point was if by the common Recovery oâ— the Release of the Issue in tail with Warranty the tail was barred It was agreed by all the Justices that the Issue in tail was not barâ—d by the Recovery nor by the Warranty but whether he should avoid this Recovery in this Action being a possessarie Action or put to a rent Suit was the doubt whâ—ch was not resolved The Case was adjourned Hennage and Curtes Case 386. Trespass for breaking his Close in Hainton The Defendant justified that there was a Foot way leading through the said Close from Haâ—mon to the Foot-way of Horn-Castle for all persons travelling from Hainton to Horn-Castle they were at Issue upon the Prescription and because the Venire was de Hainton only whereas it ought to have bin from Hainton and Horn-Castle It was said that the Tryal was erroneous and the Judgment was reversed Bonnet Halsey and others 387. The Plaintiff was taken in Execution at the Defendants Suit by the Sheriff of B. and by an Habeas Corpus he was brought to Smithfield by the Goaler of B. and there at Eight of the Clock of night the Prisoner went into Southwark and there continued all night and the next morning he returned to Smithfield to his Keeper and there continued with him till the return of the Writ at which day he brought him to the Lord Chief Justices Chamber at Serjeants-Inn and he returned his Writ and the Chief Justice committed him to the Marshalsey It was judged it was no Escape in the Sheriff and adjudged upon an Audita Querela brought by the Plaintiff for the Defendants Wray Street and Coopers Case 388. The Prior of M. was seised of three Messuages in the Borough of Southwark and held them of the Bishop of Canterbury as of his Borough of Southwark The Priory came to King Henry 8. by surrender Afterwards the Bishop gave the Burgage to the King which Gift was confirmed by the Dean and Chapter The King anno 36. gave the said three Messuages and others to C. and D. Tenendum libero Burgagio by Fealty only and not in Capite and C. and D. gave the Messuages to W. and his Wife W. died his Wife survived King Edward 6. gave Totam Burgagiam de Southwark to the Mayor and Burgesses of London In the time of Queen Mary the Wife W. dyed by which the Messuages escheated Queen Mary gave them to one who gave them to A. who gave them to the Defendants The Mayor and Burgesses of London entred The Question was if the Tenure should be in Capite or in Burgage and if they passed to the Mayor and Burgesses by the Grant of Edw. 6. of Totam Burgagiam de Southwark It was adjudged against the Mayor and Burgesses of London because there could not be several Tenure foâ— these parcels Tenendum ut de Burgo and another Tenure for the Residue of the Lands in other places which could not be holden de Burgo and also because the Patent having two intents the besâ— shall be taken for the King Pasch 30. Eliz. The Queen and Bishop of Lincolns Case 389. Quare Imp. The Case was The Bish of Lincoln Patron and Ordinary collated to a Benefice in 8. Eliz. The Incumbent took another Benefice without Qualification by which the first was void The Successor Bishop 18. Eliz. presented one E. but non constat if
a good sale by the intent of the Will 3. Resolved that the devise that his Excecutors might sell was a good sale within the Statute of Wills though the words of the Statute are That a man having Lands holden in socage might devise two parts of it and that by the Equity of the Statute Yelverton and Yelvertons Case 442. A man seised of Lands Covenanted to stand seised thereof to the use of his eldest Son and also of all the other Land which he after should purchase he Covenanted that he and his Heirs would stand seised to the use of his eldest Son Afterwards he purchased Lands to him and his Heirs by bargain and sale Adjudged that the purchase could not be intended to other use then to him and his Heirs Sir Hugh Cholmeleys Case 443. The Case is very long but is this in effect viz. Tenant in Tail the remainder in Tail he in the Remainder bargained and sold his Remainder to A. for the life of the Tenant in Tail and after his death the remainder to the Queen in Fee Tenant in Tail in possession suffered a Common Recovery The Queen granted her remainder to Tenant in Tail and his Heirs Afterwards he in the remainder bargained and sold his remainder to B. the remainder to the Queen upon Condition another Recovery was had Tenant in Tail dyed without Issue It was Resolved in this Case that he in the Remainder and all Claiming under him were barred by the Recovery 2. That the Common Recovery did bar the Tenant in Tail and the estate of A. in the remainder although the Remainder was in the Queen 3. That the grant of the Queen to the Tenant in Tail and his Heirs was a good grant Corbett and Marshes Case 444. Error brought upon a Recovery in Dower because the Tenant was not summoned by 15. dayes nor Proclamation made thereof at the Church door Because the party had remedy against the Sheriff the Court would not allow of the Error Crispe and Fryers Case 445. Copyholder in Fee rendring Rent at Mich. and our Lady-day The Lord at the last instant of the day of payment demands the Rent upon the Land and the Copyholder is not there to pay it Qu. If it be a forfeiture the better opinion of the Justices was that it was a forfeiture Paramour and Verwolds Case 446. False Imprisonment the Defendant justified by a Recovery in Debt in Warda de F. London and a Writ of Execution in Sandwich in Kent absque hoc that he was culpable in London The Plaintiff said that he was culpable at London absque hoc that there is tale Recordum in Sandwich Adjudge the Yraverse upon the Traverse was good because the place is material Pannell and Fens Case 447. A man seised of Lands and possessed of a Term devised all his Lands and Tenements to his Executors untill they had paid all his Debts and Legacies and levied all charges which they should expend against I. S. or others in Execution of his Will and made two Executors and died the Executors entred generally into the Land and Term and one of them sold the Term to one man and the other sold it to another It was adjudged they took the Term as Executors and not as Devisees and yet they took the Freehold as Devisees and they said that the words of the Will as to the Term was no more then the Law gave and that they should have it as Executors Blackwell and Eyres case 448. Issue was joyned betwixt the Lessee of the Plaintiff and the Defendant in an Ejectione firme which was to be tryed at the Assizes The Defendant in consideration the Plaintiff and his Lessee should forbear to enforce their Title and give slender evidence against the Defendants promised to pay a certain Sum of money to the Plaintiff Vpon Non assumpsit it was found there were two Issues joyned in the Suit and the Defendants had not joyned but one of them had pleaded the general Issue and the other a special Plea It was adjudged for the Plaintiffs because the common Speech is the Parties have joyned issue Walker and Harris Case 449. It was adjudged in this Case That although Lessee for years assignes over his Term yet Debt lyeth against himself for the Rent by the Lessor or his year Moss and Packs Case 450. A Recoverie was had against the Executor of I. D. of debt and damages And Fire fac issued de bonis testatoris si si non damna de bonis propriis the Executor dyed the Sheriff did execution of the Goods of the Testator before the Return of the Writ and adjudged good Portman and Willis Case 451. It was adjudged in the Case that by a Devise of omnia bona a Lease for years did pass if there be not other circumstances to guide the intent of the Devilor 2. Resolved That if a Copyholder for life or years surrender to an use that the surrender is good and the use void as a surrender rendring Rent with Warranty shall be a good Surrender and the Rent and Warranty void Beswick and Combdens Case 452. Action upon the Case for not keeping a Bank by reason of which the River drowned his Land It appeared upon the evidence that it was levyed and kept before by one who enfeoffed the Defendant Yet it was adjudged that the Action did lye against the Feoffee for the continuance of it Fuller and Fullers Case 453. The Case was A man had four Sons and devised his Land to his youngest Son named R. and the Heirs Males of his Body with the Remainder successively to the other three and the Heirs Males of their Bodies the first Devise dyed in the life of his Father having Issue Male After which the Father said I will that my Will stand good to the Children of R. as if he had over lived me but the words were not put in writing The point was If the Children did take by the devise or by discent Quaere The Court was divided in opinion The Dean and Canons of St. Pauls and others Case 454. King Edward the Fourth by his Letters Patent granted to the Dean and Canons and their Successors that they should be discharged of Purveyance the Charter was confirmed by King Henry the Seventh and also by King Henry the Eight The Statute of 27. H. 8. was made That Purveyors assigned by the Kings Commission for provision for him his Queen and Children might provide all Victual Corn c. as well within Liberties as without any Grants or Allowances to the contrary Queen Mary granted that no Purveyance should be taken of the Dean and Canons and their Successors against their Wills notwithstanding the Statute of 27. H. 8. and Queen Elizabeth reciting all the Patents granted to the Dean and Canons doth confirm them It was Resolved That the Charter granted to them was good Wherefore that they should be discharged from all Composition for Provisions for the Queen Preston and Hinds Case 455. Error
Large At last it was Resolved That that Ordinance although it had the Warrant of a Charter was against the Common Law because it was against the Liberty of the subject for every subject by the Law hath Freedom and Liberty to put his Cloth to be dressed by what Clotheworker he pleases and cannot be restrained to any persons for that in effect would be a Monopoly Creswell and Holms Case 756. Debt upon Obligation the Condition was If the Obligee his Heirs and assignes shall and may Lawfully hold and enjoy a Messuage c. without the let c. of the Obligor or his Heirs or of every other person discharged or upon reasonable request saved harmlesse by the said Obligor from all former guifts c. the Defendant said no request was made to save him harmlesse It was adjudged for the Plaintiff because the Defendant hath not answered to all the Condition viz. to the enjoying of the Land and there were 2. Conditions viz. the enjoying and the saving harmlesse Chowley and Humbles Case 757. A Covenanted to make a Feoffment within a year to the use of himself for life the Remainder to H. his younger Son and the Heirs males of his body which remain over and if he did not make the Feoffment he Covenanted for those uses for the Continuance of the Land in his name and Blood Proviso if H. or any Heir male make a Feoffment or Levy a Fine his estate to cease as if he were dead and then the Feoffees to stand seised to the use of such person to whom the Land should Remain No Feoffment was made within the year A. dyed H. the Son levyed a Fine to the Defendant Resolved 1. That the Proviso to cease the estate was repugnant upon his estate for life 2. That his estate could not cease when he had levyed a Fine because then he had no estate 3. That the Feoffees and their Heirs could not stand seised to the use of the person next in discent or Remainder because no Feoffment was ever made Nevil and Sydenhams Case 758. In valore Moritagii The opinion of the Justices seemed to be That a tender was not material but that the value of the mariage was due withot a Tender Atkins Case 759. The Father devised his Land to his Son and the Heirs of his body and further I will that after the decease of my Son John the Land shall remain to G. Son of John Adjudged John had Tail and his Wife should be endowed Carter and Cleypales Case 760. All-Soules Colledge made avoid Lease by the Statute of 13 Eliz. because no Rent was reserved It was a Lease only to try title and Judgment Error was brought and assigned after that the Lease was void The Judgment was affirmed because the party did not plead the Statute for otherwise the Judges are not to take Notice of it Clarke and Dayes Case 761. A man devised Lands to his daughter for life And if she marry after my death and have issue of her body then I will that her Heir after my Daughters death shall have the Land and to the Heirs of their bodies begotten the Remainder in Fee to a Stranger It was adjudged she had not tail but only for Life and the Inheritance in his Heir by purchase and therefore in this case it was Resolved the Husband of the wife could not be Tenant by the Curtesie Deacon and Marshes Case 762. A seised in Fee of a house and possessed of Goods Devised in these words The rest of my Goods Lands and Moveables after my Debts paid c. To my three children B. C. and D. equally to be divided amongst them Adjudged they had but an Estate for Life in the House and that they were Tenants in Common of it and not Joynt-Tenants Smith and Mills Case 763. Adjudged that a Sale made of his goods by a Bankrupt after a Commission of Bankrupt is awarded is utterly void Gibons and Marltiwards Case 764. A. devised certain Land to B. and C. his wife who was the daughter of A. upon condition that they within 10. years should give so much of the Land as was of the value of 100 l. per an to F. F. and that he should find a Preacher in such a place and if they failed their Estate to cease and that then his Executors should have the Land to them and their Heirs upon trust and confidence that they should stand seised to the same uses B. within the 10. years made a writing of Gift Grant and Confirmation but no Livery nor Enrolment of it till after the 10. years The Executors refused to take upon them the Execution of the Will yet it was adjudged they should take the Land by the Devise and that the words upon Trust and Confidence made not a condition to their Estates Arrundells Case 765. In Indictment of Murder the Murder was alledged to be apud Civitatem Westm in Com. Middl. in Parochia St. Margaret and for Tryal a Jury was retorned de Vicineto Civitate Westm Resolved the Tryal not good for the Visne ought to have bin of the Parish and not of the city for a Parish is to be intended more certain then a city and when a Parish is alledged to be in a city the Visne shall come out of the Parish Alderion and Mans Case 766. Assumpsit In consideration the Plaintiff would give his good Will and furtherance to the Marriage the Defendant promised after the Marriage had to give him 20 l. he alledged he had given his good Will and that he did further it but did not show particularly how yet the Court held it to be a good consideration and adjudged the Action did lie Savage and Brookes Case 767. Upon an Indictment of Murder It was Resolved by the Justices that the Queen could not challenge Peremptorilie without shewing cause of her challenge 768. Note It was Resolved by the Justices That if a man buy Corn and converts it to meal and afterwards sells it it is not an ingrossing within the Statute of 5. E. 6. Staffords Case 769. Debt upon Obligation the Condition to make such further assurance as the Council of the Obligee shall Devise The Obligor comes to the Obligee and shews his Council had advised him to make to the Obligee a Lease for years which he required him to do and he refused It was adjudged the Obligation was forfeited otherwife if it were to make such assurance as the Council should devise for then the Council ought to draw and engross it ready to be sealed Plaine and Binds Case 770. Assumpsit 11. Septemb. to deliver certain goods to him if no claime be made to them before 14. September and alledged no claime was made post 11. diem usque 14. Septemb. It was said in stay of Judgment that the Declaration ought to have been that no claim was made after the Assumpsit until the 14. day and not post 11. diem The Court adjudged the Declaration good because the
took him upon the Capias Utlegatum and returned Cepi and after suffered him to Escape It was adjudged an action of Escape lay against the Sheriff by the party and that the Jury are to give him the value of his debt and the damages Web and Hargraves Case 835 Debt upon Obligation the condition was where W. was Patron of a Benefice with Cure then void if he presented the Defendant and if the Defendant continued Incumbent for a year and after the year all time within three moneths after Notice and request was ready to resigne and did resigne the Benefice to the Ordinary to be presented thereunto again by W. and should not before Resign that then c. the Defendant pleaded the Statute of 13 and 14 Eliz. that Obligation and Covenants for enjoyage of Lease were void and pleaded that after he was Inducted he made a Lease to the Plaintiff W. of the benefices for 21. years and avered the Obligation was made for the enjoying of the Land by the Lease upon which the Plaintiff demurred It was the opinion of the Court that the plea was good but that the averment was not sufficient It was adjudged against him Williams and Greens Case 136. Debt upon a single Bill the Defendant pleaded he delivered it to the Plaintiff as an Escrowle upon Condition that if he delivered him a horse at such a day it should be his deed otherwise not It was the opinion of the Court that the Plea was not good because a Deed cannot be delivered to the party himself as an Escroale Hungate Mease and Smiths Case 837. Debt upon an Obligation to perform an accord of all Controversies betwixt the parties from the beginning of the World to the 30. of August 4 Eliz. so as the Award be pronounced and delivered utrique parti ante 14. diem Augusti and shewed that he awarded that all Suits should cease and they should be friends and that the Defendant should pay to the Plaintiff 7 l. and that the Award was pronounced to the parties before 14. Augusti upon nihil debet all the said matter was found only that the pronouncing of the Award was to Mease and not to Smith It was adjudged against the Plaintiff because he ought to have pronounced the Award to each of the parties Defendants and also it was void it was but an Award of one part also void that all Suits should cease which could not be without Non-suit Retraxit or discontinuance of the parties Dogett and Vowells Case 838. Assumpsit In consideration the Plaintiff had lent to the Defendant 20 l. the Defendant promised to lend the Plaintiff 10 l. quando requisitus c. It was adjudged no good consideration because consideration of a thing past is not sufficient to ground Assumpsit Parhan and Nortons Case 839. Replevin The Defendant avowed for a Relief by the death of I. S. late Tenant The Plaintiff said the Land discended from I. S. to his two Daughters who enfeoffed the Plaintiff and that the Lord accepted the Rent of him Adjudged that the acceptance of the Rent from a new Tenant was no bar of the Reliefe due by the former Tenant Lord Berkley and Countess of Warwicks Case 840. Before the Statute of West 2. Lands are given to Husband and Wife in Frankmarriage the Remainder to the Heirs of the Husband if it be tail Quaere not adjudged vide 25. Eliz. Webb and Potters Case Guy and Brownes Case 841. A Farmor of the King of a capital Messuage made a Conduit to convey the water to his House over the Land of a Copy-holder of the Mannor afterwards the Mannor is granted to one and the Copyhold to another Resolved the Farmer may amend the Pipes in the Land of the Copyholder without Trespass Worleys Case 842. A. lent B. a 100 l. for a year and took an Obligation of him for 10 l. Interest Interest being then 10 l. per cent payable 5 l. at the half year and 5. l. at the end of the year Adjudged it was not Usury within the Statute Hainsworth and Prettyes Case 843. A seised in Fee having four Sons and a Daughter by Will devised 20 l. to each of his younger Sons and his Daughter to be paid by his eldest Son at their ages of 21. years and if the eldest Son do not pay he devised the Land which he had before devised to his eldest Son and his Heirs to the younger and the Daughter and their Heirs It was Resolved 1. That the eldest Son took by discent and not by the Devise 2. The breach of payment to one of them should give the estate to them all and the eldest Son should lose the Land for not payment of the Fourth and they should have the Lands as joynt-Joynt-Tenants 3. That the entrie of one of them in the name of the rest was good because they are Joynt-Tenants More and Morecombs Case 844. The condition of an Obligation was to deliver all the tackle of a ship mentioned in an Inventory under the hands of four men or in default thereof to pay so much mony to the Plaintiff before such a Feast as the four men shall value the tackle at the Defendant said they did not value the tackle Adjudged no Plea because the Defendant had Election to do two things and if he cannot do the one for any default of a Stranger or other he is to do the other and in this case he at his peril is to procure the men to value the tackle Walter and Pigotts Case 845. Debt upon an Obligation de Septingentis Libris The condition was Septuagintis Libris Adjudged he was to pay 400 l. not 70 l. and the Bond good Bibell and Dringhowses Case 846. A. conveyed Lands to the use of himself in tail with divers Remainders in tail with a Proviso it should be lawful for him to make Leases for Life or years afterwards he made a Lease for the Life of D. the Defendant After the death of A. the Plaintiff in the â—ight of his Wife in Remainder entred The points were 1. If the Demise generally made unto was Tenant in tail in Interest and who had Authority by the Proviso to make Leases shall be constâ—ued to be made by his Interest or his Authority without declaring his Election the Court doubted of this point 2. Because the Deed did comprise as well Fee simple Land and Lands in tail if it shall enure by way of Interest for the Fee simple Land only and by Authority for the Land in tail Quaere also But they Resolved the Proviso to make Leases was good 847. Note Upon the Statutes of 13 Eliz. Cap. 4. and 39 Eliz. Cap. 7. upon Sale made by the Queen upon Accomptants and Debtors Lands That if any Officer be Tenant in tail the Remainder over and afterwards the Officer dieth without Issue before any sale made by the Queen and he in the Remainder enters and is in by force of his Remainder which was created before the
