commence and he is seised in Fee and may hold it charged with both the Rents 2 H 5. 7. 5 H 5. 34. Ass 15. And this Estate surrendred is in Esse as to the benefit of strangers but not as to the benefit of him who accepted it for hee is seised in Fee vide Lillingstons case And the Court was of opinion that the Rent was revived and that the Contract is now determined Nota that this grant to Humphrey the Son for years was but upon confidence to assign it over If Grantee of an Estate for life of a Rent take an Estate for life of part of the Land and surrender it yet the Rent is not revived for it was extinct in this case if he had granted his interest quere and if he had granted his interest over to I. S. and he had surrendred it that shall not revive the Rent because that he had by his granting over of his interest discharged of the Rent extinguish it quaere but in the principall case the Rent was suspended by the acceptance of the Lease and is revived by the surrender And it was agreed that where Lessee for years surrender to which the Lessor agree and accept it the possession and the interest is in him without entry Hil. 3 Car. Sandford versus Cooper SAndford brought a Scire facias against Cooper to have execution of a Iudgment for sixteen pounds Sci. fac which Iudgment was de Oct. Hil. An. 2 Car. And one being returned Ter-tenant pleaded that after the Iudgment viz. 22 Jan. he against whom the Iudgment was viz. John Bill acknowledged a Statute-staple and sheweâ— that by that the Land was extended and after upon liberate delivered in Execution and demand Iudgment wherupon the Plaintiff demurred And the sole question was to what day the Iudgment shall have relation for it appears in the pleading To what day a Judgment shall have relation that the twentieth day of January was the day of Essoin and it seemed to the Court that the Iudgment should have relation to the first day of this return as well as if it had been a return in the Tearm viz. 15 Hil. for otherwise it should be uncertain And he may be Non-suited upon this day vide 5 Eliz. Dyer fol. 200. That a recovery being in the first return the Warrant of Attorney made and dated the fourth day is taken to be a Warrant after Iudgment and vide 33 E 6. fol 45 46. the principall case there If a Nisi prius taken after the day of Essoin shall be good and it is adjudged not for the first day is the return And it was agreed that in Common Parlance the first day of the Tearm is the fourth day viz. If one be obliged to appear or to pay monies the first day of such a Tearm Loquendum est ut vulgus But the Law relate the Iudgment to the first day of every return vide Dyer 361. a Release pleaded after the Darrein Continuance which was dated the one and twentieth of January which was the day after the Essoin day and it was not good for it ought to be before the utas Hillarii Gillinghams case And my Brother Harvey and Crook vouched one Gillinghams case viz. A Release of all Iudgments before the fourth day and after the day of Essoin would not release this Iudgment which was de Octab. Hil. vide many cases vouched to this purpose 4 E 3.34 H 6. 20. a Writ of Error brought after the utas and before the fourth that is good and brought after Iudgment vide 22 H 6. 7. a. a Writ of Error ought to be brought after the Iudgment rendred or otherwise no Execution shall be stayed And all the Court gave Iudgment for the Plaintiff in this Scire facias Hil. 3 Car. Holt versus Sambach Trin. 2 Car. Rot. 731. Replevin Tenant for life with a remainder to him in tail expectant and remainder in fee grant a rent in fee afterwards had fee by fine SIr Thomas Holt brought Replevin against Thomas Sambach in which upon Demurrer the Case was Sir William Catesby being Tenant for life of Land the remainder in tail to Robert his Son the remainder in Fee granted a Rent of ten pounds by the year out therof to William Sambach in Fee and Sir William and Robert his Son levied a Fine with Proclamations which was to the use of the said Sir William in Fee and afterwards the said Sir William enfeoffed Sir Thomas Holt and died Robert had Issue Robert and died And the Court was of opinion that this Grant in Fee is good for he had an Estate for life in possession and an Estate of remainder in tail and remainder in Fee in himself to charge and then the Fee-simple passe by the Grant And although that Robert the Son might have avoided it yet when he had barred the Estate-tail c. by Fine to the use of Sir William now Sir William Catesby had by this acceptance of this Estate to himself avoided the means by which he might have avoided the Rent And although that in Bredons case in the first Book when Tenant for life and he in the remainder in tail joyn in a Fine rendring Rent to Tenant for life that passeth from every one that which lawfully might passe and that the Rent continue after the death of him in the remainder in tail without Issue yet in this case the Estate is barred by the Fine and united to that Estate which William the Grantor had and now William is seised in Fee and this Rent made unavoidable The Case was well argued by Henden and Davenport but it appeared that the Conusance was for twenty shillings part of the rent of fifty pounds behind and for fifty pounds parcell of two hundred pounds arrear for Nomine poenae and did not say in his Avowry that he was satisfied of the rest And therfore Iudgment was given for the Plaintiff vide 20 E 4. 2 a. 48 E. 3. 3. Chichley versus the Bishop of Ely Quare Impedit DAme Dorothy Chichley brought a Quare Impedit against Nich Bishop of Ely and Mark Thompson the Incumbent for the Church of Wimple and counted that Thomas Chichley was seised of the Advowson of the said Church in Fee as in grosse and presented to it being void Edward Marshall which was Instituted and Inducted and afterward the said Thomas Chichley died seised and the Advowson descended to his Son and Heir Sir Thomas Chichley Traverse upon Traverse who by his Deed indented c. for the increase of the Ioynture of the Plaintiff granted the said Advowson to Thomas East and Edward Anger and their Heirs to the use of the said Plaintiff for life and afterwards to the use of the Heirs Males of the body of Sir Thomas Chichley and that by force therof she was seised for life And the Church being hold by the death of the said Edward Marshall she presented and the
and art used by Bakers of Bread in private mens houses as by common Bakers And every â—ooman which bake in private if she be a good Housewife use the art and mystery of a Baker And if a man had said generally that he had gained his living by buying and selling and not shewn what Trade he had used it is not good Therfore the Trade ought to be alledged and so sufficiently that the Court may judge him such a person as is within the Statute of Bankrupts Also Winch said that it is not alledged that he gained his living by buying and selling any thing which concerne his Trade And I was of the same opinion and relyed upon the case of 11 H. 4. 45. An nation upon the case against an Inn. keeper and shewed that he was lodged there and his Horse was stoln And the Defendant pleaded a plea that he delivered to him the Key of the Stable c. And by the Court the Writ shall abate because he did not shew that he was a common Hostler And therfore Iudgment arrested And the Court agreed that if the Count were good the words would maintain an action for a Baker is a Trade mentioned in the Statute 5 Eliz. but it ought to be a Common Baker Trin. 20 Jac. Whiteguift versus Eldersham Second deliverance JOhn Whiteguift brought a Writ of second deliverance against Richard Eldersham for taking of his Cattle at Clanding in quodam loco vocat Corles Paud. The Defendant makes Conuzance as Bayliff to Sir Francis Barrington because that the place c. was parcell of the Mannor of Curles and that John Curles was seised before the time Avowry c. therof and held it of Sir Francis Berrington as of his Mannor of Clanding by Knights servies viz. by Homage Fealty survitium scuti and by the Rent of ten pounds payable yearly at two Feasts of which Rent the said Sir Francis was seised by the hands of the said John Whiteguift as by the hands of his very Tenant in his Demsn as of sea and Avow put Homage infect wherupon the Plaintiff demur And shew for cause that the Defendant had not shewn any Title to have Homage of the said John and that the Cognizance is repugnant and no sufficient Seisin alledged of the Services and that the shewing of the Seisin is not formall vide Bevils case Coke lib 4. fol 6. Seisin of Rent is the Seisin of the Services and he might have traversed the Tenure and the other party ought to shew whether he had done Homage before vide 44 E. 3. 41. when an Avowry is upon the Baron for the Homage of the Feme it is sufficient Avowry without shewing that he had Issue by her and yet if he had not Issue he could not avow upon the Baron but that ought to come on the other party vide 5 E. 2. Fitz. Avowry 209. A man avow for Homage and alledge Seisin of Esenage without Homage and good And after upon motion this Term Iudgment was entred for the Defendant Trin. 20 Jac. Sherwells Case MAry Sherwell brought a Writ of Dower Dower and in But therto it was pleaded that the Father of the Husband of the Demandant was seised of one house and sixty acres of Land in Fire and made a Feoffment to the use of himself for life and after to the use of the Husband and the said Mary for their lives Joynture which bars Dower for the Ioynture of the said Mary the remainder to their Heirs And that afterward the Father died in the life of the Husband and aftre the Husband died And adjudged that this is no Ioynture to bar Dower according to the opinion in Varnons Case because that the Estate of the Wife at the Commencement take not effect immediatly after the death of the Husband Et quod abinitio non valet tractu temporis non convalefeit And if a Feoffment to the use of the Baron for life the remainder to I. S. for years remainder to the Feme for her Ioynture this is not a Ioynture he bar Dower Trin. 20 Jac. Francis Curle versus James Cookes AN action of the case was brought and Count Case that the King by his Letters Patents An 12 Jac. reciting the Statute of 31 H. 8. for erecting of the Court of Wards and the Officers therof and that two persons shall be named by the King and his Successors who shall be Auditors of the Land of the Kings Wards And reciting the Statute of 33 H. 8. for the making of the Master of the Wards and Liveries and his power had made him the Plaintiff one of his Auditors and granted to him the Fees due and accustomed to be had and 40. Marks fee and gave power to him as one of his Auditors according to the said Statute and to exercise it with the Fees in as ample a manner as others had used And averred that at the time of the Patent made and at all times after the erection of the said Court the Auditors had engrossed all the Accounts of the Feodaries and that they had taken therfore two shillings and shewed that he was sworn and exercised that Office and shewed the Oath specially and that he had by vertue therof ingrossed divers Accounts of the Feddaries and had taken therfore two shillings and that the Defendant having conference with the Plaintiff concerning his Office and his bone gesture therin said to him You have received money for ingrosement of Feodaries innuendo the said Fees for ingrosement of the Accounts of the Receivers Feodaries and other Officers aforesaid which I will prove is Cousenage And then and there spoke further You are a Couseâ—er innuendo the said Francis decepisse Dominum Regem 8. subditor in executione officii praedicti and you live by Cousenage deceptionem dicti Domini Regis subditorum shorum in executione officii ful Non Culp verdict pro Plaintiff and Damages thirty three pounds It was moved in Arrest of Iudgment by Attho that first it is alledged that the Fee of two shillings is lawfull and that he said You have received monies for ingrossement of Feodaries which I will prove is Cousenage innuendo the Fees aforesaid which are lawfull and then by his own shewing it is not Cousenage 2. It is insensible Ingrossements of Feodaries for they cannot be ingrossed but their Accounts 3. That Ad tunc ibidem for the other words are for other words spoken at another time of the same day and they are not actionable for they do not relate to his Office Also the words will not maintain action for the word Cousenage is generall and of an ambiguous interpretation and therfore no action lies for that And he resembled it to Sir Edmund Stanhops case He hath but one Mannor and hath got it by swearing and forswearing Midlemore and Warlow And to the Case of Midlemore and Warlow An. 30 Eliz. Thou art a cousening Knave and hast cousened me
Yelverton and I were opinion that the Debt is gone for it is at the suit of the King and Iudgment is given for the King And there shall be an answer to the King And we relyed upon the cases vouched by the Lord Coke but Iustice Harvey and Crook to the contrary And upon conference with all the Iustices of Serjeants Inne it was resolved that this action was at the suit of the party for he might be Non-suited vide 25 H 8. Br. Non-suit that the Informer may be Non-suited vide 6 E. 2. Fitz Non-suit 13. when the Iury come again to deliver their Verdict the King cannot discharge them and be Non-suited and the King cannot discharge this action And his Attorney reply not as in an Information Clotworthy versus Clotworthy Amendments Debt SImon Clotworthy brought an action of Debt against John C. Cosin and Heir of Bartholmew C. And the Imparlance Roll is Quod cum praedictus B. cujus consanguineus heres idem Johannes est viz. filius Johannis Clotworthy fratris praedicti B. C. And upon the Plea Roll upon which Iudgment is given this space was perfected and Iudgment for the Plaintiff and now the Defendant brought a Writ of Error and it was moved to be amended And if the Imparlance Roll shall be amended which is the foundation of the subsequent Rolls is the question For it is commonly holden that the Plea Roll shall he amended by the Imparlance but not e converso Hil. 18 Jac. Rot. 67â— Walker versus Worsley Amendments WAlker brought an action of Debt against Worsley Debt as Son and Heir of Thomas W. in the Imparlance Roll which was entred Mich 18 Jac Rot 576. the words which bind the Heir were omitted viz. Ad quam quidem solutionem obligasset se Heredes suos but they were in the Plea Roll And after Iudgment that was assigned for Error in the Kings Bench and it was amended in the Common Bench by the Court vide there that it was by the fault and mis-prision of the Clerk who had the Obligation and so amendable by the Statute of 8 H 6. cap 15. 1. Hil. 9 Jac. Rot. 516. Govard versus Dennet GOvard against Dennet and Iudgment and the name of the Attorney viz. Henry was omitted in the Imparlance Roll and it was in the Plea Roll Henry and after Error brought it was amended Mich. 16 Jac. Rot. 581. Arrowsmith's Case THe Imparlance Roll Trin 16 Jac Rot 1727. Debt for three hundred pounds against Arrowsmith for part sur emisset and the other part sur in simul computasset And in the Imparlance Roll both parcells did not amount to three hundred pounds but wanted six pounds therof and after Error brought it was amended Pasch 12 Jac. Rot. 420. Godhow versus Bennet REplevin by Godhow against Bennet divers spaces in the Imparlance Roll were supplyed in the Plea Roll after Verdict Hil. 12 Jac. Rot. 420. Parker versus Parker THe Imparlance Roll was Mich 12 Jac Rot 547. Parker against Parker in Trover and Conversion the Imparlance Roll wanted the day and year of the possession and conversion but the Issue Roll was after the Verdict and motion in Arrest of Iudgment amended Mich. 2 Car. Crocker versus Kelsey JOhn Canterson and Agnes his Wife Tenants in speciall tail had Issue a Son Lease made by Feme in speciall tail viz. John and John the Father died John the Son levied a Fine with Proclamations to the use of himself in Fee Agnes leased to John Herring and Margaret his Wife Lessors to the Plaintiff for one and twenty years rendring Rent c. by vertue wherof they entred Agnes died John the Son entred and afterward the said John Herring and Margaret his Wife entred And the said John the Son made his Will in writing and by that devised the Land to Kelsey the Defendant and another in Fee and died John Herring and Margaret leased to Crocker the Plaintiff who entred and being ousted by Kelsey brought Ejectione firmae And this speciall Verdict being found Iudgment was given for the Plaintiff and now affirmed upon Error brought in the Exchequer Chamber Mich. 2 Car. Franklin versus Bradell FRanklin a Woman servant brought an action upon the case upon a promise against John Bradell Consideration in an Assumpsit ex post facto And count that wheras she had served the Defendant and his Wife and done to them loyall service the Defendant after the death of his Wife in consideration of the service which the Plaintiff had done to the Defendant and his Wife promised to pay her thirteen shillings four pence upon request and alledged request and non-payment And after Verdict for the Plaintiff it was moved in Arrest of Iudgment upon the Book of 13 Eliz. Dyer that this is no sufficient consideration because that it is not alledged that the Plaintiff at the request of the Defendant had served him Also it was not sufficient because that it was done after the service performed And it was answered that it was a good consideration and that the service was to the benefit of the Defendant And therfore in consideration that the Plaintiff had married the Daughter of the Defendant he promise to pay twenty pounds it is a good consideration and so in consideration that you have been my surely to such a man for such a Debt I promise to save you harmlesse And in consideration that the Plaintiff was Baile for the Defendant he promised to give him a Horse this is good And in consideration that I.S. being a Carpenter had well built my house I promise to give him five pounds And Iudgment for the Plaintiff Hil. 2 Car. Hearne versus Allen. Entred 22 Jac Rot 1875. Oxford 1. RIchard Hearne brought an Ejectione firmae against John Allen Ejectione firmae for two acres of Land in Langham upon a Lease made by Anne Keene which was the Wife of Edward Keene and upon Not guilty pleaded a speciall Verdict was found Richard Keene was seised of an house in Chippin-norton Devise and of two acres of Land there in Fee and of two acres of Meadow in Langham in Fee used with the said Messuage which were holden in Socage And by his Will in writing dated the 20. May 30 Eliz. he devised the said house Cuni omnibus singulis ad inde pertinentibus vel aliquo modo spectantibus to Tho. K. and his Heirs for ever And for want of Heirs of him the said Thomas then to one Anne K. the Daughter of the Devisor and her Heirs for ever And for default c. then to Iohn K. his Cosin and his Heirs for ever And by the same Will devised his Goods and all his Lands to Eliz. his Wife during her Widow-hood and died Elizabeth his Wife entred Thomas the Son entred upon the Wife and disseised her and having enfeoffed one Edward K. in Fee died and Tho. K. also died without Issue Edward K. by his Will devised the Land to Anne his Wife the Lessor of the Plaintiff for life and
reasons the Court gave Iudgment for the Plaintiff And Serjeant Ward argued well and vouched divers good Cases The Writ of Detinue supposeth properly in the thing demanded vide 50 E. 3. 6. Cook versus Cook WIlliam Cooke alias Barker brought an Action of Wast against George Cook alias Barker and count against him as Tenant for life How a Writ of Wast shall be where there is a lease for life remainder in fee. of the Lease of George Cook and intitle himself to the Reversion Ex assignatione of the said George and shews that George Cook being seised in Fee and the Ter-tenant in Socage devised the Land to the Defendant for life the remaineer in tail to the Plaintiff And upon the Count the Defendant demurred And the Question was how the Writ should be where a Lease is made for life the remainder in Fee for it cannot be Quod de ipso tenet And it seems that the Writ shall be speciall upon the Case as a Fine levied to one for life the remainder in Fee the Writ shall be speciall upon the Case And it seems that it shall never be Ex assignatione but where the Reversion is granted over vide 38 E 3. fol. 23. the direct Case and vide 38 H. 6. fol. 30. in the Writ of Consimili casu vide F N B fol 207. in the Writ of Consimili casu qui illud tenet ad vitam D. ex Assignatione praedicti B. quam I. filius heres R. qui quidem R. illud praefat D. demisit ad eundem terminum inde fecit praefat B. c. The Estate for life with a Remainder over is but one Estate and it was a question at Common Law if he in remainder shall have an action of Wast vide 41 E 3. 16. 42 E 3. 19. 50 E. 3. 3. Reg. 75. But at this day the Law is cleer that he in remainder shall have an action of Wast F N B fol 207. but these Books prove that the Writ of Wast ought to be Ex divisione non ex assignatione Mich. 6 Caroli Case Words AN action of the case was brought for these words Thou art a Theef and hast stoln one Passions Lamb and marked it and denied it And upon Not guilty pleaded and Verdict for the Plaintiff Serjeant Ashley moved in Arrest of Iudgment because that it is not shewn whose Lamb for Passions is no word of any signification without the name of Baptisme And the Court was of opinion that the Count was good for it had been sufficient to call him Theef and then the subsequent matter and words aggravate and contain matter of Felony And it is a generall Rule that when the first words are actionable the latter words which toll the force therof ought to be such as do not contain Felony Babbington versus Wood. BAbbington brought an action of debt against Wood upon an Obligation of 600 l. the Condition was That if Wood resign a Benefice upon request that then the Obligation should be void A Condâ—tion to resign a Benefice upon request And the Condition was entred the Defendant demurred and Iudgment in Banco Regis pro querente And upon Error brought Iudgment was affirmed in the Exchequer Chamber for this Obligation is not voidable by the Statute of 14 Eliz. which makes Obligations of the same force as Leases made by Parsons of their Gleaves viz. Per non residency And it doth not appear by the Plea of the Defendant that it was not an Obligation bona fide which might be lawfull As if a Patron which hath a Son which is not yet fit to be presented for default of age and he present another with an agreement that when his Son comes to the age of 24. years be shall resign it it is a good Obligation And this Case viz. an Obligation with Condition to resign had been adjudged good in the case of one Jones An 8 Jac. And the Councel said that he who is presented to a Church is married therto Jones Case and it is like as if a man who hath married a Wife should be bound to be divorced from her or not co-habit with her these Conditions are void But these resemble not our Case Wilson versus Briggs WIlson brought an action of Account against Briggs as Bayly of his Mannor in the County of Cambr. Tryall of an action of Account upon receit in two Counties and also as