Tenant in tail became Officer yet that Land shall be sold by the Queen 2. When an Officer is endebted to the King and his Land subject to be sold by the Act 13. Eliz. and he to prevent the sale of the Queen and to evade out of the Act makes a conveyance of his Lands to his Issues or others of his Blood in consideration of natural affection that such conveyance shall not be good not said to be Bona fide within the Proviso of the Act of 39 Eliz. but that the Queen may sell the Land for so much of her debt as was due before the conveyance 3. If the Officer or Debtor of the Queen after 39 Eliz. be Tenant in tail or hath power of Revocation there the Queen may sell the Land by the Statute of 39 Eliz. and if any such Officer or Debtor before 39. Eliz. and and after 13. Eliz. had made any conveyance to his Issues or Blood without valuable consideration especially if it be with power of Revocation that Land may be sold by the Queen by the Statute of 39. Eliz. Adams and Lamberts Case 848. A man devised Lands to his Brother for Life the Remainder for Life the Remainder in tail upon condition to find a Chaplain for ever to pray for Souls and for the Souls of all Christian people to celebrate Mass Annusaries and other Superstitious uses and if they failed to perform the Uses then he devised the Remainder for eight years to an Hospital and because he doubted the profits of those Lands would not suffice he devised other Lands to supply them upon condition that if they aliened or let the Land to the prejudice of those in the Remainder they should presently enter and to be seised to the said uses It was resolved 1. That the Devise of Land to find a Priest c. was a Superstitious use 2. That although one of the uses was uncertain and no certain Sum limitted to it 3. That although the Devise was for the Sustentation and Maintanance of poor men yet the Limitation to them to pray for Souls was a Superstitious use because they depended upon the Superstitious uses and therefore it was Resolved in this case that all the Lands were given to the King by by the Statute of 1. Eliz. of Chaunteries Salway and Wales Case 849. It was holden by the Justices That if a man makes a Deed of Feoffinent in December and after and before Livery executed the Feoffor sells the Land by good assurance to another and after that the Feoffee takes Livery and Seifin of the Feoffor it is Forgery in the Feffor and the Feoffee So if the Feoffee causeth Livery to be endowed generally upon the Deed without a special day of making the Livery the Indorsement is Forgery Mouse and Weavers Case 850. The case was A. after a Recovery in an Assize in the Court of the Mannor of Isleworth and before Seisin delivered by the Bayliff of the Mannor bought the Copyhold by Surrender It was adjudged maintenance within the Statute of 32. H. 8. But it was holden by the Justices that if one recover Land and be in possession by Writ of Seisin he may sell the same although he nor his Ancestor or other by whom he claims was in possession by the space of a year next before And in this case it was holden by the Justices that a Clerk or Attorney in one Court cannot sollicite a Cause in another Court although it be for the same matter which was in his own Court Pollard and Moretons Case 851. It was Resolved in this case that a Justice of Peace coming to remove a Force may take posse comitatus with him 2. Resolved if one entreth into an house where no man is in the house with armed men or company unusual the same is a forceable entry Whetstone and Mintons Case 852. A. a Citizen of London seised divers Messuages in the Parish of St. Mary Sommerset in Queen-hith London 25 H. 6. devised the same to his two Daughters in tail and for want of such Issue to the Parson and Churchwardens of St. Michael and their Successors they yearly holding and making an Anniversary in the Church for the Soul of him and his Wife paying 6 s. 8 d. yearly amongst the Chaplains and others there and if the Parson and Churchwardens were remisse in holding Anniversary then the Parson and Curchwardens and Successors for that time should pay 20 s. of the Uses of those Lands Nomine poenae to the use of the Chamber of London The Devisor died the Land being of the yearly value of 10 l. 3 s. 4 d. The Daughter 's died without Issue the Parson and Churchwardens entred and took the profits and held the Anniversary and paid yearly the 6 s. 8 d. amongst the Chaplains c. et non ultra The Statute of 1. Ed. 6. of Chaunteries was found The sole Question in this case whether the Land or Annual Rent were given to the Crown by the Statute of 1 Ed. 6. of Chaunteries It was Resolved by the Justices in this Case that only the Annual Rent of 6 s. 4 d. was given to the Crown by the Statute and not the Lands for they said it had bin often adjudged that where a stipend was appointed to an Anniversary Obit Legacy c. there although the Land was given in the Premises the Crown should have but the stipend and in this case the intent of the Devisor was clear that the Parson and Churchwardens should have all the profits over and above the 6 s. 4 d. yearly to their own use Grills and Rigewayes Case 853. The case was A man was in Execution for debt and brake Prison and escaped The Sheriff made fresh Suit and retook him It was adjudged in this case no escape and it was holden that if the Prisoner who escapes be out of his sight yet if the Sheriff or Goaler take him upon Fresh Suit in recenti persecutione he shall be in Execution again 854. Note it was Resolved by the Justices that the breaking of a Dwelling-house in the night to the intent to rob or kill any one is Burglarie although that no person be in the house and if a man have two houses of Habitation which he dwells in by turnes if a Thief in the night breakes the house in which the person is absent it is Burglarie Austin and Twynes Case 155. It was Resolved in this case if two Churches one of the value of 10 l. and the other of 8 l. be within one mile of another the Ordinary may consolidate them and if the Patron and King confirm it the consolidation is good by the common Law and by the Statute pf 37 H. 8. 856. The King made the city of Gloucester a County with a clause of exemption from the County of Gloucester and of the power of the Officers of the County saving to the King and his Heirs Liberty for their Justices of Assize Goal-delivery and keeping Sessions there
a Libell or false Rumor although he produceth his Author yet he is fineable Damuâ—'s Case 1038. The Case was I. S. was indebted to M. 1800 l. upon a Statute who dyed Intestare A. his Wife took Administration of his goods and married B. and during her Coverture made her Will by which she appoinâ—ed to her Kindred 400 l. in Charitable uses Proviso if any crosse in Law or losse of the said Debt of 1000. should arise it should fall upon the last 900 l. mentioned befor the Proviso of which 900 l. the 408 l. the Charitable use was the last A. dyed Administration de bonis non c. of M. was committed to D. which had of the Debts 2000. besides the 1800 l. upon a Commission upon the Statute of 43 Eliz. of Charitable uses against D. it was Decreed for the Charitable uses to which Exceptions was taken 1. That A. had not power to make a Will of this Debt 2. That the 2000 l. were desperate debts 3. That there was a crosse in this Debt there being a Suit by the next of Kin to revoke the Administration committed to D. Vpon the exceptions it was Decreed in Chancery with the Assistance of the Judges 1. That though the Will of A. was void in Law yet it would serve by the Statute if there was assers of that estate or of the estate of A. her self to support the Charitable use For the goods in the hands of Administrators are all to Charitable uses and it is the Office of the Administrator so to imploy them and the Children or Kinred have no property in them but under the Title of Charity 2. Because it appeared that at the time of the making of the Decree that the estate would bear both the Legacies and the Charitable use also with an Overplus and if any of the debts of the 2000 l. became desperate it was by the negligence of the Administrators and should not retard the Charitable use The King and Howards Case 1049. In this Case these points were Resolved by the Justices 1. A man makes a Feoffment of Lands in 5. Counties with a Condition of Re-assurance a Re-assurance is made of Lands in 5. Counties It is a breach of the Condition but only for the Lands in one County and a good performance for the other 2. Tenant in Tail Remainder in Tail Remainder in Fee he who hath the Remainder in Fee grants it to the first Tenant in Tail this acceptance of the Deed is an Attornement which shall bind those in the Remainder â— If an Act of Parliament be certified into the Chancery no averment shall be against it that it was not an act of Parliament because the Commons did not assent to it but with a Proviso which is lost but if it appeaâ—eth in the body of the Act that the Commons did not assent the Act is void The Case of the Commissioners of Sewers 1050. Upon complaints against diveâ—s ill disposed persons of Suits and vexations by them against the Commissiâ—ners of Sewers and their Officers for the counties of Northamoâ—â—â— Huntingdoâ— Cambridge and Lincoln It was holden by the Lords of the Council the Commissioners of Sewers may make new works as well to stop the fury of the waters as to repaire the old when necessity requires it 2. That for the safety of the Country they may lay a Tax or Rate upon any Hundreds Towns or Inhabitaâ—ts thereof in general who are interessed in the Benefit or Loss without attending a particular Survey or Admeasurement of Acres when the Service is to have a speedy and suddain execution 3. That they have sufficient power to imprison Refractory and Disobâ—dient persons to their Orders Warrants and Decrees and that Actions of Trespass False Imprisonment c. brought against the Commissioners or their Officers for extremity of their Order or Warranty are not maintainable nor will lie Goodson and Dâ—ffâ—â—dâ— Case 1051. Error of a Judgment in a Court of Pipowders in Rochestâ—r The case was A. dwelling in the Town was bound to pay B. 150 l. the first day of May at the House of B. in Rochâ—ster the Bond was sued there 24. September in the Court of Pipowders the Defendant pleaded payment at the House Issue upon it It was found for the Plaintiff Error brought and assigned that the Prescription was alledged to hold a Court of Pipowders before the Mayâ—r and two Citizens and by the Plea it appeareth it was holden before the Deputy of the Mayor and two Citizens The Court held the same to be Error 2. Error The Issue was misjoyned for the payment is alledged at the House of the Plaintiff in Rochester and it ought to have been pleaded apud Rochester in domo mansionali of the Plaintiff This the Court conceived to be Error and the Judgment was reversed Billingsby and Hercys Case 1052. A Demise was made of Lands in D. for years by the word Demise and to Farm let the Mannor and also all Timber Trees growing upon the same with an exception of six Oaks during the Term the Term was assigned to a Feme Sole who took Husband the Plaintiff and they assigned all their Interest to the Defendant reserving the Wood and Trees the Husband died his Executors cut down the Trees the Wife brought Trespass It was adjudged the Action did not lie because no propriety in the Trees passed by the words Demise Grant and to Farm Let though there was Liberty to Fell and Sell. Price and Almeries Case 1053. A possessed of a Term for Forty years devised the same to his Wife if she should live so long the remainder to I. his Son and the Heirs of his Body and made his Wife his Executor who entred and claimed the Term as a Legacy the Son died in the Life of the Wife the Wife died the Executor of the Son entred Adjudged his Entry was not lawful because the Son had not any Interest but a possibility Edwards and Dentons Case 1054. A man seised in Fee of the Mannor of D. and of an house called W. in D. and also of a Lease for years in D. by Deed did grant bargaine and sell the Mannor of D. and all his Lands and Tenements in â— to I. S. and his Heirs It was adjudged that the Term for years did not pass for the intent appears that nothing shall pass but that which the Heir might take for that the Habendum was to him and his Heirs Sir William Waller and Hangers Case 1055. The case was King Ed. 3. reciting that he had of every 10. Tun of Wine imported a tun and of every 20. Tun two Tuns one before the Mast and another behind the Mast granted to the citizens ef London that Nulla prisagia sint soluta de vinibus civium liberorum hominum London The Husband of the Defendant a Freeman and citizen of London having Wines in the Port and others upon the Sea died and made his wife his Executrix An Information was against her
for not paying of Prisage she pleaded she was Libera foemina de London and pleaded the Charteâ— of 1 E. 3. vide the Charter at large put in this case in Buâ—strodes Reports It was after many loâ—g Arguments adjudged in this case that the husband of the Defendant was a compleat citizen in every respect and that those Wines remaining in the hands of his wife were bona civium and so within the discharge to be freed from the payment of Prisage Wheeler and Heydon Case 1056. Debt upon the Statute of 2 E. 6. for not setting forth of Tythes and declared that I. S. was Parson of S. and let him the Rectory for six years if he so long lived and continued Parson there It was found that the Parson made the Lease for six years and the words if he continued Parson there were omitted in the Lease It was the opinion of the Justices that this variance betwixt the Lease and the Declaration and the Lease found is all one in substance and the addition in the Declaration is no more then what the Law tacite implies Heydon Shepherd and others Case 1057. Error in Parliament the case was In Assize brought against the Defendant Judgment was given for the Plaintiff he brought Error in the Kings Bench and there the Judgment was affirmed and upon that Judgment he brought Error in Parliament It was Resolved that a Writ of Error did not lie in Parliament to reverse a Judgment given in the Kings Bench in Error brought there for that there is a double Judgement and the reversal of a Judgment in a Writ of Error given shall not reverse the first Judgment but that execution shall issue upon the first Judgment in the Assize The Case of the Sheriffs of Bristol 1058. The Commissioners upon the Statute of Bankrupts committed a Bankrupt to their custody for refusing to be examined upon Interrogatories and they let him escape whereupon Action upon the case was brought against them It was objected the Action did not lie because he was not committed till satisfaction of the Debt But Resolved the Action did well lie the commitment being only for refusing to be examined upon Interrogatories although it doth not appear what the Interrogatories were so as the Court might judge whether they were lawful or not for they shall be intended lawfull till the contrary be shewed Hill and Hawkes Case 1059. Trover and Conversion of four Bushels of Wheat The Defendant justified that the Bayliffs of L. time out of mind had used to choose one to be Bell-man for keeping the Market-place clean and the Bell-man and his Predecessors had used time out of mind c. to take out of every Sack of Corn which contained more then a Bushel a Quart for the Toll of the corn brought in Sacks to the Market to be sold and that he was chosen Bell-man by the Bayliffs and that the Plaintiff brought a Sack of corn containing four Bushels to be sold and he took a Quart for Toll It was adjudged a good custom although the corn was not sold but only brought there to be sold but without a special custome Toll shall not be paid of Corn brought to sell if it be not sold 1060. Debt upon an Obligation The Defendant pleaded non est factum it was so that the Bond was sealed and delivered by the Defendant but that afterwards viz. Vicecomiti Comitatus Oxon without the privity of the Plaintiff were interlined in a place not material wherefore adjudged it was a good Bond but if it had bin in a place material or with the privity of the Plaintiff the Obligor the Bond had bin void Poole and Godfreys Case 1061. Action upon the case against the Defendant a Sommoner in the Spiritual Court and having a Citation against the Plaintiff he retorned that he had summoned the Plaintiff whereas in truth he never summoned him for which the Plaintiff was excommunicated to his great damage It was adjudged that the Action did lie Mansfields Case 1062. Information against him because he being a Recusant convict went five miles from the place of his confinement he pleaded a License of four Justices of the Peace but because he did not show that he did take the Oath of Allegiance before the License nor that the License was granted by the privity of the Bishop or the Lieutenant the Plea was disallowed Jesson and Bruns Case 1063. Debt in Yarmouth there the Bail was taken The Cause was removed in B. R. and there new Bail found and the same Term a Procedendo was awarded Adjudged the first Bail should stand and was not discharged by removing of the Record but otherwise if the Procedendo had been awarded in another Term. Wrights Case 1064. It was Resolved in this Case That if any English Court holds Plea of a thing whereof Judgment is given at the common Law a Prohibition lies upon the Statute of 27 E. 3. cap. 1 and 4 H. 4. cap. 23. And therefore whereas the Plaintiff brought Trespass in B. R. and Judgment was against him and after he exhibited a Bill in the Court of Dutchy for the same matter a Prohibition was awarded Worrali and Harpers Case 1065. A seised in Fee of the Mannors of G and N. both holden in capite covenanted to stand seised of G. to the use of himself and his wife and the Heirs Males of their two bodies the Remainder over in tail and of N. to the use of himself and his wife for their Lives the remainder to the Heirs of his own body Afterwards he purchased Soccage Lands and devised that they should be sold by his Executors who sold them to the Plaintiff It was Resolved that the Devise was good for two parts of the Soccage Lands only and not void for the whole Soccage Lands for they held that the Reversion expectant upon the Estate tail of the Land holden in capite was a good Impediment to devise more then two parts of the Soccage Lands Glanviles Case 1066. The case was A Jewel of Gold with a Diamond was sold by Glanvile to Courtney It was affirmed by Glanvil to be a good Diamond whereas it was but a Topaz so as Courtney was deceived for the Jewel was sold to him for 300 l whereas in truth it was not worth 30 l. Glanvil got a Judgment in the Kings Bench against Courtney for 800 l. upon non suum informatus by assent of the parties Upon a Bill preferred in Chancery and upon examination of the cause it was decreed that Glanvil should take back the Jewel and should have a 100 l. and should acknowledge satisfaction of the Judgment which he refused to do and for breach of this Decree he was committed and upon an Habtas corpus brought in B. R. he was discharged and it was said a Suit in Chancery after a Judgment at the common Law and to be reversed was not good by the Statute of 27 Ed. 3. and the Statute of 4 H. 4. and divers
Attornment and not as a Surrender but if the Lessee be not upon the Land then it is not a Feoffment and when the Lessee enters again he shall have his Term and the Feoffee the Reversion and if the Lessee be upon the Land and denyes the Lessor to make Livery notwithstanding that Livery be made nothing passeth by the Feoffment nor is a grant of the Reversion 42. Lessee for life of a Mannor seizeth an Estray and dyeth before the year and the day passed Resolved the Executors of the Lessee shall have it and not he in the Reversion for although the Lessee had not an absolute propriety in it during his life yet when the year is past the property shall have relation to the time of the Seizure 1 2 Ma. Stapleton and Trewlocks Case 43. Debt by Executors of I. S. against A. Trewlock Administratrix of Rich. Trewlock The Will was That the Testator made the Plaintiff and Rich. Trewlock his Executors but said further in his Will I will my Friend Rich. T. shall pay to my other Executor all such debts as he oweth me before he shall meddle with any thing of this my Will by reason I have made him one of my Executors for the discharge of the said Debt The Defendant averred Trewlock in the Will and Trewlock the Intestate to be one and the same Person and said He in his life had paid to the Executor the debt in demand and all other debts which he owed at the time of the death of the Testator Adjudged that the Dfendants plea was not good because she ought to have pleaded an Acquittance of the said debt for that payment without an Acquittance is no plea and for the other Debts she ought to have shewed them certain and pleaded payment of them and she should have shewed that T. administred with the other Executor Agar and Bishop of Peterborough's Case 44. Quare Imp. And for Title to the Avoidance the Statute of 21 Hen. 8. taking a second Benefice with Cure was pleaded Issue was upon the Induction By which it seemed to be admitted That Admission and Institution did not make the first Benefice void without Induction 45. Resolved That upon an Appeal of Manslaughter the Party may challenge 20. peremptorily as well as upon an Indictment 46. Upon an Habere facias seisinam upon Recovery of Dower of 3. Mannors Resolved The Sheriff cannot give her seisin of one Mannor but he must give her seisin of the third part of every Mannor But if the Recovery be of all Lands viz Meadow c. Pasture the Sheriff may assign her her Dower in the Meadow only The Queen and Deans Case 47. Writ of Disceit by the King and Queen upon a Fine levyed by C. to D. of Lands in antient Demesne who rendred to C. for life reversion to K. D. dyed pendent the Writ Resolved The Writ shall not abate because it is in the nature of a Trespasse which doth not demand the Land but is to punish the Disceit Tuck and Frenchman's Case 48. A. seized of Lands in Fee holden in soccage devised the same to C. F. and the Heirs males of his body and if he dyed without Heirs males of his body the Remainder c. C. F. dyed without Issue male of his body Resolved That C. F. had not general tail but special tail to him and the Heirs males of his body Joslin and Chelstons Case 49. Assumpsit In consideration of a Marriage of the Son of the plaintiff with the Defendants Daughter the Defendant assumed to pay to the Plaintiff 40 l. in 7. years next following by equal portions Found upon Non Assumpsit for the Plaintiff and because one of the 7. years was to come at the time of Action brought the Judgement was stayed 3 4. Ma. Eaton Colledge Case 50. A Lease was made by the Dean and Chapter of the Colledge was of Eaton whereas they were incorporated by the name of Dean and Chapter of the Colledge of St. Maryes of Eaton Resolved the Lease was void for the Misnosmer Stokes and Porters Case 51. Debt upon an Obligation against the Defendant Executor of I. S. who pleaded that he was not Executor nor administred as Executor It was found that he received a Debt of 7 l. which was due to the Testator and made an Acquittance thereof and took possession of other Goods of the Testator and converted them to his own use Adjudged That it was an Administration Hill 2 Eliz. Helior and Okedens Case 52. A Lease was made to I. S. of the Mannor of F. Habend from Mich. last past for 20. years and by the same Deed it was agreed That after hold expiration of the 20 years that the said Lessee his Wife and their Son should have hold and enjoy the Mannor Habend for their lives cuilibet diutius vivent and he made a Letter of Attorney to make Livery secundum formam of the said Grant and Lease Resolved If the Deed was delivered by the Attorney and Livery made at one time it was a good Lease for years with a Remainder for their Lives but if the Deed was first delivered by the Lessor to the Lessee and after Livery and Seisin by the Attorney there the Livery was void Thorn and Rolfes Case 53. Dower The Defendant pleaded that the Husband of the Demandant was alive at Canterbury in Com. Kent The Defendant said her Husband dyed at F. in the Parish of P. in the said County of K. upon which they were at Issue Day given to make Proofs the Plaintiffe examined her Witnesses in Court the Defendant examined no Witnesses Judgement was the Plaintiffe should â—â—cover her Dower Hill 3 Eliz. Corket and Sheldons Case 54. A. in consideration of a Marriage intended betwixt him and B. by Deed covenants with S. to execute an Estate in Fee to the use of the said A. for life and after to the use of the said B. for by and untill the Son or one of the Sons of the said A. of the body of the said B. begotten shall accomplish the age of 21. years The Marriage takes effect A. dyed without Issue between them and before any Issue had Resolved That B. had a good Estate for life before any Issue and in Case there was no Issue But if there had been Issue which had accomplisht 21. years the Estate of B. had been abridged 3 4 Eliz. in C. B. Gower and Andrews Case 55. In Trespass for cutting down of Trees the Case was A. a Woman in her Widdow-hood by Indenture bargained and sold to B. and C. all those Woods Underwoods and Hedgerowes as have accustomedly been used to be fallen and sold standing growing and being in upon and within the Mannor of D. to have and to hold for the life of the said A. B. dyed C. survived and cut down by vertue of the said Bargain the VVoods and Underwoods growing and standing at the time of the making of the said Deed. Resolved upon this Bargain
when the Vendee had once cut down the Woods and Underwoods that he could not cut them again if Woods were standing and growing notwithstanding the words in the Grant viz. To Have c. for the life of the said A. Wilson and Wise Case 56. In Trespass for taking of his Cow The Defendant justified that he was seised and held of I. S. as of his Mannor of C. by Fealty rent suit of Court of I. S. And that within the said Mannor the Custom was That the Lord of the Mannor time out of mind c. after the death of every Tenant of any Messuage or Tenements of the said Mannor dying seised used to seise the best Beast of the Tenants found within the Mannor for an Heriot and if the Tenant had no Beast or if it were esloyned out of the Mannor before the Lord seized it Then the Lord had used to seise the best Beast Levant and Couchant upon the Messuage Lands and Tenements It was demurred upon the Custom and it was adjudged that the Custome was void and unreasonable and Judged for the Plaintiff 57. An Infant by his Prochin Amy brought a Scire facias to execute a Plea by Fine limited to his Grandmother The Defendant prayed that the Attainder might demur Resolved it should not But if the Defendant had pleaded the Deed of the Ancestour of the Infant in Barre there the Plea should have stayed 3 Eliz. Austin and Bakers Case 58. Attaint was brought into the Common Pleas upon the Statute of 23 E. 3. cap. 3. against the Executors of I. S. and the Terre Tenants and adjudged it was well brought although the Statute is that the Attaint shall be between the Parties of the first Judgement 59. A Subsidy is granted by Parliament That every one who expends in Land above 20 s. shall pay A man is assessed and before payment he dyes the Lands in the hands of the Heir shall be charged with it because it is a Duty upon Record and the Land chargeable with it 60. Judgement being against two upon an Avowry in Replevin They brought an Attaint depending which one of them dyed It was adjudged that the Writ should abate and it differs from the Case of Nonsuit for the Nonsuit is the Judgement of the Court that the Heir may proceed in Suit but when one is dead it is not so for then no act is done by the Court. 61. Note It was resolved That after a Verdict given it is no Plea for to say that the Jurors did eat and drink mean between the Court and their Verdict given but such Exception ought to be before the Verdict given 62. A Lease for years the Remainder for Life the Reversion in Fee Lessee for years committed Waste he in Remainder for Life dyed It was holden by the Justices That he in the Reversion in Fee should have an Action of Waste for waste done before the death of him in the Remainder because that the mean Remainder was the Cause that he could not have the Action at the first but when that Estate is ended the Action is maintenable because it was to the dis-inheritance of him in the Remainder in Fee 63. Tenant in Dower had power to cut down the Trees growing upon the Land and she covenanted with him in the Reversion that it should be lawfull for him every year to cut down 20. Trees and afterwards she cut down and destroyed all the Trees It was the opinion of the Justices That an Action of Covenant did lye against her and it was agreed by them That if a Covenant be that it shall be lawfull for the Covenantee to take the Trees and sell them or imploy them to his own use That in that Case the Covenantor cannot cut down the Trees because he hath given a propriety in the Trees to the Covenantee Mich 2 Eliz. 64. Trespass The Case was A man made a Lease for years of Lands a Stranger entred upon the Land let and cut down Trees growing and made them Tymber and carryed unto the Land where the Trespass is supposed and then gave the Timber to the Plaintiff and the Defendant entred into the Land and took the Timber It was the opinion of the Justices That in all Cases where a thing is taken wrongfully and altered in form If yet that which remains is the Principal part of the Substance the Notice of it is not lost and therefore if a man takes Trees and makes Boards of them The Owner may retake them quia major pars substantiae remanet and so in the principal Case But if an House had been made of the Timber there it had been otherwise 65. Father and Son made a Feofment in Fee with VVarranty the Father dyed The Feoffee impleaded brought a Warrantia Chartae against the Son unde Chartam Patris sui habet cujus haeres ipse est and in his Count shewed the Deed was made by them both It was the Opinion of the Justices the Count was agreeable to the VVrit and that the VVarranty against the Son was double the one of his Father the other of himself and that each of them warranted the whole so the Action well brought 66. Resolved by the Justices If Lessee for Life makes a Lease for years and afterwards purchaseth the Reversion and dyeth within the Term the Lease for years is determined But if one who hath nothing in the Lands makes a Lease for years and afterwards purchaseth the Lands and dyes if it be by Indenture his Heir is estopped to avoid the Lease 67. Two Copartners are one grants her Part and warrants that the Grantee shall have and hold it in common without partition It is a void Warranty because it is against Law 68. A Lease was made to Husband and VVife for years Provided that if the possession of the Lands came to the hands of any ther than the Husband and VVife and their Issues then upon tender of 100 l. it shall be lawful for the Lessor to reenter the Husband dyed the Wife took an other Husband the Lessor tendred the 1000 l. It was the greater opinion of the Justices That the Condition was not broken because that the second Husband was not possessed by vertue of the Lease but in the right of his Wife But the Court doubted of it It was adjourned 68. A Capias ad satisfaciend was awarded and an Extent and between the date of the Writ and before the Sheriff took the Inquisition the Defendant sold his Goods It was the Opinion of the Justices That the Sheriff might extend the Goods which were sold and it was said That if the Tenant in a Precipe allien after the date of the Writ and before the Retorn yet he continnes Tenant to the Action 69. Note it was holden by the Justices That if an Infant for Monies by Indentures bargain and sells Lands and afterwards levyes a Fine Sur Conusans de droit with Proclamations the Indenture is not void but voidable and
aliened that the Donor might enter the Donee aliened and afterwards dyed without Issue If the Donor might enter or was put to his Formidon in Reverter Quaere for the Justices were divided in opinion and it was not Resolved 122. The reversion of a Lease for years was granted one moyety to one man and another moyety to another The Lessee committed Wast and then the Lease determined They brought actions of Wast in the Tenant It was the better opinion that they might well joyn in the action because they are not now to recover in the realty which is the Land Wasted but only damages but if the Term had continued it had been otherwise because then the Land was to be recovered 123. An Indenture of Bargain and Sale was Enrolled the last day of the 6. Moneths not accounting the day of the date of the Indenture for part of the 6. Moneths It was Resolved that the Enâ—olment was good for the day of the date shall not be accounted part of the 6. Months limitted by the Statute for the date and the day of the date is all one for the date is all the day And it was said It was not like the Statute of 32 H. 8. of Leases where it is said A Lease made by Tenant in Tail shall be good for 21. years after the making of the Lease for the making may be at one hour of the day and is prefect by the delivery at that time and therefore the Lease shall begin presently And in this Case it was agreed for Law That if a man by Deed Indented Bargaines and Sells his Lands unto another and before the enrollment of the deed he Bargains and Sells to another and the last Deed is first Enrolled and after the first Indenture is Enrolled within the 6. Moneths the first Indenture is the best and shall be preferred before the latter although it was first Enrolled 124. By a Statute made 3. Ma. Cap. 4. Authority was given to Cardinal Poole to dispose order imploy and convert the Benefices appropriate to the increase and augmentation of the Living of the Incumbent He made a Lease for years of a Parsonage appropriate It was holden the Lease was void for he had authority but to the Intents specified in the Statute and he had not the Fee simple given him by any words of the Statute Quaere in whom the Free simple was if in the Queen or it was in Abeyance not Resolved 125. A Fine was Levyed in the time of King John by which the Conusor granted to the Conusee in Tail a Mannor rendring to him a pair of guilt Spurs for all services salvo sorinseco servitio Domino Regi The Mannor was holden of the Lord Stafford The Justices held it was but a Tenure in Socage for the words salvo sorinseco servitio were void to all purposes but to reserve such services by which he himself held of his Lord next paramount him and not such services which any of the Lords paramount him held over by Knights service 126. It was holden by the Justices If a man find sureties for the Peace before Justices of the Peace in the County yet if the same party come in B. R. and there make Oath that he was afraid he shall be hurt by the said party he may have surety of the Peace there against the party and a Supersedeas to the justices to discharge the bond taken before them for the Peace and behaviour 127. Note for a Rule by the Court That in every case where the Defendent once confesseth a Deed and after would avoid it by matter which makes the Deed defeisible and not void That in such Case he shall not plead Non est factum to it but show the special matter and conclude Judgment of action as if Debt be upon an Obligation against one who was within age He shall not plead Non est factum to it but shew the special matter that he was within age 128. A Lease was made to the Husband and Wife and to a 3d. person to have and hold to the Husband for 80 years if he should so long live and if he dye within the Terme the remainder of the said Term to the Wife and to the 3d. person if he should live so long It was Resolved a good Habendum and that all the Interest was in the Husband and nothing in the others till after his death But it was holden if a Lease be made to 3. of 3. acres Habendum one acre to one for 20. years of another to another for 40. years and of the 3. to the 3d. person for 60. years the limitation is void for he cannot by the Habendum divide the estate in such manner which was joynt before Gascon and Whatleys Case 129. A man seised of Lands in Fee is bound in a Recognizance and afterwards enfeoffes the Recognizee of parcel of the Lands yet the Recognizor is chargeable for the Residue of the Lands to the Executor of the Recognizee and for his body and goods but if the Recognizor dye hâ—s Heirs shall not be charged 130. Cessavit The Tenant said That the demandant nor his Ancestors were never seised of the services within 40. years It was holden by the Justices to be no plea because this Writ is not within the Statute of 31 H. 8. cap. 2. of Limitation and also because the seisin of the services is not materiall nor traversable in a Cessavit Mich. 5. Eliz. 131. Lessee for years Covenants for him and his assignes that he will not lop nor top the Trees during the Terme he dyes Intestate his Adminstrators lopâ— the Trees he is chargeable to the Covenant because he hath the Terme to the use of the Testator The Words in the Lease were Provided It shall not be Lawfull to the Lessee to top the Trees If these words are a Condition or a Restraint only no penalty ensuing upon it Quaere It was not Resolved 132. The Queen by Letters Patents ex câ—rta scientia mero motâ— granted to I. S. the Mannor of D. which she had by the Attainder of Sir Thomas Wyat and in truth she was seised of the Mannor by discent Resolved That the grant was void because the Queen was deceived in her grant Quaere if the same be not helped by the Statute of misrecitalls for when the substance of the thing granted appears certain the Statute helps all other defects but when the certainty of the thing granted doth not appear then perhaps it is not helped by the Statute 133. A Fine was Levyed by Husband and Wife and the Conusee rendred back the same Lands to the Husband and Wife and to the Heirs of the Wife and an Indenture was by which it was recited that the Remainder should be to the use of the Husband and Wife and to the Heirs of the Husband The Justices conceived there is not any use implyed upon a Fine no more than upon a Feoffment wherefore they conceived that the
the use of himself and his wife for their lives the Remainder to the use of the eldest Child of the said W. H. and the Heirs of the body of such eldest Child the Remainder over A Fine was levyed accordingly and after his wife died without issue and W. H. married another woman and by her had issue a Daughter his eldest Childe and a Sonne his younger It was a Question which of them should have the Remainder It was the opinion of the Justices That the Daughter should have the Remainder and not the Sonne for that was the intent of the Ancestour as they conceived though puero in Latine is intendable rather to an Issue Male than Female and yet they said That many Authors have taken the word indifferently to extend to both Sexes Mich. 17 18 Eliz. Andrews Case 239. Q. Imp. The Case was A Tenant in Tayle the Remainder to the Lord Mountjoy in fee of a Mannor with an Advowson appendant bargained and sold the same by Indenture not enrolled to I. S. and his Heirs rendring 42 l. rent with Clause of Distress and Nomine pene and covenanted for further assurance to levy a Fine to the Bargainee Proviso that the Bargainee grant the next Avoydance to A. for life and if it happen not void then one life to his Executors A and I. S. afterwards levyed a Fine with the render of a Rent of 42 l. to A. in tayle the remainder to I. S. in fee B. in his life did not grant the Advowson to A. and dyed the Church became void A. entred for the Condition broken It was in this Case resolved 1. That the Proviso made a Condition 2ly That the Fine levyed had not extinguished the Condition 3ly That no time being limited for the regrant the Bargainee was bound to regrant it without request at his peril during the life of the Bargainor if he were requested in the life of the Bargainor and because the Bargainor dyed the Condition was broken Fox and Colliers Case 240. Ejectione firme the Case was E. G. Bishop of York 6. Nov. 18. had made a Lease from the date of the Indenture of Lands for 21. years to the Plaintiff which Lease was confirmed by the Dean and Chapter at which time there was unexpired 4. years of an antient Lease made for 40. years Afterwards E. G. was removed to Canterbury and S. elected Bishop of York the 4. years expired the Plaintiff entred The Defendant upon a Lease made to him by S. after the 4. years ended put him out It was resolved by all the Justices and Barons in the Exchequer Chamber That the Lease made to the Plaintiff was good yet they agreed it should be void if it was not for the Confirmation 2ly They held that the Lease now in Question being to commence presently in Estoppel but not in Interest was not void by the Statute of 1 Eliz. neither within the letter nor the intent of the Statute not within the letter because it is not prejudicial to the Successor and the Statute is satisfied in the intent it not being a Lease longer than 21. years and having the Confirmation of the Dean and Chapter it is now good although it was not good by the Statute of 32 H. 8. Knowles and Lines Case 241. Ejectione firme The Case was Sir Francis Englesfield was seised in the right of K his wife of the Mannor of S. whereof a Messuage and Lands in question were Copyhold demiseable for 3. lives 1 Eliz. Sir Francis Englefield went beyond Sea with license for 3. years after his Licence expired the Queen sent a Privy Seal to him commanding him upon his Allegiance to return he spretis Mandatis of the Queen continued there and adhered to the Queens Enemies This being retorned a Commission issued to seize his Lands upon which the said Mannor of S. was seized The Queen at the Suit of K. his Wife for her Releif granted the Mannor to St. John and Fetiplace the Friends of K. for her Releife quamdiu in manibus nostris fore contigerit who entred and were thereof possessed accordingly and then the Statute of 13 14 Eliz. of Fugitives was made After which the Defendant procured a Warrant from the Lord Treasurer to C. and F. joynt Stewards for the Queen to hold Court within all the Lands of Sir Francis Englefield and to grant Copyes according to the Custom of the Mannor C. alone executed the Grant and granted the Messuage and Lands to the Defendant's being Copyhold In the Case was two points 1. If the Statute of 13 14 Eliz. of Fugitives had taken away the Estate of St. John Fetiplace and reduced the Mannor again to the Queen 2ly If the Court holden by C. only being a joynt Grant of Stewardship was good Resolved 1. That the Statute of 13 14 Eliz. of Fugitives was made in affirmance of the Common law and did not give the Queen any new thing but added only some Circumstances to it and therefore the Grant made to St. John and Fetiplace stood good so as the Queen could not oust the Patentees and so by consequence the Grant of the Copyhold to Lines the Defendant was not good 2ly They held that the Court holden by C. only was good For it was said a Disseasor c. might hold Courts and make admittance and take surrenders and the like because he is but an Instrument of Conveyance but he could not grant Copyhold estates 242. Note by the Justices If a man be to make sufficient proof it may be made by Witnesses produced as by Jury 243. A man seised of Lands parcell Copyhold and of Lands at the Comon Law and by Licence of the Lord makes a Lease of them for 21. years Provided if the Lessor or his Wife or his Heirs or Assignes or any of them give warning to the Lessee that the Husband or Wife or their Heirs will dwell there that then the Lessee should avoid Except that the Lessor or his Heirs shall pay to the Lessee then 20 l. The Lessor and his Wife dyes and the Reversion of one part discendeth to the eldest Son and the Reversion of the other to the youngest and the youngest purchaseth the Reversion of the eldest and then the youngest gives warning to the Lessee It was the opinion of the Justices that the warning given by him was good and that the Law which hath severed the Reversion hath severed also the Condition although at the begining they were entire and so for one part as Heir and for the other part as Assignee he shall take advantage of the Cndition 244. A man makes a Lease of Land and of an House for years reserving one Rent for all and afterwards the Lessor grants the Reversion of all the Lands saving the Reversion of the House to himself Resolved that by agreement betwixt the Lessor and grantee in the Reversion in pays the Rent may be apportioned if it be according to the quantity and quality of the Land
which they have otherwise not 245. Tenant in Tail disseiseth the Discontinuee and Levyeth a Fine and the proclamation passes but the Discontinuee during the proclamation makes claime and after the Tenant in Tail dyes and the Discontinuee enters It was the opinion of the Justices that the Issue in Tail was barred by the Fine and in this Case it was said That if the Lord entreth upon his Tenant and enfeoffs a stranger and the Tenant Reenters he avoids the Disseisin and estate but the seignoury is not revived but extinct Pasch 20. Eliz. Jackson and Darceys Case 246. Tenant in Tail the Remainder to the King levyeth a Fine with Proclamation It was holden it shall binde the Issue notwithstanding the saving in the Statute of 32. H. 8. for that here is not any Reversion in the King but a Remainder of which the Statute speaks nothing but yet this Fine doth not devest the Remainder out of the Kâ—ng but the Conusee shall have a Fee determinable upon the Tail 247. The Master takes an Obligation of his Apprentice that he shall not use his Trade within 4. years in the Town of N. where his Master dwells and he is an Apprentice It was holden the Obligation was not good not should binde the Apprentice 248. A man hath a Warren which extends into 3. Townes and by deed makes a Lease of it for years Rendering rent and after grants the Reversion in one of the Townes to another and the Lessee Attornes It was the opinion of the Justices That the grantee should have no part of the Rent nor the Granter because no Covenant can be apportioned Duland and Cleypooles Case 248. Information upon the Statute of 5. Eliz. of Tillage That the Defendant had Converted 300. Acres of arable Lands to Pastures and that the Conversion hath continued from 15. Eliz. to 20. Eliz. The Defendant as to the Conversion pleaded Not guilty and as to the Continuance the general pardon of 23. Eliz. upon which it was demurred It was argued that the Condition did not extend to the Continuance of the said conversion It was said That if A be seised of arable Lands and converts the same to pasture and so converted Leaseth it to B. who continues it in pasture as he found it he shall be charged by the Statute And Note the words of the Statute are Conversion permitted and Conversion continued is Conversion permitted and the Statute doth not punish only the Conversion but the continuance of it One the other side It was said That the Conversion and the continuance thereof are 2. several things by it self and so the Conversion being only excepted the Continuare thereof is within the Pardon Quaere the Case was adjorned Term. Pasc 24. Eliz. Leeke and Grevells Case 249. Information upon the Statute of 5. Eliz. for converting and using of 2000. Acres of arable into pasture The Defendant said and justified as to 800. Acres That the Queen by Deed under her Great Seal Licensed him to enclose the Mannor of Weston and Welford in the County of Gloucester and to make a Park so as it was not within any Forrest and to Convert and use the Land inclosed of tillage into pasture pro sustentatione ferarum Damarum averiorum suorum by which he enclosed them and converted the Tillage into pasture for the Sustentation of his beasts Upon which it was demurred It was argued that the License was not good because the Statute of 5. Eliz. was to continue but till the beginning of the next Session of Parliament at which time the Statute ended and was not revived till Anno 13. Eliz. so as in Anno 9. when the License was there was not any Statute to prohibit the Conversion of tillage into Pasture and therefore the License in 9. Eliz. could not dispense with the Statute of 13. Eliz. and the Statute of 13 Eliz. did not make such reviver of the Statute of 5. Eliz. as made mean Acts good by any Relation Quaere the Case was not adjudged but adjorned Dolman and the Bishop of Salisburies Case 250. Quare Imp. brought the Defendent pleaded the Statute of 21. H. 8. Cap. 13. of Pluralities that the last Incumbent had a Benifice with Cure of the value of 8 l. and took another Benefice and was Inducted 1 Eliz. upon which the Queen did present the Defendant by Lapse The Plaintiff shewed the Proviso in the Statute of 25. H. 8. that Chaplains qualified might purchase Dispensations and take 2. Benefices and that 1 Eliz. before the Parliament he purchased a Dispensation from the Pope and after he took the second benefice and dyed The question was whether the Pope before the Statute of 25 H. 8. might grant dispensations It was Resolved he could not for that the Kings of England had been Soveraigns within their Realms of the Spiritualties and the Justices held that the dispensation in question was made 1 Eliz and so out of the Statute of 25 H. 8. and that this dispensation to retain a second benefice was against the Statute of 21 H. 8. Lacyes Case 251. In a scire facias upon a Recognizance for not appearing before the Justices of Assise at York the Defendant pleaded that after the Recognizance taken a Commission issued to the Admiral and others to hear and determine Treasons Felonies c. done within the Jurisdiction of the Admiralty and that the Commissioners sent to Arrest him before the day of his Appearance because he had mortally wounded a Man upon Scarborow sands if within the flux and reflux of the Sea of which wound he dyed at Scarborow and that thereupon he was Arrested and detained in prison till after the day of Appearance and afterwards was Indicted and arraigned of the said Felony before the Commissioners The Court inclined to be of opinion that the Arrest was a sufficient excuse of his appearance because the Recognizance is a duty to the Queen and the Commission is the Act of the Queen and all that the Commissioners do is by authority from the Queen and in her person and shall be accounted her Act and then when she her self is a cause that the Defendant could not appear that she should not have benefit of the Recognizance 252. The Condition of an Obligation was That if the Obligor pay at or before the 25th day of March he tenders the money the 24th day It was the opinion of Anderson that if he tender the money the last instant of the 24th day he saveth his Bond But the other Justices held the contrary because the word before is not to have any Construction but the Obligor shall be admitted to pay it before by agreement only of the Obligee Quaere 253. A man seised of 3. Mannors in Fee of the value of 300 l. Covenanted in Consideration of the Mariage of his daughter that he would suffer 20 l. yearly to discend come and remain to his daughter and her Husband and the Heirs of their bodies It was the opinion