Bayly to another Mannor in the County of Suff. And this action was brought in the County of Cambr. and found for the plaintiff and Iudgment to account and found in the arrearages and Iudgment given And now the Defendant brought a Writ of Error Iudgment was reversed because it was mis-tryed for it should be tryed at the Bar by severall Ven. fac to be directed to the severall Sheriffs First it is agreed that a writ of Account against one as Bayliff of his Mannor cannot be brought in another County but only in that County where the land lies vi 8 E. 3. fol 46. Fitz. Acc. 93. see there that two actions of Account brought against one for receit in two Counties And there it is said that it being upon a day that he may have one writ and count in the two Counties But to that it is said that that proves not but that he might have two Writs wherby it might be awarded that he should answer But in this case it was resolved that it was a mis-tryall for it ought to be by two Ven. fac and tryed at Bar and it is not aided by the Statute of 21 Jac cap 13. Trin. 8 Car. Purnell versus Bridge Hil. 6 Car. Rot. 1235. Fine to two and the heirs of one to the use of them two in fee. HEnry Pernell brought Replevin against William Bridge Robert Bridge and two others William Bridge plead Non cepit and the other made Conusance and upon Demurrer the case was such Richard Braken was seised in Fee of sixty acres of arrable Land and forty eight acres of Meadow and Pasture wherof the place in which c. was parcell And he the sixth of Febr. An 18 Eliz. by Deed granted an Annuity or Rentcharge of thirteen pounds six shillings out therof to Edward Steward in Fee payable at the Feast of Saint Peter or within eight and twenty daies after And if it be arrear for eight and twenty daies after the said Feast that then he forfeit for every Fine after forty shillings with a clause of Distresse as well for the said Rent as for the said forty shillings if it shall be arrear Edward Steward seised of the Rent died wherby it descended to Ioan Iermy Wife of Thomas Iermy Daughter and Heir of the said Edward Steward and they being seised therof in the right of the said Ioan An. 41 Eliz. in Crastino animarum levied a Fine of the said Rent to Robert Brook and Isaac Iermy and to the Heirs of Robert which Fine was to the
the Award of Costs were in full force and effect But that afterwards viz. such a time as well the said Iudgment de non pros as the said Iudgment of thirty pounds Debt against the now Plaintiff were evacuated wherupon the Defendant demurred And it having been often debated by Hitcham for the Defendant and Henden for the Plaintiff And now upon Oyer of the Record and of the Iudgment the Court gave Iudgment for the Plaintiff And the Lord Finch said that this action upon the case is grounded upon two misdemeanours 1. The procurement of the said Iudgment for Edw. L. after a Non pros entred for the Defendant And though the Iudgment was erroneous yet the now Plaintiff was vexed and imprisoned therby which indeed is the cause of this action 2. The taking therof unlawfully when the first Iudgment de non pros was in force and the Plea of Nil tiel Record go only to one of the Causes And admitting that there was never a Iudgment de non pros but that the Defendant had unlawfully procured a Iudgment and taken Execution therupon and procured the Plaintiff to be taken in Execution and Imprisoned this is cause of action And to that he hath not answered and therfore he ought to have pleaded Not guilty to that which he takes by protestation Iudgment pro quaerente Pasch 11 Car. Baker versus Hucking Adjudged B. Rs. Tenant in tail and he in Reversion make a I. case Pro ut aut vic TEnant in tail and he in Reversion joyn by Deed in a Lease for life he in Reversion devise the Land by his Will to one in Fee and dieth Tenant in tail dies without Issue and the Heir of him in Reversion and the Devises claim the Land And the sole question is if this Lease be a Discontinuance and it was adjudged a Discontinuance and then the Devise void for he had not a Reversion And the difference was taken when Tenant for life and he in Reversion joyn in a Lease by Deed for without Deed it is first a Surrender Discontinuance and then the Lease or Feoffment of him in Reversion it shall be the Lease of Tenant for life so long as he live and after the Lease of him in Reversion and yet they shall joyn in a Writ of Wast And in this case there is no question but if the Lease had been made solely by Tenant in tail that then it were a Discontinuance and the joyning of him in Reversion alters it not for that amounts to nothing but as a Confirmation and is not like to Bredons case Coke lib 1. fol 76. Where Tenant for life and he in remainder in tail levy a Fine for every one there passeth that which lawfully he may And upon Argument it was adjudged that it was a Discontinuance and not the Lease of him in Reversion but his Confirmation Iustice Crooke differed in opinion Mich. 11 Car. Lashbrookes Case Somerset LEwes Lashbrook an Attorney of this Court brought an action of Trespasse against I. S. for entring into his house and breaking his Close And in the new Assignment he alledged the Trespasse to be in a house called the Entry and in a house called the Kitchin and in his Garden and in one Close called the Court. The Defendant as to the force c. and to all besides the Entry plead Not guilty And as to his entry into the Court and Kitchin A Warrant to four and two of them execute it and the Tenements aforesaid of the new Assignment he plead that he had brought an action against a woman for Trespasse and had so proceeded that he recovered and had execution directed to the Sheriff of Somersetshire and therupon a Warrant directed to four speciall Bayliffs to arrest the said Woman and two of them at Minehead in the County of Somersetshire arrested her and carried her to the house of the Plaintiff in Minehead being a Common Inn and the Defendant entred into the said houses called the Entry and Kitchin and the Tenements aforesaid of the new Assignment to speak to the Bayliffs and to warn them to keep her safe And as soon as he could he returned wherupon the Plaintiff demurred And now Henden took two Exceptions the first was 1. That the Defendant had not pleaded to all the Closes but that was over-ruled for he justified in the tenements aforesaid of the new Assignment 2. The second was that the Warrant to the Bayliffs was to all and not Conjunctim and Divisim and therfore it should be by all and not by two only To that it was answered and resolved that when a Sheriff makes such a Warrant which is for the Execution of Iustice that may be by any of them for it is Pro bono publico And the very Case was adjudged 45 Eliz between King Hebbs Coke Littleton 181. b. And Iudgment was given for the Defendant Hil. 11 Car. Davies Case Hereford DAvies an Attorney of this Court brought an action upon the case for these words If I list I can prove him Perjured Words And the opinion of the Court was that they were not actionable for there is not any Affirmative that he was perjured but a thing which is Arbitrary and saies not that he would do it Iudgment pro Defend Mich. 7 Car. Rot. 1097. Alston versus Andrew Suff. Pâ—ter Alston Executor of Peter Alston brought an action of Debt upon an Obligation of a hundred and twenty pounds against William Andrew The Obligor and the Obligee make the same person Executor and Edward Andrew and count That the Defendants and one Francis A. became obliged to the Testator c. and that they did not pay it is the said Testator in his life nor to the now Plaintiff and one Francis Andrew Co-executor with the Plaintiff who is summoned and the Plaintiff admits to prosecute alone without the same Francis c. The Defendants demand Oyer of the Obligation which is entred in haec verba and plead that Francis A. in the said Writing named after the making therof made the said Francis Andrew and Barb. A. his Executors and died And that the said Francis A. accepted the Burthen of the Testament And after the said Peter Alston the Testator made his will and Constituted the Plaintiff and the said Francis his Executors and died Et hoc paratus est verificare unde c. wherupon the Plaintiff demur Trugeon and Meron Mich 2 Jac. Rot. 2663. Garret Trugeon Plaintiff against one Anthony Meron and others the Administrators of Benjamin Scrivin upon a single Bill The Defendants demand Oyer of the Bill wherby it appears that one John Simcocks was obliged to the said Trugeon joyntly and severally with the said Scrivin Quibus lectis auditis the Defendants sayd that the said Simcocks died intestate and that the Administration of his Goods was granted to the now Plaintiff who accepted the Burthen of the Administration and Administred the Plaintiff demurred
fee 60 Devise and what said in tail inde 85 Dower barred by Joynture 51 E. ELegit the Sheriff ought to deliver the Moyety by meets and bounds 16 Essoign though the Writ be not returned 28 Essoin upon return of an alias Summons 43 Essoine shall not be allowed in Dower after Issue 69 Error in omission of additions 41 Estate derived from one and shews not how 15 Exâ—cutors to what intents they shall be before probat of the Will 30 Executor the same person made by the Obligor and by the Obligee 128 Execution shall be de bonis testatoris where the Executors breake the Covenants of the Testator 35 Execution shall not be awarded upon Iudgment given in the grand Sessions of Wales 117 Extortion 53 78 Estrayes where they may be fettered 67 F. FIne to two and the Heirs of one to the use of them two and their Heirs 112 Fine de Oct. puris where the Caption was 14. February 135 G. GRant of an Advowson without alledging it to be by Deed 54 Grantee of a Rent-charge takes a Lease of part of the Land and after surrenders it the Rent shall be revived 94 Tenant for life with a Remainder to him in tail expectant and remainder to him in fee 96 Grant a Rent in fee and after had fee by Fine 96 H. HEriot where the Lord shall loose it when the Tenant hath none 4 Habeas Corpus liberty cannot be given to a Prisoner therby 129 Habendum void to parties not named in the Deed 88 Hue and Cry and Debt upon that Statute 125 I. INdempnitas nominis and supersedeas inde 45 Infant where he shall appear by Guardian and where by Prochein amy 92 Inditements for Rape and Buggery 115 Inns how they may be erected or restrained 99 Information against a Subject for Extortion 53 Information where it shall be brought 98 Intermarriage where it is a release of a promise c. before marriage 17 Jurisdiction a Plea therto where part of the land lies in the Cinque Ports 74 Judgment to what day it shall have relation 95 Joynture bars Dower 51 L. A Lord where he may be sworn 87 Lease by Feme in speciall tail 84 Lease by Baron and Feme without reservation of any rent 102 Lease where the acceptance of a new Lease makes a surrender of the former 104 N. NOtice where it shall be upon a promise 80 Nusances 136 O. OUtlawry where it may be pleaded 53 Obligation by the Sheriff where void 52 Office of a Park-keeper is good if the King dispark the Park 86 Obligation to levy a Fine before a day who shall do the first act 48 P. PArdon 79 Parliament what shall be said a Session 61 Pleas severall and by severall Defendants upon joynt Contracts 26 Prescription for a way and no place to which c. issue joyned on the Prescription 10 Prescription to have Herbage 45 Prescription to have Deer in discharge of Tithes 57 Plea as Heir and shews not how 15 Prescription to have Common omni tempore anni without saying quolibet anno 1 Plea of Grant of an Advowson without alledging by Deed 54 Prohibition 22 Prohibition to Chester 59 Q. QVire Impedit c. 31. 36 Quid juris clamat 89 Quod permittat 28 R. REcord shall be good where the conveyance is delivered to be inrolled but is not inrolled 1 Release of land devised before it be vested 60 Rationabile parte bonorum 109 Recovery if the Town be omitted therin the Land doth not passe 106 Record matter of Record tryed per pais 20 Remainder where it shall be said Contingent 118 Rent tendred at the day 13 Rent Assumpsit lies not for it 34 Rescous by the Plaintiff in the first action 98 Request where necessary 2. 73. 106 Return insufficient of a Writ of Quare Impedit 24 S. Statutes What shall be said a Parish Church within the Statute of 43 Eliz. 93 Resolves upon the Statute of 3 H. 7. cap. 2. 2 Resolves upon 35 Eliz. cap. 1. concerning Sectaries 61 Resolves upon 5 Eliz. concerning Aliens 132 Resolves upon the Statutes concerning Souldiers 134 Upon the Statute of Hue and Cry 125 Statute-Merchant without day of payment 42 Statute of Limitations extends not to Arrearages of Rent reserved upon Indenture 109 So De rationable parte bonorum 109 Debt upon a poenall Statute is not gone by the death of the King 82 Sci. fac against a Sheriff to have Execution of monies returned levied by him 32. 11 Sci. fac by Baron and Feme the death of the one shall abate it 37 Sci fac against the Sheriff for taking insufficient Pledges 77 Surrender by Baron and Feme of the Estate of the Feme for life and the King in consideration therof makes a new Lease 7 Suspension of things where they may be revived 94 Supersedeas by the Wife upon an Exigent against Husband and Wife 86 T. TEnder of Rent at the day 13 Tithes and action therupon 121 Tithes of Wood and small tithes 77 Trespass by Baron and Feme for breaking the Close of the Baron and for the Battery of the Wife 59 Tryall where nul tiel vill it pleaded 31 Traverse upon Traverse 96 Traverse of a day 121 Town shall be intended whole Town 74 Traverse of Seisin 123 Tenure by Castleguard is Socage Tenure 91 Tryall of Treason how it shall be 131 Tryall of an action of Account upon receit in two Counties 111 Tryall of matter of Record by the Country 20 Trover and Conversion the Defendant justifie without confession of the Conversion 10 Treason persons attainded therof and set at large how they shall be brought to execution 21 V. VEnire fac from a Towne within a Parish 6 Ven. fac from divers Towns 27 39 Ven. fac where nul tiel vill is pleaded 31 Ven. fac of a Visne from a place known in a Town without making it from the Town 106 View counterpleaded 44 View upon a Quod permittat 28 Usurpation 66 Judgment in Dower upon Voucher 71 W. VVAter increase thereof in Westminster Hall 108 Waifes where they may be fettered and other learning therupon 67 Warrant to four and two only execute it 127 Warranty lineall bind not without Assets 22 Wast in cutting wood to make Cole-mines 19 Wast and inquiry of damages theron 45 Wast how the Writ shall be made where a Lease for life is made the remainder in fee 110 Writs and filing therof 112 WORDS I. S. is in Leicester Gaole for stealing a Horse 2 Welsh words 8 He is a cousening Knave and so I have proved him before my Lord Major for selling of me a Saphire for a Diamond 13 George is a cousening Knave and cousened a poore man of a hundred pounds and all the Georges are Knaves 14 He is a cousening Knave and hath cousened me of forty pounds 14 He is a false Knave and keeps a false Debt-book for he chargeth me with the receit of a peice of Velvet which is false 14 Thou art a pilfering Merchant and hast pilfered away my Goods from my Wife and Children 14 She is a cousening woman and hath cousened one of her Neighbours of four pounds and I will bring good proof of it 14 I doubt not but to see you indited for Sheep stealing 18 Forgery spoken of an Attorny 29 Thou hast forsworn thy self in the Councell before the Marches 34 Thou art a filching fellow and didst filch four pounds from me 34 I charge thee with Felony for taking money out of I. S. pocket and I will prove it 38 I have matter enough against thee for I. S. hath found Forgery against thee and can prove it 41 Forsworn where actionable and where not 44 He is a Bankrupt spoken of one not a Tradesman 45 He is a Bankrupt spoken of a Baker without alledging him to be a common Baker 49 Cousening Knave whether actionable or not 52 I will have him hanged for robbing in the high-way 58 Thou art a Theef and hast stoln my Corn 15 He is as arrant a Knave as any in England 72 I doubt not but to prove that the Plaintiff hath spoken Treason 75 Thou art a common Barretor a Judas a Promoter spoken of an Attorney 104 Thou art a Theef and hast stoln Passions Lamb and marked it and he denied it 110 Thou art a Theef and hast cousened my Cosin Baldwin of his Land 113 I will charge him with flat Felony for stealing my Ropes from of my Shop 113 Thou didst bring Faggots a mile and halfe to burn the Colliers 123 Thou hast made many false Certificates to the Major and Burgesses in that Court 123 Trust him not he is not worth four pence of a Tradesman 125 If I list I can prove him perjured 127 Thou old Witch thou old Whore I will have thee hanged if I can do it 132 I accuse Mr. Justice Hutton of high Treason 131 He is a Witch and an Inchanter and hath bewitched the Children of Strong 13 Errata PAge 1. line 28. for Bormis Inn read Bozuni's Inn p. 3. l. 19. r. grant p. 7 l. 25. blot out by p. 13. l. 2. r Witch p. 22. l. 20. for to the Secondary r. secondarily p. 24. l. 27. r. of p. 28. r. Quod permittat p. 49. l. 8. r. entire l. 24. r. Ignoramus l. 36. r. Lord Hobart the same p. 54. l. 18. the same L. 38. p. 56. l. 42. r. Vicaridge l. 54. r. folk p. 61. l. 9. r. vested p. 65. l. 37. r. Lord Hob. p. 76. l. 38. r. sold p 81. l â—â— r. Justices p. 88. r. Hartopp p. 99. l. 25. r. unwholesome p. 104. l. 35. r. Perpoint l ult r. demised p. 105. l. 23. r. Lessee l. 33. after One add Grants proximam Advocationem to and after l. ult r. admitted p. 107. l. 10. r. founded l. 15. r. trimming p. 109. l. 24 r. objection l. 25. r. Action p. 110. l. 14. r. property l. 19. the Ter-tenant r. and held the said lands l. 37. r. dimisione p 112. l. 10. r. time l. 24. put out which granted p. 214. l. 8. r. agreed l. 35. r. rendred p. 116. l. 5. r. Georges p. 117 l. 24. r. Certiorari p. 119. l. 23. r. her l. 35. r. to p. 130. l. penult r. according
was that none should use the Art of Weaving within the said Burrough or should have any Loom in his house or possession to have any benefit therby unlesse he had been an Apprentice to the said Art within the said Burrough for the space and term of seven years or had used the said Art within the said Burrough for five years before the making of the said Ordinance or shall be admitted therto by the Wardens and Society upon pain of forfeiture for every month twenty shillings And they further shew that after the said Ordinance made and confirmed the Defendant such a day before his inhabiting in the said Burrough and after such a day that one William Godwin being then Warden of the Weavers gave notice to the Defendant of the said Ordinance and that he afterwards c. during five months continued using the said Trade there and that he had two Looms in his possession where he had not been an Apprentice nor used the said Art for five years as before c. by which he forfeited to them five pounds viz for every month twenty shillings The Defendant pleaded Nil debet and after Verdict for the Plaintiffs it was moved by Arrest of Iudgment that this Ordinance was not reasonable and upon Arguments and Conference without arguments at the Bench it was agreed that the Ordinance was against Law and Iudgment against the Plaintiffs And Lord Hobart in Hil 15 Jac declared that we were all of opinion that Iudgment should be given against the Plaintiffs And he repeated the Case and the reasons of this Iudgment because the Ordinance was that none should use the Trade of Weaver nor have any Loom in the Town unlesse he had served c. before the making of this Ordinance so that all Apprentices which serve after shall be excluded unlesse they shall be admitted by them which is unreasonable And the Plaintiffs do not convey to themselves any good Title to be Wardens but as to the principall point of making such a restraining Ordinance the Court did not deliver any opinion Mich. 15 Jac. Rot. 2327. Dorrell versus Andrews SUsan Dorrell brought an action of Debt against Sir Eusebius Andrews London Debt The Visn of a Town within a Parish and John Cope for eighty five pounds and count upon a Lease made by her to the Defendants by Indenture by which she demised one Capitall Messuage Mannor or House called Causton within the Parish of Dunchurch in the County of Warwick and all the Stables c. in Causton aforesaid The Defendant protesting that the Rent was not behind for Plea saies that before any Rend arrear the Plaintiff entred into severall parts of the house and him dispossessed and upon that they were at issue and the Venice facias was de vicineto de Causton within the Parish of Dunchurch And it was moved in Arrest of Iudgment that the Venire facias should be of the Parish only and not of Causton for Causton is not alledged as a Town but the name of a house And the Court resolved that the Ven. fac was good for Causton is alledged as a Town in the Parish of Dunchurch and that by the addition and generall words in the Demise in which also there was an exception of part of the House as Mannor-house at Causton aforesaid so that the house is alledged to be in Causton in the Parish of Dunchurch if all be considered And if it appear that Causton is a Town or Village in the Parish of Dunchurch it will be without any doubt good And my Lord Hobart said that it had been divers times adjudged that on the Allegation of a thing done at the Town of Dale in the Parish of Sale that the Ven. fac of the Parish is good for though the Parish may contain more Towns yet it is not to be presumed but that it is of one Continent if the contrary appear not by the Record vide for that Pasch 9 Jac. between the Lord Candish and Sir George Savill c. There was another exception taken to the pleading Candish and Savill which I have not transcribed Trin. 14 Jac. Rot. 755 Swaine versus Holman RIchard Swaine Plaintiff Brownlow Dors. Wast against Thomas Holman and Elizabeth his Wife brought Wast and declared of a Lease made Anno the 8. of Eliz by the Queen under the Exchequer Seal to William Jolliff Thomas Jolliff and Elizabeth Jolliff for three lives and that William and Thomas were dead and convey the remainder to the King that now is and from him to the Plaintiff and that the Defendant Elizabeth took H. to Husband which did wast c. The Defendants confesse the Lease death and marriage as above c and say that the said Holman and Elizabeth his wife 2. Feb 40 Eliz. surrendred as well all their Estate of the said Elizabeth as the Letters Patents to the intent that the Queen should make a new Lease to the said Elizabeth and to Humphrey Holman and to Roger Holman for their lives successively which surrender the Queen accepted and the third of Febr next made such Demise and this they are ready to aver c. The Plaintiff replies and joyns Issue upon the Surrender and Demise in manner and form and the Issue was tried by a Venue which came from Westminster and the Iury found this speciall Verdict viz. the new Lease made the third of Felic in which it is recited that she had surrendred the Estate and the Letters Patents and the Queen as well in consideration of the surrender of the Letters Patents as in consideration of the payment of twenty Nobles made by the new Lease and the Iury found that the Demise made the third of Febr was with the consent of the said Thomas Holman and that the said Thomas Holman and Elizabeth his wife agreed therto and held in claiming by the said Demise And it was adjudged by the Lord Hobart and others the Iustices that the Plaintiff should have Iudgment First the consideration which procured the new Lease is the Surrender and the Surrender is not absolute but defeisable if the wife survive or if the Husband will disagree and therfore the Lord Hobart said that if Feme Lesses for years takes Husband and after the Feme takes a new Lease of the Queen for life this extinguisheth the term but if the Husband disagree then the Lease for yeers is revived And as in Barwicks Case the surrender of all the Estate where he had made a Lease for years before or where the Lease which he surrendred was void the new Lease made 〈◊〉 consideration therof is vein for the Surrender which is the consideration ought to be a good surrender of the former Estate And therfore if Lessee for life of the Blemise of the King surrender conditionally and the King reciting that he had surrendred all his Estate makes a new Lease this shall be intended an absolute Estate for a conditionall surrender within three years of