of the Justices that for want of Certainty no use is created by the said Covenant and Consideration but the same amounts to a Covenant and no more and the words Discend come and remain cannot create an Use but to the Heir apparant only 254. In Trespas the Case was The Custom of a Mannor was Quod quilibet tenens per Copiam poterit dimittere terras suas for life in Fee or alâ—ter and that a Woman Cooperta viro poterit devise her Copyhold Lands to any other or to her Husband by the assent of the Husband The Court held that the custome was not unreasonable but because it was poterit devisorre where it should be usi sunt devisorre and also because it appeared that the Plaintiff was Tenant in Common with the Defendant It was adjudged against the Plaintiff 255. A seised in Fee of a Messuage and of divers Lands time out of minde occupied with it let parcel of the Lands to a stranger for years and afterwards made his Will in this manner viz. I will and bequeath to my Wife my Messuage with all the Lands thereunto belonging in the occupation of the Lessee and after the decease of my Wife I Will that it with all the rest of my Lands shall remain to my Younger Son It was the opinion of the Justices that the Wife should not have the whole but only that which was Leased before and therefore that the remainder thereof could not be in the Younger Son till after the death of the Wife and that till the death of the Wife the Eldest Son Heir at Law should enjoy it 256. A man bound himself in an Obligation that he and his Wife would levy a Fine upon reasonable request of the Obligee he made the Request the Wife being very sick so as she could not travail Resolved that her sicknesse did save the Obligation from being forfeited 257. A Copyholder in Fee by License of the Lord made a Lease for years Rendring Rent and having Issue a Son and a Daughter by one Woman and a Daughter by another dyed his Son within age who before any Rent incurred or any admittance dyed Adjudged The Eldest Daugter should have the Land and that the discent of the Reversion is possessio fratris quae facit sororem esse haeredem Kenrick and Burges Case 258. A Lease in Reversion for years was granted to I. S. who dyed Intestate his Wife assigned it to B. and afterwards took Letters of Adminâ—stâ—ation and made an Assignment of it to the Plaintiff Resolved that the last Assignee should have it Trinit 25. Eliz. in Exchequer The Queen Her Almoner and Coxeheads Case 259. The Case was I. S. Anno 9. of the Queen took the Office of Bayliff of the Hundred of A. and 11. Eliz. became indebted to the Queen by Obligation and 13. Elz. he being seised of Land Covenanted with C. in Consideration of Mariage with his daughter to stand seised to the use of himself for life and after to the use of C. and the Daughter in Tail and afterwards he took the Office of Woodwardship of the Mannor of S. and became indebted for that also and then granted a Rent Chaâ—ge for years out of the Land and then C. and I. S. joyned in a Fine to the use of the said I. S. for life the remainder to C. and afterwards I. S. having purchased the Rent and possâ—ssâ—d of goods and Chattells because Felo de so for which his Lands and goods were seized It was the opinion of the Justices the Almonor had no title to his goods because the Patent did not extend to the goods of a Felo de se against the Queen for her debt because it wanted the Words Licet tanget nos and that the Lands and goods of the said I. S. were chargeable as well for the debts which were due by the Obligation as also upon the accompt aswell before the Conveyance as after Wherefore C. paid the Queen her debts and had the Lands cleered Newtons and Barnardines Case 260. A. had Issue 3. Sons F. R. and G. F. dyed his Wife with Child The Father A. devised in this manner viz. To the Child my Son F. his Wife now goeth with 28 l. yearly to be paid to the use of the Child for 20 years And if my Son R. dyeth before he hath Issue of his body so as my Lands discend to G. before he come of the age of 21. years then my Executors shall occupy it till G. be of the age of 21. years the Father dyeth R. enters a Daughter is born who enters and lets the Land to the Defendant rendering Rent It was adjudged That R. in this Case had an estate Tail by Implication of the words of the Will and that the entry of R. was a Lawfull eviction of the Terme and destroyed the Rent Hâ—dons Case 261. It was Resolved by the Justices in this Case An Abbot made a Lease for 8. years of Lands of the possession of the Abby a Copyhold estate being in esse at the time that it was an estate in being as did make the Lease for years void by the Statute of 31 H. 8. of Monasteries The Case of the Skinners of London 262. In Intrusion the Case was A. a Cittizen and Freeman of London seised of divers Messuages and Tenements of the yearly value and profit of 30 l. 6 s. 8 d. by his Will before the Statute of 1 E. 6. devised the same to the Corporation of Skinners and that 42 s. 8 d. thereof should be imployed upon an Obit and 12. Marks yearly thereof upon the Priest and the Residue to be imployed upon poor men of the Corporation decayed by misfortune who inhabited the said Messuages and Tenements and appointed the said poor men to pray for his soul and further with the profits to repair the Messuages and Tenements and after the Statute of 1 E. 6. of Chauntries was made It was the opinion of the Court 1. That Lay Corporations are Excepted out of the Statute for their Lands which they have to increase their Treasure for the good of the Corporation but not for Lands which they have to imploy to superstitious uses 2. Resolved that all the money which was given for the Obit and the finding of the Priest was a superstitious use and given to the King by the Statute but that which was given for the maintenance of the poor men and although it was appointed them to pray for his soul which was a precept suteable for that time and which was given for the Reparations of the Messuages c. was not given to the Crown by the said Statute and Turnors Case was vouched to be adjudged Where Land was given to the intent that his Feoffees should keep an Obit with so much of the profits of it as they should think fit in their discretions that the Land thereby was not given to the Crown but so much of the yearly Rent as the Feoffees imployed to that purpose
Covenant he devised to each of the Daughters 10. l. to be paid at their several ages of 21. years One of the daughters sued his Executors in the Spiritual Court for her Legacy and upon suggestion by the party that he is bound to pay her 10. l. at her age of 21. years a Prohibition was granted and the intent of the Devise was that he should not be twice charged 369. One sued an Administrator for debt upon pleinement administr The Jury found Assetts for part to the value and Judgment for that part for the Plaintiff and that for the residue the Defendant eat siae die and now he brought a Scire fac surmising Assetts to the value of the Residue It was the opinion of the Court that it did not lie 370. Debt upon Obligation with condition if the Obligor pay to the Obligee 10. l. or four Kine such a day at the then Election of the Obligee the Obligation to be void It was the opinion of the Court that the Obligor is to tender both at the day appointed by reason of the words at the then Election which word then shall have relation to the day appointed 371. A Lease was made to three Habendum to them for 99. years viz. to the first for 99. years if he should so long live and if he died to the Second pro residuo termino anaorum tunc ventur if he should so long live and if he died within the Term then to the third pro residuo termino annorum ad tunc ventur It was the opinion of the Justices that it could not enure by way of Remainder because there was not any Estate in esse during the particular Estate Yet they conceived the Estate of the second was good because it did enure as a new Grant Qu. 372. In a false Imprisonment against a Mayor he justified because he being a Magistrate the Plantiff said he was a Fool It was the opinion of the Justices that if he called him Fool in the place and exercise of his Offic◠that the Imprisonment was lawfull otherwise not Vdeson and the Mayor of Nottinghams Case 373. Vdeson was in the custody of the Mayor upon the Statute of 23. H. 8. and he would not let him at liberty upon Sureties wherefore he sued by Bill here and and Declared against the Mayor in Custodia Marischalli and recovered by Verdict It was the opinion of the Justices that by the Statute of 18. Eliz. none should sue for any penalty upon a penal Law but by original Writ or Information and so it was said it was adjudged in the Bayliffs of Bosworths Case Griffiths Case 374. It was was Resolved by the Justices That Error lyeth in the Kings Bench upon a Judgment given in an Ejectione firmae in Wales given before the Justices there 375. A Draper having a Servant to sell Clothes in his shop the Servant took the clothes and converted them to his own use It was adjudged that Trespasse vi armis lyeth only against the Servant because he had the possession as Servant and it was Resolved That in all cases where the Servant hath not a speciall nor general property Trespasses lyeth 376. One made a Lease for years the Lessee devised the Term to his wife for so many years as she should live and after to his Son the Wife purchased the Inheritance and sold the same again and covenanted that it was discharged of all Incumbrances and died The Son claimed the Term it was adjudged the possibility to the Son was a forfeiture of the Covenant and Bond of the Wife Sir Thomas Gorges Case 377. The Queen seised of a Mannor to which an Advowson was appendant and granted the Mannor una cum advocatione Ecclesiae the Church being then void Adjudged the Avoidance did not pass but the Queen should present pro hac vice 378. A man who was bound in a Recognizance for the good Behavior was indicted that he called one Pealer Lier Druakard and said I will make thee a poor Kirton and also Quare clausam fregit averia cepit injustè detinet It was Resolved by the Justices in B. R. That these were not words which threaten a battery of his Body without which the Recognizance is not forfeited 379. Debt brought in the City of Oxon The Defendant pleaded that he was one of the Barons of the Cinque Ports within the County of Kent and pleaded to the Jurisdiction of the Court upon which the Plaintiff demurred Qu. If a good Plea It was not Resolved Hayward and Bettesworths Case 380. Replevin the Defendant avowed for Rent the Case was The Father was seised in Fee and let the Land to the Plaintiff for years rendring Rent and afterwards he infeoffed a Stranger and executed livery upon parcel of the Land in a Close called D. the Lessee nor any of his Cattel being there but being in the house It was adjudged that nothing passed by the Livery but that the reversion of the whole descended and therefore it was adjudged for the Avowant Pigott Palmers and Grangers Case 381. The Case was A. was seised of Land which he intended to sell to the Father for 160. l. of which 140. l. was paid by G. in consideration of the Marriage of Pigott with the daughter of Granger and that the Land shall be conveyed for the Joynture of the daughter and the Heirs Males of their Bodies they intermaried and had Issue the Plaintiff Pigot died the wife took Husband Palmer the Defendant and they accepted a Fine of a Stranger with a render to the Stranger for 100. years rendering the ancient rent the wife died It was resolved that the taking of the Conveyance with the render for 100. years made the Estate of the wife void by the Statute of 11. H. 7. Zouth and Bamfields Case 382. In a Formedon in the Discender brought of the Moiety of a Mannor The Defendant pleaded in Bar that the Grandfather of the Demandant levied a Fine sur Conusance de droit c. with Proclamation of the moiety of the said Mannor by which Fine it was granted and rendered to the Grandfather and his Heirs whose estate the Tenant in the Formedon had The Defendant replyed that at the time of the Fine levyed and after the Demandant was seised of the Land in his Demesne as of Fee It was Resolved That the Defendant being Heir in tail against such Fine levyed by his Ancestor whose Heir he is was estopped to aver his seisin and continuance thereof as a stranger at the time of the Fine levyed Nor to add Quod partes finis nihil habuerunt Against which it was objected 1. That by the Statute of Donis It is provided Quod finis ipso jure sit nullus 2. That the Statute of 27. E. 1. of Fines doth not extend to Heirs in tail but to Heirs in Fee and that the Issues in tail are not bound by Fines which enure by way of Estoppel 3. That the Statute of Fines
Consideration of Blood Covenants with B. his brother to stand seised to the use of himself for life and after the use of B. in tail the remainder to the right Heirs of B. Provided that if A. by himself or by any other during his Natural life tender to B. a Gold ring to the intent to make void the said use that then the said uses should be void Afterwards A. 26 Eliz. is attainted of Treason and Outlawed for it and the King makes a Lease of the Lands to C. and D. for 40 years The attainder is confirmed by Act of Parliament and Enacted That the said Act shall not extend to make any Lease void made by the K. after the said Treason Also Enacted that all persons which claim an estate or interest in Land not enrolled since 18 Eliz. shall within 2. years after the Session of that Parliament shew and bring into the Court of Exchequer his or their Grant or assurance to be void The King reciting the Proviso and benefit thereof given him by Act of Parliament authorizeth E. to deliver the Gold ring to B. to the Intent to make void the uses he reads the Patent to B. and makes a tender to him which he refuseth to accept of E. certifies the same into the Exchequer This Case was very largely and Learnedly Argued by all the Serjeants and others at the â—arre which vide in the Book at Large afterwards it was argued by all the Barons in the Exchequer and there amongst other things it was Resolved by them That the Condition in the principal Case viz. the tender of the Gold ring was not annexed to â—he person of A. but that any one might make the tender and thaâ— it was given to the King by the Act of Parliament and when a Statute gives a Condition to the King the performance of it which is the substance and which is not inseparably annexed to the person is given to the King 2. That the Tender and Certificate of it was good without Office found 3. That presently by the tender the uses were determined and the Land vested in the King by force of the Act of Parliament The Earl of Northumberlands Case 434. A. 15 June 22 Eliz. bargained and sold the Mannor of D. to the Earl of Northumberland and his Heirs who because the Land was holden in Capite 3. Sept. the same year purchased a License of Alienation in Octob. the same year a Fine was Levyed for further assurance and in Novemb. the same year the Deed was enrolled The Queen seised the Lands for a Fine for Alienation without License It was adjudged the Queens hands should be removed from the Land because the bargainee was now in by the Fine and not by the bargaines and sale and also because the Licence did precede the Fine the Alienation was not made without License Yardley and Prestwood and others Case 435. In a Quare Impedit It was holden by the Justices in this Case That a double usurpation upon the Queen did put her out of possession of Advowson and put her to her Writ of Right of Advowson But the Law hath been taken since that time and so adjudged that a double usurpation did not put the Queen out of possession of her Advowson Vide 33 Eliz. Hassies Case Tr. 4. Jac. The King and Champians Case accordingly Isabell Mordants Case 436. An Enfant Levyed a Fine to the Queen The Queen granted the Lands to Bowes Treasurer of Barwick Error brought to reverse the Fine Bowes pleaded in Barre the Statute of 18 Eliz. It was Resolved that notwithstanding that Statute the Writ of Error did lye for that Statute did not extend to make grants good of such persons who could not make grants by the Common Law as Enfants persons of Non sane Memorie c. Sir Mayle Finch and Hen. Finches Case 437. The Mother of Sir Moyle Finch and the Defendant in her Widdowhood levyed a Fine to the use of her self for life and after her death to the use of her Executors for 5. years and after to Sir Moyle in Tail with divers remainders over and afterwards she maried I. S. and she with I. S. granted the Terme of 5. years to Sir Moyle and after that she and her Husband levyed a Fine to Sir Moyle and I. D. and after that the Wife with her Husbands assent made her Will and made the Defendant her sole Excecutor and dyed the Defendant entred It was agreed by the Justices 1. That the use limited to the Excecutors was good 2. That the Wife could not grant it in her life time 3. That it was extinguishable in the Wife by a Fine come ceo c. but not by a Release 4. That the Fine sur Conusans de droit c. had extinguished the Terme and the said Fine had made such a disturbance of the possession that the use being future at the instant of her death in the Excecutors could never rise 5. That a Feme Covert with the assent of her Husband might make a Will but not thereby to dispose of Legacies 6. It was adjudged for the Plaintiff because the Wife who had the estate for her life had levyed a fine sur Conusans de Droit c. 438. Action upon Indebitatus Assumpsit solvere It was Resolved the Plaintiff could not give in evidence matter of specialty to prove his debt but he might give in Evidence matter of Contract Fitzherberts Case 439. He was Arrested in Execution by the Sheriff of Derby the 3. day of Feb. at 7. of the Clock in the Morning and the same day at 10. of the Clock he was elected a Burgesse of Parliament for the Borrough of New Castle It was agreed in Parliament because he was arrested before he was chosen Burgesse he could not have the Priviledge of the House Hunger and Freys Case 440. A man had recovered in Debt and had Judgment and an Elegit and had an extent delivered him and Nihil as to goods Afterwards he suggested the Defendant had more Lands goods and chattells in the same County and had a New Elegit and upon that he had a Lease for years in Execution and no other Land was found It was adjudged that the sale of the Lease for years by the Sheriff and delivery in Execution was good Townsend and Walleys Case 441. A man had 6 l. Land in possession and Lands in Peversion upon an estate for life and by his Will he deviseth all his Lands to his Excecutors for 10. years to pay his Debts and perform his Will and after the 10. years ended that his Executors or one of them or the Executors of his Excecutors or any of them should sell his Lands and he made diverse Excecutors and gave 40 l. Legacies by his Will and dyed After the 10. years 2. of the Executors sold the Land 1. Resolved that the Land in reversion might be sold as well as the Land in possession 2. That the sale by the 2. Executors was
of a Judgment upon a Plaint in Debt in an Inferior Court was assigned because the Defendant had not Addition But the Judgment was affirmed because it is not of necessity to have Addition for the Defendant in a Base Court where Process of Outlawry doth not lie Collins Case 456. Audita Querela was brought by Fraud by A. B. and C. for all Executions being several Suits of divers persons Adjudged it was unduly granted and therefore a Vacat was made thereof upon Record because one Audita Quaerela cannot be upon several Suits Hoâ— and Taylors Case 457. The Lord of a Mannor granted by Copy to one and his Heirs Subboscum in M. Wood and G. Grove annuatim succidendum by four or five Acres at the least and after made a Lease of the Mannor The Lessee cut down certain Wood the Copyholder brought Trespass and the Lessee justified with averment that he had left sufficient for the Copyholder to be cut by four or five Acres yearly Resolved First that Under-wood might be granted by Copy if the Custome permit it Secondly That the whole Wood passed and the word annutim succidendi to be an order only appointed for the cuâ—ing of it not to restrain the Grant Yelding and Fayâ—s Case 458. The custom of a Parish was That the Parson had used to keep within the Parish a common Bull and Boar for the encrease of the Parishioners Chattel and the Defendant being Parson had not kept them for four years together for which the Plaintiff brought action upon the Case the Defendant by Protestation there was no such Custom pleaded Not guilty It was adjudged a good Custom and that the Action did lie and the Plea of Not guilty not good the offence being in non feasance of a thing and the Protestation not good against the Custom Morgan and Wyes Case 459. In Trover and Conversion The Plaintiff put in exception that the Sheriff was his Cosen and prayed a Venire to the Coroners which issued accordingly and at the Nisi prius the Tales de circumstantibus was awarded and found for the Plaintiff and Judgment and upon Error brought this was assigned for Error and it was adjudged Error and the Judgment reversed Downhall and Catesbyes Case 360. In a Formedon in the remainder the Case was A. seized in Fee gave Instructions to one to make his Will in writing and to give the Land to his Son for Life who put the Will in wriing and therein writ the Estate to be in Fee It was Resolved that the Will was void being contrary to the intent of the Devisor Evington and Brimstons Case 461. A man left his Gates open ad nocumentum Inhabitantium for which he was amerced in the Leet and his Chattel distreined for the amercement he brought Trespass It was adjudged That it was an Offence not amerceable in a Leet and the Distress unlawful and the action well brought Eatons Case 462. Debt upon an Obligation The Condition was If the Obligor and his Wife sell the Wives Land then if the Obligor during his Life purchase to the Wife and her Heirs so much Land and of that value as that which should be sold or else shall leave to his Wife so much money or money worth after his death to her own use that then c. The Defendant pleaded the Wife was dead the Plaintiff said the Husband and Wife had aliened the Land and the Husband had not purchased so much other Lands to the Wife and her Heirs It was adjudged against the Plaintiff because the Condition was for the benefit of the Obligor and gave him Election either to purchase Land or leave money of which Election he is prevented by the death of the Wife which is the act of God and so discharged of one part of the Condition and then the whole Condition and Obligation are both discharged Thyn and Cholmlys Case 463. A Lease for years was rendring Rent at Mich. and our Lady with a Nomine poenae of 3 s. 4. d. the Lessee assigned the Term adjudged that the Assignee was chargable with the Nomine poenae incurred after the Assignment not before Carter and Loves Case 464. The Case was A Termor devised his Term to I. S. who made his Wife his Executor and died the Wife entred and proves the Will and afterwards took Husband and the Husband takes a Lease of the Lessor afterwards the Devisee entred and granted his Estate to the Husband and Wife 1. If by this acceptance of the new Lease by the Husband the Term which the Wife had to the use of another viz. the Testator should be determined Resolved It was clear it was a surrender 2. When the Devisee entreth into the Term devised to him without the assent of the Executor and after gâ—ants his right and interest to the Executor if the Grant be good because he hath not any Term in him but only a Right of the Term suspended in the Land It was holden to be a good Grant and that it shall have a protection to enure by way of Grant to pass the Estate of the Devised to the Executor Dell and Higdens Case 465. It was Resolved in this Case That the admittance of Tenant for Life of a Copyhold is the admittance of him in the Remainder because the Fine is entire and no more Fine is due by him in the Remainder but otherwise it is of him in the Reversion 2. Resolved That the surrender of a Copyhold in Tail is not a Discontinuance but a common Recovery without Voucher is a Discontinuance Sams and Pitts Case 466. Assumpsit The Plaintiff and Defendant controversies being betwixt them submitted themselves to Arbitrament and the Plaintiff in consideration of 6. d. given him by the Defendant promised to pay 200 l. to the Defendant if he did not perform the Arbitrament The Defendant also assumed to the Plaintiff in consideration of 6 d. given to him by the Plaintiff that if he did not perform the Arbitrament that he would pay to the Plaintiff 200. l. upon request and alledged in Fact that an Arbitrament was made that the Defendant should be bound to the Plaintiff that the Plaintiff and his Wife should have and enjoy the Land in question without the Let or hindrance of him his Wife or C. their Son and Heir and that the Plaintiff had performed all on his part yet the Defendant did not become bound to the Plaintiff as c. nor paid the 200 l. though requested and because it was not expressed in what Sum the Defendant should become bound to the Plaintiff and because the De-Accord is that the Defendant be bound for Annoyance without Let of the Son of the Defendant which was a Stranger to the Arbitrament It was adjudged against the Plaintiff and that the Arbitrament as to that part was void Dorley and Woods Case 467. In an Action brought the Defendant alledged a Custom of a Copyhold to be demised in Fee Tail or for Life and
was deceived in her grant 2ly That the Patent a die Consectionis for life was void 3. Resolved That the Lessee for years could not be an Occupant against the Queen Banks and Whetstones Case 487. A Recovery and Judgment was in a base Court in a Plaint in detinue of 4 l. of mony the Judgment was Reversed because that Action nor a Replevin doth not lye of money Hawle and Vaughans Case 488. In a Writ of Entry in the Quibus brought in Wales the Defendant pleaded Non disseissivit pendant which plea the general pardon 35 Eliz. was made by which all Fines Amercements and Contracts were produced It was Objected the Defendant ought to have been Amerced because the general pardon did not discharge the Amercement Resolved the Original Cause of the Amercement was the Tort and contempt that he did not render the Land to the demandant and the Original Cause being pardoned the Amercement which is the Consequent of it is pardoned Oland and Burdwicks Case 489. A Woman who had her Widdowes estate of Copyhold Land sowed the Land and before severance took Husband The Lord took the Emblements and adjudged Lawfull because the estate of the Woman determined by her own Act. Short Tucker and others Case 490. In Replevin the Defendants avowed as Bayliffs of the Queen for an Amercement and then one of them dyed Adjudged the sute should not abate Harbin and Bartons Case 491. Two Joynt tenants in Fee one made a Lease for years to begin after his decease and dyed Resolved it was a good Lease against the survivor Vide Sharpner and Hardenhams Case adjudged in the Dutchy Chamber accordingly Gramminham and Ewres Case 492. The Condition of an Obligation was whereas the Obligee is bound in certain Obligations the Obligor is to deliver them to the Obligee before Mich. or else if the Obligor seal an acquittance to the Obligee such as the Councel of the Oblige shall devise then the Obligation to be void Resolved that the first part of the Condition was a Condition the 2d part of it gave an Election to the Obligor but if there be not any such devise of Acquitance yet the Obligor is to performe the first part if there be such devise of an Acquittance the Obligor hath his election but if the Councel devise no Acquittance it is no discharge of the whole Condition Castleman and Hobbs Case 493. Words viz. Thou hast stolen half an Acre of Corn innuendo Corne severed adjudged the words not actionable But if he had said he had stolen so many Loads or Bushels there the innuendo shall be intended Corn severed Wilson and Patemans Case 494. The next of blood sued to repeal Letters of Administration granted to a stranger pendant which the stranger sold the goods and afterwards the Administration was Repealed and granted to the Plaintiff It was Resolved that in this Action the Defendant was not Chargeable though he Converted the goods The Action was Trover and Conversion and the fale good for any thing appeareth in the Case Watsons Case 495. Debt against Executor who pleaded fully administred the case was the Wife of the Defendant was made Executrix and she by fraud to deceive the Creditors made a gift of the goods before her mariage with the Defendant and yet she kept them and took Husband the Defendant and dyed and the Husband had in his hands so much of the goods as were sufficient to pay the Creditors It was adjudged against the Defendant because he had confessed himself Executor by his plea of fully Administred and the property of the goods did not passe from the Wife by the grant the same being by fraud Richardson and Yardleys Case 496. A man devised Lands to his Wife for life and after to his Son and if he shall dye without Issue to the Child which his Wife goeth with she being great with Child and its issues in Tail And if my Wife dye and my Children without Issue of my Children living then Land to remain to I. S. and his Wife and after their death to the their Children The point was if I. S. had an estate Tail or an estate for life the remainder in Tail to his Children The Court was divided in opinion but the better opinion seemed to be that he had an estate Tail Quaere Reynolds and Claytons Case 497. Debt upon Obligation of 60 l. The Case was it was agreed between the Plaintiff and Defendant 14 December that the Plaintiff should lend the Defendant 30 l. to be repayed the first of June following and that the Plaintiff should have 3 l. for the forbearance if the Plaintiffs Son should be then living and if he died then to repay but 26. l. of the principal money It was Resolved that it was an Usurious contract within the Statute of 13. Eliz. of Vsury Roos and Awdwicks Case 498. In Ejectione firme the case was A. seised of Lands made a Lease to I. S. Habendum to him and his Assignes for his own Life and for the lives of two of his Sons the Lessee made a Lease at Will and died he in the Reversion entred upon the Tenants at Will Resolved It was a good Lease for three Lives against the Lessor and if the Lessee made an Assignment of it it shall be good for the three Lives but if he do not the Occupant shall have it for the two Lives after the death of the Lessee himself Wrights Case 499. Quare Impedit It was Resolved in this Case That if a Church become void by Cession viz. by making the Incumbent Bishop that the Queen shall have the Presentation and not the Patron Hide and the Dean and Canons of Windsors Case 500. Covenant The case was Lessee for years covenanted Reparare sustentare domus c. ad omnia tempora necessaria durante Termino and did not covenant for him and Assignes Upon Issue joyned it was found for the Plaintiff Error brought because the Issue is non permisit essem de casu and the Covenant is Reparare The Court held it no Error because non reparare is all one with permittere esse in decasu 2. It was Resolved that the Covenant did lie against the Assignee though Assignees were not named in it because it was a Covenant inherent to the Land Marshall and Vincents Case 501. In a Scire facias against the Bail he pleaded that the Plaintiff had arrested the party who was condemned in Execution in the Staâ—nary Court so as he could not render his Body Adjudged no Plea because he might remove his Body with a Corpus cum causa and so bring him into this Court. Sawyer and Hardys Case 502. A Lease was made to a Widdow for 40. years upon this Condition Si tamdiu vixerit vidna inhabitaret supra praemissa She died within the Term being a Widdow Adjudged the Term was not determined but should go to her Executors Otherwise if the Lease is made for 40. years if she shall so
long live a Widdow And so note there is a difference between a Limitation and conditional words Harris and Vandergies Case 503. Resolved in this case that an Administrator shall have Trespass de bonis asportatis in vita of the Inteste by the enquiry of the Statute of 4. E. 3. Dudley and Knights Case 504. In Debt The Issue was if the Plaintiff habuit gavisus fuit possidebat the Office of Bedelry of the Court of Conscience of the Bishop of London it was found occupavit Officium praedictum It was said that occupavit did not amount to Gavisus fuit vel habuit but the Court held it good enough Lassels and Lassells Case 505. Action upon the case by the Father against the Son for those words spoken by him of his Father viz. My Brother hath stollen a Black Mare and you were privy to it and sent her away to the Fens to my Brothers House Adjudged the words were slanderous being spoken of a Justice of Peace Jenkingson and Wrays Case 506. Words viz. John Jenkingson meaning the Plaintiff deserveth to have his Ears naild to the Pillory Adjudged the words are actionable being spoken of an Attorney Bale and Rodes Case 507. Words viz. There is a Villain now broken into my Mothers house to rob my Mother and is in the house innuendo the Plaintiff The Court doubted if the innuendo did reduce the words to be spoken of the Plaintiff Barbers Case 508. Words viz. The Plaintiff hath bin in prison for stealing M. Pigotts horse Qu. If the Action lieth because he doth say that he had stole the Horse Atkinsons Case 509. After a Recovery of Detinue the Defendant upon the Distring as pleaded that after the Judgment he had delivered the Goods to the Plaintiff Adjudged no Plea without being returned by the Sheriff or without a Deed shewing it Pen and Glovers Case 510. Lessee for years of a Mannor covenanted that he nor his Assigns would mâ—lest vex or put out any Tenant from his Tenancy upon payment of forfeiture A breach was assigned that the Lessee entred upon the possession of A. a Tenance of the Mannor and beat and wounded and troubled the said A. for his Tenement It was adjudged no breach without an Ouster or disturbing him of the profits of it Carith and Reades Case 511. A Lease was made of certain Fenny Grounds in the County of Cambridge the Lessee covenanted to drein certain other Lands in the said County not in the Lease and in Covenant brought he pleaded that the Lessor had entred upon the Land let Adjudged no Plea because the Covenant was collateral and not for doing any thing inherent to the Land ler. Besey and Hungerfords Case 512. The Venire fac was returned the first day of the Term and the Roll gave day before the Term and Issue was joyned and tried upon it The Court said the Roll is the Warrant for the Writ The Court held the Writ issued without Warrant and the same was not aided by the Statute of 18 Eliz. for that that Statute aids only Discontinuance Miscontinuance and Misconveying of parties Ap Richard and Penrys Case 513. In a Quod ei Desorceat in Wales in the Nature of a Writ of right Issue was joyned and tried upon the meer Right The Demandant upon Non-suit was barred by Judgment and a new Quod ei desorceat brought and the first Judgment pleaded in Bar It was adjudged a good Bar and Judgment final given It was the opinion of the Justices in Error brought and assigned that final Judgment should not be given upon the Demurrer That this Judgment was good and the Judgment was affirmed Gawen and Ludlows Case 514. Note It was Resolved in this case That if in a Replevin the Defendant claims property the Plaintiff may have a Writ de proprietate probanda althought it be two or three years after because by the claime of the property the first Suit is determined Wilford and Mashams Case 515. A constitution in London is That an Apothecary who sells unwholsome Drugs should forfeit a certain pain The Defendant sold unwholsome Drugs in London for which the Chamberlain of London brought Debt in London for the pain Adjudged maintainable there by their By-laws and Customs Wild and Copemans Case 516. Words viz. Thou art a forsworn man for thou wert forsworn in the Leet Adjudged the words actionable because a Leet is a Court of Record Borough and Taylors Case 517. The Queen made a Lease rendring Rent with condition if the Rent was behind by the space of 40. days that the Lease should cease the Rent was payable at the receipt of the Exchequer afterwards the Queen granted the Reversion It was adjudged that in this case the Grantee ought to demand the Rent upon the Lands and not at the Receipt of the Exchequer for that the Grant had altered the place of payment Belchamber and Savages Case 518. Debt was recovered against the Defendant by another who sued Execution and the Plaintiff was Sheriff and had the Defendant in Execution and he escaped and the Sheriff paid the condemnation and brought an Action against the Defendant who pleaded that the Goaler licensed him to escape Adjudged no Plea Beckford and Parncotts Case 519. A man seised of Lands in A. had Issue four Daughters viz. A. B. C. and D. and devised all his Lands in A. to A. and B. his two Daughters and made them his Executors Afterwards he purchased other Lands in A. a Stranger was desirous to purchase those Lands which he had new purchased and he said That the Land should go with the residue of his Lands to his Executors Afterwards the Testator made a Codicill and caused it to be annexed to his Will but in the Codicill no mention was made of this Land and if the new purchased Land should pass by the Will without a new publication of this Land was the Question Resolved the Land newly purchased should not pass for notwithstanding that the reading of the Will and making a new Codicil may amount to a new publication yet it doth not manifest the intent of the Devisor that more shall pass then that which he intended at the first and the reading of the Will and making a new Codicill may not be termed a new publication without an express publication for the Land newly purchased therefore the Land shall not pass by it Ascue and Hollingsbrooks Case 520. The case was A. acknowledged a Statute Merchant at Lincoln before the Mayor there to which Statute there wanted the Seal appointed by the Statute of Acton Burnell wherefore the Conusee brought Debt upon it in Co. B. and had Judgment Error was brought and the Judgment was reversed because it was not an Obligation for it shall not be taken to be an Obligation without express proof of the delivery of it as an Obligation 2. Because three were bound jointly in it and the Action was brought against one of them only and so the Writ did
one saith he hath Title or Interest to anothers Land an action doth not lye although he hath no Title but when he saith that another hath Title he cannot salve the same by applying the same to himself for his Justification Shaw and Thompsons Case 536. A Woman recovered Dower of a Copyhold within the Mannor and 40 l. damages because her Husband dyed seised and she brought Debt for the damages in B. R. adjudged it did not lye because the Court Baron could not hold plea not award Execution of 40 l. damages although the damages were there well assessed Huntbage and Shepheards Case 537. The Issue in an Ejectione firme was if Jemet the Wife of the Defendant was alive at the time The Jury found Julian the Wife of the Defendant was alive It was the opinnion of the Justices they cannot be intended one person without finding that by the Custome of the Country Weomen baptized by the name of Julian had been called Jemet Stile and Buts Case 538. Trespas for carrying away Clay the Defendant Justified by a Prescription as a Tenant of the Mannor but because the Clay was digged by another and not by the Tenant the Justification was ruled not to be good Doggerell and Pokâ—s Case 539. Covenant upon an Apprentiship the Defendant pleaded a By-law in London where he was Apprentice by the Common Councell That if any Freeman takes to Apprentice the Son of an Alien the Bonds and Covenants should be void It was adjudged no plea for that the Common Councel cannot make the Bonds and Covenants void but may Impose a Fine upon the Master for taking such an Apprentice Bab and Clerks Case 540. False Imprisonment the Defendat Justified That the Borough of St. Albans had authority by Charter to make By-lawes and they made a By-law That if any Burgesses give opprobrious words to the Major he should be Imprisoned of the Major at his pleasure and that he being Major sent an Officer to the Defendant being a Burgesse to come to the Common Hall for the affairs of the Town and he sent him this Answer Let the Major come to me if he will for I will not come to him Adjudged the Justification was not good that the By-law was not Lawfull and that the words were not opprobrious words Reynold and Purchowes Case 541. Assumpsit where the Plaintiff had recovered 4 l. against the Defendant in Consideration the Plaintiff had given him 3 l. he promised to acknowledge satisfaction and had not done it It was said it was no Consideration to pay that to him which is due The Court held the Consideration good because speedy payment will excuse and prevent travail and expense of Suit Gregory and Blasfields Case 542. Error of a Judgment in Ludlow upon the Statute of 4 and 5 Mar. for weaving of wollen Cloathes It was assigned that the Statute of 5 Eliz. had abrogated that Statute The Court said the Statute of 5 Eliz. had not abrogated it but encreased the penalty But because the Suit was there by Bill or plaint but ought not to be but by Writ or Information the Judgment there was Erroneous 543. The Custome of a Mannor was layed to be That if a Copyholder hath 2. Sons and a Wife and dyes and the eldest Son hath Issue and dyeth in the life of the Wife the younger Son shall have the Land The Issue being upon the Custome The Jury found the Custome That the younger Son shall have the Land unlesse the eldest was admitted in his life and paid the Lords Fine The Court held the verdict to be insufficient to prove the Issue Walter and Dawes Case 544. Assumpsit upon a promise to pay 20 l. yearly for 10. years to the Testator of the Plaintiff in consideration the Testator had granted him the Office of the Clerk of the Fines in the Counties of B. C. and Glamorgan The Defendant pleaded he did not exercise the said Office and the Venire was awarded in the County of Worcester It was adjudged against the Plaintiff because there they cannot take Notice of the Issue Necton and the Wardens of Wexchandlers Case 545. The Plaintiff sued a Prohibition against the Defendant upon Libell exhibited by them for a Legacy given to them by the Testator of the Plaintiff The Plaintiff surmised that there were divers Obligations for monies depending and Suits But in Conclusion the Defendants had a Consultation upon security to repay the Legacies to be there recovered by them if any things were Recovered by the Excecutors upon the Obligations Vide this case more largely Reported in Cr. 3. part 467. Wright and Major and Commonalty of Wickhams Case 546. Error was brought to reverse a Fine viz. that the Ancestor dyed mean between the Teste and the Return of the Writ of Covenant The Defendant pleaded that after the death of the Father the Plaintiff entred into parcell of the Land and made a Feoffment It was the opinion of the Court that he was barred by his entry and Feoffment of part upon the difference If a man hath an Action to Land if he suspend or extinguish it in part it is extinct in the whole but if he hath right to Land he may Release or suspend it in part and remain good for the Residue and upon this point the Judgment was reversed Welshes Case 547. Note It is the same case with the case of Attonwood Reported at Large in Cook 1. p. of his Reports upon the points there more largely debated and adjudged and therefore I have forborn here to abridge it I shall mention this case put by Pirriam Justice viz. If Tenant in tail be the remainder in tail the remainder to the Queen and Tenant in tail commits Treason and the Queen makes a Lease and the Tenant in tail dyeth without Issue and afterwards he in the Remainder dyeth without Issue that this Lease shall continue good upon the Reversion Lord Darcies Case 548. Quo Warranto for using a liberty to be exempt of Purveyance The Defendant pleaded that King Edward 4 granted to the Dean and Cannons of St. Pauls and their successors the said liberty within all their Lands and averres that they were seised of the Land in which at the time of the Grant and that afterwards the said Lands came to Edw. 6. who granted the same to his Grandfather and his Heirs with a Clause de tanta talia consimilia libertates c. quae quot qualia quanta the Dean and Canons or their predecessors ever had by reason of any Charter Grant of any of the Progenitors of the said King with a general non obstante aliquo Statuto c. It was Replyed that 27 H. 8. it was enacted by Parliament that the Kings Purveyors should execute their Commission in all places aswell within Liberties as without any Charter c. notwithstanding The Court was of opinion for the Queen because at the time of the Grant of tot tanta talia libertates the
liberty of Exemption was extinct by the Act of Parliament and the Kings intent was not to grant such a Liberty as was excinct and as to the non obstante it was not sufficient being general but if the Grant or non obstante had been particular there the Grant should have been good Matthew and Woods Case 449. Judgement was given in B. R. in an Action upon the case for words the Plaintiff there brought another Action in C. B. for the same words and had Judgment to recover Error was brough upon the Judgment in B. R. the Court was of opinion to confirme the Judgment in B. R. but they in discretion would not grant execution upon it but only upon the Judgment in their own Court Thimblethorps Case 550. Words viz. when wilt thou bring home my Husbands sheep which thou hast stollen adjudged actionable and the damages to be paid by the Husband Hilliard and Constables Case 551. Words spoken of the Plaintiff a Justice of Peace and Vice President of York viz. He is a blood-sucker and thirsteth after blood but if any man will give him a couple of Capons or a score of Weathers he will take them It was adjudged the words were not Actionable because he may thirst for blood in care of Justice Wheeler and Collyers Case 552. Assumpsit against an Administrator whereas the Intestate was in his life endebted to him 17 l. in consideration the Plaintiff would deliver to the Administrator 6. barrells of Beere he promised to pay the whole 20 l. being found for the Plaintiff Judgment was stayed because the action did not lye joynt for two sums of money Colmans Case 553. In consideration of 4 d. one promised to pay 10 l. upon non Assumpsit Damage shall be given to 10 l. and not to 4 d. adjudged Awder and Nokes Case 554. Lessee for years assigned over his Terme by deed to I. S. and Covenanted that I. S. and his assignes should enjoy the Land during the Terme without Interruption of any After I. S. assigned over his Terme by word and the Assigne being disturbed brought Covenant adjudged it did lye although the Assignement was but by word because there was privity of estate Paramoure and Darings Case 555. The Condition of an Obligation was to pay all Legacies which I. S. had bequeathed by his Will Adjudged the Defendant shall be estopped to say I. S. made no Will but he may plead he gave not any Legacies by his Will Grene and Bufkyns Case 556. The Statute of 31 H. 8. gave all Colledges dissolved to the Crown in which there is a Clause that the King and his Pattentees should hold discharged of Tythes as the Abbots held Afterwards the Statute of 1 Edw. 6. gave all Colledges to the Crown but there is in it no Clause of Discharge of Tythes The Parson Libelled in the spiritual Court and the Farmor of the Lands of the Colledge of Maidston in Kent brought a Prohibition upon the Statute of 31 H. 8. The Court was clear of opinion that the King had the Lands of the Colledge by the Statute of 1 E. 6. and not by the Statute of 31 H. 8. But the Justices doubted the Lands comming to the King by that Statute whether they should be discharged of Tythes by the Statute of 31 H. 8. there being no Clause in the Statute of 1 Edw. 6. for dicharge of Tythes but it was Resolved by the Justices that unity without Composition or Prescription was a sufficient discharge of Tythes by the Statute of 31 H. 8. 557. Action upon the case for that the Defendant made a Conigree in his own Lands and that the Conies entred into the Plaintiffs Land and destroyed his Corne Resolved that the Action did not lye because they were not the Defendants Conies when they were out of his Warren But in that case it was holden that the Erection of a Conigree or a Dove Cote was presentable in a Leet and finable there 558. Note Resolved in the Court of Common Pleas by the Justices there That an Information doth not lye upon the Statute for Tanning of Leather but only in the Courts of Record at Westminster and not in any other Inferior Courts The Queen and Hussies Case 559. Tenant in Tail of an Advowson the reversion to the King in 32 H. 8. granted it to the King and his Heirs the King granted the Advowson to the party presented Tenant in Tail dyed without Issue the Church became void Resolved that the Advowson did passe out of the Kings Reversion after the estate Tail was determined and that a Quare Impedit brought by the Queen did not lye But in this case it was Resolved That a double presentation would not put the Queen out of possession if she had had Right Nevill and Barringtons Case 560. After Issue joyned in an Ejectione firme and the Jury at the barre ready to try the Issue A Writ was brought to the Justices not to proceed Regina inconsulta in the Nature of Aide and after great debate the same was allowed by the Court Vide aide in personal actions 2 R. 313. Fennor and Plasketts Case 561. It was Resolved in this case That if the Husband distrain for Rent due to the Wife dum sola fuit and Rescous be made he alone may have a Writ of Rescous or at his Election joyne his Wife with him in the Writ 562. A Rescous was returned without shewing the place where Rescous was and the party was discharged Hinson and Baradges Case 563. If the Jury challenge the Sheriff and the challenge be confessed although the Jury be removed and a new Sheriff chosen Yet Resolved The proces shall go to the Coroners 564. It was Resolved in this case that Ejectione firme doth not lye de pecea terrae Hollman and Collins Case 565. A Judgment in the Court of Plimouth was reversed because the stile of the Court was Placita coram I. Majori c. and did not say secundum Consuetudinem villae nec per litter as Patentes c. Kelsick and Nicholsons Case 566. Two Executors were and one of them gave the Obligation to a Stranger for the payment of his own Debt and died The survivor brought Detinue It was adjudged the Action did not lie Sowel and Garrets Case 567. A devise was made to the Son and if he die without Issue or before his age of 21 years it shall remain to another the Son had Issue but dyed before 21. years Adjudged the Son should have the Land and not he in the Remainder and in that Case Ou was construed for Et. Buckler and Harvyes Case 568. The case is very long but this in effect Tenant for Life the Remainder in Fee Tenant for life made a Lease for years the Lessee entred Tenant for Life granted the Tenements to C. Habendum the Tenements from the Feast of Mich following for Life the Lessee for years attornes C. enters and makes a Lease at Will to whom the Tenant for Life