without Custom nor the Lord cannot commit during the Minority of an Infant Copyholder without Custom Hil. 15 Jac. Rot. 906. Smith versus Stafford Brownlow Suff. ANdrew Smith and Anne his Wife Case against Richard Stafford Executor of Jeremy Stafford in an Action upon the Case the Plaintiff counts that wheras there was Communication had of a Marriage between the said Anne when she was sole and the said Jeremy Where inter-marriage release a promise made by the Husband to the Wife before marriage the said Jeremy in consideration that the said Anne would take him to her husband promised that if after the Marriage the said Jeremy dyed living the said Anne he would leave the said Anne worth a hundred pounds and aver that she did marry the said Jeremy which died and did not leave her worth a hundred pounds And upon Non assumpsit the Iury found for the Plaintiff and in Arrest of Iudgment it was alledged that this intermarriage had extinguisht the action vide 11 H 7. 4 21 H. 7. 30. Coke 8. 136. there in Sir John Needhams case many cases are put vide Hoes case that a Release do not discharge Bail before Iudgment for it is contingent vide one Iudgment Hil 6. Jac. in the Kings Bench Rot 132. Thomas Belcher and Elizabeth his Wife Belcher and Hudson against Edmond Hudson an Action upon the case in consideration that the said Elizabeth at his request would take one Thomas Mason his familiar Friend to her Husband he assumed and promised that if the said Elizabeth survived the said Mason that he would pay yearly to her forty shillings for her maintenance and shews that therupon she did take the said Mason to her Husband and survived him and then married with the Plaintiff the Defendant pleads a Release from Mason of all Actions Demands c. and it was adjudged no sufficient release But Lord Hobart said that if he had released all promises that would have discharged the Defendant vide 4 Eliz Release of all Actions Suits Quarrels c. doth not release a Covenant before it be broken but otherwise of a release of all Covenants as it appears in Dyer 57. though the principall case was a release of all Covenants untill such a day and Covenants were broken before and not discharged for it being broken before there was no Covenant as to that Vide Lampets case Coke lib 10. 51. the reason of the release in Hoes case was because that it was contingent and uncertain and 17 Eliz a Lease to the Husband and Wife for life the Remainder to the Survivor of them for one and twenty years the Baron grant it over and survive yet it is void because it was contingent And the Lord Hobart said that the promise was released by the inter-marriage and so shall be in the case of an Obligation for Fortior est dispositio legis quam hominis and he held that strongly to be Law but Iustice Winch and Iustice Hutton held the contrary and that the Law will not work a release contrary to the intent of the parties and that the marriage which is the cause do not destroy that which it self creates Trin. 6 Jac. Jurden versus Stone Glocest EIectment upon a Lease made by Alice Remington of a Copyhold in South Corny Walter B. Copyholder in Fee married the said Alice And there was a Custom in the Mannor that the Wife shall have the Copyhold as of Franck-banck during her Widowhood Where a woman may enter in and bring an action tâ—â— beâ—â—â— Franck bank before admittance Si tam diu casta viveret and had used to challenge it and the Lord granted it as appears by divers admittances of women and this Wife after the death of her Husband came into Court and challenged her right of Franck-bank and prayed to be admitted and that the Steward refused and she made a Lease for one year to the Plaintiff and if he might bring this action by reason the woman was not admitted for it was agreed that no Fine was due to the Lord was the question And upon the Evidence it was resolved by the Court that this Estate ariseth out of the Estate of the Husband And as Lord Hobart said it budded forth of the first Estate and it seemed that where Tenant for life is admitted that shal be the admittance of him in remainder Also if the Free-hold of the Copyhold be granted over and the Husband dies there there cannot be any admittance and yet she may enter and in this case if any admittance had been necessary she had done all that she could do and that amounts to an admittance in Law to an Estate created by the Custom and by the act of God and Law A Tenant alieu and the Feoffee tender the services and gives notice the Lord refuse this is sufficient and the Lord shall be compelled to avow upon him Continuall claim amounts to an entry Pasch 16 Jac. Rot. 444. Blands Case Case GEorge Bland brought an Action upon the Case against A. B. the Defendant having some communication with one Eagle said that he was a troublesome fellow and he doubted not but to see him indicted at the next Assises for Barretry or Sheep-stealing as George Bland was Words for George Bland was indicted the last Assises for stealing of Sheep and it was not averred that he was not indicted but that he was of good fame It was moved in Arrest of Iudgment that it is not actionable and so was the opinion of the Court for it is not a direct affirmative vide the case of Steward against Bishop before fol. 1. And if one saies I suspect you for stealing my Horse And Iudgment was given for the Defendant Trin. 16 Jac. Darcy versus Askwith Brownlow Ebor. JOhn Lord Darcy of Ashton brought an action of Wast against Robert Askwith now Knight and John Marshall Wast and assigne the wast in Woods viz. In cutting down and selling two Oakes foure Ashes in a Close called Tisley Close two Okes in Parsons croft one Ash in Pinder croft and sixty one Oakes in Preston Lands Wast in cutting of wood to make Cole mines and in divers other Closes in Swillington and Preston The Defendant plead a Lease of the Mannor of Swillington to him for years and also of the Mines and justifie the shrowding of the Trees to make Punchons Poles and Stakes and other Vtensils in and about certain Pits called Cole-mines in one of the Closes without which the Defendants could noâ— dig and take Coles out of the said Pits and aver imployment about of the said Cole-mines justifie the cutting of other trees for the making of Instruments for the extracting of the water out of the said Pits and that without which they could not dig any Coles and they were necessary for the digging of Coles and for supporting the Pits and aver the Imployment And therupon the Plaintiff demurred And we all agreed
he had nothing else to say but submit himself to the mercy of the King And there execution was awarded and a Roll made therof and so it was done in Lepu's case as the President was shewn and he was committed to the Sheriffs of London and Middlesex and by them he was brought to the Gatehouse and the next day which day the Lord Mayor of London came to Westminster to take his Oath he was beheaded in the great Court at Westminster and he died in a good and religious manner and spake much without any fear of death submitted himself to the Block and by his death gained great reputation in this life and by the grace and mercy of God remission of his sins and eternall life afterwards c. Bishop and others FAther Tenant in tail hath Issue two Sons the Father with the eldest Son makes a Feoffment with Warranty the eldest Son dies Lineall Warranty and after the Father dies the younger Son brought his Formedon and this Feoffment with warranty of the eldest Son is pleaded in Bar and upon Demurrer Iudgment for the Demandant For it is but a lineall Warranty and then without Assets it is no Bar for though the eldest Son dye in the life of the Father yet the younger Son by possibility might have the Land as Heir to him Mich. 16 Jacobi AN action of Debt was brought upon the Statute of 5 Eliz. for perjury against one that was produc't as a Witnesse in an action of Trespasse and deposed falsely And upon Nil debet pleaded the Plaintiff was non-suit Costs shal not be allowed upon a non-suit in an action brought upon the Statute 5 Eliz. of Perjury And whether the Defendant should have costs or no was moved by Serjeant Harvy and that stands upon the words of the Statute of 23 H. 8. cap. 16. the words are In any Action Suit Bill upon the Case or upon any Statute for any Offence or wrong personall immediatly supposed to be done to the Plaintiff The opinion of the Court was that the Defendant should not have costs upon this non-suit because that this action is founded upon a Statute made long after the making of that Statute Also this is not an immediate wrong to the Plaintiff but to the Secondary for it is an immediate wrong to the truth and such Statutes which are intended by this Act shall be like to Trespasse done to the party himself as Ravishment of Ward Also it is not aided by the Statute of 4 Jacobi cap 3. for that gives costs to the Defendant where the Plaintiff shall have costs if he recover And Mr. Brownlow the Prothonatory said that it had been ruled so before for the Plaintiff should not have costs if he recover because the Act 5 Eliz. gives a Penalty viz. a forfeiture of twenty pounds against the Witnesse and forty pounds against the Suborner and so the Plaintiff if he had recovered should not have had any costs and therfore it is not aided by the Statute of 4 Jacobi Mich. 16 Jacobi Conesbies Case THe Lady Conesby being the Wife of Sir Ralph Conesby was cited into the Ecclesiasticall Court by Mr. Watts Prohibition who had married Elizabeth the Grand-child of the Father of Sir Ralph to which Grand-child by Will one Legacy of a hundred pounds was devised and that was pass 3 Jac. by the Lady Conesby Executor of the first Testator and upon payment an Acquittance under the hand and Seal of the said Watts was c. in the presence of two Witnesses now dead And this being denied and they allowing of no proof by comparison of hands nor by circumstances but only proof of them which wrote it or of them which saw them subscribe And by their Law an Acquittance of the Husband for a Legacy to the Wife without the Wife is not sufficient also if Watts himself will deny it upon his Oath there it shall stand against all proofs A Prohibition was granted upon the motion of Serjeant John Moore and after Serjeant Harvy had said all that he could say Trin. 16 Jac. Rot. 954. Kind versus Ammery KInd Plaintiff in a Replevin against Ammery Replevin The Avowry was for a