absque hoc that he promised in London the Plaintiff said he promised in London absque hoc that there is any such Accord although this was a Traverse upon a Traverse yet it was adjudged good Montague and Jeoffries Case A seised in Fee of the Mannor of M. and of Lands called G. expectant upon a Lease for years by his Will he devised the Mannor and G. to the Defendant and afterwards he covenanted with I. S. to make a Feoffment to the use of himself and E. the daughter of I. S. whom he did intend to marry which was by Letter of Attorney executed in the Mannor not in G. nor any Atonement of the Tenant of it He married E. and afterwards in the Will with his own hand where he had made M. his Daughter his Executor he added these words viz. E. my Wife and then died It was the opinion of the Justices in this case that the Feoffment did countermand the whole Will but they doubted whether the writing of the new words in the Will was a new publication of it The Lady Greshams Case 577. Scire facias to execute a Recognizance acknowledged in Chancery accordingly B. the Defendant pleaded in abatement of it that B. was seised of three Acres at the time of the Recognizance whereof I. S. was now seised not named in the Writ they were at Issue upon the Seisin and it was found that B. and another were jointly seised and enfeoffed I. S. It was said that although the moyetie of the Land was extendable yet the Writ as brought should abate Corbet and Downings Case 578. An Obligation was taken by the Sheriff for an appearance at Westminster and the Term was adjourned to St. Albans and the party appeared there adjudged he had not forfeited his Obligation Qu. If the word Westminster in the condition did not make the Bond void because by the Statute of 22. H. 6. there is not any such name in the Writ Blodwell and Edwards Case 579. The case was B. made a Feoffment in Fee to the use of himself for Life and after to the use of such Issue of the Body of M. from eldest to eldest as were reputed to be begotten by the said B. whether it be lawfull or unlawful It was adjudged in this Case That it was a good Remainder limitted to a Bastard for a Son in reputation is sufficient to make him a Purchaser 580. It was Resolved by the Justices that Fenny ground dreined should pay Tythes and was not barren Land within the Statute to be discharged of Tythes for seven years Mounson and Wests Case 581. In Assise The parties were at Issue upon the Seisin and Diseisin the Jury found West Tenant and that he disseised the Demandant Nisi such words in a Will give the Tenant a Title It was said the Verdict was imperfect because of the words nisi c but the Court held the Verdict good enough for the finding of the Disseisin implies a Seisin also Walford and Mashams Case 582. Resolved that an Alien borne under the Obedience of an Enemy of the King may have Debt upon an Obligation for personal things Palmer and Porters Case 583. Action upon the case against the Bailiff of N. for that upon a fieri fac directed to the Sheriff of N. return Octob. Mich. he sent his Warrant to the Defendant being Bailiff of N. to execute it who returned Nulla bona c. before Mich. and at Mich. they were removed from their Office and new Chosen Resolved it was a void Return for the Sheriff ought not before Octob. Mich. have accepted return of Nulla bona for he might have some afterwards and before the return of the Writ and the return by them after Mich. being out of their Office was void but if they had executed the Writ before Mich. then the Sheriff might have accepted of their return before Mich. but not after Hobs and Tadcastles Case 584. Audita querela the case was A. sued a Bill of Debt against B. who found bail the Plaintiff and another Afterwards B. was was condemned and dyed without paying the consideration or rendring his body A. scire fac was sued against the Plaintiff his Bail and upon 2. Nihils returned Execution was awarded against him Whereupon he brought the Audita querela It was prayed he might be discaarged out of Execution for that it is now become impossible by the act of God the principal should render his body and there was never any Capias awarded against him in his life time The Court held it very unreasonable to sue Execution against the bail till a fault was returned in the principal and the Recognisance of the bail is that the principal shall render himself which is to be intended upon Capias awarded against him Judgment was given for the Plaintiff in the Audita querela and he was discharged out of Execution Slade and Morleys Case 585. A man sowed his Land with Corne and sold the Corne to the Defendant for 16 l. to be paid at Midsomer next and the Defendant in consideration of such sale promised to pay the money at Midsomer but did not upon which Assumpsit was brought It was the greater opinion of the Justices in the Exchequer Chamber that the Action did not lye because properly Debt did lye in which the Defendant might wage his Law Robins Gerrard and Princes Case 586. The Case very long in effect was this A man is Admitted Instituted and Inducted into a Benefice with Cure of the value of 8 l. and afterwards the King presents him to the Church of D. which is a Benefice with Cure and he is admitted and Instituted The Archbishop grants to him Letters of Dispensation for plurality which Letter the King confirmes and afterwards he is Inducted to the Church of D. It was adjudged in this case that the Dispensation came too late because it came after the Institution for by the Institution the Church is full against all persons but against the King and as to the Spiritualties he is full Parson by the Institution 2. Resolved that admit the Church was not void by the Institution untill Induction Yet the Dispensation came too late for that the words of the Satute of 21 H. 8. of Pluralities are may purchase Licence to receive and keep two Benefices with Cure of Souls and the words of Dispensation in this case were recipere retinere and because by the Institution the Church was full he could not purchase Licence to receive that which he had before and he cannot retaine that which he cannot receive The Queen and Cattons Case 587. Scire fac to repeal a Patent made 29 Jan. 35 Eliz. which Recited Whereas A. and B. conjunctim divisim were bound by Obligation to the Queen in a 1000 l. dated 21 April 33 Eliz. with Condition that A. should stand to the award of I. S. for controversies betwixt him and C. which Obligation is become forfeited and Recites that the Queen by
Pat. 30. Jan. 3â— Eliz. had granted to C. and his Wife the said Writing Obligation and sum of 1000 l. in the same contained ita ut praefertur forisfact and that at the suit of C. in the Name of the Queen Judgment was given that the Queen should have Execution of 1000 l. prout per Recordum Judicii c. Now to the intent that C. should have the said Obligation The Queen ex certa scientia c. granted praedict Scriptum Oblig summam 1000 l. totum advantagium Judicii praedict to the said C. and his Wife with power to sue in her Name It was Resolved in this case that the Queen was deceived in her grant because she recites she had granted before the Obligation by her Pat. 33 Eliz. whereas in trueth nothing passed by that Patent for want of true Recital of the Condition Turner and Oldfields Case 588. A Prohibition to the Admiralty because they Libelled in the Admiral Court upon a Charterparty to have the third part of goods taken upon the Sea by Letters of Mart whereas the matter was tryable upon the Land and not in the Admiralty by reason of the Indenture of Charterparty Lutterells Case 589. It was Resolved by the Justices in this Case If one be seised of Lands to which another hath right of Entry and the Tenant in possession levyes a Fine with Proclamation That he who hath right ought to enter in possession or make a special Warrant to one to enter for him and a stranger cannot enter in his name and avoid the Fine Gybon and Bowyers Case 590. Upon Recovery an Ejectione firme in the Court of Ancient Demesne a Writ de Execuâ—â—me Judicii was awarded to the suitors who returned they did not execute the Writ because the Land was Franck Fee as appeared to them by the Transcript of a Fine shewed to them the Return was dissallowed by the Court because the parties allowed the Jurisdiction of the Court at first and that the Lands in Frank Fee ought to have been pleaded so as the other party might answer to them Vicary and Farthings Case 691. The Issue was upon full age and 2 Church bookes were given in evidence whereof one was delivered to the Jury in Court the other was delivered to the Jury by the sollicitor of one of the parties without the Assent of the other and that was endorsed upon the Postea The Court was divided in opinion if the verdict was good or nor Wentworth and Russells Case 592. Two Tenants in Common of a Mannor brought a Parco fracto and it was adjudged maintenable without shewing how they were Tenants in Common Maine and Scots Case 593. A man made a Lease for years by Indenture and Covenanted with the Lessee upon surrender of his Lease to make to him during the Terme a new Lease The Lessor accepted of a Fine sur Conusans dedit come ceo and by that Fine rendred the Land to the Conusee for 80. years It was adjudged that the Lessor had disabled himself to make the Lease and therefore the condition was broken and Covenant did lye without a Surrender Partrrdge and Naylors Case 594. Judgment was against 3. persons in an Action brought against them upon the Statute of 1. and 2. Phil. and Ma. for Impounding a distresse in several Pounds and damages assessed which were trebled by the Court and 5 l. a piece forfeitures because there ought to have been but one 5 l forfeiture because all the 3. Defendants offended in a joynt offence Hollins and Connards Case 595. Debt upon Obligation to performe Covenants which was That the Obligor should make assurance before such a day of Land to the Obligee and his Wife at the Costs of the Obligee but there was no request in the Covenant It was adjudged that in this Case that the Obligor having election what manner of Assurance he will make ought first to give notice to the Obligee that he would make such an Assurance and then the Obligee is to pay the Costs of it Monday and Levices Case 596. In a Prohibition it was adjudged it was not a good prescription that Inhabitants have used to pay Calves and Lambs and 1 d. for every Milch Cow in satisfaction of all Tythes of Lambs Calves Milch Kine and all barren and rother beasts and Agistments Linch and Spencers Case 597. Ejectione firme the Case was Sir R. B. was seised of Lands in Fee and thereof enfeoffed W. and others upon condition that that they should regrant it to him and his Wife in Tail the remainder to the right Heirs of Sir R. B. who regranted it accordingly Sir Robert and his Wife had Issue A. B. Sir Robert dyed A. B. levyed a Fine with Proclamation to Sir G. B. the Lessor to him and his Heirs to the use of him and his Heirs Tha Mother afterwards leâ— the Land to the Defendant for life and dyed Sir G. B. entred upon the Defendant pretending his entry to be Lawfull by the Statute of 11 H. 7. It was Resolved 1. That Sir G. B. was such a person who might enter for the forfeiture within the Statute and that by this Fine Levyed by A. B. in the life of his Mother the estate Tail is barred thereby and the remainder in Fee passed by that Fine to Sir G. B. so as he had the remainder at the time of the discontinuance made and the wronges done to him and then he is within the words and intent of the Statute to take advantage of the forfeiture The Countesse of Northumberlands Case 598. In a Quare Impedit brought by divers the Defendant pleaded the Release of one of them depending the Writ It was Resolved 1. That it should go in Bar against him only 2. Resolved That a presentment alledged in the grantee of the next Avoydance and not in the grantor himself was a good title for the grantor and his Heirs in a Quare Impedit Harvey and Oswalds Case 599. A man let Land rendring rent upon Condition that the Lessee should not demyle it without the assent of the Lessor he demysed part of it the Lessor without Notice accepted the whole rent of the first Lessee It was adjudged he might enter for the condition broken notwithstanding the acceptance because he had not notice of the condition broken contra if he had notice of it although the condition was Collateral Blinco and Marsons Case 600. A Vicar Libelled in the Spiritual Court to have Tythes of the gleab of the Parson and a prohibition was granted for that the gleab shall pay no Tythes Kirton and Hoptons Case 601. In Appeal of Mayhem the Defendant pleaded to the Writ and pleaded over to the Mayhem It was adjudged that he ought not to plead over to the Mayhem but only where life is in Jeopardy wherefore a venire was to try the Issue of Notguilty Coote and Lighworths Case 602. False Imprisonment the Defendant had justified that he had a Warrant to arrest I. D.
Eliz. assigned the same to C. for 14. years rendring yearly three Bushels of Mesâ—yn and one Bushel of Wheat in name of a Rent every Saturday and if it fortune the weekly Rent to be unpaid or undelivered then the Lease to cease B. entred and C. possessed of the Reversion by Deed Poll granted the Reversion totum interesse sui to D. to whom B. attorned R. demanded the Rent Corn upon a Saturday which was not paid for which he entered It was Resolved 1. that the Rent reserved by the first Lessee upon demise of the Will for a less Rent was incident to the Reversion of the ancient Term and shall pass by the words of all his Estate and by totum interesse the Rent divided from the Reversion will pass and the Reversion by the words totum statum 2. That the Assignee de toto statu shall take advantage of the cesser of the Term in esse and make the demand of the Rent if the Grant de toto statu be by writing with attornment 3. That by the Statute of 32. H. 8. the Grantee of the Reversion shall have benefit of a Condition annexed to a lesser Term divised out of the first Term There was another point It the demand of the Rent was good or void which was not Resolved Coulter and Irelands Case 664. It was Resolved in this Case by all the Justices of England That an Executor of his own wrong could not pay himself a Debt or a Legacy Chambers and and Handbarges Case 665. In case of a Prohibition It was suggested that the Queen and all those whose Estates she had had used to pay to the Rector of D. 2 s. 4 d. yearly in full satisfaction of the Tythes of Land in C. Issue was upon the Prescription It appeared that the Abbot of K. was owner of the Land and Rectory which afterwards came to the Queen who was seised as the Abbot was Resolved that the Unity was not a perpetual discharge of the Tythes nor of the Recompence for them Brougton and Randals Case 666. A Tales was awarded upon the Return of a Distringas where none of the principal Pannel appeared yet holden it was good But a Tales is not grantable upon the Return of the Venire if none of the principal Pannel do appear Benton and Trotts Case 667. In case of a Prohibition It was Resolved in this Case that unity of the Estate and not in occupation of the Land and Rectory at the day of dissolution of the Abby was not a discharge of payment of Tythes by the Statute of 32. H. 8. But if the Abbot held the Land at the time of the dissolution in Fee and the Rectory also those Lands were always discharged but if the Lands were in Lease for years although but for a small Term of years the Lands should pay Tythes and so it was said it was adjudged in Knighth and Spencers case and in Green and Bufkyns case and vide to that purpose Coo. 11. par Pridle aâ—d Nappers case Verey Carew and Gibsons Case 668. A seised of Lands in Middlesex and in London acknowledged a Statute to Carew and afterwards conveyed the Land in Middlesex to one which came to the Plaintiff by purchase and the Land in London he conveyed to G. the Defendant and died The Administrator of Carew sued a Scire fac against the Conusor in Middlesex who was retorned mortuus upon which he had a Scire fac to the Terre-Tenants in Middlesex generally and Verey the Plaintiff was returned Terre-Tenant and made default upon which Judgment was given for execution and that a Moiety of the Land in Middlesex should be extended upon which he brought a Scire fac in the nature of an Audita Querela against the Administrator and Gibson Tenant of the Lands in London to shew cause wherefore the moiety of the Lands in London should not be extended It was the opinion of Popham Chief Justice that he might have a Writ wherefore the Lands restitui non debent but not an Audita Querela but the other Justices held that that was the most beneficial way for him who was grieved by the former extent but if he will not pray restitution of what is past but only a contribution for an equal extent to satisfie what did remaine they saw no cause but that he might have it for the foundation of the Writ is equal extent and it was said that the Book of 39 E. 3. 7. and 39 was that it was in Election of the Conusee to take his Audita Querela for restitution or for future contribution Wild and Coopmans Case 669. Words viz. Thou art a false forsworn man thou wast forsworn at the Leet of R. and didst procure others to be forsworn The Defendant justified because that the Plaintiff was one of the Jury and presented that to be a Nusance which was no Nusance Adjudged the Justification was not good and that the Action did lie for the words Parry and Woodwards Case 670. Debt upon a Bill which was Be it known that I do owe to Parry 14. l. to be paid at the Feasts of c. together with 6. l. which I owe him upon Bill and Recognizance subscribed under my hand The Plaintiff brought debt for 20 l. and adjudged against him because the Bill made him Debtor for no more then 14 l. Vaughans Case 671. Intrusion The Queen by her Letters Patent ex certa scientia gratia speciali mero motu granted to I. S. which were late parcel of the Priory of L. and came to the Crown by dissolution of the Premises or any part thereof or the issue or profits thereof were before the first of April 14. Eliz. concealed substrained or unjustly detained from her Father Brother Sister and so remained at the date of the Letters Patent untill they were revealed by the Patentee and it was found by a Commission in 8. Eliz. issued forth to enquire of the Reparations of the King granted and how much money would repaire it and that the Queen was allowed the value of the Stone and Lead expended in the Reparations This was adjudged to be no concealed Land and therefore the Patent void Michel and Longs Case 672. If a Battery be laid in D. in the County of N. with a Continuando in Middiesex and Issue be upon it the Venire shall be of both Counties Thompson and Gardiners Case 673. The Plaintiff had a 100 l. delivered to him to pay over to I. S. and the Defendant came to him and affirmed he was I. S. to whom he delivered the 100 l. and in truth he was not I. S. Adjudged that an Action of Deceit lay against him Shorhorne and Lewis Case 674. The Hospital of Donnington was incorporated by the name of Minister Dei pauperis domus de Donnington confratres ejusdem and they made a Lease by the name of Minister pauperis Domus Dei de Donnington elemosynarii confratres ejusdem The Justices were divided
l. of the râ—nt to 3. persons divisim viz. to each of them a full 3. part which was 9 l. 6 s. 8 d. One of the devisees brought debt for his part against the Lessee It was the opinion of the Justices that the Rent was apportionable and that the Tenant is chargeable without attornment by the devise to each of the devisees for the 3. part of the Rent Winters Case 705. It was said by Popham Chief Justice that Clergy is allowable upon the standing Mute for such a Felony for which Clergy is allowable if the party be found guilty and therefore he allowed Clergy to Winter who stood Mute upon an Indictment of Felonious taking of goods 706. The Case was a man robs one in the high way in one County and is apprehended with the goods in another County and indicted for the goods and found guilty to the value of 10 d. The question was if by the Statute of 25 H. 8. he shall have Judgment of death or be whipt It was the opinion of the Justices the Case being put to them at Serjants Inn that he shall be but whipt and that the Statute of 25 H. 8. doth not extend but to those who demand Clergy which they shall be denyed if it be found by examination to be done with Robbery Lever and Heyes Case 707. The Father of the daughter promiseth to the Father of the Son that if he will give his consent to the Marriage and assure 40 l. Land to his Son that the Father of the Daughter will pay 200 l. to the Son in Mariage It was Resolved in this case that if the Father of the daughter do not pay the 200 l. that the Son shall have the Action upon the promise and not the Father Egertons Case 708. Egorton the Queens Sollicitor was commanded by Writ to attend upon the Lords in the upper House of Parliament After he attended there 3. dayes he was chosen Burgesse for the Borough of Reading and Returned The Commons came to the upper House and demanded that he might be dismissed from his attendance there and be sent them into the Lower House but upon Consultation he was retained there still because he being neither Inhabitant not Free of the said Town might choose if he would serve at their Election or not which he expresly refused to do 2. Because he was first attendant in the upper House 3. Because the Queen had power to prefer him to the upper House aswell as she had power to command him The Bishop of Norwiches Case 709. The Bishop pleaded a private Act of Parliament and mistook the day of the Commencement of the Parliament It was adjudged against the Bishop for although the Judges are not to take notice of the private act yet of the beginning of the Parliament they are to take notice of Helgor and Whiteacres Case 710. Replevin The Defendant avowed that a Parsonage was parcell of the Prebendary the Prebend before the Statute of 13 Eliz. was Leased for 50. years in Reversion to I. who assigned it to B. who assigned it to C. who assigned it to H. the Lease in possession ended H. enâ—red and made the Lease to the Plaintiff The Plaintiff confessed the Lease to I. and the Assignments but said that I. so possessed took to Husband T. who before the assignment to B. assigned the Terme to I. S. who dyed possessed absque hoc that the said I. assigned her estate and Interest to B. It was adjudged for the Avowant because when the Plaintiff confessed and avoided he ought not to have traversed but might have prayed Judgment without Travers and so by reason of the Travers it was adjudged against the Plaintiff Vavisoâ—s Case 711. Resolved That if the Sheriff makes his Warrant to a Corporation who have return of Writs to arrest I. S. they may make a Bailiff to arrest by perol only Robes Bent and Cocks Case 612. A a villain purchased the Inheritence of a Copyhold in the name of B. and another in Trust B. surrendred his moyety to the use of his own Son the other dyed seised The Son of B. and the Heir of the other for mony sold the Copyhold to C. for 50 l. being of the value of 80 l. A sued the Son of B. and the Heir of the otherand C. in Chancery for the 80 l. It was Decreed the A. should recover the 50 l. only from B. and the Heir of the other and C should be discharged of it The Lord Hunsdons Case 713. In a Monstrance de droit for certain Lands in ward to the Queen for the Nonage of B. upon Jury returned the Array was challenged by the Queens Attorney because it was Returned by the Sheriff of Kent who was also Tenant to the Plaintiff A Counterplea was thereunto that he was Tenant to the Queen It was the opinion of the Justices that the Counterplea was little material for although he was Tenant to both yet he who takes the Challenge shall have advantage thereof Afterwards the array was Quashed and a venire de novo awarded Lady Russell and Gulwells Case 714. The Lady demised Lands to the Defendant by Indenture Defendant entred bonds to performe the Agreements in the Indenture Debt brought by the Lady for breach of Covenants and assignes the breach in disturbance of her in the occupation of certain Lands excepted in the Indenture out of the demyse and adjudged against the Lady for that it was breach neither of Covenant nor agreement 715. Nore by Egerton Lord Keeper if there be Tenant for life the remainder for life the remainder in Fee and the Tenant for life committeth Wast so as he is dispunishable by the Common Law yet upon Complaint he in the remainder in Fee may have an Injunction against him not to do Wast Penner and Cromptons Case 716. In a Prohibition It was holden that none shall be chargeable for contribution to Church Reckonings if he do not Inhabite there or to consent to them Powle and Veeres Case 717. A. made a Lease to B. of the Mannor of S. for life which was executed by Livery with these words that if it fortune B. to marry any Woman during his life who shall happen to overlive him then the Land to remain to such Woman for her life Proviso If B. do not declare by writing sealed â—or his last Will that he Wills she shall have it then it shall not remain to her B. before any marriage makes a Feoffment to I. S. to whom a Fine is levyed and a Recovery suffered Afterwards B. takes a Wife and declares she shall have the Remainder and after D. and his Wife Levy a Fine to the Heirs of I. S. and afterwards B. makes another declaration that the Land shall remain to the Wife and then B. dyes and the Wife enters It was adjudged her entry was not Lawfull because the Remainder if it was ever good was destroyed by the Feoffment and the Freehold supplanted before the Remainder took
any essence and also because the possibility of the Wife was included in the Fine Ferry and Redings Case 718. Two were bound in a Statute to make such assurance as should to devised by the Conusee or his Councell upon Notice Assurance was devised and notice thereof given to one of them who refused but no Notice was given to the other It was Resolved that by the Refusal of one of them the Statute was forfeited and should bind both of them Strangewayes and Hicks Case 719. The Defendant knowing that the Plaintiff was an Enfant within age procured him to enter into a Recognizance of Debt to him for wares bought of him and for this the Defendant was fined in Star Chamber 100 l. and Imprisoned Lewes Case 720. He being Clark of the Assises in the County of S. and hearing his Deputy reading an Indictment of Murther the 31. day of June whereas June hath but 30. dayes and because he did not discover the same to the Justices of Assise before the Tryal of the person for that cause he was fined in the Starre Chamber 40 l. and the Judgment and execution of the party respited Rosses Case 721. A. levyed a Fine to the use of himself for life the remainder to his Excecutors untill they have levyed 300 l. for the performance of his Will and dyes The Executors permit a stranger to enter who receives greater profits then will pay the 300 l. afterwards the Excecutors enter and make a Lease for years Resolved that the estate of the Excecutors was determined by their own negligence and although the words of the Will are they shall have Levyed It is intended untill they might conveniently have Levyed the 300 l. 722. King Hen. the 8. Mortgaged certain Lands to Citizens of London upon condition of Redemption by payment of the money by the King to them They did not demand the money at the Receit of the Exchequer which was so found by Office It was the opinion of the Justices that the King might enter upon the Land Wherefore the Mortgagees and their Heirs were compelled to compound de Novo with the Queen for the Land and paid ten years purchase and took new grants from the Queen of the Lands Townsend and Kingsmills Case 723. Ejectione firme The Defendants pleaded that the Dean and Canons of Windsor was seised and made a Lease for years and the Lessee assigned the Terme to the Defendant who was possessed till the Lessor of the Plaintiff ousted him and disseised the Dean and Canons and made the Lease to the Plaintiff The Plaintiff Replyed and confessed the seisn and Lease of the Dean and Canons and made title to the Terme by the assignment made by the Lessee to his Lessor before the assignment to the Defendant and Traversed the disseisin It was the opinion of the Justices that the Traverse was not good because he confessed and avoyded and also Traversed Vide Helyors Case before pl. 709. Barres Case 724. Information in the Exchequer against divers Merchants some Aliens some English After issue the Aliens prayed tryal per medietatem Linguae It was denyed by the Court because the English who were Defendants could not have that tryal Lewen and Coxes Case 725. A. seised of Lands in Fee devised them to his 2. Sons equally and their Heirs If it was a joynt estate in them or they were Tenants in Common was the Question It was said the words equally had 2. significations in the one it referreth to the estate in the other to the quantity of the Land It was said in a Devise of Lands to 2. equally they were joynts But if a Devise were to 2. and their Heirs equally or part and part like it is a Tenancy in Common At last after long debate it was adjudged it was a Tenancy in Common and so it was affirmed in a Writ of Error in the Exchequer Chamber upon the opinion of 4. Judges against 3. of them Lovedon and Windsors Case 726. Quare Impedit the Case was L. had 2. Presentations and W. the 3. of Inheritance perpetual L. presented P. who was Institute and Inducted and afterwards in the time of Queen Mary was deprived because a Married man wherefore he again presented D. who was Inducted Afterwards P. was restored with Declaration that he had good Title Afterwards P dyed W. presented H. L. brought the Quare Impedit It was adjudged for the Plaintiff because the sentence declaratory for the restitution made a nullity in the deprivation of P. and upon that P. was restored without new Presentation and so avoyded the Incumbency of D. and so L. had good Title to present as his second Turne and W. had no title to present as yet 727. Upon the Statute of 39 Eliz. Cap. 6. Of Charirable uses these poynts were Resolved by the Justices 1. That although the Bishop of the Diocesse be a Commissioner by the expresse words of the Act yet it is not necessary that he be present at the execution of the Commission but if it be directed to him and others they may proceed in it without the Bishop but it must be directed to the Bishop else it is void 2. If it be directed sede vacante the Metropolitan is not to be named in it because he is not Bishop of the Diocesse and if a Bishop be made before the Execution of the Commission the same doth not take away the force of the Commission 3. If the Commissioners decree a Lease or Feoffment to be void it is void in interest and estate and if the Lord Chancellor c. after decree the estate good it is again good in interest but the Chancellor cannot make any decree in it if the former decree of the Commissioners be not against equity 4. If a Lease be made in deceit of the Charitable uses which is assigned to one who hath not notice of it for good and valueable Consideration The Commissioners have power to decree the Assignment void 5. The Commissioners may decree the mean profits long time before taken to be repaid by the party his Excecutors or Administrators and had received the and misimployed them as well as they may the profits which are to come 6. The Commissioners cannot by decree estabblish a Corporation of Churchwardens or others to take for Charitable uses but they may Decree Land to a capable body Politique without danger of Mortmain be the Land holden in Capite or not because the Queen is bound by the Statute Yet afterward the Justices altred their opinion in one of the poynts viz. That they could not decree the Lease or estate void of one who came in without Notice and upon good Consideration Druries Case 728. The Case shortly put was this A Countesse being a Widdow retained two Chaplins and afterwards she retained a third Chaplain which third Chaplain purchased a Dispensation to have two benefices with Cure his first benefice being of the value of 8 l. per an It was Resolved after long Argument that
Resolved it was a good Saving and that all Justices in their Sessions to be holden within the city might hear and determine Offences committed in the County but no offence done within the city though in the time of the Sessions Heydon Smith and others Case 857. Audita Querela The case was A. and B. seised of Capite Lands and P. seised of Soccage Lands they all three acknowledged a Statute of 8000 l. to R. A. and B. levyed two several Fines of their moyeties to C. and W. to the use of themselves and their heirs until default of payment was of certain Annuities and then to the use of C and W. they after default of payment sold the Lands to H. and D. H. released to D. who devised the Land in tail and died the Devisee in tail died without Issue the Wives of the Plaintiff were Heirs to D. to whom the third part of the Capire Land discended R. had extended the Lands upon Statute before the default of payment of the Annuities and before the Bargain and Sale and although he sued the extent against A. and B. and also P. yet the Sheriff extended the Lands of A. and B. and to defeat the extent and to have Restitution because the Land of P. was not extended the Audita Querela was brought The principal point in this case was if the Bargainee and those which claim under him should have no Audita Querela for the extent made before his time Another point was if the Coheirs should have an Audita Querela without the owner of the two parts all of them being Tenants in common and equally grieved with the extent The case is very learnedly argued pro con but not Resolved Salter and Botelers Case 858. A Rent was granted to A. his Executors and Assignes for the Life of B. out of Bl. acree A. died living a Cestuy que use The Executors of A. distreined for the Rent and averred the Life of B. It was adjudged the Distress was not lawfull because by the death of the Grantee the Rent was determined but if the Rent had been granted to the Grantee and his Heirs the Heir of the Grantee should have bin a special Occupant and he might distrein for the Rent Ewer and Moiles Case 859. In a Replevin by E. in the Kings Bench against M. M. being an Infant appeared there by Artorney also an Imparlance was entred Petit licentiam interloquendi usque and no day was named and Judgment being there given for these Errors the Judgment was reversed Boulton and Bastards Case 860. A. and his Wife seised in the Right of the Husband of the Mannor I. exchanged the same with S. and D. for the fourth part of the Mannor of S. A. died the Wife entred into I. and evicted it for her Life It was adjudged it was a defeating of the Exchange for ever because the exchange was of Land in possession and yet the Justices held that a Reversion might be exchanged for Lands in possession and Note It was said that unequall value or quantity in the one more then the other should not avoid the exchange but otherwise it is of unequality of Estate Stephen and Tots Case 861. T. and his Wife being divorced in the spiritual Court à thoro mensa The Father of the Wife devised a Legacy to her for which she sued the Plaintiff his Executor in the Spiritual Court he there pleaded the Release of the Husband which the Spiritual Judges would not allow of It was the opinion of the Justices in this Case that the Release of the Husband was good notwithstanding this Divorce Sparke and Sparkes Case 862. A man made a Lease for life and after made a Lease for 99. years after the death of Tenant for life if the Lessee for 99. years should so long live and if he dyed within the Terme the Lessor granted that the Land should Remain to his Excecutors and Assignes for 21. years after the death of the Survivor of both the Lessees The Lessee for 99. years granted the Lease for 21. years rendring Rent and dyed Intestate having survived the Lessee for life the Administrator brought Debt against the Assignee of the Terme for 21. years for the Rent It was adjudged that the action did not lye because the Contingent foe 21. years never vested in the Lessee for 99. years the Intestate nor ever was in him to dispose or grant Bridge and Atkins Case 863. Words viz. Thou art an old perjured Knave and that is to be proved by a stake between the ground of such and such adjudged that for these words the Action did not lye Bothes Case 864. He was arraigned of Felony for a second forgery after Cónviction of a former forgery in the Star Chamber upon the Statute of 5 Eliz. of writings concerning the Lands of I. S. In this Case Resolved that no Accessary can be in Forgery but all one principally 2. Resolved that for Felony the Kings Bench might commit one to the Fleet or unto any other Prison and also that a Prisoner who is condemned to perpetual Imprisonment was not Baileable nor Removeable Shaw and Norwoods Case 865. A man by his Will devised 40 l. to two Infants equally the Executrix delivered the money to one to whom the Defendant was Executor who made a Bill testifing he had received the 40 l. to the use of the Infants one of the Infants dyed Intestate his Administrator brought Debt against the Defendant the Executor of the Baylee It was adjudged the Action was maintainable and the specialty although it was not made to the Infants yet it was a sufficient Testimony of the debt Fort and Wards Case 866. A Copyholder had Common of Estovors in the Lords Woods appurtenant to his Copyhold and he purchased the Freehold of Inheritance in the Copyhold and had words in his deed of purchase of all Commons appertaining to the said Messuage Yet it was adjudged that the Common which he had to the Copy estate was extinct but if there had been special words in the Grant of the like Common as he had in the Copyhold before the surrender it had been good and as a new grant of Common Morgan and Slades Case 867. It was Resolved by all the Justices of England that an action upon the Case upon Assumpsit lyeth upon every contract Executory as well as an Action of Debt Seymayne and Greshams Case 868. G. and B. were Joynt Tenants of a house in Lond wherein they had several goods B. acknowledges a Statute and dyed a Writ of Execution came to the Sheriff of Lond. who came to the house with a Jury to extend the goods of B. G. seeing them and knowing the Cause of their comming to the intent to frustrate the Execution shut the Door of the house so as the Sheriff could not do Execution For which the Plaintiff brought his Action upon the Case and layd it to be to his damage of 2000 l. It was adjudged against the
Attorney to sue the principal in his name It was adjudged for the Plaintiff in B. R. and upon Error brought the Judgment was reversed because it was an insufficient Consideration Dickenson and Sheres Case 942. Upon the awarding of the Venire facias upon the Roll the day of the return of it was omitted this being assigned after verdict for Error was holden by the Court not to be Error 943. Note it was Resolved by the Justices that an action lyeth for the Rector of a Parsonage against the Parishoners for not seting forth of their Tythes although the Statute of a Edward 6. drâ—h not appoynt who shall have the action English and Bowers Case 944. Covenant upon an Indenture of demyse of the Rectory of S. in the County of O. The Indenture was made at London and the Venire Issued to the Sheriff of O. It was assigned to be Error but the Court held it good because it shall be of the County where the Land lyeth Heley and Rigs Case 945. A Bill was exhibited in the name of Rigs per Johannem Keeling attornaâ— ' suum and the Warrant of Attorny was posuit lcco suo Gulielmum Keeling the same was assigned for Error but the Justices caused it to be amended and affirmed the Judgement Maylard and Kesters Case 946. Assumpsit In Consideration the Plaintiff would sell and deliver to the Defendant pannos laneos pro funer alibus of a Clark he promised to pay him for them cum inde requisitus esset and alledged he sold and delivered divers Cloths to him viz. 31. yards of black Cloth for 19 l. and recited divers other particulars amounting to 160 l. upon Non Assumpsit found for the Plaintiff Error brought in Exchequer Chamber and the Judgment was reversed because Debt properly lay and not Assumpsit Wolley and Mosleys Case 947. Action of Assault and Battery in B. R. upon a demur the Plaintiff had Judgment to recover It was a Warded upon the Roll à Fierifac to enquire of damages returnable die Martis post tres Trinitatis and the Writ was in facto returned die Mercurii post tres Trinitatis which was the very date of the return upon the Roll and the Plaintiff had damages and Costs 40 l. Error was brought and assigned whereas by the Record of the Continuance the Plaintiff appeared by I. P. his Attorney that before that time he was dead The Court held that to be no Error because the Record is to be credited before the allegation of the party 2. Because there was variance between the Roll and the Writ the Court held that was amendable 3. That the Writ is executed the same day of the Return that was holden to be no Error and so it was said it was adjudged Mich. 37. and 38. Eliz. in Gawen and Ludlows Case In the Court of Wards The Queen and Savages Case 948. A. seised of Lands holden in Capity by Knight service by License 27 H. 8. conveyed the same to his Son and Heir apparent and F. and their Heirs in consideration of Marriage betwixt them who intermarried and 2 E. 6. by Fine regranted the Land to the Father who rendred it to the Son and his Wife and to the Heirs of their two bodies begotten the Father dyed the Son haveing Issue three Daughters dyed 5 Mar the eldest Daughter had Issue Fran. Mooâ—e and dyed 25 Eliz. F. took second Husband W. Savage and they 28 Eliz. Leased the Rectory of K. to I. S. for 60. years and after granted the Reversion of the Rectory and Leased the Mannor to A. Savage for the life of F. Afterwards a Common Recovery was had in which S. and his Wife were vouched The Queen prayed to have the Wardship of Fran. Moore and to have the primer seisin and profits of the Land after the death of the Wife W. Savage averred the Recovery was to the use of himself pretending thereby that the Issues in Tail of the Son of Agnes and F. were barred In this Case it was Resolved for the Queen for one moyety and that the first Feoffment by A. to his Son F. before Marriage was not within the Statute of 11 H. 7. but when they Reconveyed back the Land that was a Conveyance of each of them their parts and then the render of the whole to them in special Tail as to the moyety of the Son the gift of the Father to the Son and his Wife within the Statute of 11 H. 7. but as to the gift of the Wife by the Fine was not within the Statute but the Recovery as that should bind the Issue Fishers Case 949. It was found by Office that A. seised in Fee of divers parcells of Lands holden by Knight service in Capite 21. Eliz. by License conveyed them to I. S. and E. his Wife Daughter of the said A. and that afterwards by Indenture he Covenanted for Fatherly love and affection that after the sealing of the said Indenture he would stand seised of the premises to the use of the said I. S. and E. his Wife in Tail Remainder in Fee to a stranger It was not found when the said Indenture was sealed and delivered nor that I. S. and E. his Wife were seised in Tail nor was it found in the Office Sic inde Seisitus did Covenant Notwithstanding these Exceptions it was Resolved that the Office was sufficient wherefore a Travers was to the Office Gervoyes Case 950. A. seised of the Mannor of N. in the County of W. and of Lands called F. in the County of of S. in Consideration of Marrage and for a Jointure for his Wife Covenants that he and his Heirs shall stand seised of the Mannors Lands c. to the use of himself and his Wife for their lives after their deceases to the use of the Heirs of the body of A. The Lands in F. are recovered by verdict from A. only during the Coverture between them A. dyeth his Heir within age It was Resolved in this Case that the Wife should have recompence for the Lands which were Enrolled during the Coverture although she accepted of the Residue of her Joynture after the death of her Hâ—sband Forsters Case 951. The Husband seised of Land in the Right of his Wife which was holden in Knight service the Heir being in Wards committed wast in the Lands Resolved the Husband should be charged to the value of the Lands and lose the possession of the Lands so long as his Wife should live Georges and Stanfields Case 652. Lands by Act of Parliament were assigned to the Countesse of Bindon during her life the Reversion to her Daughter who was in Ward to the Queen the Viscountesse took Husband and she and her Husband committed wast in the Land For the punishing of which a Bill was exhibited in the Court of Wards Resolved that the Court of Wards could not adjudge treble damages for the wast in this Case and therefore the Case was dismissed to Law Bridges Case 953. A. bargained and
it was Resolved that upon such Writ the Sheriff or his Officer might without any Offence by a Warrant arrest the person of the Countesse for he is not to dispute the authority of the Coâ—rt in awarding the proces but he is to execute the Writ to him directed But because the Defendants did arrest the Countesse upon a feined action of their own heads without Warrant They were fined and sentenced by the Court. Dag and Penkevells Case 1007. A bill was exhibited in the Star Chamber against the Defendant and divers others for several Offences The Defendant for that he inserted the name of a special Bailiff in a Warrant which was made by the Sheriff with blanks without privity or direction of the Sheriff Note in this Case it was holden that where there are several Defendants and one only is sentenced the other shall have Costs because not charged with the offence for which the sentence was but with other Offences of which they were acquitted 2. It was holden in this Case that a Defendant shall not have benefit of a general pardon at hearing of the Cause unlesse he prayes the same upon his answer put into Court Clerks Case 1008. Note in this Case being the Case of a Purveyor who was sentenced in the Star Chamber for several Offences in executing his Office of Purveyor It was said there were 7. properties incident to every Purveyor 1. He ought to be sufficient to answer the King and the party 2. He is to do his service in person and not by Deputy because it is an Office of Tâ—â—st 3. He is to be sworn in Chancery before he execute his Office for he ought to have authority under the great Seal with blank Labells to insert what he takes 5. His Authority is to continue but six moneths without renewing 6. He ought to take where is plenty and in Convenient time and no more then is sufficient 7. He is to take the things in kind and not money for them Lovice and Goddards Case 1009. The Case was A. the Grandfather had Issue two Sons T. and W. and by his Will devised to T. all his Mannors Lands c. within the Counties of D. and C. viz. to T. and the Heirs males of his body after his decease for 500. years Provided if T. or any Issue male of his body give grant c. the premises or any parcel thereof oâ—herwise then to Lease and demise the same for any term or number of years as may or shall be determinable upon the deaths of aâ—y 2. persons c. to be made in the Leases c. then all the premises for default of such Issues males of the said T to be begotten c. immediatly upon such alâ—â—nation gift grant c. shall remain and come to W. and to the Heirs males of his body c. The devisor dyed T. entred and made a Lease for 1000. years to I. S. who never entred T. dyed without Issue male I. being his Daughter and Heir W. dyed having Issue the Plaintiff who entred upon whom I. entred In this Case it was Resolved in C. B. that the devise to T. and the Heirs males was an estate Tail and the limitation for years void 2. Resolved that there ought to be a concurrence of death without Issue male and also of alienation before the rising of the Remainder 3. That the Remainder should never rise because the particular estate was destroyed by the alienation before the Remainder could commence 4. That the Lease for 1000. years made to I. S. was not an alientation within the Proviso upon which the estate might rise to W. when T. was dead without Issue male because that T. who made the Lease was but Tenant in Tail and then the Lease was determined upon his death It was the opinion of all the Justices in C. B. that the Judgment should be for the Defendant upon which Judgment the Plaintiff brought a Writ of Error in B R. and there by all the Justices upon the matter in Law the Judgment was reversed Mich 3. Jan. Cargenter and Collins Case 1010. In Debt for Rent the Case was A. had a Son and a Daughter and devised that his Son should have his Land at his age of 24. years and gave 40 l. to his Daughter to be paid at her age of 22. years and appointed that C. should be his Excecutor and should have the oversight and dealing of his Lands and goods till his Children should come to the ages aforesaid and dyed C. the Plaintiff made a Lease to the Defendant at Will rendering Rent at Mich. and our Lady-day the Daughter entred upon the Tenant at Will the Tenant attorned to her the Son dyed within the age of 24 years the Defendant did not pay the Rent for which C. brought Debt against him It was adjudged against the Plaintiff Resolved 1. The word Oversight and dealâ—ng with his Lands and goods did not give any Interest to C. the Excecutor but an authority only and that the estate discended to the Son 2. That by the death of the Son the Interest of the Executor was determined for it was noâ— the intent of the devisor to bar the Heir of the Son untill the Son should come to the age of 24 years if he lived 3. That the Tenury at Will was determined by the entry of the Daughter because she entred by Title i. e. as Heir to her Brother Lord Aburgavenny and Edwards Case 1011. An Excommengement was pleaded in Bar and the Certificate of the Bishop of Lâ—ndaph shewed of it but doth not mention by what Bishop the party was Excommenge wherefore it was adjudged void Rastoll and Drapers Case 1012. Debt upon an Obligation for payment of so much Flemish mony the Plaintiff declared for so much English money and it was holden good by the Court. Doyly and Drakes Case 1013. A man had two Closes adjoyning time out of mind and sold one of them who should make the Inclosure the Purchasor or the vendor the Court was divided in opinion Vide 21 Eliz. Diâ—r 372. Williams and Vaughans Case 1014 Scire facias by the Plaintiff against the Defendant who was bail in Debt for I. S. who did not render his body nor pay the Debt the Defendant demurred 1. Because no Capias was sued against the principal and also because the Principal was dead before the Scire facias brought but both points overruled because the Condition of the bail was broken before Whitâ—ock and Harâ—wells Case 1015. A. and B. Sisters Joynt Tenant A. Covenanted with a stranger that he should enjoy the moyety which she held with her Sister in Joynture for 60. years from the death of her Sister if she the said A. should so long live and demised to him the other moyety from her own death for 60. years if her Sister so long lived Adjudged the Lease was void for both moyeties â—he one because of her moyety after the death of her Companion and the other is