Rent-charge and the Grant was of a rent of twelve pounds payable at two Feasts Demand not necessary in an Avowry for a Rent-charge and if it vs behind for the space of a month after any of the said Feasts it being lawfully demanded that he might distrain and for Rent arrear at the Annunciation and by the space of a month after and not paid he distrained And the Plaintiff demurred upon this Avowry and shewes for cause that it is not shewn that the Avowant made any demand before the Distresse And Serjeant Harris relied upon a Case which was An 31 Eliz. as he said and vouched the number Roll Bosdens case that upon demurrer between Bosden and Downes there the Avowry was not good for the same cause And Maunds case Coke lib. 7 fol. 28. implies that it ought to be demanded but it is not issuable if it be at the day or after And he said it was debated 31 Eliz. whether it was form or substance which shall not need to be shewn upon Demurrer But the Court agreed that no actuall demand was necessary to procede the Distresse in this case but that the Distresse is a demand But if the Grant has been penned in this form if it be arrear at such a Feast and for a month after demand that then he may distrain otherwise it is for there the Distresse is limited to the month after the demand And so it was adjudged in this Court between Coppleston and Langford Trin. 3. Car. Rot. 2865. Copplestone Langford Replevin between Beriman and Bower Avowry for Rent granted out of ten acres of Land in Crediton payable at such a Feast upon the Town stone upon the Key in Barnstable if it be lawfully demanded with clause of Distresse and the Distresse was before demand and upon demurrer it was resolved a good Distresse without demand vide Dyer 348. Booton against the Bishop of Rochester A Quare impedit was brought by Booton against the Bishop of Rochester who pleads that he claims nothing but as Ordinary and yet pleads further that the Clerk which the Plaintiff present had before contracted with the Plaintiff Simoniacally Insufficient return on a Writ in Quare Impedit to the Arch bishop and therfore because he was Simoniacus he refused him and that the Church was then void and so remained void wherupon the Plaintiff had a Writ to the Arch-bishop of Canterbury who returned that before the coming of this Writ viz. 4 July the Church was full of one Mr. Doctor Grant ex collatione of the said Bishop of Rochester which had collated by Laps and this return was adjudged insufficient First it is clear that though the six months passe yet if the Patron present the Bishop ought to admit although it
entred and 2 H 7. 4. takes a difference between a reall Action or Originall Suit and a Writ of Execution for upon the first the Essoin lies at any time before the fourth day but in the Writ of Execution the Defendant ought to be essoined at the day of the Essoin And Warburton said that if the Essoin be not cast before the return of the Writ it ought not to be at all for all Writs come in by Post diem Cardinals Case CArdinall an Attorney of this Court of Common Bench Case brought an action upon the case against I. B. for saying of him That he had forged the last Will of I. S. and after Issue upon not guilty it was found for the Plaintiff And moved in Arrest of Iudgment Words that it is not alledged that the Will is supposed to be forged But by the Court that was necessarily implyed and the Plaintiff had Iudgment Pasch 17 Jac. Allaboyter versus Clifford Suff. JOhn Allaboyter brought an action of Debt upon an Obligation against Daniel Clifford which was with a Condition Debt that if the Defendant perform the Award of two Arbitrators of all Actions Demanos c moved between the Plaintiff and Defendant from the beginning of the world untill the day of the date of the Obligation Arbitrement so that the arbitrement be made before the tenth day of December the Defendant plead no such award before the day the Plaintiff reply and shew that the ninth day of December they awarded of and upon the premisses and arbitrated that the Defendant should pay to the Plaintiff fourteen pounds at two severall daies and that upon the last day the Plaintiff should make a generall release to the Defendant and the Defendant likewise to the Plaintiff and alledge a breach for the non payment of the first seven pounds and aver that the fourteen pounds was awarded to the Plaintiff in full satisfaction of all suits quarrells c. depending between the Plaintiff and the Defendant at any time before the Date of the Obligation upon which Plea the Defendant demurred and objected by Attho that the Release which is appointed to be made upon the last day is not appointed but after the payment of the money and also is then to be made of more then is submitted to them But by the Court it is agreed to be a good Award for it shall not be intended that there were more matters arising between them after the date of the Obligation Also if he had made a Release untill the date of the Obligation that were a good performance And this Case had been adjudged before between Nichols and Grandie Nichols and Grandy George Andrews Case VPon a Habeas Corpus one George Andrews was brought to the Bar and upon a long return by the Mayor Aldermen and Sheriffs of London The Custome of London to give security for the payment of the Portions of Orphans and upon refusall the Debters are to be committed of their custom concerning the Orphans of Free-men and for the security of their Portions to be paid to them at the age of 21. years or at the time of their marriage or at such time as is appointed by the Will of their Father or Mother or other Free-men giving to them any Legacy they use to take sufficient security of them which ought to pay them and if they refuse then to commit them to the Counter untill they give security and that their customs were confirmed by Act of Parliament An. 7. R. 2. William Andrews a Free-man having one Son and one Daughter by Emery his Wife died this George Andrews a Free-man being Suitor to the Wife before marriage agreed that if the Wife would marry him she should dispose of two hundred pounds c. and he was bound in a Statute to permit and suffer her to make her Will and dispose therof and after she died and by her Will gave a hundred pounds to her Son and a hundred pounds to her Daughter and the said G.A. agreed to her Will and yet refused to give security to the Chamberlain of London to pay it at the day appointed by the Will pretending that he was bound by Statute to the Friends of the Orphans to perform it And by the Court he was remanded for it is a laudable Custom and the voluntary Obligation upon marriage is not any discharge as to the security by the Custom and we will not disparage the Government of the Citty Trin. 16 Jac. Wolfe versus Heydon London Debt THomas Wolfe Administrator of the Goods and Chattels of John Aldrich durante minore aetate of Edward Aldrich William Aldrich and other Children of the said John not administred by John Talbot Executor of John A or by Robert Armiger late Administrator of the said Goods and Chattels during the minority of the said Children not administred To what intents a man shall be said Executor before he prove the Will brought an action of Debt against Simon Heydon and count upon an Obligation of fifty pounds wherof ten pounds was satisfied to John Aldrich in his life and counts that John Talbot was made his Executor and died and that the money was neither paid unto the said John Aldrich the Testator in his life nor to John Talbot the Executor in his life nor to the said Robert Armiger late Administrator of the Goods and Chattels of the said John Aldrich during the minority of the Children and he produce Letters of Administration and aver that the Children were within the age of seventeen years The Defendant plead in Bar that the said Aldrich before this Writ purchased viz. such a day at S. in the Parish c. made his Will and constituted John Talbot his Executor Qui suscepit onus inde and administred divers Goods as Executor and after viz. such a day the said John Talbot made Benjamin Roblet his Executor and died and Roblet suscepit onus testament and did administer and demand Iudgment si actio c. The Plaintiff reply and confesse that John Aldrich made John Talbot his Executor and that he administred and made Roblet his Executor But he saies that the said John Talbot did not prove the Will of the said John Aldrich according to the Ecclesiasticall Law and that the said Benjamin before that he took the charge of the Testament of John Talbot renounced before the Ordinary to be Executor of the said John Aldrich or to administer any of the Goods which were the Goods of the said Iohn Aldrich or to have any thing to do therwith And therupon the Defendant demurs and Iudgment was given for the Plaintiff And in this case the Court well agrees with the replication for he was Executor before probate to pay Debts and to be sued but not to have an action though that originally the probate was temporall and it is no plea in our Law scil that he did not prove the Will but that he was not
Plaintiff to have execution against the said Thomas Elme and so was aiding and assisting unto the said Thomas Elme Wherupon the Defendant demurred and it was adjudged by the Court that this prosecution of a Writ of Error to discharge himself of an erroneous Iudgment is no breach of the Condition no more then if the Plaintiff had released and he had brought an Audita Querela And it shall be intended in this case of a Suit to be solely commenced by the said Thomas Elme and if he will restrain him that he joyn not in a Writ of Error it ought to be precisely contained in the Condition and shall not be taken by a large Exposition to the forfeiture of an Obligation by a generall and ambiguous sentence It was urged that the Defendants had power to have severall Writs of Error 11 H 6. 9. But the Court resolved that being the Costs were joynt they ought to joyn vide Coke lib 6. fol 25. but the release of one will not bar the other vide 34 H 6. 42. 35 H 6. 10. that this Suit is in discharge of the Defendant and not to charge the Plaintiff and therfore the Condition is not broken vide Dyer 253. A Condition to suffer a Lessee quietly to enjoy the word suffer guide all the sentence in favour of the Obligor and Iudgment cannot be reversed in part and stand for the other part or be reversed against one and stand in force against the other except in speciall cases As where Infant Tenant for life and he in remainder of full age levy a Fine that shall be reversed as to the Infant and stand for the remainder for it is no other then as a Conveyance Mich. 18 Jac. Powell versus Ward AN action of the case was brought for these words Case Words I have matter enough against thee for Iohn Halden hath found forgery against thee and can prove it And after Verdict it was resolved by the Court that the words are too generall will not maintain an Action no more then if one said that another had forget a Warrant for it might be a Warrant for a Buck and this is not right Affirmative Sherley versus Underhill A Quare impedit brought by George Sherley Baronet Quare Impedit Error in Quare Impedit against Underhill and Bursey for presenting to the Vicaridge of the Church of Nether Elington and count of a Nomination as appendent to the Mannor of Elington and Issue therupon for they pretend it to be appendent to the Rectory of Elington And it was found for the Plaintiff at Warwick Assises and Iudgment there for him and a Writ to the Bishop and therupon a Writ of Error was brought in the Kings Bench and it was to remove a Record which was between George Sherley Knight and Baronet and the truth was that Sir George is not neither was named Knight by all the Record And therfore the opinion of the Court was that the word Knight is part of the name and so no Record was removed And it is so materiall that the addition where there is none or the omission where it is Knight makes it no such Record and they perceiving it discontinued their Writ Memorand That though Iudgment was given at the Assises the Writ of Error was directed to the Lord Hobart and the Record is demurrant in the Court of Common Berich And now it was moved that the Iudgment might be amended for it was Quod recuperet presentationem suam ad Ecclesiam praedictam And the value sound of the Church aforesaid And it should be Quod recuperet praesentationem ad vicariam Ecclesiae valorem vicariae Ecclesiae And it was urged that it was not the mis-prision of the Clerk but of the Court and Iudgment erroneous in point of Law is not amendable for if it be Quod capiatur where it should be Quod sit in miserecordia it is not amendable But it was resolved and so awarded by the Court that it should be amended And the reason is because the Verdict is generall and they found for the Plaintiff and the Iudgment ought to agree with the Verdict But it is solely mis-prise by the default of the Clerk for the Record precedent is in every part and in the Issue and Verdict Vicariam Ecclesiae And by the Statute 8 H. 6. cap. 15. that is amendable for the mis-prison of the Clerk in the Record shall be amended though it be in the Iudgment Wilde and Woolfe Mich. 33. 