for Life the Remainder to his Son T. and L. his wife if they have Issue male and if it shall please God to send them Issue Male then it to be reserved and put out for the benefit of such Sons or one of them and died The wife entred as Legatee and died and after T. and L. had Issue Male. It was Resolved that the Issue Male should have the Term and was not restrained to any Term to be born in the Life of the wife and it is a good Devise to the Issue Male though the Term be not expresly devised to the Issue Male. Curtyes Case 1081. Assault and Battery by husband and wife against the Defendant a Constable and two others The Defendant justified that the wife was presented in the Leet to be a common Scold and he Steward made a Warrant to the Constable to punish her according to Law and the Defendants went to the Plaintiffs house to execute the Warrant and the wife assaulted the Constable wherefore he commanded the other Defendants to lay hands upon her which they molliter did It was holden by the Justices to be a good justification although they neither shew the day when the Leet was holden nor that the Plaintiffs house was within the Jurisdiction of the Leet nor shewed the Warrant of the Stewards for that these were all but Inducements to the Justification Herbert and Binghams Case 1082. Error to reverse a Fine because the Writ of Covenant bare teste after the Dedimus potestatem the Defendant pleaded the Land descended to him within age and prayed his age Iâ— was Resolved by the whole Court he should have his age because he was Terre-tenant otherwise he should not have his age in Error Harvyes Case 1083. In Dower Judgment was given by default Error assigned that the Tenant was within age Adjudged no Error for age is not grantable in savorem dotis 1084. A Justice of Peace recorded a Force but did not Fine or commit the Offenders It was adjudged that in such case the Record of the Force was void and the Offenders upan that Record cannot be afterwards Fined nor Imprisoned Moody and Garnons Case 1085. A man made a Lease for years of Land part Fee-simple and part in Lease for years rendring Rent and if it was behind 40. days it should be lawful to restrain and if there should not be sufficient then to reenter Resolved it was not any condition because restraint is not limited to any thing which should be restrained as in Land or chattel and it shall not be taken to distrain and also because no person is expressed who should reenter Caries and Franklyns Case 1086. A seised in Fee made a Feoffment to I. S. Habendum to him and the Heirs of his body to the use of him his Heirs and Assigns It was adjudged he was Tenant in tail because the use to him his Heirs and Assignes shall be intended such Heirs which he had limited before which are Heirs of his Body Buckham and Dendriges Case 1087. Debt upon Obligation The Defendant pleaded to the Jurisdiction that he was a Tinner and pleaded the Grant of King Edward the First that the Tinners of Cornwall should be sued for contracts rising within the Liberty of the Stanneries and not elsewhere and the contract upon which the Debt was brought did arise within the Liberties c. It was Resolved a good Plea but then he must show the Patent or Charter Barrey and Perins Case 1088. Debt upon Obligation The condition was if the Obligor stands to the Arbitrament of four men so as the same be made by four or three of them c. then the Obligation to be void the Arbitrament was made by three It was Resolved the Arbitrament was good for upon consideration of all parts of the Submission the intent appears that four or three might make the Arbitrament and Arbitraments shall be taken by Equity so as all parts may stand Mary Powel and Hermans Case 1089. A sentence was in the Ecclesiastical Court that upon a Contract the Defendant should Marry the Plantiff he did not do it for which cause he was Excommunicated The Defendant Appealed to the Delegaties which was remised to the first Court who sentenced him againe and there also he was excommunicated for not performance of the Sentence He Appealed to the Audience and then had absolution He was taken by a Capias Excom upon the first excommunication upon an Habeas Corpus It was Resolved that the absolution for the Latter had not purged the first Excommunication quia Ecclesia decepta fuit 2. That the Appeal did not suspend the Excommunication although it might suspend the Sentence Don Diego Serviente de Acune and Giffords Case 1090. The Plantiff Embassador for his Master the King of Spaine recovered in an Action upon the Case the Defendant brought Error and removed the Record and then upon the second Scire fac the Bail brought in the body of the Defendant Resolved 1. That the removing of the Record did not so stop the Court that they could not accept of the body of the Defendant in Execution 2. Resolved that the body might be accepted only upon the first Scire fac and not upon the second Roe and Ledshams Case 1091. In False imprisonment in the Stannary Court The Defendant said the imprisonment was at Totnes out of the Jurisdiction Issue being upon it the Viâ—ne was from Totnes and not de Corpore Comitatus and adjudged good upon Error brought Moyslyn and Pierces Case 1092. The Plantiff recovered 200l dammage against the Defendant in B. R. in Assault and Battery and had the body of the Defendant in Execution The Defendant brough Audita Querela in Chancery that the principal had paid the money and thereupon had upon Sureties found a supersedeas to the Sheriff commanding him to discharge the Plantiff out of Execution but the Sheriff did not obey it He brought Habeas Corpus in B. R. and had another Audita Querela and prayed he might be bayled but ' the court would not grant it without Affidavit of payment of the money Coke Chief Justice said upon a Judgement in another Court Audita Querela did not lie in Chancery Eliz. Wilmots Case 1093. She brought Trespasse by the name of a Widdow the Defendant said she was a Feme Covert viz. the Wife of I. Wilmot who was living at Lisborn in Pertugall The Plea was disallowed by the Court for impossibility of Tryall Simonds Case 1094. Trespase for Batterie and entring his Close in B. The defendant justified the entry because it was a Copyhold within the Mannor of W. in W. and to the Battery pleaded Not guilty upon which the Issue was joyned The visne was de B. de Manerie de W. in W. It was Objected it ought to have been of B. only where the Batterie was also de Manerio de W. in W. is double and uncertain But the Court held the visne good because the Custom might
Negatives that he hath not broken them and to the Covenants in the Affirmative that he hath performed them 2. When the Covenants Negative are against Laws and the Affirmative Lawfull there he may plead performance generally and the Court is to take notice that the Covenants in the Negative were void and against Law 3. That the Covenants that he would not do any Execution nor Execute any Writs here as venire fac were against Law 4. When some Covenants are void by the Common Law and others not void an Obligation taken for the performance of Covenants stands good for those that are good and not for the other Gresley and Luthers Case 1110. Assumpsit The Defendant was a Suitor for Marriage of the Daughter of I. S. the Mother of the Daughter was sollicited by the Defendant for her assent and furtherance of the Marriage and the Defendant promised that if she would agree that her Daughter should Marry the Defendant that he would give to the Mother 100l she gave her assent and the Marriage took effect It was Resolved that the Agreement of the Mother was a sufficient consideration to ground the Assumpsit upon Fosters and Jacksons Case 1111. Scire fac Against an Executor to have Execution of a Judgement against the Testator the Defendant pleaded that the Testator was taken in Execution for the same Debt and dyed in Execution It was Resolved that was a discharge of the Debt vide Laud and Williams Case Pasch 44. Eliz adjudged accordingly Harecote and Wrenhams Case 1112. The Case was The Father in his life time had conveyed a Lease in Trust to F. and made his Son his Executor who recvered 100l in Chancary against F. which he had and came to his hands as Executor The Question was if this 1000l should be Assetts in the Executors hands Resolved it should be Assetts Selby and Chutes Case 1113. The Lessor Covenanted that the Lessee should enjoy the Land without the disturbance Let or hindrance c. of the Lessee The Lessor sued the Lessee in Chancery suggesting the Lease was made to him in trust to try a Tittle onely In Covenant brought the Lessee assigned this in breach of the Covenant Adjudging no breach because it was a Suite in Equity and not at Common Law Sir Henry Rolls and Sir Robert Osborn and his wives Case 1114. Warrantia Charta against Husband and Wife that the husband and wife levied a Fine 2 Jac. to the Defendant and his Heirs with Warranty the Defendant pleaded that the same Term a common Recovery was had by a Stranger in a Writ of entry against the Plaintiff who vouched the husband only which Recovery was to the use of the Plaintiff for part of the Land for his Life with divers Remainders in tail with the Remainders in Fee to the Plaintiff and his Heirs In this case these points were Resolved 1. the wife one of the Defendants died pendant the Writ that the Writ should not abate because the Warranty was by the Husband and Wife so as by the death of the wife the Warranty as to her was determined and it stood for the Husband and his Heirs 2. Resolved that the Warranty was determined by the Severance and Division of the Land 3. Resolved that if the Plaintiff be impleaded in which he might vouch if he did not vouch that he might have Warrantia Charta 4. Resolved that because it appeared by the Plea in Bar that the use of the Recovery was to the Plaintiff but for Life so as the Plaintiff is in of another estate that he could not have a Warrantia Charta to recover upon a Warranty in Fee It was adjudged against the Plaintiff Cownden and Clarks Case 1115. In Ejectione firme the case was A seised of Lands in Fee in Soccage had Issue I. his Son and E. his daughter who was married to I. D. by whom she had Issue two daughters M. and F. he made his Will and devised out of his Lands Annuities to his Grand-children M. and F. and gave a Legacy to G. his brother of 20 l. and his Lands he devised thus My meaning is that my Land I now stand seised of and that of right I have shall discend to J. my Son but my Executors shall take the profits of it till his age of 24. years Provided If the said J. die without Issue of his body thâ—n the Land go to the right Heirs of my name and posterity equally to be divided part and part like and then to the said M. and F. I. died without Issue G. his brother entred and made the Lease It was Resolved in this case that the Devise to the right Heirs of his name and posterity was void and by consequence the Reversion in Fee discended to I his Son and from him to his two Daughters as his general Heirs and that appeared to be the intent of the Devisor for he did not intend his brother should have the Land for the words be part and part like and he did not intend his two daughters should have the Lands because he devised them Annuities Rowrth and the Bishop of Chesters Case 1116. It was Resolved in this case that after an Induction an Institution is not to be examined in the Spiritual Court but by a Quare Impedit only But yet the Justices if they see causa may write to the Bishop to certifie concerning the Institution Tisilate and Sir William Esex Case 1117. Covenant was brought upon the words Covenant Premise and Agree that the Lessee should quietly occupy and enjoy the Lands demised for during the term of Seven years and the Plaintiff shewed that a Stranger entred upon the Land but did not shew that he entred by title and for that cause it was adjudged against the Plaintiff and the difference was taken betwixt a Covenant implied as here it was in the words demise c. but upon a Covenant expressed there the Lessor is to gard the Land against every person Harrington and Deans Case 1118. Accompt A. was endebted to the Plaintiff 200 l. The Plaintiff required the Defendant to receive it of A and prayed the Defendant to borrow so much for him and pay it to the Plaintiff the Defendant did borrow 200 l. of I. S. and A. was bound for the repayment of it It was adjudged that the Defendant should account for this mony for that he had a Warrant from the Plaintiff to receive the mony of A. and by the direction of A. he received it of I. S. for A. therefore he was to account for it The Earl of Cumberland and Countesse of Cumberlands Case 1119. Waste in 3. Several Townes A. B. C. There were 29. Issues joyned and tryed 14. for the Plantiff and 14. for the Defendant One was if certaine Oakes cut down were imployed in reparation of the Castle of A. which Issue was tryed with the Defendant It was moved in stay of Judgement that the Visne was of the Town of A. where it ought to
this case that if S. had died and no other was instituted by the Patron but the Church remained void that the King might Present otherwise it had been if the Patron had presented a new Parson to the Church before the King presented Pym and Gorwins Case 1165. It was Resolved by the Justices in this case that one cannt prescribe for a Seat in the body of the Church for that the Seats there are disposable by the Parson and Churchwardens but for a Seat in an Isle of the Church a man may prescribe because it may be presumed that he or his Ancestors who had house and lands within the Parish had edified and built the said Isle and so it was said it was adjudged in the Lady Grays case Norris and the Hundred of Gawtrys Case 1166. Debt against the Hundred upon a Robbery 9. Octob. 13 Jac. the Teste of the original was 9 Octob. 14 Jac. It was said the Action was not brought within the year for there is but one ninth of October within the year It was the opinion of the Justices that in this case a Fraction of a day should be by devision of time in a day viz. the Robbery committed 9 Oct. 13. post meridiem is within the year of the bringing of the Writ 9 Octob. 14 Jac. in the morning Vide Ludford and Grettons Case Plowd Com. 491. Dawks and Hills Case 1167. Upon an Information upon the Statute of 5 E. 6. an Ingrosser of Chattel justified for a certain number of Chattel and sold upon two several Licenses without distinction how much upon the one and how much upon the other and upon a Demurrer it was adjudged for the Plaintiff Middleton and Lawtes Case 1168. Two Patrons pretended title to present the one presented and the Bishop refused his Clerk He sued in the Audience and had an Inhibition to the Bishop and after there he obtained Institution and Induction by the Arch-Bishop Afterwards the inferior Bishop instituted and inducted the Clerk of the other for which Process issued out of the Audience against him he upon that prayed a Prohibition and a Prohibition was awarded as to the Incumbency because the Ecclesiastical Courts have not to meddle with Institution and Induction for that would determine the Incumbency which is tryable at the Common Law Stewkley and Butlers Case 1169. In Trespass the case was A. seised of the Mannor of D. made a Lease of the Scite and Demeans to the Defendant for three Lives except all Tymber-trees and covenanted that his Lessee should take all Woods Afterwards the Lessor bargained and sold to the Lessee all those the Trees Woods and Under-woods growing within the Mannor viz. within the Grounds called A. B. and C. Habendum una cum omnibus aliis arboribus within the Mannor which may conveniently be spared and the Bargainor covenanted that it should be lawful for the Barganee at all times within five years to enter and cut the Trees and Woods and convert them to their own uses In this case it was Resolved 1. That the Viz. was void for a Viz. may explaine or distribute a thing precedent but not restrain it 2. Resolved that the una cum aliis arboribus in the Habendum should make a new Grant of the other Trees 3. Resolved that the words which followed the una cum cest ' una cum omnibus arboribus within the Mannor which could be spared was void for the uncertainty and there is no means agreed betwixt the parties here to reduce the same to a certainty 4. Resolved that the Covenant of the Bargainor that it should be lawfull for the Bargainee to take the Trees and Woods within five years was not a Condition but a meer Covenant and the difference was taken where one sells all his Trees to be taken within 5 years after there the Vendee shall not take them after 5 years ended but if the time of taking of them be by way of Covenant there it shall not restraine the party to take them at all times as well after the five years as within the five years but the parties are to have their remedy by an Action of Covenant upon the disturbance Yet it was said by Hatton that if one grants his Corn growing and the Grantee doth not take it in convenient time so as the Grantor receive detriment thereby the Grantor shall have Action upon the case against him Hansons Case 1170. He was cast over the Bar because he gave direction in writing to an Under-Sheriff what persons he would have him return upon a Pannel for tryal of an Issue and named others who he would not have to be retorned Kingswell and Crawleys Case 1171. Replevin The Defendant avowed for Rent for that I. S. held of him by Fealty and Rent whose Estate the Plaintiff had The Plaintiff said I. S. enfeoffed I. N. who made a Lease to the Plaintiff for Life absque hoc that he had the estate of I. S. Resolved that the Traverse was void for after the Statute of 21 H. 8. the party is to avow upon the Land and then it is not material what Estate the Tenant had so he occupied the Land but before the said Statute it had bin a good Plea so as the Statute hath changed the Law for the Traverse in pleading although there is not any word of it in the Statute Andrews and the Bishop of Yorks Case 1172. It was Resolved that is a good Plea in an Assize of Darrien Presentment that the Plaintiff hath a Quare Impedit depending the same avoidance 1173. Words viz. He hath stollen my coâ—n out of my Barns Adjudged per curiam the words were actionable Hall and Wingfields Case 1173. The Defendant acknowledged a Recognizance before the Lord Hobart at Serjeants-Inn in Fleet-street London which Recognizance was enrolled in the Court of common Pleas The Plaintiff brought debt upon this Recognizance in the Common Pleas and layed his Action in London Whether it ought to be brought in Middlesex where the Record of the Judgment was or in London was the Question The Justices were divided in several opinions Winâ—h it ought to be in Middlesex where it is enrolled because the Debt is consummate Warberton it may be in any County where the party pleaseth Hutton it lieth where the Record is Hobert if no mention had bin made upon the Inrollment of the Recognizance before the Chief Justice at Serjeants Inn it ought to have bin brought in Middlesex but now it was in the Election of the Plaintiff to bring it either in London or Middlesex vide this case more at large Hob. Reports 195. where the case seems to be Resolved Lea and Pains Case 1175 Debt upon Obligation to stand to an Award The Plaintiffs in January submitted themselves to stand to the award of I. S. for all Quarrels Debates Questions stirred moved or depending I. S. in April made an Accord that the Defendant should pay to the Plaintiff should pay Twenty Nobles in
abate upon the Plaintiffs own suing Strowde and Willis Case 521. Debt upon an Obligation The Condition was If the Obligor shall pay the Rent of 37 l. yearly at two Feasts according to the intent of certain Articles of Agreement made between the Obligor and Obligee during the Term that then c. The Defendant pleaded the Articles did contain That the Obligor Dimisit ad forman tradidit to the Defendant omnia talia domus tenementa terras in Parochia de Y. in quibus the Obligee had an Estate for Life by Copy according to the custom of the Mannor Habendum for 21. years if the Obligee should so long live rendring to the Obligee during the Term 37. l. to be paid at the Castle of C. and further pleaded That at the time of the making of the Articles the Obligee had not any Estate in any Lands Houses c. in Y. for term of Life by Copy upon which Plea the Plaintiff demurred There were two points in the case 1. If nothing passed by the Articles and so the Reservation of the Rent is vod 2. If the Obligation for payment of the Rent was void It was Resolved upon the first point That no Rent is reserved for the Lease did never begin and therefore the Rent should not For the second point the Court differed in opinion Fenner Justice held the Condition of the Bond is to pay the Rent according to the Articles which is That if the Lessee have not the Land the Lessor shall not have the Rent Papham cont That the Obligor is bound to pay it although nothing was dimised to him for that by the Bond he hath made it a Sum in gross and it is altered from the nature of a Rent and he is bound to pay the Rent or Sum and if this be either of them he must pay it Qu. There is no Judgment in the Case upon that point Alsop and Claydons Case 522. Assumpsit That the Defendant upon good consideration promised to pay the Plaintiff 5 l. when he should be required The Jury found that the Defendant promised to pay but found no Request wherefore it was adjudged against the Plaintiff Perin and Corbets Case 523. In an Appeal the Defendant was acquitted of the Murder and found guilty of Man-slaughter It was agreed in that case that the Plaintiff could not be Nonsuit Brown and Brinckleys Case 524. The Plaintiff declared that he was produced for a Witness the Defendant said he was disproved before the Justices of Assize by the Oath of K. innuendo that he was disproved in his Oath Adjudged that the Action did not lie for the innuendo cannot supply such intendment Adderby and Bouthbyes Case 525. Assumpsit in consideration the Plaintiff would be Bail for one F. in a Plaint that Adderby had brought in London against F. the Defendant did promise to save the Plaintiff harmless touching the Bail and shewed a Recovery was against F. and 2. Cap. returned non est inventus upon which Process issued against the Bail who paid the money and the Defendant had not saved him harmless It was found upon Non assumpsit the first Action was entred by the name of Adderby and the Bail accordingly and that the Decleration was by the name of Adderley It was adjudged that although the Jury found the Assumpsit yet the special matter proves the Plaintiff had no cause of Action for he was not damnified by reason of the Bail at the Suit of Adderby for which the Assumpsit was but he was wrongfully taken if he was Bail for Adderley against whom the Recovery was had whereas in truth he was not Bail for him wherefore it was judged against the Plaintiff Austin and Twins Case 526. The Patronages of two Churches adjoyning within one mile were belonging to one Parson and both being void and of the value of 7 l. in the Queens Books the Ordinary made an union of them at the request of the Patron which was afterwards confirmed by the Patron and the Queen Qu. If a good union Tusking and Edmonds Case 527. A Lease was made of Tythes rendring Rent at a place out of the Parish with clause to be void upon non payment Adjudged the Lessor is to make his demand of the Rent at the place and for not payment the Lease is void Broughton and Mulshoes Case 528. False Imprisonment The Defendant justified that he was Constable and the Plaintiff being in the presence of a Justice of Peace not having opportunity to examine him commanded he Dedant to take the Plaintiff into his custody till the next day which he did accordingly It was adjudged a good Justification though not alledged what cause the Justice had to imprison the Plaintiff Megs and Griffins Case 529. Words viz. I. S. told me that he heard say That thou didst poyson thy first Husband and that he died of that poyson with an averment that I. S. near told the Defendant so Yet adjudged that neither words nor the averment of them were sufficient to maintain the Action Brokes Case 530. Words spoken of a Merchant viz. He is a false man and I will prove it and be keepeth a false Debt-book for he charged me with a Piece of three Piled Velvet which I never had Adjudged the Action did not lie without saying That by disswasion of Customers or other they did not deal with him nor that they would not trust him The Lord de la Ware and Pawlets Case 531. Words spoken of the Plaintiff in open Sessions viz. You have perverted Justice and to your shame and dishonour I will prove it adjudged the words actionable Weekes and Taylors Case 532. Words viz. he hath laid in wait to rob and was one of them that would have robbed me adjudged actionable though he was not robbed Carters Case 533. Words viz. Carter is a proging pilfring Merchant and hath pilfred away my coâ—n from my Wife and my Servants and this I will stand to adjudged the words are not actionable Bowyer and Jenkins Case 534. Action upon the case for words spoken at B. in the County of S. the Defendant justified that he spake the worda at C. at a Tryal there being produced as a Witnesse by Subpoena and sworn The Plaintiff said de injuria sua propria and found for the Plaintiff and because the venire was from B. whereas it ought to have been from C. where the Justification was It was adjudged Error Penniman and Rawbanks Case 535. Action for slandring his Title That the Plaintiff was seised of Land and put it to sale and the Defendant said I wish not any man to deal with the Land for I know one that hath a good Title to it and the parties will not depart with their interest for any reason The Defendant Justified that he had a Lease in Reversion of it and at will of other part It was replied de injuria sua propria and found for the Plaintiff Resolved by the Justices If