3â— Eliz 230. vide Dyer 258. Also Mich. 33. 34 Eliz Rot 230. between Wilde and John Woolfe Ideo considerat est quod praedictus Thomas Wild recuperet versus praedictum Thomas Woolfe where it should be John and Error was brought and it was amended Stepney and Woolfe 42 Eliz Rot 693. An action of the case by Stepney against John Morgan Woolfe Id. consid quod recuperet versus praedictum Morgan Woolfe and there was no such Defendant but John Morgan Woolfe and it was amended upon Error brought in the Exchequer Chamber And vide Coke lib 8. fol. 164. Blackamores case more cases upon this learning where the mis-prison of the Clerk in the entry of the Iudgment of a thing which is apparent and not of necessity shall be amended as in Mis-prision of the summ of Arrerages before and pending the Writ of Annuity shall be amended vide 9 Eliz Dyer 258. Mich. 18 Jac. Sir Thomas Wentworths Case Replevin SIr Thomas Wentworth brought Replevin the Defendant avowed for a Rent granted Demand of Rent with a Nomine poenae after Issue joyned upon other matter and a Nomine poenae and shews not any Demand of the Nomine poenae But the Issue was tryed and found upon other matter viz. Non concessit And now it was moved in Arrest of Iudgment that he avowed for a Nomine poenae and did not alledge any demand therof yet Iudgment was given for the Avowant For it is matter confessed and the Action is a request viz. the Avowry for he is there the Actor And it is but a Circumstance collaterall to the right And in Actions upon the Case founded upon a promise after request a Licet saepius requisit shall be a sufficient Allegation of a request Davies Case Statute-Merchant without day of payment ONe Davies acknowledged a Statute-Merchant at Glocester in three hundred pounds and the Statute did not limit any day of payment and yet an Extent was sued And upon motion by Serjeant Harris a Supersedeas was awarded for that is no Statute for they had not pursued the Authority given by the Statute For the Statute of Acton Buanell 11 E. 1. saies if the Debt be not paid at the day And though Debt upon an Obligation is payable presently if the day be not expressed yet there the Statute appoint a day certain Pasch 15 Jac. Rot. 1714. Cartwright versus Underhill Trover and Conversion AN action of Trover and
of forty pounds And adjudged that no action lay vide Coke lib 10 fol 130. in Osbornes Case Thou art an arrant Knave a Cousener and a Traytor Action lies only for the word Traytor and yet all being spoken at one time aggravate and Damages shall be intended to be given only for these words which are actionable vide ut supra fol 131. if the words be alledged as spoken at severall times and as severall causes of actions there if the Damages be entire the Plaintiff shall not have Iudgment if any of the words do not bear action Stanley and Buddens case And other cases were cited that Cousenage is not actionable And Mich 40 Eliz Stanley and Buddens or Boswels case there an Attorney brought an action of the case for these words Thou art a cousening Knave and gettest thy living by Extortion and didst cousen one Pigeon in a Bill of Costs of ten pounds Adjudged that the last words were actionable This case was adjudged for the Plaintiff but I was absent in Chancery and heard not their reasons for it was doubtfull Hil. 17 Jac. Empson versus Bathurst Debt FRancis Empson brought an action of Debt upon an Obligation against George Bathurst the Defendant pleaded the Statute of 23 H. 6. That an Obligation taken Colore officii of any one in their Custody Obligation voided by the Statute 23 H. 8. with any other Condition then for appearance at the day mentioned in the Processe shall be void And shewed that an Extent issued out of the Chancery to extend the Land of Robert Leigh upon a Statute Staple of twelve thousand pounds in which he was obliged to the Plaintiff And that Anthony Thirrold was Sheriff and Charles Empson was under Sheriff and shewn an Extent of the Land returned and before any Liberate it was agreed that the Defendant should pay to the under Sheriff two and thirty pounds ten shillings and that he should be bound to the Plaintiff his Brother for the security therof to the use of the said Charles and therupon he entred into the said Obligation which by the said Statute is void the Plaintiff replyed and shewed that by the execution of the Extent he agreed to pay him the said two and thirty pounds ten shilling and pleaded the Statute 29 Eliz cap. 4. wherupon the Defendant demurred And it was adjudged against the Plaintiff Extortion for this Obligation is extortion and Colore officii and void by the Commen Law Extortion is when any one Colore officii extorquet feodum non debitum plus quam debitum aut ante quam debitum vide Dive and Maringhams case an Obligation made by Extortion is against Common Law for it is as Robbery vide Coke lib 10. fol 100. Dyer 144. And in this case the opinion of the Court was that no Fee is due to the Sheriff by the Statute of 29 Eliz. cap 4. because the Fee is not due untill execution Copulative extent and delivered in execution if it were a Statute-Merchant in which is a Liberate included then the Fee is due Also it was agreed that by the Statute the Sheriff ought to have six pence in the pound where the summ exceed a hundred pounds for all and not twelve pence in the pound Mich. 20 Jac. Bullen versus Gervis RObert Bullen brought an action of Debt for 12 l. upon an Obligation against William Gervis Administrator of Owen Godfrey Debt It is no plea for the Administrator to say the Intestate died outlawed Young and Pigot The Defendant pleaded that the Intestate was outlawed at the Suit of Francis Murrell after Iudgment and pleaded it specially and being so Outlawed died and that Outlawry is in full force Iudgment si Action wherupon the Plaintiff demurred 8 E. 4. 6. There by Littleton between Young and Pigot in an action of Debt against Executors it was holden a good plea to say that their Testator was Outlawed for they are charged to the King for the Goods Genny said that the plea amount only to this that they have not any Goods and so answer argumentative And 21 E. 3. 5. By Brian in a Writ of Debt brought against Executors it is a good plea to say that their Testator was Outlawed sans luy intitle 36 H. 6. 27. By Prisot in Debt against one as Executor of Jane the Defendant said that the said Jane was his Wife and demand Iudgment si action and it seems this is no Plea because that a Feme Covert may have many things which the Husband shall not have as Choses in action and she may make Executors if the Baron agree And Prisot said Sir It seems to me that it is no good plea for an Executor to say that his Testator died Outlawed Cansa qua supra Quare cur hona materia Vpon the reading of the Record it seems that it is no plea for it is only by Implication and that may be given in evidence Also the Executor or Administrator may have divers things which are not forfeitable to the King as if the Testator had Mortgaged his Land upon Condition that if the Mortgagee pay not at such a day to him his Executors or his Heirs a hundred pounds that then it shall be lawfull for him or his Heirs to re-enter and after and before the day the Testator is outlawed and makes his Executors and dies and at the day the Mortgagee pay the money to the Executors that is Assets and not forfeited is the King So if Tenant for life of a Rent be outlawed and the Rent arrear and makes his Executors and die this arrearage is due to the Executor and is Assets and not forfeited for the Rent was a Free-hold for which during his life no action of Debt lay and these arrearages recoverable by the Executors are Assets Also if this should be a good plea which is only by Implication he might therby prevent the Plaintiff of his recovery Also though choses in action are by information in the Exchequer recoverable yet if the Executor bring a Scire facias upon the Iudgment he shall recover and shall be accountable to the King therfore and the Debtors of the Intestate though he was outlawed may pay the debts to him and his release is a good discharge to them Also it was agreed that an Executor or an Administrator might bring a Writ for the reversall of the Outlawry and the Outlawry is not a Bar to him Woolley versus Bradwell Trin. 37 Eliz. Rot. 2954. And one case was vouched by Attho which was adjudged upon the like plea in this Court Trin 37 Eliz Rot 2954. Woolley against Bradwell and his Wife Executors of Sir Thomas Mannord and the matter depended a year and was argued and adjudged that it was no plea for it is but by argument and so being Serjeant Hobart said this Argument ought to be infallible also this is the matter and not the form for in this case the Demurrer was generall and the Book of
are not Affirmative or Positive but a supposition only as if he had said Nowels case I will indite him for such a matter it was vouched to be adjudged 51 Eliz. in Nowels case that to say of an Attornaâ—â— That he was Cooped for forging Writs maintain an action And 14 Eliz. He is infected of the Robbery and he smelleth of the Robbary adjudged actionable In balls case There is never a Purse cut in Northamptonshire but Ball hath a part of it will not bear action But the Court would not declare their opinion Quia sub spe Concordiae Griggs Case GRigg which is the Examiner at Chester preferred there this Bill in the Chancery vocat the Exchequer Prohibition â—i Chester against one which inhabite within the same County and another which inhabite in London being executors to one to whom the said Grigg was indebted by Obligation which Obligation was put in suit in the Court of Common Pleas and there proceed to processe before the Bill exhibited and the Bill concern equity of an Agreement that the Testator had promised that one Robert Grigg should assign a lease of Tithes to the Plaintiff in consideration of his entry into the said Obligation and if he could not procure it that then the Obligation should not be prejudiciall to him and he which was distributing in Chester answered therto And an Order was made by Sir Thomas Ireland Vice-Chamberlain that Processe should be awarded to him which dwelleth in London And an Inquisition was granted to stay the proceedings at Common Law And afterwards upon the motion of Serjeant Hitcharâ— Sir Thomas Ireland was in Court and shew all that he could to maintain the Iurisdiction viz. That the Contract was made in the County Palatine and that the priviledge pursued the Plaintiff and ipse qui est reus non potest eligere c. Yet it was resembled to ancient Demesn and Guildable And by Lord Hobart he which inhabit at Doveâ— by this way may be inforced to come and answer to a Bill in Chester which would be infinite trouble and the matter is transitory And it was resolved that the Court of Chester had not power in this case but it belonged to the Chancery of England And a Prohibition was granted Hil. 20 Jac. ONe case was in the Kings Bench viz. Trespasse Baron and Feme brought in action of Trespasse Quare clausum fregit Trespasse by Baron and Feme for breaking the Close of the Baron for the Battery of the Wife and for Battery of the Feme the Defendant pleaded a License to enter into the Close made by the Baron and not guilty as to the Battery And the Court was moved in Arrest of Iudgment because the Husband and Writ could not ioyn for the weaking of the Close of the Baron the Writ shall abate for all But the Lord chief Iustice and Iustice Dodderidge were of opinion that the Plaintiff should have Iudgment And it seems that the Law is clear accordingly vide 9 E 4. 51. Trespasse by the Husband and Wife for the Battery of them both the Iury found so much for the Battery of the Husband and so much for the Battery of the Wife and so Damages assessed severally because the Wife could not soon with the Husband in an action for the Battery of the Husband for that part the Writ shall abate and for the Battery of the Wife they shall recover for for that they ought or joyn in an action vide 46 E 3. 3. Baron and Feme brought Trespasse for the Battery and Imprisonment of the Wife and the Writ was ad damnum ipsorum and yet good vide 9 H 7. in the case of Rescous and 22 E 4. 4. there is a good diversity when the Writ is falsified by the shewing of the party himself and when it is found by Verdict And Iustice Haughton and Iustice Chamberlain were of opinion that the Writ should abate for it is apparent that as to the Trespasse Quare clausum fregit the Wife had no cause of action But this case being debated at Serjeants Inn in Chancery Lane at the Table the Lord chief Baron was of opinion that Plaintiff should have Iudgment for that part and he held the Writ good in part and Reddenda singula singulie Meâ—enest issint as it seems no more then in the case of 9 E 4. for there the Writ shall avate for part And if an action of forgery of Deeds be brought against two for forging and publishing and found that one forged and the other published the Plaintiff shall have Iudgment Howell versus Auger Trespasse IN an action of Trespasse brought by Noy Howell against Auger for breaking of a house and five acres of Land in Fresham upon Non Culp pleaded the Iury gave a speciall Verdict Devise of a Fee after a Fee Robert Howell seised of the Land in Question and of other Land by his Will in writing devised this Land to Dorothy his Wife for life and devised this Land to Thomas Howell his younger Son to him and his Heirs in Fee under the Condition which shall be afterwards declared And the other Land was also devised to Dorothy for life and to the Plaintiff and his Heirs in Fee under the Condition hereafter limited If Dorothy died before the Legacies paid then he will that they shall be paid by Noy and Thomas his Sons portion-like out of the Houses and Lands given them And if either of my Sons dye before they enter or before the Legacies paid or before either of them enter Then I will that the longer liver shall enjoy both parts to him and his Heirs And if both dye before they enter then his Executors or one of them to pay the Legacies and to take the profits till they be paid and a year after and made Dorothy his Wife and Christopher Roys his Executors and died Dorothy entred the Plaintiff Noy by his Deed In 33 Eliz. in the life of Dorothy released to Thomas all his right c. with Warranty Release of Lands devised before they be vested Thomas by his Will devised the Land for which the action is brought to Agnes his Wife and died in the life of Dorothy and before Legacies paid Dorothy died and Agnes entred and took to Husband Henry Ayleyard who leased to the Defendant upon whom Noy entred and the Defendant re-entred And Si super totam Materiam c. And this Case was well argued at Bar in two Terms and the first question was If this Devise of a Fes after a Limitation be good or not much was said for it and they relyed upon a case which was adjudged in the Kings Bench between Pell and Brown of such a limitable Fee Pell and Brown And many Cases put that this operate as a future Devise Executory as well as one may by his Will Devise that if his Son and Heir dye before he marry or before that he come to the age of
without danger of their health Not guilty pleaded Verdict for the Plaintiff The Plaintiff prayeth Iudgment and doth offer for Authorities in this Case Smith and Mopham 4 Ass 3 4 E 3.37 5 E 3.47 new Book of Entries fol 19. in 5 Jac. between Smith and Mopham an action upon the case for erecting a Tan-fat with averment of corrupting the Aire and water to the annoyance of the Plaintiff and adjudged for the Plaintiff after Verdict Coke lib 4. Aldreds case pleaded in new Book of Entries fol 106. an action of the case for erecting a Hogsty Ad nocumentum aeris adjudged 22 H 6.14 by Newton an action upon the case lyeth expresly Blande against Mosely Trin. 29 Eliz Bland against Mosely an action of the case for stopping Lights in London adjudged a void Prescription to build so high that the Neighbors lights are therby stopped in a City Old Book of Entries fol 406. in the Edition 1596. action upon the Case brought for annoying a Piscary with a Gutter that came from a Dye-house 1. And there an action brought against a Dyer Quia fumos foeditat alia sordida juxta parietes querentis posuit per quod parietes putridae devenerunt ob metum infectionis per horridum vaporem c. ibid. morari non audebat 13 H 7.26 An action lyeth against a Glover because he with a Lime-pit so corrupted the water that the Tenants departed F. N. B. 185. b. A Writ lyeth to the Major of a City to cleanse the Streets from filth wherby infection might grow By which cases it appeareth that although Sea-cole be a necessary Fuell to be used and that Brew-houses are necessary yet the Rule in Law is Sic utere tuo ut alienum inon laedas And Chimneys Dye-houses and Tan-fats are also necessary but so to be used that they be not prejudiciall to their Neighbors And in this Case the Iury found that this new Brew-house and Privy was maliciously erected to deprive the Plaintiff of the benefit of his Habitation and Office and that the Plaintiff was hereby damnified as in the Declaration is alledged And upon Conference and Consideration of the Case all the Iudges did concur that Iudgment should be given for the Plaintiff THE TABLE Reciting the heads of all the PRINCIPALâ— CASES in this BOOK A ACcompt payment by the appointment of the Plaintiff is no good plea before Auditors where the issue was Ne unque receivor 133 Acceptance of a new Lease makes a surrender 104 Action of the case for giving evidence 11 Action brought by the Committee of a Lunatick 16 Action by the Feme for Frank-bank before admittance 18 Action brought for Rent by the Husband of a Feme to whom the land was granted by a former Husband by his Will untill the Daughter of the Devisor came to the age of eighteen years with a Condition 36 Act on brought against an Attorney for procuring a Judgment to be entred against the Plaintiff and a speciall plea therupon 125 Amendment in a Judgment 41 Amendment where it shall be 41 42 56 81 82 83 84. Act of the Court shall be amended 92 Amendment shall not be of the Pledges left out in the Imparlance Roll upon Bill by an Attorney 92 Amendment of the Proclamation of a Fine 122 Annuity to commence after eight years contained in the Will and no mention therof in the Will by which it is given 32 Annuity out of the clear gains of the Allome Mines 33 Arbitrement of all actions untill the date of the Award 9 Administrators cannot plead that the Intestate died outlawed 53 Advowson in grosse for life 88 Assumpsit by the Husband to the Wife before marriage 17 Assumpsit upon request to procure assent 39 Assumpsit in consideration to maintain Suit in defence of a Common and the Title therof 89 Assumpsit in consideration of forbearance 46 Assets need not to be alledged in an action upon the case against Executors 27 Arbitrements 29 Assumpsit lies not for Rent 34 Assise of Darrein presentment abates by a Quare Impedit 3 Avowry for Homage 50 Attaint how a Prisoner convicted and let at large shall be brought to execution 21 Avowry for Rent granted to the Father without alledging that it was arrear after the death of the Father 55 B. BAil insufficient taken by the Sheriff no action lies for it 120 Bail discharged where the Principall died before the return of the Capias 47 Bail action lies not against the Sheriff for taking insufficient bail 77 Baron and Feme at Exigent whether the Feme shall have Supersedeas alone 86 Bankrupt how the distribution of his Estate shall be 37 Bankrupt upon a fraudulent conveyance 42 Bar recovery in trespasse for taking of Goods is no Bar to an action of the case of Trover 81 Buggery 116 Bylawes 5 Burglary 20. 33 C. CHallenges 24 Condition not to be assistant to another in any action and after he bring a Writ of Error with another upon a iudgment against him and the other 40 Condition to levy a Fine who ought to do the first act 48 Condition to perform Covenant c. concerning Rent where demand is necessary inde 114 Condition to resigne a Benefice upon request 111 Consideration of forbearance 46. 108 Consideration to save one harmlesse if he being an Inn-keeper would safely keep a Prisoner 55 Consideration to confess a Iudgment and a promise therupon to defer the entry therof 63 Consideration that if the Obligor would pay the money the Obligee would deliver up the Bond 76 Consideration Ex post facto 84 Consideration that wheras one was indebted to the Plaintiff in seven pounds for keeping an Horse if the Plaintiff would deliver the Horse the Defendant promised to pay the seven pounds 101 Conspiracy 49 Copyhold may be extinguished without actuall surrender 65 Copyhold land enclosed where the Lord hath a Feild course if it be a forfeiture or no 102 Costs upon Non-suits where the Plaintiff hath no cause of action 16 Costs shall not be allowed upon the Statute of 5 Eliz. for Perjury 22 Costs against an Informer upon a Statute repealed 35 Costs shal not be allowed against Executors 69 Costs shall be allowed against Executors upon Non-suit in a Writ of Ravishment of Ward 78 Councel to what persons it shall be allowed to Prisoners arraigned 133 Counter-plea to the view 44 Custome of London to give security for the payment of Orphans Portions 30 Custome of Copyholders to make a Lease for years 101 Covenant of an Apprentice and when an Infant shall be bound therby 63 D. DEvise to a Feme a tearm upon condition 36 Debt against a Sheriff for monies returned levied by him 11. 32 Demand not necessary in Avowry for a Rent-charge 23 Demand of Rent with a Nomine poenâ—e 114 Demand of Rent where necessary or not 42 Discontinuance where Tenant in â—ail and he in Reversion joyn in a Lease pur aut vie 126 Devise of a fee after a